Petersen Construction Corp.

PETERSEN CONSTRUCTION CORP., ETC. 969 decisions than to believe some and not all." 10 Accordingly, the one who hears and sees the witnesses testify must, where the conflicting versions are diametrically op- posed, often necessarily depend on subtle interpretations, delicate nuances and inde- finable impressions derived from observing the witnesses testifying which the cold record does not convey. Of course, the record often reveals, exclusive of so-called de- meanor testimony, where the truth lies. It is only where, at the end of the trier of the facts' deliberations, that his resolutions of credibility still remain balanced in doubt that recourse must often be had to the witnesses' demeanor. It is often quite difficult, if not impossible, in some instances to describe by the written word, the impressions derived from observing a witness testify. Not only would it not serve any useful purpose but it would unduly prolong and add nothing to an Intermediate Report to describe a witness as having a furtive look, a nervous twitch, becoming flushed in the face or perspiring freely. Those indicia are better left unsaid in the hope that judgment as to such matters should be left to the sense and experience of the one who observed the witnesses, guided, of course, by stand- ards laid down by the Board and the courts. Then too, in evaluating a witness' testimony as credible or incredible, which is based exclusively on demeanor evidence, the trier of the facts must necessarily adopt an empirical approach as he is not dealing with absolutes or generic matters. There- fore, human factors, emotions, and the "intangible imponderables" present at every hearing militate against the substitution of another's judgment as to where the truth lies as, here again, different concepts, indicia, and standards, not only legal but also ethical may be applied, depending on what the individual trier of the facts conceives and defines these factors to be and how he relates them to the peculiar circumstances present in any given case in which a credibility finding is made based upon demeanor testimony. By this discussion of the evaluation placed upon the demeanor of the witnesses in testifying, it is not intended to convey the impression that consideration was given exclusively to this type of evidence in this proceeding in determining credibility. This was only one factor. Concomitant consideration was given equally to the surrounding circumstances, and the consistency or inconsistency of individual wit- nesses' testimony with uncontroverted evidence and demonstrable facts in determin- ing which version should be credited. Moreover, in crediting one version as against another, the trier of the facts often derives considerable aid in comparing the witnesses' testimony on direct examination with what he testified to on his cross- examination. As was succinctly stated in an Intermediate Report: "A would-be deceiver weaves a tangled web, and cross-examination is usually an effective device to enmesh the perpetrator of the embellished lie." 11 [Excerpts from Intermediate Report of Trial Examiner Henry S. Sahm in Com- monwealth Extension Corporation, Case No. 24-CA-1042 issued October 28, 1959.] 10 Footnote 4, supra. n Santa Clara Lemon Assootatton, 112 NLRB 93, 104. Petersen Construction Corp.; Southern California Chapter of the Associated General Contractors of America ; Building Contractors Association of California , Inc.; Engineering and Grading Contractors Association , Inc.;' and Home Builders Association and William Van Buskirk Hod Carriers and Common Laborers Union Bakersfield Local 220, Santa Barbara Local 195, Los Angeles Local 300, Bishop Local 302, Los Angeles Local 345, Pasadena Local 439, Long Beach Local 507, Ventura Local 585, Santa Barbara Local 591, Santa Ana Local 652, Pico Local 696, Hollywood Local 724, San Bernardino Local 783, Wilmington Local 802, Pomona Local 806, Los , Angeles Local 923, El Centro Local 1119, Los 128 NLRB No. 123. 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Angeles Local 1159, Riverside Local 1184 , Santa Maria Local 1222, San Luis Obispo Local 1464, and Southern California District Council of Laborers, affiliated with International Hod Carriers', Building and Common Laborers ' Union of America, AFL-CIO and William Van Buskirk Hod Carriers and Common Laborers Union El Monte Local 1082 and William Van Buskirk Hod Carriers and Common Laborers Union Los Angeles Local 300 and Charles F. Porter and H. B. Nicholson, Party to the Contract Hod Carriers and Common Laborers Union Los Angeles Local 300 and William R. Carlos and McNeil Construction Co., Party to the Contract Hod Carriers and Common Laborers Union Los Angeles Local 300 and Eduardo Gallardo and Webb & White, Party to the Contract Hod Carriers and Common Laborers Union Los Angeles Local 300 and Thomas A. Gannon and Engineers Limited Pipe Line Co., Party to the Contract Hod Carriers and Common Laborers Union Los Angeles Local 300 and Hughie E. Oakley and Engineers Limited Pipe Line Co., Party to the Contract Hod Carriers and Common Laborers Union Los Angeles Local 300 and Jess E. Milsap and Engineers Limited Pipe Line Co., Party to the Contract Hod Carriers and Common Laborers Union Los Angeles Local 300 and Guy Balassone and Mac Isaac and Menke Co., Party to the Contract Hod Carriers and Common Laborers Union Los Angeles Local 300 and Uldie Garmon and James I. Barnes Construction Co., Party to the Contract Hod Carriers and Common Laborers Union Los Angeles Local 300 and L. C. Brown and Morley Construction Company, Party to the Contract Allied Construction & Engineering Co. and Robert A. Gifford Hod Carriers and Common Laborers Union Ventura Local 585 and Robert A. Gifford Hod Carriers and Common Laborers Union San Bernardino Local 783; its business agent , A. Acuna; and Walter Neff, its financial secretary and treasurer and Beecher Kreigh and Frederickson & Kasler PETERSEN CONSTRUCTION CORP., ETC. 971 Hod Carriers and Common Laborers Union San Bernardino Local 783; its business agent, A. Acuna ; and Walter Neff, its financial secretary and treasurer and Charles Edward Rusow and Associated General Contractors of America, Southern Cali- fornia Chapter, Party to the Contract. Cases Nos. 21-CA- 2892, 21-CB-983, 21-CB-984, 21-CB-997,1 21-CB-1015, 21-CB- 1076, 21-CB-1087,2 21-CB-1088, 21-CB-1091, 21-CB-1096, 21-CB- 1107,3 21-CB-1147, 21-CA-3197, 21-CB-1174, 21-CB-1259, and 21-CB-1275. August 26, 1960 DECISION AND ORDER On October 1, 1959, Trial Examiner Howard Myers issued his In- termediate 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 therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner to the extent consistent herewith. 1. The original charges herein in Cases Nos. 21-CA-2892, 21-CB- 983, and 21-CB-984, were filed by two individuals, Van Buskirk and Crawford, on December 20, 1957, alleging in substance that Hod Car- riers Locals 1082 and 220 had caused Petersen Construction Corp. discriminatorily to discharge or to refuse to hire them. Investigation of these charges disclosed that Petersen was a member of the Asso- ciated General Contractors (Southern California Chapter) which, along with three other Associations,4 was a signatory to a master labor agreement on behalf of its members with the District Council of Laborers, which in turn represented Hod Carrier locals in the South- ern California area. On December 9, 1958, Van Buskirk signed amended charges which added as Respondents all the signatories to the master labor agreement, plus a number of local unions represented 1 The General Counsel's motion made at the hearing, to sever this case was granted without objection 2 The General Counsel's motion made at the hearing , to dismiss this case was granted without objection. 8 The General Counsel's motion, made at the hearing , to dismiss this case was granted without objection. * The three other Associations involved are Building Contractors Association of Cali- fornia, Inc., Engineering and Grading Contractors Association , Inc., and Home Builders Association of Los Angeles. 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the District Council, and further alleged that such agreement con- tained unlawful exclusive referral provisions. The Respondents 5 added in the amendment contend that the amended charges are invalid, and the complaint against them must be dismissed because such charges resulted from "solicitation" by regional personnel of the Board. This contention is without merit.' We find that the amended charges did not result from "solicitation," or any conduct by Regional personnel which is improper or affects the validity of the charges. In the course of investigating the original charges, the Regional Office discovered that the discrimination against the Charging Parties had resulted from the existence and application of an unlawful con- tract, to which all of the Respondents were parties. In these circum- stances, it was the duty of the General Counsel, in discharging his responsibilities as a public official charged with enforcing public rights, to take proper measures calculated to effectively remedy all of the unfair labor practices which had been revealed by the investi- gation. An effective remedial order can be issued only against em- ployers and labor organizations who are named as Respondents in a case, and only those persons against whom charges are filed may be made respondents to a complaint.' The evidence as to the circumstances under which the amended charges were filed, proves that the Regional personnel did nothing more than furnish Van Buskirk with appropriately drawn charges, and instructions to sign them if he wished to do sa s In our opinion, this was a legitimate exercise of the General Coun- sel's duty to bring to the Charging Party's attention matters un- covered during the course of the investigation and in no way inter- fered with his free choice in determining whether to stand on the original charge or to expand it further by amendment. The reliance by our dissenting colleague on a lack of evidence as to what Van Buskirk was not told by Regional personnel appears 5 Case No. 21-CA-2892 was amended by adding the four above-named Employer Associa- tions. Case No. 21-CB-983 was amended by adding the following Unions as Respondents : Hod Carriers and Common Laborers Union, Locals 195, 300, 302, 345, 439, 507, 585, 591, 652, 696, 724, 783, 802, 806, 923, 1119, 1159, 1184, 1222, 1464, and.Southern California District Council of Laborers, affiliated with the International Hod Carriers & Common Laborers Union of America, AFL-CIO. 'For the reasons set forth in his separate opinion, Chairman Leedom finds merit in this contention and would therefore dismiss the complaint as to all Respondents named solely in the amended charges in Cases Nos. 21-CA-2892 and 21-CB-983, and would shape the Order herein accordingly. 7 Our dissenting colleague apparently overlooks this in arguing that the additional Respondents could have been sufficiently informed of this litigation by being served with the complaint as "parties to the contract." s We find it difficult to distinguish the conduct of the Regional personnel in these cases from the conduct described by our dissenting colleagues as permissible, i.e., that the "Regional personnel should acquaint the Charging Party with his rights, assist him in the formulation of his charges and, where investigation reveals that additional charges can be made or that additional parties should be added as Respondents , advise him of his right to do so." [Emphasis supplied.] PETERSEN CONSTRUCTION CORP., ETC. 973 misplaced, especially in the face of documentary evidence as to what he was told. Nor does it appear significant that the initial impetus to remedy the additional unfair labor practice may have originated in the Regional Office. As the Regional Office, and not the Charging Party, conducted the investigation which uncovered the additional matters, this could hardly have occurred in any other sequence. 2. Like the Trial Examiner, we find that the contract between the Respondent Employer Associations and the Respondent Unions was unlawful because it did not contain any of the safeguards which the Board deems essential to the nondiscriminatory operation of an ex- clusive union referral system.9 In addition, as found hereinafter, union membership has in fact been required as a condition of referral, thus independently evidencing an unlawful hiring arrangement.10 Accordingly, we agree with the Trial Examiner that, by maintaining and enforcing the aforesaid contract, the Respondent Employers vio- lated Section 8(a) (1) and (3) and the Respondent Unions violated Section 8(b) (1) (A) and (2) of the Act. We also concur in the Trial Examiner's finding that an "amendatory" letter, dated November 12, 1958, exchanged between the parties and adopted by them as an amend- ment to the master labor agreement, did not bring such agreement into conformance with the standards the Board established in Moun- tain Pacific. Even assuming that the letter effectively amended the contract, it did not go far enough. It provided only for nondiscrim- inatory referral, and did not contain any enunciation of an employer's unconditional right to reject referred applicants. In addition, al- though the letter indicated there would be a posting of the referral provisions of the contract, the record reveals that the posting was in fact inadequate, in that it failed to set forth the pertinent hiring and referral provisions of the contract. 3. With respect to the individual alleged discriminatees named in the consolidated complaint, we agree with the Trial Examiner that 10 individuals 11 were discharged or were denied referral or clearance, pursuant to the aforesaid hiring provisions. As we have found that 9Mountain Pacific Chapter of the Associated General Contractors, Inc, at al., 119 NLRB 883 at 893. In that decision the Board held that an exclusive hiring hall agreement was lawful only if it explicitly provided three safeguards: (1) the selection of applicants referred must be on a nondiscriminatory basis unaffected by union considerations, mem- bership, or obligations; (2) the employer must have a right to reject any applicant referred by the union ; (3) the parties must post all provisions relating to the functioning of the hiring arrangement The Board respectfully disagrees with the contrary view of the Court of Appeals for the Ninth Circuit, as expressed in N.L R.B. v. Mountain Pacific Chapter of the Associated General Contractors, Inc., et al., 270 F. 2d 425, and has determined to adhere to its views as set forth in that case until the Supreme Court determines otherwise. See Mountain Pacific Chapter, etc., et al., 127 NLRB 1393. In addition to the grounds relied on by the Trial Examiner and adopted by his col- leagues, Member Rodgers would find that the priority classifications established in article II, G, 3 of the contract, as set forth in the Intermediate Report, are not objective and unlawfully discriminate between applicants for employment. 10 Mountain Pacific Chapter, etc., supra n Van Buskirk, Crawford, Kreigh, Rusow, Oakley, Milsap, Gallardo, Carlos, Balassone, and Brown. I , J -i 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such provisions were unlawful, their implementation was also unlaw- ful." As the Respondent Associations and Respondent District Council were parties to the unlawful hiring arrangements which pro- vided the basis for the discrimination against these:individ'uals, they are equally responsible for such discrimination with the Employers and Local Unions which effectuated the discriminations." Moreover, there was credible testimony that union membership in good standing was required of Van Buskirk, Crawford, Kreigh, Rusow, and Carlos lA before they would be put on the Union's referral lists. The Respond- ents' conduct with respect to them was therefore unlawful, without regard to the legality of the hiring provisions. We find, accordingly, that in violation of Section 8(a) (3) and (1) of the Act, Respondent Associations and Respondent Petersen Construction Corp., have dis- criminated against Van Buskirk and Crawford, and Respondent Asso- ciations have discriminated against Kreigh, Rusow, Oakley, Milsap, Gallardo, Balassone, and Brown. We further find that, in violation of Section 8(b) (2) and (1) (A), Respondent District Council and ,Local 1082 have caused discrimination against Van Buskirk and Crawford; 15 Respondent District Counsel and Local 783 have caused discrimination against Kreigh and Rusow; and Respondent District Council and Local 300 have caused discrimination against Carlos, Oakley, Milsap, Gallardo, Balassone, and Brown. As the individual Employers involved in the discriminations, other than Petersen, are not named as Respondents herein, we make no findings as to them. THE REMEDY We agree with and adopt the Trial Examiner's recommended Order with the following exceptions, modifications, and additions : (a) With the exception of Petersen Construction Corp., we shall not enter an order against any of the individual employers since they were named only as parties to the contract, and not as parties Re- is Local 176, United Brotherhood of Carpenters, etc. (Dimeo Construction Company), 122 NLRB 980, enfd. 276 F. 2d 583 (C.A. 1) ; Local 357 International Brotherhood of Teamsters, etc. (Los Angeles-Seattle Motor Express ), Incorporated 121 NLRB 1629, enfd. 275 F. 2d 646 (C A D C.). is Local 4 01, International Brotherhood of Boilermakers, et at. (M. A. Roberts and James U Roberts, partners, d/b/a M. A. Roberts d Company ), 126 NLRB 832. However, as Respondent Associations were not parties to the contract which formed the basis for the discrimination against Carlos, we do not find that they are responsible for the discrimination against him. 14 Although the Trial Examiner did not refer to such testimony with respect to Carlos, the Trial Examiner generally credited Carlos and Carlos testified , without contradiction, 'that , he, was told by waters, a business agent of Respondent Local 300,' that, he, would have to transfer to Local 300 before his name would be placed on that Union's referral list. We credit Carlos in this connection. 11 As Van Buskirk and Crawford were discriminated against because they were not members of this Local and were not on its referral list, it is immaterial that Local 1082 may not have been the Local having immediate jurisdiction over referrals to the Petersen job at Edwards Air Force Base. Moreover, the contract under certain circumstances permits Employers to secure employees from sources other than the Local having im- mediate area judisdiction. PETERSEN CONSTRUCTION CORP., ETC. 975 spondent. Nor will we enter an order against any individual em- ployer-members of the Respondent Associations who were not named as Respondents, but instead will order the Respondent Associations to invoke such-powers and rights as they may have as to their Employer- Members bound by the master labor contract in order to discharge their financial obligations under the Order and to insure the coopera- tion of each such Employer-Member in effectuating the terms of the Order.16 We shall also, to the extent required by the foregoing, modify the backpay and reimbursement liability of the Respondent Unions. The backpay liability of each Respondent Union will begin on the date on which it caused the discrimination and will terminate 5 days after it notifies the Employers and discriminatees as provided in our Order herein. The backpay liability of Respondent Petersen will begin on the date of the discrimination and terminate on the date of its offer of employment, as provided in our Order, or on such earlier date as the employment of Van Buskirk and Crawford would have been terminated absent the discrimination against them. The backpay liability of each Respondent Association will similarly begin on the date of the discrimination and terminate 5 days after it notifies its affected Employer-Members that the discriminatees may be em- ployed without regard to union membership or clearance, except to the extent provided by a contract which conforms to the requirements of Section 8(a) (3) of the Act. The reimbursement liability of each Respondent herein will begin 6 months immediately prior to the filing and service of the first charge or amended charge against such Respondent, and will terminate upon the termination of the unlawful agreements and practices. The reimbursement liability of Respond- ent Petersen will be limited to sums unlawfully exacted from its em- ployees; that of each Respondent Association to sums unlawfully ex- acted from the employees of members of each such Association; and that of each Respondent Local to sums unlawfully exacted by or on behalf of each such Local. The liability of Respondent District Council will extend to sums unlawfully exacted by it or on its behalf, and by or on behalf of its constituent Local Unions." (b) It appears from the record that Respondent District Council and certain of its affiliated locals have executed similar unlawful contracts with individual Employers who were not named as Respond- ents herein and who are not members of Respondent Associations. In these circumstances we conclude that, it was and is the policy of Respondent Unions to seek to include similar unlawful provisions in all their contracts with Employers, and that, unless restrained, similar violations of the Act with respect to other Employers not involved herein may reasonably be anticipated. In addition, discrimination 1°Cascade Employers Association, Inc, 126 NLRB 1014. 17 See Galveston Maritime Associattion, Inc., et al., 122 NLRB 692, 698-699. 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against employees goes to the very heart of the Act and reflects a purpose by unlawful means likely to be executed in the future to thwart freedom of choice by employees as to union representation.18 Accordingly, in order that the preventive purpose of our Order may be coextensive with the threat of future violations, we shall order that all Respondents cease from in any manner infringing upon the rights of employees as guaranteed in Section 7 of the Act, and that the Re- spondent Unions cease entering into and maintaining contracts with any Employer over which the Board would assert jurisdiction which contain unlawful hiring provisions, or otherwise causing any such Employer to discriminate. ORDER Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. Respondent Unions, Southern California District Council of Laborers, Hod Carriers', Building and Common Laborers Union of America, AFL-CIO, and Hod Carriers' Locals 220, 195, 300, 302, 345, 439, 507, 585, 591, 652, 696, 724, 683, 802, 806, 923, 1082, 1119, 1159, 1184, 1222 and 1464, their respective officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Maintaining, performing, or otherwise giving effect to the provisions of any agreement or maintaining and enforcing any agree- ment, understanding, or practice with the Respondent Associations or with Employers named herein as parties to the contract, or with any other Employer over whom the Board would assert jurisdiction, which unlawfully conditions the retention of employees or the hire of applicants for employment or any term or condition, upon referral or clearance by the Respondent Unions except as authorized in Section 8(a) (3), as modified by the Labor-Management Reporting and Dis- closure Act of 1959. (b) Operating an exclusive hiring hall except under the standards specified in the Mountain Pacific case, supra. (c) Causing or attempting to cause the Respondent Associations and their respective members, including Petersen Construction Corp., Webb & White, Engineers Limited Pipe Line Co., Mac Isaac and Menke Co., Morley Construction Company, and Frederickson & Kas- ler, and McNeil Construction Co., or any other Employer over which the Board would assert jurisdiction, to discriminate against employees or applicants for employment in violation of Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. Is N.L.R B. v. Entw.oistie Mfg Go, 120 F 2d 532, 536 (C.A. 4) PETERSEN CONSTRUCTION CORP., ETC. 977 (d) In any other manner, restraining or coercing employees of, or applicants for, employment with members of the Respondent As- sociations or the aforementioned Employers, or any other Employer over which the Board would assert jurisdiction, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent per- mitted 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 Dis- closure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Notify in writing, each Respondent Association, Petersen Con- struction Corp., and those respective Employers named herein as Parties to the Contract, that they have no objection to the employment of William Van Buskirk, Chester Crawford, Hughie E. Oakley, Beecher Kreigh, Charles Edward Rusow, Eduardo Gallardo, Guy Balassone, Jess E. Milsap, William R. Carlos, and L. C. Brown, and immediately send copies thereof to the aforenamed persons. (b) Make whole the above-named individuals for any loss of pay suffered as a result of the discrimination against them in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy" as modified herein, as follows : (1) Respondents District Council and Local 1082 shall, jointly and severally with Respondent Petersen Construction Corporation and Respondent Associations, make whole William Van Buskirk and Chester Crawford. (2) Respondents District Council and Local 300 shall jointly and severally make whole William R. Carlos and shall, jointly and sev- erally with Respondent Associations, make whole Hughie E. Oakley, Jess E. Milsap, Eduardo Gallardo, Guy Balassone, and L. C. Brown. (3) Respondents District Council and Local 783 shall, jointly and severally with Respondent Associations, make whole Beecher Kreigh and Charles Edward Rusow. (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all membership dues, rec- ords, permits, and other records necessary to compute the moneys illegally exacted from employees of the respective members of Re- spondent Associations and from the employees of the individual employers named herein as respondents or parties to the contract. (d) Post at their respective offices in conspicuous places, including all places where notices to members are customarily posted, copies of the notice attached hereto marked "Appendix A.719 Copies of said is 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 Deciee of the United States Court of Appeals, Enforcing an Order." 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by Respondent Unions' respec- tive representatives, be posted immediately upon receipt thereof and be maintained by each of Respondent Unions for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent Unions to insure that said notices are not altered, defaced, or covered by any other material. (e) Post at the same places and under the same conditions as set forth in (d) above, and as soon as they are forwarded by the aforesaid Regional Director, copies of Respondent Employers' notices, attached hereto marked "Appendix B." (f) Deliver to the Regional Director for the Twenty-first Region signed copies of Appendix A for posting by the Respondent Associa- tions and their members, including Petersen Construction Corp., as provided herein, and if they are willing, by the other individual employers named herein as parties to the contract. Copies of said notices to be furnished by said Regional Director, shall, after being signed by Respondent Unions' respective representatives, be forthwith returned to said Regional Director for such posting. (g) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order what steps they have taken to comply herewith. B. Respondent Associations, the Southern California Chapter of the Associated General Contractors, Building Contractors Association of California, Inc., Engineering and Grading Contractors Association, Inc., Home Builders Association of Los Angeles, and Petersen Con- struction Corp., their respective officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Encouraging membership in Respondent Unions or in any other labor organization, by discharging, by refusing to hire employees be- cause they were not cleared or approved by Respondent Unions, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment, except to the extent permitted by the proviso to Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) Maintaining and enforcing any agreement , understanding, or practice whereby membership in, clearance from, or approval of, Re- spondent Unions is required as a condition of employment , or which requires that preference in employment be given to members of the Respondent Unions, except as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. PETERSEN CONSTRUCTION CORP., ETC. 979 (c) In any other manner interfering with, restraining, or coercing employees or applicants for employment 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 Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Re= porting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) 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 necessary to analyze and compute the amount of backpay due. (b) Post at their respective offices and at each construction site within the geographical jurisdiction of Respondent Unions, copies of the notice attached hereto marked "Appendix B." 20 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by Respondents' authorized representatives, be posted immediately upon receipt thereof and main- tained for 60 consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Post at the same places and under the same conditions as set forth in (b) above, as soon as they are forwarded by said Regional Director, copies of Respondent Unions' notice herein marked "Appen- dix A." (d) Deliver to said Regional Director signed copies of Appendix B for posting by Respondent Unions as provided herein. Copies of said notices to be furnished by said Regional Director, shall, after being duly signed by the respective Respondents herein, be forthwith returned to said Regional Director for such posting. (e) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps they have taken to comply herewith. C. Respondent Associations, their respective officers, agents, suc- cessors, and assigns, shall take the following additional affirmative action which the Board finds will effectuate the policies of the Act: (a) Notify in writing their respective Employer-Members of the terms of this Order, including specific notices to Petersen Construction Corp., Webb & White, Engineers Limited Pipe Line Co., Mac Isaac 20 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 it Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Menke Co., Morley Construction Company, and Frederickson & Kasler, that William Van Buskirk, Chester Crawford, Hughie E. Oakley, Jess E. Milsap, Eduardo Gallardo, Guy Balassone, L. C. Brown, Beecher Kreigh, and Charles Edward Rusow may be em- ployed without regard to union membership or clearance except to the extent provided by a contract which conforms to the requirements of Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959, and invokes such powers and rights as they may have as to their Employer-Members bound by the master labor contract in order to discharge their financial obligation, under the terms of this Order and to issue the cooperation of their Employer-Members in effectuating the terms of this Order. (b) Make whole the above-named individuals for any loss of pay suffered as a result of the discrimination against them in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy" as modified herein as follows : (1) Jointly and severally with Respondent Petersen Construction Corp. and Respondents District Council and Local 1082 make whole William Van Buskirk and Chester Crawford. (2) Jointly and severally with Respondents District Council and Local 300 make whole Hughie E. Oakley, Jess E. Milsap, Eduardo Gallardo, Guy Balassone, and L. C. Brown. (3) Jointly and severally with Respondents District Council and Local 783 make whole Beecher Kreigh and Charles Edward Rusow. D. Respondent Petersen Construction Corp., its officers, agents, successors, and assigns shall offer William Van Buskirk and Chester Crawford immediate employment in the same or substantially equiva- lent position at its Edwards Air Force Base construction operations as that at which they would have been employed absent the discrimi- nation against them, if such operations are still in existence, without prejudice to any seniority or other rights and privileges, and jointly and severally with Respondent Associations, and Respondents Dis- trict Council and Local 1082, make them whole for any loss of pay suffered as a result of the discrimination against them in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy" as modified herein. E. Respondent Associations and Petersen Construction Corp., their respective officers, agents, successors, and assigns, and Respond- ent Unions, their respective officers, representatives, successors, and assigns shall jointly and severally reimburse all present and former employees of members of the Respondent Associations, and of all Employers named herein as Respondents or Parties to the Contract, including Petersen Construction Corp., for all fees, dues, assessments or other moneys unlawfully exacted from them as the price of their PETERSEN CONSTRUCTION CORP., ETC. 981 employment, in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy" as modified herein. CHAIRMAN LEEDOM, concurring in part and dissenting in part: I cannot agree with my colleagues' conclusion that the charges in Cases Nos. 21-CA-2892 and 21-CB-983 were properly amended z1 In my view, the facts herein establish improper solicitation because the decision to add approximately 24 additional Respondents was made by Regional personnel and was tantamount to initiating such action. The signature of Van Buskirk, the Charging Party, to such amendment was thereafter obtained merely as a ministerial act. As noted in the majority opinion, Van Buskirk and Crawford, the Charging Parties, had initially filed charges against Hod Carriers' Locals 220 and 1082 Petersen Construction Corporation, alleging in essence that they were discriminatorily denied employment. On that date, both individuals executed affidavits in support of their charges. Subsequently, a joint affidavit was executed by the parties on January 24, 1958. Both affidavits were witnessed by Board personnel and executed at the Board's Regional Office. On December 3, 1958, ap- proximately a year later, the Regional Office mailed to Van Buskirk amended charges which included as additional Respondents, four Southern California Employer Associations, the Southern California District Council of Laborers and approximately 20 affiliated local unions. The Region's covering letter of December 3, 1958, to Van Buskirk stated in part: Pursuant to our recent conversation,22 I am enclosing here an original and five copies of amended charges against Petersen Construction Company, Hod Carriers' Local 220 and 1082, as well as various employer associations, Hod Carriers' Locals and the Southern California District Council of Laborers, who are par- ties to the Southern California Master Labor Agreement between the Southern California General Contractors and the Laborers Union.... Please read these charges over, and if you wish to sign them sign the original. Van Buskirk was not informed whether his original charges could be processed without the amendment, and was, in effect, offered no alternative but to sign the proffered amended charges if he wished zi Case No 21-CA-2892 was amended to include four Employer Associations Case No. 21-CB-983 was amended by adding the District Council of Laborers and 20 affiliated local unions. See footnotes 4 and 5 of the majority opinion. 22 Van Buskirk, the Charging Party, testified without objection that his brother had received a telephone call from the Board's Regional Office to the effect that they were sending the Charging Party some papers for his signature . In view of Van Buskirk's testimony that he had not had any conversations with any Board personnel prior to receipt of the amended charges, the "recent conversation" referred to in the Region's letter could only be the telephone call to the Charging Party's brother, who did not reside with him 577684-61-vol. 128-63 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his charges processed. While Van Buskirk's testimony as to how many times he had visited the Board office was somewhat vague, a number of pertinent facts emerge. Thus, he stated on cross-examina- tion that he had visited the Board's offices on two occasions and this is consistent with his execution of two affidavits, the latter in January 1958. Van Buskirk also testified that he had not had any conversa- tions with any Regional personnel in the period just prior to his receipt of the amended charges. When questioned as to whether he had had any discussion with Board personnel concerning the Asso- ciations, he replied, "I don't think so, but I am not sure." He did state that he had not requested the Region to amend the charges. The Board has never definitively delineated what conduct by Re- gional personnel constitutes proper advice and handling of an unfair labor practice charge or at what point proscribed "solicitation" begins. I think that point has been passed here. I am in agreement with the majority that not only are we dealing with public rights but that Regional personnel should acquaint a Charging Party with his rights, assist him in the formulation of his charges and, where investigation reveals that additional charges can be made or that additional parties should be added as Respondents, advise him of his right to do so. Regional personnel must take care, however, that in seeking to per- form their legitimate functions they do not put themselves in the position of initiating charges. Congress did not empower the Board to seek out violations or initiate charges, as it could have done if it had wished to protect public rights in all instances. Under the exist- ing statutory scheme, therefore, no one denies that the Board cannot initiate charges or that the choice of Respondents lies with the ag- grieved or Charging Party and not with the General Counsel's repre- sentatives.23 Yet, by upholding the validity of the amended charges, the majority is here permitting the Board to do indirectly what it cannot do directly and is making the choice of Respondents the func- tion of the General Counsel rather than the Charging Party 24 It might be argued that the language used by the Supreme Court in the Fant Milling 25 case supports the majority position. However, that case is readily distinguishable since it concerned consideration of events subsequent to the filing of a charge which affected the merits of such charge, and did not involve the addition of new Respondents. Moreover, the Court specifically limited its holding to the problem ss N.L It B v. Local 57, etc. (M A. Gummino Construction Company ), 201 F. 2d 771, 774, cf Radio Officers' Union, etc (A H Bull Steamship Company ) v N L R B , 344 U S 852; N.L It B v. Newspaper & Mast Deliverers' Union, etc., et at. ( Hearst Publica- tions , et al ), 1921+ 2d 654, 657 (C A. 2). N L It B v Sterlsnq Furniture Company, et at. 202 F 2d 41 (C A. 9), is wholly inapposite. There, as the court pointed out at pare 44, "the Association appeared of its own volition and subjected itself to the Board's jurisdiction , so that its not being named in the charge is a wholly immaterial circumstance ." Here, in contrast, the Re- spondents named in the amended charges are vigorously contesting the Board 's jurisdiction. ¢e N.L.R.B. v, Fant Milling Company, 360 U.S. 301 at 307-308. PETERSEN CONSTRUCTION CORP., ETC. 983 in that case and went on to state that it did not imply that the Board had "carte blanche" to expand the charge as they might please or to ignore it altogether.26 On all the facts, I am convinced that the decision to expand the charges herein was made at the Regional Office and not by the Charg- ing Party. The subsequent securing of Van Buskirk's signature, by mail, reduced the right of the Charging Party to make such decision to a mechanical, ministerial act. In such circumstances I conclude that the record establishes a prima facie case of improper solicitation which was not rebutted by the General Counsel. In the absence of such rebuttal, I am forced to conclude that the amended charges were improperly solicited and therefore invalid. I am not persuaded that the amendment of the charges was necessary to prevent prejudice to the added Respondents because they could have been properly in- formed of litigation affecting their rights as parties to the contract. It seems to me, instead, that by procuring the addition as Respondents of a number of affiliated local unions but not respective Employer- Members of various Associations, the Regional personnel involved might legitimately be accused of being arbitrary. I would therefore dismiss the complaint as to those Respondents named only in the amended charges. Otherwise, I concur in the decision of my col- leagues. MEMBER JENKINS took no part in the consideration of the above De- cision and Order. 29 In N.L.R.B. v. Fant Mtilhng Company, supra, at p. 309, the court stated : "what has been said is not to imply that the Board is, in the words of the Court of Appeals, to he left 'carte blanche to expand the charge as they might please, or to ignore it altogether' Here we hold only that the Board is not precluded from dealing adequately with the unfair labor practices which are related to those alleged in the charge and which grow out of them while the proceeding Is before the Board " APPENDIX A NOTICE TO ALL MEMBERS OF HOD CARRIERS AND COMMON LABORERS UN- ION BAI PRSFIELD LOCAL 220, SANTA BARBARA LOCAL 195, Los ANGELES LOCAL 300, BISHOP LOCAL 302, Los ANGELES LOCAL 345, PASADENA LOCAL 439, LONG BEACH LOCAL 507, VENTURA LOCAL 585, SANTA BARBARA LOCAL 591, SANTA ANA LOCAL 652, PICO LOCAL 696, HOLLY- WOOD LOCAL 724, SAN BERNARDINO LOCAL 783, WILMINGTON LOCAL 802, POMONA LOCAL 806, Los ANGELES LOCAL 923, EL CENTRO LOCAL 1119, Los ANGELES LOCAL 1159, RIVERSIDE LOCAL 1184, SANTA MARIA LOCAL 1222, SAN LUIS OBISPO LOCAL 1464, SOUTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS AFFILIATED WITH INTERNATIONAL HOD CARRIERS ' BUILDING AND COMMON LABORERS UNION OF AMERICA, AFL-CIO, AND HOD CARRIERS AND COMMON LABORERS UNION EL MONTE LOCAL 1082; AND TO ALL EMPLOYEES OF AND APPLICANTS 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FOR EMPLOYMENT WITH MCNEIL CONSTRUCTION CO.; SOUTHERN CALIFORNIA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA; BUILDING CONTRACTORS ASSOCIATION OF CALIFORNIA, INC.; ENGINEERING AND GRADING CONTRACTORS ASSOCIATION, INC.; HOME BUILDERS ASSOCIATION; AND THE MEMBERS OF THE ABOVE-NAMED ASSOCIATIONS INCLUDING PETERSEN CONSTRUCTION CORP; WEBB & WHITE; ENGINEERS LIMITED PIPE LINE CO.; MAC ISAAC AND MENKE CO.; MORLEY CONSTRUCTION COMPANY; AND FREDERICKSON & KASLER 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 Southern California Chapter of the Associated General Contractors of America; Building Contractors Association of California, Inc.; Engineer- ing and Grading Contractors Association, Inc.; Home Builders Association; and their members including Petersen Construction Corp.; Webb & White; Engineers Limited Pipe Line Co.; Mac Isaac and Menke Co.; Morley Construction Company; and Frederickson & Kasler, or McNeil Construction Co.; or any other employer over whom the Board would assert jurisdiction, to discriminate against employees or applicants for employment in violation of Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL NOT maintain any provision in our collective- bargaining agreements with Southern California Chapter of the Associated General Contractors of America; Building Con- tractors Association of California, Inc.; Engineering and Grad- ing Contractors Association, Inc.; Home Builders Association; their members including Petersen Construction Corp.; Webb & White; Engineers Limited Pipe Line Co.; Mac Isaac and Menke Co.; Morley Construction Company; and Frederickson & Kasler, and McNeil Construction Co., and any other employer within our territorial jurisdiction over whom the Board would assert jurisdiction, or maintain or enforce any agreement, understand- ing, or practice, which requires membership in, or referral clear- ance from us as a condition of employment, or which requires that preference in employment be given to our members, except as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL make whole William Van Buskirk, Chester Crawford, Hughie E. Oakley, Beecher Kreigh, Charles Edward Rusow, Eduardo Gallardo, Guy Balassone, Jess E. Milsap, and L. C. Brown for any loss of pay suffered as a result of the discrimina- PETERSEN CONSTRUCTION CORP., ETC. 985 tion against them, and reinstate William Van Buskirk and Chester Crawford if the project upon which they would have been work- ing has not been completed. WE WILL reimburse all past and present employees (including employees of our members) within the geographical jurisdiction of the above-named labor organizations for the initiation fees, dues, permit fees, assessments, and other moneys illegally exacted from them as the result of the illegal hiring hall arrangement with the above-named labor organizations. WE WILL notify in writing each and every Employer Member of the aforenamed Associations of the terms of this Order, in- cluding the rights of the above-named individuals to employment, and will invoke our powers and rights as to such Employer Members in order to discharge the financial obligations under this Order and to insure the cooperation of each such Employer Member in effectuating the terms of this Order. PETERSEN CONSTRUCTION CORP., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) SOUTHERN CALIFORNIA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, Employer. Dated-------- -------- By------------------------------------- (Representative ) (Title) BUILDING CONTRACTORS ASSOCIATION OF CALIFORNIA, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) ENGINEERING AND GRADING CONTRACTORS ASSOCIATION, INC., Employer. Dated---- ------------ By------------------------------------- (Representative ) (Title) HOME BUILDERS ASSOCIATION, 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. 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE TO ALL EMPLOYEES OF AND APPLICANTS FOR EMPLOYMENT WITH MEMBERS OF SOUTHERN CALIFORNIA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA ; BUILDING CONTRACTORS Asso- CIATION OF CALIFORNIA, INC; ENGINEERING AND GRADING CON- TRACTORS ASSOCIATION, INC.; HOME BUILDERS ASSOCIATION; MCNEIL CONSTRUCTION CO. PETERSEN CONSTRUCTION CORP. ; WEBB & WHITE; ENGINEERS LIMITED PIPE LINE CO.; MAC ISAAC AND MENKE CO.; MORLEY CONSTRUCTION COMPANY; AND FREDRICKSON & KASLER; AND TO ALL MEMBERS OF HOD CARRIERS AND COMMON LABORERS UNION, BAKERSFIELD LOCAL 220, SANTA BARBARA LOCAL 195, Los ANGELES LOCAL 300, BISHOP LOCAL 302, Los ANGELES LOCAL 345, PASADENA LOCAL 439, LONG BEACH LOCAL 507, VENTURA LOCAL 585, SANTA BARBARA LOCAL 591, SANTA ANA LOCAL 652, Pico LOCAL 696, HoLLYwooD LOCAL 724, SAN BERNARDINO LOCAL 783, WILMINGTON LOCAL 802, POMONA LOCAL 806, Los ANGELES LOCAL 923, EL MONTE LOCAL 1082, EL CENTRO LOCAL 1119, Los ANGELES LOCAL 1159, RIVERSIDE LOCAL 1184, SANTA MARIA LOCAL 1222, SAN Luis OBISPO LOCAL 1464, SOUTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS, AFFILIATED WITH INTERNATIONAL HOD CARRIERS' BUILDING AND COMMON LABORERS' UNION OF AMERICA, 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 our employees that : WE WILL NOT encourage membership in Southern California District Council of Laborers, affiliated with International Hod Carriers' Building and Common Laborers' Union of America, AFL-CIO, or in any of its affiliated local unions or in any other labor organization, by discharging, transferring, or causing em- ployees to be transferred, or in any other manner discriminating in regard to hire or tenure of employment or any term or condi- tion of employment, except to the extent permitted by the proviso to Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 117E WILL NOT maintain and enforce any agreement, understand- ing, or practice whereby membership in, clearance from, or ap- proval of, Southern California District Council of Laborers, affiliated with International Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO, or any of its affiliated locals, is required as a condition of employment, or which requires that preference, in employment be given to members of that Union, except as authorized in Section 8(a) (3) of the Act, as PETERSEN CONSTRUCTION CORP., ETC. 987 modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any manner interfere with, restrain, or coerce employees or applicants for employment in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any other manner restrain or coerce employees or applicants for employment in the exercise of the rights guar- anteed 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. WE WILL reimburse all employees of members of Southern Cali- fornia Chapter of the Associated General Contractors of America; Building Contractors Association of California, Inc.; Engineer- ing and Grading Contractors Association, Inc. ; and Home Build- ers Association; and the employees of McNeil Construction Co.; Petersen Construction Corp.; Webb & White; Engineers Limited Pipe Line Co.; Mac Isaac and Menke Co.; Morley Construction Company; and Frederickson & Kasler, for the initiation fees, dues, permit fees, assessments, and other moneys they were un- lawfully required to pay our union as the result of the illegal hiring provisions in our contracts or understandings with the aforementioned Companies. WE WILL make whole William Van Buskirk, Chester Crawford, Hughie E. Oakley, Beecher Kreigh, Charles Edward Rusow, Eduardo Gallardo, Guy Balassone, Jess E. Milsap, William R. Carlos, and L. C. Brown for loss of pay resulting from the dis- crimination against them. WE WILL notify Petersen Construction Corp. ; Southern Cali- fornia Chapter of the Associated General Contractors of Ameriia; Building Contractors Association of California, Inc. ; Engineer- ing and Grading Contractors Association, Inc. ; Home Builders Association; McNeil Construction Co.; Webb & White; Engineers Limited Pipe Line Co.; Mac Isaac and Menke Co.; Morley Con- struction Co.; and Frederickson & Kasley in writing, and imme- diately serve copies upon the employees involved, that we have no objections to the employment of William Van Buskirk, Chester Crawford, Hughie E. Oakley, Beecher Kreigh, Charles Edward 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rusow, Eduardo Gallardo, Guy Balassone, Jess E. Milsap, Wil- liam R. Carlos, and L. C. Brown. HOD CARRIERS AND COMMON LABORERS UNION BABERSFIELD LOCAL 220, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) SANTA BARBARA LOCAL 195, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) Los ANGELES LOCAL 300, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) BISHOP LOCAL 302, Labor Organization. Dated---------- ------ By------------------------------------- (Representative ) (Title) Los ANGELES LOCAL 345, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) PASADENA LOCAL 439, Labor Organization. Dated--------- ------- By------------------------------------- (Representative) (Title) LONG BEACH LOCAL 507, Labor Organization. Dated---------------- By------------------------------- ------ (Representative ) (Title) VENTURA LOCAL 585, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) SANTA BARBARA LOCAL 591, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) SANTA ANA LOCAL 625, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) PETERSEN CONSTRUCTION CORP., ETC. 989 Pico LOCAL 696, Labor Organization. Dated---------------- BY------------------------------------- (Representative ) ( Title) HOLLYWOOD LOCAL 724, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) SAN BERNARDINO LOCAL 783, Labor Organization. Dated-------- -------- BY------------------------------- ------ (Representative ) ( Title) WILMINGTON LOCAL 802, Labor Organization. Dated---------------- BY------------------------------------- (Representative ) ( Title) POMONA LOCAL 806, Labor Organization. Dated---------------- BY------------------------------- ------ (Representative ) ( Title) Los ANGELES LOCAL 923, Labor Organization. Dated---------------- BY------------------------------------- (Representative ) ( Title) EL CENTRO LOCAL 1119, Labor Organization. Dated---------------- BY------------------------------------- (Representative ) (Title) Los ANGELES LOCAL 1159, Labor Organization. Dated---------------- BY------------------------------------- (Representative) (Title) RIVERSIDE LOCAL 1184, Labor Organization. Dated---- ------------ By------------------------------------- (Representative ) (Title) SANTA MARIA LOCAL 1222, Labor Organization. Dated---------------- BY------------------------------------- (Representative ) (Title) 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SAN Luis OBISPO LOCAL 1464, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) SOUTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS , AFFILIATED WITH INTER- NATIONAL HOD CARRIERS' BUILDING AND COMMON LABORERS UNION OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) HOD CARRIERS AND COMMON LABORERS UNION EL MONTE LOCAL 1082, Labor Organization. Dated--- ------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed in the above-entitled cases, an order consolidating said cases, a consolidated complaint, and a notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel' and the Board, and answers 2 having been filed by each of the above-named Respondents,3 a hearing involving the allegations of violations of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the National Labor Relations Act, was held in Los Angeles, California, from March 30 to May 25, 1959, before the duly designated Trial Examiner. All parties were represented by counsel, participated in the hearing, and were afforded full opportunity to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record at the conclusion of the taking of the evidence, to file briefs or proposed findings of fact and conclusions of law, or both, on or before June 29, 1959.4 Briefs have been received from all parties except Respondent Allied Construction & Engineering Co., herein called Respondent Allied, and Respondent Unions. During the course of the hearing, counsel for the various Respondents made numerous motions to dismiss the consolidated complaint in its entirety or, in the 1 This term specifically includes counsel for the General Counsel appearing at the bearing 8During the course of the hearing, AGC and HBA each filed an amended answer 8 Conjointly, Hod Carriers and Common Laborers Union Bakersfield Local 220 and the other labor organizations named in the caption of the above-entitled cases are called herein Respondent Unions. Southern California Chapter of the Associated General Contractors of America is herein called AGC ; Building Contractors Association of California, Inc, is herein called BCA ; Engineering and Grading Contractors Association, Inc, is herein called EGCA ; Home Builders Association of Los Angeles (Orange and Ventura counties), is herein called ABA. Conjointly AGC, BCA, EGCA, and HBA are referred to herein as Re- spondent Associations. 4 At the request of counsel for Respondents the time to file briefs was extended to July 21, 1959. PETERSEN CONSTRUCTION CORP., ETC . 991 alternative, to dismiss certain portions thereof. In some instances the motions were disposed of at the hearing and in others decisions were reserved. In cases where decision was reserved, the motions are disposed of in accordance with the findings, conclusions, and recommendations hereinafter set forth. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OPERATIONS OF THE EMPLOYERS HERE INVOLVED AGC, BCA, EGCA, and HBA, each is, and during all times material, has been, among other things, the representative of its respective members for the purposes of collective bargaining and in the adjustment of grievances of labor disputes with labor organizations representing the employees of said employer-members. Annually the California members of the Respondent Associations ship goods and perform services outside of the State of California valued in excess of $50,000 and, in the aggregate, annually sell goods and perform services to other California enterprises which annually ship goods and perform services outside the State of California valued in excess of $50,000. In addition, the members of the respective Respondent Associations annually receive goods and services valued in excess of $50,000 from firms and persons located within the State of California which, in turn, annually receive goods and services from firms and persons located outside the State of California. Said mem- bers of the respective Respondent Associations likewise sell goods and perform services to California concerns which, in turn, sell goods and perform services to firms and persons located outside of California valued in excess of $50,000. The record further discloses that in 1957, Respondent Petersen Construction Corp. (herein called Respondent Petersen), an AGC member, supplied goods and performed services to the United States Government at Edwards Air Force Base, located at Boron, California, valued in excess of $400,000, and in 1958, Petersen per- formed services and supplied goods to said Base, for the account of the United States Government, valued in excess of $280,000. During 1958, Sungold, Inc., a member of BCA, performed services and supplied materials to the United States Government at Travis Air Force Base and at Fort Ord, each of which is located in California, valued in excess of $2,000,000. During 1958, Edward R. Siple Company, an EGCA member, purchased from firms and persons located outside of California, materials consisting of, among other things, boilers, vacuum pumps, and turbine pumps, valued in excess of $50,000. Respondent Allied Construction & Engineering Co., herein called Allied, has its principal offices and place of business at Ventura, California. Respondent Allied's 1958 gross business amounted to about $500,000, which sum included $60,000 received from Shell Oil Company for services rendered. During the same year, Respondent Allied's out-of-State purchases amounted to between $25,000 and $50,000. During 1956, 1957, and 1958, McNeil Construction Company performed services at Yellowstone National Park for Hamilton Stores, Inc., and Yellowstone Park Company for which it was paid over $1,000,000. McNeil's principal offices and place of business are located at Los Angeles, California. Milton J. Brock and Sons, Incorporated, an HBA member, did a gross business in excess of $5,000,000 in 1958, over $1,000,000 of which was performed on a joint venture enterprise in the then Territory of Hawaii. Brock's principal place of business is located in California. Upon the above-undisputed facts, and upon the record as a whole, the Trial Examiner finds that during all times material the Employers here involved have been, and now are, engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction over this proceeding. II THE LABOR ORGANIZATIONS INVOLVED The Respondent Unions are labor organizations admitting to membership em- ployees of the employers here involved. III. THE UNFAIR LABOR PRACTICES A. Prefatory statement Respondent Associations are nonprofit corporations existing as trade associations of construction contractors whose members perform work and services throughout southern California and elsewhere. Said associations engage in collective bar- gaining with labor organizations, including Respondent Southern California District 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Council of Laborers, affiliated with the International Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO, herein called Respondent District Council, and negotiate collective-bargaining agreements with such labor organi- zations. The basic question to be decided here is whether by maintaining and enforcing the current bargaining agreement the Respondent Associations and the Respondent Unions violated, and are violating, the Act. The provisions of said agreement pertinent to the issues read as follows: Article II, D Subject to this understanding, the Contractor shall have entire freedom of selectivity in hiring and may discharge any employee for any cause which he may deem sufficient, provided there shall be no discrimination on the part of the Contractor against any workman or employee, nor shall any such em- ployee be discharged by reason of any Union activity not interfering with the proper performance of his work. Article II, G and H G. In the employment of workmen for all work covered by this Agreement in the territory above described , the following provisions , subject to the con- ditions of Article II-A through F, above, shall govern: 1. The Local UNIONS shall establish and maintain open and non-discrimi- natory employment lists for employment of workmen in the work and area jurisdiction of each respective Local UNION. 2. The CONTRACTORS shall first call upon the respective Local UNIONS having work and area jurisdiction , or their Agents, for such workmen as they may from time to time need , and the respective Local UNIONS, or their Agents, shall immediately furnish to the CONTRACTORS the required number of qualified and competent workmen of the classifications needed by the CON- TRACTORS. 3. The respective Local UNIONS, or their agents, will furnish each such required competent workman entered on their lists to the CONTRACTORS by use of a written referral and will furnish such workmen from the respective Local UNIONS' listings in the following manner: (a) Workmen who have been recently laid off or terminated in that respec- tive Local UNION'S work and area jurisdiction by the CONTRACTORS now desiring to reemploy the same workmen in that same area provided they are available for employment. (b) Workmen who have been employed by CONTRACTORS in the re- spective Local UNION'S work and area jurisdiction within the multiple- employer unit within the previous ten years and are available for employment. (c) Workmen whose names are entered on the list of the respective Local UNION having work and area jurisdiction and who are available for employment. H. When ordering workmen, the CONTRACTORS will give notice to the appropriate Local UNION, or its Agents, not later than 2:30 p .m. of the day prior (Monday through Friday), or in any event, not less than 17i hours before the required reporting time; and in the event that 48 hours after such notice, the appropriate Local UNION, or its Agents, shall not furnish such workmen, the CONTRACTORS may procure workmen from any other source, or sources. If workmen are so employed , the CONTRACTORS will immedi- ately report to the Local UNION having work and area jurisdiction, or its Agents, each such workman by name. 1. Employees employed by the CONTRACTORS for a period of thirty days continuously or accumulatively within the multiple-employer unit and procured in accordance with Article II-G-3 or procured from other sources by the CONTRACTORS themselves shall become members of the appropriate Local UNION immediately, upon terms and qualifications not more burdensome than those applicable at such times to other applicants to such Local UNION. B. The pertinent facts 5 William Van Buskirk and his brother -in-law, Chester Crawford, pursuant to the suggestion of the former's brother, a foreman for Cookson Construction Company, 6 Some of the evidence pertaining to Respondent Associations and to all Respondent Unions, sive Bakersfield Local 220, adduced by the General Counsel, related to events occurring more than 6 months prior to the filing and service of a copy of the first PETERSEN CONSTRUCTION CORP., ETC. 993 went to Edwards Air Force Base, at Boron, California, on December 17, 1957, where Respondent Petersen, an AGC member, was performing construction work and told Dave Hall, Petersen's foreman and highest Petersen official on that job, that Edward Kiczenski, Petersen's vice president, had sent them. When Hall inquired if they were members of the Hod Carriers Union, Van Buskirk and Crawford replied in the negative, adding that they were willing to join that labor organization if they could secure jobs with Petersen. Thereupon Hall, in the presence of a foreman under Hall's authority, said, to quote Van Buskirk's credible testimony, "[if] Mr. Kaczenski sent you up here to go to work, we better put you to work . . . . We could sure use you, that we have a lot of work." Hall, however, did not put the men to work. Instead he said that he would telephone Kiczenski and ascertain from him what he should do about giving Van Buskirk and Crawford jobs since they were nonunion and that he would also contact the Bakersfield Hod Carriers Local and get Van Buskirk and Crawford into the Union. Whether or not Hall contacted the Bakersfield Hod Carriers Union or whether he contacted Kiczenski the record is not clear. The record is clear, however, that Hall did not put the men to work; and that they left the job site after Hall told them, to quote from Van Buskirk's credible testimony, ... that they had trouble before with the union. That they had hired a few workers, laborers to work, and that the union representative came up, pulled them off the job, and told them they had to join the union. That after the union representative came over, pulled them off the job, and told them they had to join the union, and then after they joined the union, they had to go on the bottom of the book, and when their name came to the top they would get them a [job]. The next day, December 18, Van Buskirk and Crawford called at Petersen's Monrovia offices and Crawford told Kiczenski that Hall had informed them that he could not put them to work because they were nonunion. Van Buskirk then remarked that he and Crawford were willing to join the Union in order to work on the Petersen's Edwards Air Force Base job, but in order to do so they would have to have a letter from Kiczenski addressed to the Hod Carriers' El Monte Local. Thereupon, Kiczenski had prepared and handed to Van Buskirk and Crawford a letter reading as follows: LABORERS AND HOD CARRIERS LOCAL No. 1082, 530 San Bernardino Road, El Monte, California. GENTLEMEN: The following two laborers, Bill Van Buskirk and Chester Crawford, have been hired by our organization to work at Edwards Air Force Base. We will appreciate you giving them a permit for work. Yours very truly, PETERSEN CONSTRUCTION CORP. ENGINEERING CONTRACTORS (Signed) EDWARD L. KICZENSKI, Vice-President. amended charges wherein, for the first time, the Respondent Associations and the labor organizations here involved, other than Bakersfield Local 220, were named Party Re- spondents. Said evidence was received, and was considered by the Trial Examiner, not as a basis for any finding of unfair labor practices, as such, but solely, for such effect it might have in elucidating, evaluating, and explaining the character and quality of the alleged illegal conduct after the cutoff date of the Respondents named in its various amended charges. It is well settled that Section 10(b) of the Act allows consideration of related acts transpiring prior to the statutory limitation date for the purpose of throwing light on the specific conduct within the period in issue N.L.R B. v. Fredrica Clausen d/b/a Luzerne Hide & Tallow, 188 F. 2d 439 (C.A. 3) ; N.L.R.B. v. General Shoe Corporation, 192 F. 2d 504 (C.A. 6) ; Superior Engraving Company v. N.L.R B., 183 F. 2d 783 (C.A. 7) ; N.L.R.B. v. White Construction & Engineering Co., Inc., 204 F. 2d 950 (C.A. 5) ; N.L.R.B. v. Brown and Root, Inc, at al. d/b/a Ozark Data Constructors and Flippin Materials Co. 203 F. 2d 139 (C.A. 8) ; Banner Die Fixture Company, 109 NLRB 1401; Florida Telephone Corporation, 88 NLRB 1429; Sun Oros Company, 89 NLRB 833. It is also well settled that to prove that the respondents herein had engaged in unfair labor practices it must be shown that the acts and conduct relied upon occurred within the 6-month period or extended into said period Joanna Cotton Mills Co. v. N.L.R.B., 176 F. 2d 749 (C.A. 4) ; Stewart-liarner Corp. v. NL.R.B, 194 F. 2d 207 (C.A. 4) ; Supe- rior Engraving Co. v. N.L.R B., supra; Universal Products Company, 108 NLRB 68. 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon receipt of the letter referred to immediately above, Van Buskirk and Crawford proceeded to Local 1082 and there handed the letter to Business Repre- sentative George Tarr. Crawford then told Tarr that he and Van Buskirk would like to join Tarr's organization so that they could go to work. Van Buskirk also told Tarr that it was his understanding that in order to join the Union one had to have a job offered to him. After reading Kiczenski's letter, and after listening to Van Buskirk and Crawford, Tarr said, to again quote Van Buskirk's credible testimony, "Well, that isn't how we work things. We get the jobs for our people." Tarr also added that the members of his organization did not solicit their own jobs. After Crawford asked Tarr whether he and Van Buskirk could obtain permits to go to work, Tarr said, "No, we do not give permits. But if you like to join the union, if you have your $32, we will take your payment and put you on the list and then when your name came up, we would get you a job." Thereupon, Van Buskirk asked why they could not go to work since they have a job, to which Tarr remarked, "Why should we give you two a job [sic] when we have two or three hundred already here that is [sic] out of work." When they asked Tarr for the return of Kiczenski's letter, Tarr replied, "No, I am keeping this. I am going to call Mr. Kiczenski and tell him a thing or two." Van Buskirk further testified, and the Trial Examiner finds, that while in Local 1082's hall he noticed a sign stating that the initiation fees were $62; that the down- payment was $32 and the balance had to be paid within 30 days; and that thereafter the applicant's name would be put on the list and a job given him when his name was reached. Upon leaving Tarr, Van Buskirk and Crawford returned to Kiczenski and Craw- ford told him, "They would not let us in the union." Kiczenski then said, "The union had called and said that we were violating the contract of some sort," adding that Van Buskirk and Crawford should "forget the whole thing." Neither Van Buskirk nor Crawford had any further contact with either Local 1082 or Petersen. Hughie Eles Oakley worked for Engineers Limited Pipe Line Co., an AGC member, at its Needles, California, job from sometime in July until December 24, 1957, when the job was completed, as a pipeline laborer. Thereupon, he was trans- ferred to Bakersfield, California, to work on the pipeline his employer was installing from Bakersfield to Newhall, California. Around May 1, 1958, Harold McHail, the spread foreman, transferred Oakley to Spread Foreman Dick Shaw's crew at Newhall. Upon reporting to the Newhall job, Shaw told Oakley that he would have to transfer his membership into Hod Carriers Local 300. Oakley thereupon went to Hod Carriers San Bernardino Local 783, obtained his membership book, took it to the Pacoima, California, branch office of Local 300, and was told, according to Oakley's credible testimony, "to get out to the job, go to work; they would be out Monday and clear us." Oakley commenced work on the Newhall job on or about May 5. On May 8, after working 26 hours, representatives of Local 300 came to the Newhall job site and informed Shaw that the men were not cleared and that Shaw "had to get" the men cleared by Local 300. Thereupon, to further quote Oakley's credible testimony, "So they came out on the line where we were starting the right-of-way, carried us back into the office, paid us and told us we would have to be cleared before we could work, . . " Upon being paid off by Shaw, Oakley and 2 of his coworkers went to the Pacoima branch office of Local 300 where they were told to consult with Local 300's officials at its main office in Los Angeles, California. On May 8 or 9, Oakley and Thomas A. Gannon, another coworker, went to the Los Angeles offices of Local 300 and after telling its financial secretary, Michael Quevedo, that they had jobs at Newhall with Engineers Limited Pipe Line Co., asked, "What we had to do to be cleared for the job " Quevedo replied, according to Oakley's credited testimony, "According to the rules that we would have to go back and come down to the call board that they had with numbers before we could be cleared." Oakley and his two associates then saw Joe D'Amico, assistant field manager of Local 300, and inquired about being cleared for the jobs they had. When D'Amico asked if they had proof that they were employed by Engineers Limited Pipe Line Co. prior to working on the Newhall job, Oakley replied that he had the stubs of the checks he had received from said concern and handed them to D'Amico. After examining Oakley's paycheck stubs, D'Amico said that they would have to put their names on Local 300's call board and when their names ,were reached they would be proffered jobs. PETERSEN CONSTRUCTION CORP., ETC. 995 Oakley returned to the Newhall jobsite the same day he had the aforementioned talks with Quevedo and D'Amico and saw Shaw, who told him he would see if anything could be done for him. On May 9, 1958, Oakley filed a charge with the Board alleging, among other things, that Local 300 "has caused or attempted to cause Engineers Limited Pipe Line Co. to discriminate against" him. On May 10, Local 300 placed Oakley's name on its call board, behind a couple of hundred other names. On May 14, Local 300 dispatched Oakley to the Newhall job where he was put to work. Beecher Alby Kreigh joined Hod Carriers El Monte Local 1082 about 1956. The following year he transferred to the Hod Carriers San Bernardino Local 783. From August 1957 until October 18, 1957, Kreigh worked as,a laborer and brick tender for Frederickson & Kasler. He was terminated at the request of Local 783 because of dues delinquency. On October 21 or 22, Kreigh went to Local 783 and tendered his unpaid dues which were refused. On August 18, 1958, Kreigh returned to Frederickson & Kasler and asked Carpenter Foreman Campbell, the person who hired Kreigh in 1957 and who subsequently terminated him, for a job.6 Campbell replied that he would put Kreigh to work provided he got a clearance from the Union. The same day, August 18, Kreigh went to Local 783 and told Walter Neff, the financial secretary and treasurer of Local 783, that he desired to pay his dues and get back on the call board.? Neff refused the tender and told Kreigh that he had to "go in front of the board." 8 Kreigh replied that he "saw no reason to go in front of the board; I hadn't been served with anything or hadn't done anything to go in front of the board for." The following day, August 19, Kreigh returned to Frederickson & Kasler and told Campbell that he could not get union clearance. Campbell replied that he would put Kreigh to work providing Kreigh obtained a clearance. During the week following August 19, Kreigh again went to Local 783 and tendered his dues to Neff who again refused to accept them. In September, accompanied by Donald Hoffman and Glenn Warden, Kreigh went to Local 783 and tendered his dues to Neff. Neff refused the tender saying that Kreigh "couldn't reinstate." Thereupon an argument ensued during which Neff said, to quote Kreigh's credible and undenied testimony: "He was going to make an example of me, that he couldn't have men saying things like that to him." Whereupon, Kreigh and his two companions left. During September, October, and November 1958, Kreigh went sometimes twice a month, to Frederickson & Kasler seeking employment, but without avail. Kreigh has not worked for Frederickson & Kasler, nor any other employer, since October 17, 1957. Charles Edward Rusow testified without contradiction, and the Trial Examiner finds,9 that on January 20, 1959, he was unemployed; that on that day he, accom- panied by Rhett, went to Local 783 and requested the woman,is who was stationed behind the window over which hung a sign reading, "Pay dues here," to put his name on the call board; that the woman asked him whether he was a member of Local 783; that when he replied in the negative, the woman stated that he would have to belong to Local 783 before his name would be placed thereon; and that when he said, "If I could get my name on, maybe by the time my turn came up I would have the money to join" Local 783, the woman replied, "No, we don't do business that way." Eduardo Gallardo, a laborer, joined Local 300 in 1952. About 1957, he worked for Webb & White, a member of AGC. On April 21, 1958, Gallardo applied to Webb & White for a job and was given a letter or card reading as follows: OICreigh testified, and the Trial Examiner finds, that he was never dispatched to a job by Local 783 but always got his own jobs 7 Kreigh testified, and the Trial Examiner finds, that between October 1957 and August 1958, he visited Local 783 once a month and never saw a call board there. e Presumably meaning a board composed of union officials e Rusow's testimony, in the main, is supported by the credited testimony of Denzle Rhett, who was, in January 1959, a member of Local 783. io Neff's secretary and the only person in the Local 783's hall at the time of this incident. 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD LABORERS' UNION, LOCAL 300, 2005 W. Pico Blvd. Los Angeles 6, Calif. SIR: Please clear Edward Gallardo for employment as a laborer with this company. Very truly yours WEBB AND WHITE (By DON MUSE). The same day, April 21 , Gallardo toook the Webb & White document to Local 300's Los Angeles offices and presented it to Mike Mascrenas, the dispatcher, and asked Mascrenas for a clearance so that he could start working for Webb & White that morning. Mascrenas asked Gallardo for his Federal tax withholding statement which Gallardo did not have with him. Mascrenas then told Gallardo that he could not do anything for him and suggested that he see Joe D 'Amico, the assistant field manager of Local 300 . Gallardo then saw D'Amico and presented the afore- mentioned Webb & White document . D'Amico tore up the document without making any comment. The following day, April 22 , Gallardo returned to Local 300 and presented Mascrenas with a letter from Webb & White, similar in nature to the Webb & White document D'Amico tore up the previous day, together with his 1957 tax withholding statement which disclosed that he had been employed by Webb & White during 1957 . After Mascrenas had examined the letter and tax statement , Gallardo took the two documents to D'Amico who merely told Gallardo to put his name on the call board. Guy Balassone, a concrete finishing laborer, has been a member of Local 300 for approximately 13 years. About May 1 , 1958, Balassone asked, either in person or in a telephone conversation , Superintendent Haugen of Mac Isaac and Menke Co., a member of AGC, for a job. Haugen replied that there was no job available. Thereafter, Balassone telephoned Haugen several times seeking employment and each time was informed that no job was available. On May 21 , Balassone went to the jobsite and when Haugen asked if he were ready to go to work, Balassone replied in the affirmative . Haugen then wrote and handed Balassone a note reading- LABORERS LOCAL 300 DEAR SIR: Please clear Mr. Guy Balassone to work for Mac Isaac and Menke Co. at our Hershey Hall job at U.C.L.A. Thank you. H. R. HAUGEN, Supt. and told Balassone to take the note to the Santa Monica, California , branch office of Local 300 and "tell him that I put you to work" if you can get a job clearance. Haugen also told Balassone to return the following day ready to go to work. Balassone took Haugen's note to the Santa Monica branch office of Local 300 and handed it to the dispatcher saying that he was ready to pay the necessary dues. The dispatcher told Balassone that he could not do anything for him and the Balas- sone should go to the main office of Local 300. Balassone went to the main office of Local 300 the same day and told Mike Waters, an executive business agent of Local 300, that he had a job but needed a Local 300 clearance in order to go to work. Waters stated that he could not give Balassone a clearance and referred him to Joe D'Amico.ii Balassone went to D'Amico and showed him Haugen's note and said that he had a job lined up but needed a clearance in order to be put to work. Balassone also told D'Amico he needed the job very badly . D'Amico replied, according to Balassone's credible testimony, "No, I can't give it to you . . . go away from here." The following day, May 22 , Balassone returned to the Mac [Isaac and Menke job- site. While Balassone was waiting for Haugen , Waters arrived and told Haugen, in Balassone's presence , not to give Balassone a job because D'Amico had said he would not give Balassone a clearance. Waters also told Haugen that if Balassone was put to work Waters would "Stop the job altogether ." After Waters and Haugen had conferred in private, Haugen turned to Balassone and asked whether he was a United States citizen . Balassone said he was. Haugen then left Balassone "Erroneously referred to in the stenographer's transcript of the hearing as be Demigo PETERSEN CONSTRUCTION CORP., ETC. 997 saying, "I ain't got nothing today." About a week later Balassone was called to the jobsite and given a job. Jess E. Milsap applied for a job at Engineers Limited Pipe Line Co.'s Newhall job on or about May 5, 1958. At the time of his application Dick Shaw, the spread boss, said that Milsap had to be a Local 300 member in order to be hired. Milsap told Shaw he was a Local 300 member and was then put to work by Shaw as a con- struction laborer. On May 8, the foreman came to where Milsap and others were working and said that they "had to go in and get cleared through the Union." The foreman then took the men whom he told had to be cleared into the field office where D'Amico and other Local 300 representatives were. According to Milsap's credible testimony the following, in the presence of Shaw and the timekeeper, then transpired: they (Local 300 representatives) picked out a few 12 that they wanted to clear that was hired at the same time I was, and they told the rest of us 13 we would have to go to Pacoima 14 to . . . put our numbers on the board and wait our turn on the list. Milsap and about three or four of the other men who were refused clearances then proceeded to the Pacoima offices of Local 300. When Milsap asked the dis- patched to put his number on the call board and whether it was possible for him to get a clearance for the job, the dispatcher replied in the negative and then referred Milsap and the other three or four men to the main office of Local 300 where Milsap asked D'Amico "if it was possible to get a clearance for the pipe- line job due to the fact that I had worked pipeline before." D'Amico replied in the negative, but suggested that Milsap and the men with him go to the Pacoima offices of Local 300, put their names on the call board, and await their turns. Milsap and the other men returned to the jobsite and were given checks for the wages due them by the timekeeper who said that D'Amico had threatened to shut down the job if Milsap and the others were not paid off. William R. Carlos worked for McNeil Construction Company, not affiliated with any Employer-Association here involved, from January 7 to January 10, 1958, as a laborer. He was laid off for lack of work. Carlos then went to the construction company's office and asked the president's secretary for further work and was referred to a job McNeil was then doing for IBM. He started working on that job on January 13. On January 15, Samuel Bayuera, a Local 300 business agent, approached Carlos on the job and asked to see Carlos' union work order. Carlos stated that he had none. Bayuera then asked to see his union card. Carlos showed Bayuera his Hod Carriers' Pasadena, California, Local 439 membership card. Thereupon, ac- cording to Carlos' credible and undenied testimony the following ensued: . . . he told me this is not the Union I should belong to, and that this was not their area of jurisdiction, that there was-that their area of jurisdiction was the Pasadena Alhambra area, and I was in the jurisdictional area of Local 300, and that I, No. 1, I had to work on [sic] Local 300 to work on this job and that was it. Then he said, he said, "How were you sent out to this job," and I told him that I was transferred from the other job, and he said, "Well, who put you on that job," and I said "Mr. McNeil," and he says, "In other words, you were not sent out at any time by the Union," and I said, "No." I said "I got the job on my own." He says "In other words you rustled the job," and I said, "If you mean using my own individual initiative to obtain work," I said, "if that is your definition of this," I said, "I imagine that is what I did." So he says, "Well," he says, "we are going to have to get this taken care of. You are going to have to-we will have to take you down to the office and you will have to be sent out by the Union." And I said, "Sir, what you are doing is firing me from the job," and he told me, he said, "What are you talking about?" 'I said, "You know there are close to 2000 men on that hiring board down there at the Union Hall and I want-three weeks from now I want to go back to school and I need this money right now in order to go back to school, and if I go down to that Union it will be months before I will be put out on the job. What you are in effect doing is firing me from the job." And he said, 12 Approximately seven. 18 Approximately seven. 14 An office of Local 300 Is located in that town. 577684--61-vol. 128-64 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Well, we will take care of that . You can take it as you want ," so then we went to the foreman and related to the foreman what had happened. TRIAL EXAMINER : Who related? The WITNESS : Well, Mr. Bayuera and myself jointly related. Then the fore- man said, "Well, first, you have got to belong to Local 300 and you have got to be sent out by Local 300," so he, at approximately noon that day, he-- TRIAL EXAMINER: Who? The WITNESS : The foreman, Mr. Billy Powers, was his name. Mr. Powers checked me off that day and told me to get as withdrawal card from Local 439 and also a transfer slip from 439 and that 's what I did. Carlos almost immediately after the above-related incident had taken place went to the offices of Hod Carriers Pasadena Local 439, paid a month's arrearage in dues and the necessary fee for a withdrawal card and obtained such a card . He then proceeded to the main office of Local 300 and, after relating to Mike Waters, whom Bayuera and Foreman Powers suggested he see, what had transpired earlier and showing his transfer slip from Local 439, asked to be sent out to the McNeil job. Waters replied, to again quote Carlos' credible testimony, . well, there are an awful lot of men ahead of you here and we just can't send you out to the job, but you have got steps to go through, .. . that I should go down to the clerk, that I should give him my name and I would then be put on the board , but at that time there were so many people on the board that there was no place to put my name on the board , there was some special area on the desk where all the names on the board were all taken up, all the slots on the board were all taken up, if there was some area on the desk that I put my name down. Carlos did not transfer into Local 300. Instead he went to McNeil's offices and explained the situation to the president's secretary and was advised to return the next day. He did so and was handed a letter , dated January 16, reading, in part, as follows, LOCAL No. 300, Los Angeles, California. GENTLEMEN : This is to certify that Bill Carlos is now employed by us on our IBM project, located at Wilshire and Mariposa, in the City of Los Angeles, and we would like to have him transferred from Local No. 439 to Local No. 300, so that he will be cleared to work on our project. Upon receipt of the McNeil letter Carlos went to Local 300 and showed it to Waters. After Waters had read the letter he repeated the statement he had made to Carlos on the previous day wherein he declined to give Carlos a clearance to the IBM job. Carlos then went to the McNeil jobsite where he related to Foreman Powers what had transpired with Waters and others . Powers said he was very sorry but he was unable to help Carlos. He then advised Carlos to return the following day and pick up his check, which Carlos did. L. C. Brown applied to the Morley Construction Company for reemployment on July 28, 1958 .15 When he was asked by Gannon , under whose direction Brown had worked when Brown was formerly in Morley's employ, whether Brown was a union member, Brown replied in the negative . Gannon then said that if Brown secured a union job clearance he would be put to work. Brown went to the Van Nuys Boulevard branch office of Local 300, and asked the dispatcher whether he would get a job clearance if he joined Local 300. The dispatcher replied there were no available jobs. When Brown informed the dis- patcher that he had a job, the dispatcher said then, in that event, he could join Local 300. Thereupon, Brown paid the dispatcher $60. When Brown asked for a job clearance, the dispatcher said that since Brown had a job he propably would not need a clearance. Brown then left Local 300 and returned to the Morley jobsite and told Gannon that he was ready to go to work. Gannon then asked Brown for his clearance . Brown said that he had none. Thereupon Gannon suggested that Brown either get a clearance from the Van Nuys office or get his money refunded, and, if he could not get a clearance from the Van Nuys office he should go to the Glendale Boulevard branch office of Local 300 and try to obtain one there. 3s Brown had previously worked for Morley for about 9 years. PETERSEN CONSTRUCTION CORP., ETC. 999 Brown returned to the Van Nuys office and when the dispatcher said he could not give Brown a clearance, Brown requested and received his $60. Then Brown proceeded to the Glendale office of Local 300. When Brown said to the dispatcher at that office, "What about getting into the union?," the dispatcher replied, "Aren't you Brown?" When Brown admitted that he was, the dispatcher said, "We already got a call on you, no, we can't give you anything." Brown then said, "I got a job. 1 am not depriving anybody of a job. They don't really need no laborers out there, but the man is going to accommodate me and put me to work." When the dispatcher stated, "Well, you can get on the board if you want to. We don't need any more men nowheres," Brown left the union hall. C. Concluding findings The master collective-bargaining contract under consideration established an exclusive hiring system whereby Respondent Associations, their respective members, and the individual Employer Respondents were obligated to employ only such employees as Respondent Unions referred for employment. This conclusion is arrived at from consideration of the interrelated language of the various subdivisions of article II of the agreement which deals with hiring. Subsection 2, of article II-G starts by saying the employer "shall first call upon" the union having work and area jurisdiction, or their respective agents, for such workmen the Employer may need from time to time.1e The clear meaning of this phrasing is that the employer is not free to hire in the first instance from any source whatever but must look to one of the locals signatory to the agreement for employees. After obligating them- selves to furnish men whenever requested to do so, the contract (article II-H) goes on to provide that the employer "may" secure employees elsewhere "in the event that 48 hours after [ordering workmen], the appropriate Local UNION, or its Agents, shall not furnish such workmen." This is clearly permissive language which would have no coherent meaning if the employer were free in the first instance to hire, without contractual restraint, from any source of his choice. But in this case the employer has no choice at the very start but to look to a labor organization for his men. This is precisely what the Board has called an "exclusive referral contract." 17 In Mountain Pacific Chapter of the Associated Contractors, Inc., et al. 18 119 NLRB 883, 897, the Board held that an exclusive hiring-hall agreement was lawful only if it specifically provided certain safeguards to protect the statutory rights guaran- teed to all employees to engage in, or to refrain from engaging in, union activities, to wit: "(1) selection of applications for referral to jobs shall be on a non-discrimi- natory basis and shall not be based on, or in any way affected by, union membership, bylaws, rules, regulations, constitutional provisions, or any other aspect or obli- gation of union membership, policies, or requirements. (2) The employer retains the right to reject any job applicant referred by the union. (3) The parties to the agreement post in places where notices to employees and applicants for employment are customarily posted, all provisions relating to the functioning of the hiring arrange- ment, including the safeguards that [the Board] deems essential to the legality of an exclusive hiring agreement." As the contract in the instant case did not expressly provide for the three safe- guards set forth above, it was unlawful. Accordingly, the Trial Examiner finds that by maintaining and enforcing its exclusive referral hiring system the Respondent Associations, their respective members, and the individual Employer Respondents herein, violated Section 8(a) (1) and (3) of the Act and Respondent Unions violated Section 8(b) (1) (A) and (2) thereof.19 In conformity with the exclusive referral system set out in the contract, Van Buskirk, Crawford, Kreigh, Gallardo, Balassone, and Brown, were refused em- ployment. Such denials of work to said six complainants were clear discrimination against them in violation of the Act. In addition, because job referrals were refused them, Oakley, Milsap, and Carlos were illegally discharged by their respective Em- ployers upon the demand of the unions involved. 1' McNeil Construction Company executed a separate collective-bargaining agreement with Respondent Unions, dated May 27, 1958, which contains a clause (article II-D-2) identical to article II-G-2 of the master agreement. 17 United Association of Journeymen, etc., (J. S. Brown-E. F, Olds, etc.), 115 NLRB 594. 18 Remanded to the Board for further consideration by the Ninth Circuit, on August 28, 1959. 19 Los Angeles -Seattle Motor Express, Incorporated , 121 NLRB 1629. 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By such refusals to hire and by such discharges, the Trial Examiner finds that Respondent Associations, their respective members, and the individual Employer Respondents herein violated Section 8(a)(1) and (3) of the Act and that Respond- ent Unions violated Section 8(b) (1) (A) and (2) thereof.2° Respondent AGC and Respondent District Council point to the following letter, dated November 12, 1958, addressed by the latter to the former, as absolving all Respondents from any violation under the Act, even if it should be found that the hiring-hall provisions of the master collective-bargaining agreement in question are violative of the Act. We have consistently maintained that the current Master Labor Agreement is legal and requires no change under the provisions of the Labor Management Relations Act of 1947, as amended. Pursuant to the foregoing, it is agreeable to us that Article II-G-1 of said Agreement has always been interpreted and now is interpreted by us as pro- viding that, selection of applicants for referral to jobs shall be on a non- discriminatory basis and shall not be based on, or in any way affected by, union membership, by-laws, rules, regulations, constitutional provisions, or any other aspect or obligation of union membership, policies or requirements. We will further agree that the Union and Contractor parties to the said Agreement shall post in places where notices to employees and applicants for employment are customarily posted, the provisions relating to the functioning of the Union hiring arrangements. We have been and are operating the hiring halls maintained pursuant to said Master Labor Agreement in a legally proper and non-discriminatory manner and will submit, in writing, our dispatching procedure relating thereto for your suggestions. If you approve the foregoing, please evidence that fact by signing and re- turning a copy of this letter. The Employers here involved contend that the above letter constitutes an agreement and, as such, is an amendment to the aforesaid agreement. Respondent Unions contend that the letter is merely an interpretation between the parties regarding the hiring-hall procedures of said agreement. No matter how viewed, the defenses are without merit for the letter does not provide the safeguards set forth in Mountain Pacific, supra. The Trial Examiner has carefully considered each and every affirmative defense set up by the respective Respondents herein and -finds, upon the entire record in the case, all of which has been carefully read, and parts of which have been reread and rechecked several times, that said separate defenses are without substance or merit. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of all the Respondents set forth in section iHI, above, occurring in connection with the operations of the Employers described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and such of them as have been found to be unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that all the Respondents named herein have engaged in, and are engaging in, unfair labor practices, the Trial Examiner recommends that they, and each of them, be ordered to cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. It has been found that the Respondent Employers unlawfully discriminated against employees as follows: Petersen against Van Buskirk and Crawford; Engineers Limited Pipe Line Co. against Oakley and Milsap; Fredrickson & Kasler against Kreigh; Webb & White against Gallardo; Mac Isaac and Menke against Balassone; McNeil Construction against Carlos; and Morley Construction against Brown. It also has been found that Respondent Unions unlawfully caused the discrimination against the aforementioned employees. It, therefore, is recommended: (1) that Respond- ent Engineer Limited Pipe Line Co., reinstate Oakley and Milsap to their former or substantially equivalent jobs without prejudice to their seniority or other rights and privileges, providing the Newhall project is still incomplete and Engineers. 20 See Consolidated Western Steel Division, etc., 122 NLRB 859. PETERSEN CONSTRUCTION CORP., ETC. 1001 Limited Pipe Line Co. is still working there; 21 (2) The Respondent McNeil Con- struction reinstate Carlos to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, providing Carlos would not have been terminated for nondiscriminatory reasons subsequent to his discrimina- tory discharge and providing further that construction of the IBM project is still incomplete and McNeil Construction is still working there; (3) Respondent Unions (a) notify Respondent Petersen, in writing, and immediately serve a copy upon Van Buskirk and on Crawford, that they have no objections to Van Buskirk's and Craw- ford's employment; (b) notify, in writing, and immediately serve a copy upon Gallardo, Respondent Webb & White, that they have no objections to Gallardo's employment; (c) notify Respondent Mac Isaac and Menke, in writing, and im- mediately serve a copy upon Balassone, that they have no objections to Balassone's employment; (d) notify Respondent Morley Construction, in writing, and immedi- ately serve a copy upon Brown, that they have no objections to Brown's employment; (e) notify Respondent Fredrickson & Kasler, in writing, and immediately serve a copy on Kreigh, that they have no objections to Kreigh's employment; and (4) im- mediately notify Rusow, in writing, and immediately serve copies upon each mem- ber of the Respondent Associations and upon each individual Employer Respondent herein, that they have no objections to Rusow being hired by any member of Re- spondent Associations or by any other Employer over whom the Board would assert jurisdiction. It is further recommended that Respondent Associations, their respective mem- bers, the individual Respondent Employers herein, and the Respondent Unions jointly and severally make whole Van Buskirk, Crawford, Oakley, Kreigh, Rusow, Gallardo, Balassone, Milsap, Carlos, and Brown, for any loss of pay these persons may have suffered as the result of the discrimination against them 22 Respondent Unions will separately recompense Rusow for loss of pay resulting from the refusal to issue him a job referral. The amount of backpay in all cases to be computed and paid in accordance with the Board's usual formula.23 In the cases of Oakley, Milsap, and Carlos, backpay for their discharges will run from the date of their respective discharges to the date of offer of reinstatement or the date when they normally would have been terminated, whichever is earlier, less net earnings during such period. However, Respondent Unions' liability for backpay in the cases of Oakley, Carlos, and Milsap should in any event terminate 5 days after notification to the Employer concerned that they have no objections to the reemployment of these three discriminatees. In the case of Rusow, Respondent Unions' liability for backpay is to be computed from the date Rusow was denied a job clearance by Local 783 to 5 days after the day Respondent Unions notify Rusow and the respective members of Respondent Associations and the individual Employer Respondents herein, that they have no objections to Rusow's employment. It has been found that Respondent Associations, their respective members, the individual Respondent Employers, and the Respondent Unions are parties to an illegal hiring-hall arrangement. Therefore, by maintaining and enforcing said arrangement, which is contained in signed collective-bargaining agreements, the parties thereto have coerced employees to pay dues, fees, and assessments necessary to achieve and retain membership in Respondent Unions or to receive a permit entitling them to work within the Respondent Unions' territorial jurisdiction. In order to expunge the coercive effect of these illegal exactions, and adequately to remedy the unfair labor practices found, it is recommended that Respondent Associa- tions, their respective members, the individual Employer Respondents herein, and Respondent Unions be ordered to jointly and severally reimburse employees working for the respective members of Respondent Associations and for the individual Employer Respondents herein, for any dues, fees, assessments, permit fees, or other moneys which were unlawfully exacted from them as a condition of obtaining or retaining employment. Respondent Petersen's liability for reimbursement shall include the period beginning 6 months immediately prior to the filing and service of the original charge in Case No. 21-CA-2892, and as to all other Respondents herein from the period beginning 6 months immediately prior to the filing and m If Oakley or Milsap would have been terminated for nondiscriminatory reasons subsequent to their discriminatory discharges, no reinstatement of these individuals is recommended. 22 Each Employer will be jointly and severally responsible only for the backpay accruing to the employee or employees against whom that Employer discriminated. Thus, Engineers Limited Pipe Line Co. will be liable only for backpay due Oakley and Milsap ; Webb & White to Gallardo, etc. OF. W. Woolworth Company, 90 NLRB 289. 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD service of the first amended charges, and shall extend to all Respondents, including Petersen, such moneys thereafter collected until abandonment by Respondent Unions and Respondent Associations, its members, and the individual Employer Respondents herein, of the unlawful hiring practices. 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. The respective members of the Respondent Associations and the individual Employer Respondents herein are, and each of them is, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Unions are labor organizations within the meaning of Section 2(5) of the Act. 3. By maintaining and enforcing a collective-bargaining contract containing an illegal hiring-hall arrangement, the Respondent Associations, their respective mem- bers, and the individual Employer Respondents herein, have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By engaging in the foregoing conduct, Respondent Associations, their respective members, and the individual Employer Respondents herein, have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By maintaining and enforcing a collective-bargaining contract containing an illegal hiring-hall arrangement, the Respondent Unions have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 6. By engaging in the foregoing conduct, Respondent Unions have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Cadillac Wire Corp. and Epifnio Mandry and Steel, Metals, Alloys and Hardware Fabricators and Warehousemen Local 810, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America Steel, Metals, Alloys and Hardware Fabricators and Ware- housemen Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Epifnio Mandry and Cadillac Wire Corp., Party to the Contract Cadillac Wire Corp. and Jose A. Mandry and Steel, Metals, Alloys and Hardware Fabricators and Warehousemen Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Steel, Metals, Alloys and Hardware Fabricators and Ware- housemen Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Jose A. Mandry and Cadillac Wire Corp., Party to the Contract. Cases Nos. 2-CA-6577, 2-CB-2583, 2-CA-6578, and 2-CB-2584. August 26, 1960 DECISION AND ORDER On October 27, 1959, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the 128 NLRB No. 128.