Satchwell Electric Constuction Co., Inc.

SATCHWELL ELECTRIC CONSTRUCTION COMPANY, INC. 1265 Satchwell Electric Construction Company, Inc. and R. W. Moss and Earnest F. Hayes and Gus Thornton Local Union No. 508, International Brotherhood of Electrical Workers, AFL-CIO and R. W. Moss and Earnest F. Hayes and Gus Thornton H. G. Fitzpatrick, an agent of Local Union No. 508 , Inter- national Brotherhood of Electrical Workers, AFL-CIO and Gus Thornton. Cases Nos. 10-CA-3353, 10-CA-3354, 10-CA- 3357, 10-CB-729, 10-CB-730, 10-CB-734, and 10-CB-733. Au- gust 26, 1960 DECISION AND ORDER On June 5,1959, Trial Examiner James T. Rasbury issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents, Satchwell Electric Construction Company, Inc., here- inafter called the Company, and Local Union No. 508, International Brotherhood of Electrical Workers, AFL-CIO, hereinafter called Local 508, 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 Intermediate Report attached hereto. The Trial Examiner also found that Respondents Company and Local 508 and Respondent H. G. Fitz- patrick, agent of Local Union No. 508, International Brotherhood of Electrical Workers, AFL-CIO, hereinafter referred to as Fitzpatrick, had not engaged in certain other unfair labor practices as alleged in the complaint, and recommended that these particular allegations be dismissed. Thereafter, the Respondents and the General Counsel filed exceptions to the Intermediate Report, together with supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings, except as noted herein, are hereby affirmed.' The Board has 1 During the course of the hearing, Gus Thornton, one of the Charging Parties, testified as a witness for the General Counsel. His pretrial affidavit was furnished by the General Counsel to counsel for Respondents for cross-examination purposes in accordance with Section 102118 (formerly Section 102.95, Series 7, as amended, effective October 24, 1958 ) of the Board's Rules and Regulations, Series 8, which in pertinent part reads as follows : "Provided, After a witness called by the general counsel has testified in a hearing upon a complaint under section 10(c) of the act, the respondent may move for the production of any statement of such witness in possession of the general counsel, if such statement has been reduced to writing and signed or otherwise approved or adopted by the witness. Such motion shall be granted by the trial examiner. If the general counsel declines to furnish the statement, the testimony of the witness shall be stricken " The day following Thornton's testimony, and after all defense witnesses had testified, the General Counsel examined Williamson, a rebuttal witness. While Respondent Company was cross-examining Williamson, counsel requested that Thornton's affidavit be pro- duced again The Trial Examiner ruled over the objection of the General Counsel that 'Thornton's affidavit must again be produced for use by Respondent in connection with 128 NLRB No. 127. 1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considered the Intermediate Report, the exceptions and briefs filed by the parties, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent that they are consistent with this decision. 1. Respondent Company had a contract with Local Union No. 177, IBEW, which obligated it to abide by the working rules and agree- ments of other local unions of the IBEW in whose territorial juris- diction it performed work. Respondent Company was engaged from February 18 until early July 1958, as an electrical contractor on the premises of Brunswick Pulp and Paper Company at Brunswick, Georgia, which is located within the territorial jurisdiction of Re- spondent Local 508, IBEW. Respondent Local 508, IBEW, was signatory to contracts with employers in its area, but not with Re- spondent Company, which clearly contained illegal provisions, includ- ing a closed shop. The Trial Examiner found that the contractual commitments made by Respondent Company with Local No. 177 in- corporated by reference the illegal contract which Respondent Local 508 had with other companies and therefore Respondent Company was a party to Local 508's illegal contract. Accordingly, the Trial Examiner concluded that Respondent Company and Respondent Local 508 violated Section 8(a) (3) and (1) and 8(b) (2) and (1) (A) of the Act, respectively. We agree with the Trial Examiner's conclusion that the Respond- ents violated the Act, but so find for the following different reasons which are amply supported by uncontradicted record testimony. When Respondent Company commenced the Brunswick job on Febru- ary 18, Edgar H. Nelson, its superintendent in charge of the job, called H. G. Fitzpatrick, assistant business manager of Respondent Local 508, who handled union matters for Brunswick, Georgia, and vicinity, and whose name Nelson had obtained from an official of the Brunswick Pulp and Paper Company. A meeting was arranged for that afternoon at the plant, at which, according to the testimony of Nelson and Fitzpatrick, the number of employees and the skills the cross-examination of Williamson. The General Counsel took specific exception to this ruling. We find no need to pass on this exception as the Trial Examiner's ruling in this respect does not appear to have had a prejudicial effect in the instant case . We note, however, that the purpose of the proviso in Section 102.118 clearly was to reflect the adoption by the Board of the decision of the Court of Appeals for the Second Circuit in the Adhesive Products Corp . case, 258 F. 2d 403, that the holding of the United States Supreme Court in the Jencks case, 353 U . S. 657, applies to Board proceedings and affords parties thereto, upon proper demand, the right to production for purposes of cross-examination of pre- trial statements made by witnesses who have already testified in such proceedings. Ra- Rich Manufacturing Corporation, 121 NLRB 700. However, the proviso was never intended to derogate from the well -established rule that production of the statements of a witness is required in order to permit impeachment of the witness who made the statements and not, as the Respondent apparently was seeking to do here , to test the credibility of the witness by statements made by another witness in the latter's affidavit. See the Jencks case, supra. See also Local 1566, International Longshoremen's Associa- tion ( Philadelphia Marine Trade Associattion), 122 NLRB 967, footnote 1. SATCHWELL ELECTRIC CONSTRUCTION COMPANY, INC. 1267 that would be needed for the job were outlined. It was agreed that Respondent Company would pay the area wage rates and that Fitz- patrick for Respondent Local 508 would serve as the hiring agent for Respondent Company on this job. Fitzpatrick admitted that Re- spondent Local 508 did, in fact, so serve and was the exclusive source of employment there; that he first obtained the two foremen for the job and later supplied the other employees; and that it was taken for granted that the referrals would be qualified and accepted without question. Nelson testified that at the first meeting they reached agree- ment that he would get all of his employees through Fitzpatrick, and he did obtain all of them in this manner; that a part of their "private agreement" permitted him to go elsewhere for employees if Fitz- patrick did not supply the needed employees within 48 hours, but that he never did so; and that whenever he needed someone he personally notified Fitzpatrick and accepted whomever Fitzpatrick sent Out z Undenied testimony of other witnesses establishes that a policy existed not to permit job applicants into the construction area without a union referral card. The standard referral and clearance pro- cedure based upon membership in good standing in the union was used in hiring that of applying to Fitzpatrick, and, upon receipt of a referral card, being escorted onto the property; turning the referral slip over to the job steward who would take the employee to the job superintendent where he would give his social security number, fill out a W-2 tax withholding form, receive a pass badge, and being taken by the job steward to the foreman under whom the employee would work-and the terms of the hiring arrangement were not posted either at the jobsite or at the union hall. We find, on the basis of the foregoing evidence, and the record as a whole, that an unlawful oral closed shop, or preferential hiring ar- rangement or understanding and practice thereunder existed between Respondent Local 508 and Respondent Company which the Act plainly prohibits.' In furtherance thereof, Respondent Local 508 operated for Respondent Company an exclusive hiring hall which did not comply with the requirements of the Mountain Pacific case.4 Accord- ingly, we find that Respondent Local 508 and Respondent Company violated Section 8(b) (1) (A) and (2) and 8(a) (1) and (3) of the Act, respectively .5 9 The only nonmember referred by Fitzpatrick to Nelson was an apprentice who had not spent a sufficient amount of time as an apprentice to become eligible for union membership. 3 Nassau and Suffolk Contractors' Association, Inc., at al. (Local 138, et al ), 123 NLRB 1393. * Mountain Pacific Chapter of the Associated General Contractors, Inc., at al., 119 NLRB 883 897; McCormick Construction Company , 126 NLRB 1246. Is Members Rodgers and Jenkins would also find that by their oral agreement Respondent adopted and maintained Local 508's unlawful written agreement with other employers and that Respondents thereby violated Section 8 (a)(1) and (3) and 8 (b)(1)(A) and (2) of the Act. See The Marley Company, 117 NLRB 107; Indianapolis and Central Indiana 1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The General Counsel has excepted to the Trial Examiner's failure to find that Respondent Company violated Section 8(a) (3) and (1) and Respondent Local 508 violated Section 8(b) (2) and (1) (A) in the discharges of Ernest F. Hayes and W. R. Moss. The Trial Ex- aminer found, as asserted by Respondent Company, that Hayes and Moss were discharged for nondiscriminatory reasons, i.e., absenteeism of 2 days and nonproduction. We find merit in the General Counsel's exceptions. Superintendent Nelson testified, as stated by the Trial Examiner, that Respondent Company had a strict policy of discharging any em- ployee who was absent for as much as 2 days. However, Nelson admitted that this rule was never communicated to anyone, nor did he ever communicate to anyone an alleged rule requiring employees to give notification in case of absence. Nelson testified that under this rule he had discharged three other employees, namely, Phillips, Bennett, and Speed, after absences of 2 days without permission and that he applied this rule uniformly at all times. However, it is clear from his own testimony in the record that Phillips was not dis- charged, but quit; 6 that Bennett was absent with permission for dis- ability reasons and that his discharge, if any, was not after 2 days' absence; I and that Speed's absence far exceeded 2 days before he was notified of his termination or any payroll action was taken indicating termination of his employment.' In no instance was an employee allowed to return to his job after an absence without comment being made with reference thereto and then, after working several days discharged because of his absence, as Respondent claims was the case with respect to Hayes and Moss." From the foregoing, we find that a policy of discharging employees for unauthorized absence of 2 days is not established by the record, and reject, as without merit, the Respondent's defense that Hayes and Moss were discharged because of their absence from work. District Council, et al. (Mechanical Handling Systems, Incorporated), 122 NLRB 396. Also see The Ingalls Steel Construction Company, 126 NLRB 1041. 8 Nelson stated that he could not recall when Phillips was discharged , but did recall that Phillips left the job and did not return even for his pay or tools which Nelson sent to him through the Union. 'r According to Nelson' s testimony Bennett had not in fact been absent without advance notice. He received permission to leave in the middle of the day because of a disability for which lie wore a back brace, and Nelson knew that he entered a veterans' hospital but did not know whether Bennett returned after his hospitalization or when his employ- ment terminated 8 After noting that the payroll records showed Speed was carried as absent for 6 days before his name was removed from the rolls, Nelson claimed that although he ter- minated Speed after 2 days he did not notify Speed of this action until Speed returned to the job. 8 Contrary to the Trial Examiner' s statement in the Intermediate Report, the alleged policy of discharging for absenteeism of 2 days was not corroborated by President Satch- well. Satchwell merely listed generally as causes for discharge absenteeism, drunkenness, and lack of production, without further specificity, and made no mention of a require- ment of notice in case of absence SATCHWELL ELECTRIC CONSTRUCTION COMPANY, INC. 1269 The second reason given by the Respondent Company for the dis- charge of Hayes and Moss which was accepted by the Trial Examiner was that their work was not sufficiently productive. However, admit- tedly they were never given any warning or any indication that Re- spondent Company was not satisfied with the quantity or quality of their work, although the foreman directly observed and supervised their work daily, and the job superintendent was in constant contact with the progress of the work. Hayes and Moss worked as a team installing metal troughs or wire- ways. Respondent Company President Satchwell testified that on an average a team of electricians is expected to install 60 feet of trough per day. Foreman McLaughlin, in comparing the production of Hayes and Moss unfavorably with that of the other team performing this type of work, indicated that the latter sometimes installed as much as 20 feet a day, although he admitted that they did not average this much. Such a wide variation in production measurement from the standard of 60 feet per day supposedly expected and the 20 feet per day above average occasional performance regarded as quite satisfactory would indicate either that the stated standard of 60 feet per day was unrealistic and not applied or that other factors caused such a wide variation that footage installed per day could not have constituted a true measurement of satisfactory production. That Hayes and Moss did install less than the other team of electricians doing this type of work is undisputed. However, the record also establishes that this other team was working in the new part of the plant being erected whereas Hayes and Moss were installing troughs in an old portion of the plant where working around machinery and drilling passageways through partitions, floors, and other obstruc- tions, admittedly made the work more difficult to perform and con- siderably slowed its progress. In addition, some of their completed work had to be removed and reinstalled in accordance with a change of plans and not because of defective workmanship. These factors could well account for the difference in footage installed daily. Not only were Hayes and Moss never criticized regarding their work production, but on the contrary, they were admittedly compli- mented on Friday, 1 week before their discharge and the last work- day before their 2-day absence. In attempting to explain the compli- ment, Nelson related that this came about because a company inspector had gone over the job with him and had complimented him on the progress of the work of the whole crew 11 and he in turn had conveyed 'GThat the- work of Hayes and Moss came under direct scrutiny by the inspector is shown by the 'undisputed testimony that he particularly noticed and commented upon a specific work procedure followed by them. It is irrelevant whether this procedure saved material and improved the finished work to the benefit of the Company, a matter con- cerning which Nelson gave conflicting testimony, as there is no allegation that the quality of their work was unsatisfactory. 577684-61-vol 128-81 1270 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD this compliment individually to members of the crew. As the compli- ment was based in substantial part upon production of a satisfactory quantity of work because the completion date of the contract required a "tight" work schedule, Nelson's action in conveying this general compliment specifically to Hayes and Moss tends to refute any claim of dissatisfaction with their productivity at that time. Nor is there any evidence that a change occurred during the 3 remaining days that they worked. Indeed, Nelson did not deny Hayes' testimony that as they were about to leave after their termination Nelson told Hayes and Moss "If you are ever in (Jacksonville) and want a job, look us up." In view of the fact that Hayes and Moss admittedly were never given any indication by anyone that their production rate was not suf- ficient, the fact that they were complimented on their work so near the date of their discharge, and the fact that they were invited to seek further employment with the Company in its home area, we find that nonproductivity was not the real cause of discharge. Although, as we have found, Hayes and Moss were not discharged for- the reasons stated, there remains the question of whether they were discharged for an illegal reason. We turn therefore to other evidence,in the record for the cause of their discharges. As indicated by the Trial Examiner, Hayes and Moss testified that, shortly after noon on Friday, March 28, Union Steward Jeffers came to where they were working and told them "we are going to have to lay you boys off today." Hayes interrupted to ask if it was because they had been off 2 days that week and Jeffers answered, "No; it's not because you were off and it's not because of your work, and I don't want you to feel bad. We're having to lay you off because we have two members of our Local Union that are loafing, and want to come to work here; so we have got to put them to work." Jeffers instructed them to meet him at the tool shack at 3 o'clock. Jeffers met them at the tool shack and while they were gathering their tools he left them for a few moments. He returned with their pay which he gave them and collected their receipt therefor and their badges. They then loaded their tools on the back of the truck. Before leaving the jobsite Nelson came to the back of the truck, shook hands with Hayes and Moss, and said : "I am sorry to see you fellows go ; but you know we are out of our jurisdiction, and we have to go along. If you are ever in (Jacksonville) and want a job, look us up." Moss also testified that after their discharge he talked to Foreman McLaughlin regarding their termination. McLaughlin told Moss he "understood that there were some fellows in off a Florida job who were back in town wanting work; and probably we were being replaced by those fellows." In finding that Respondents did not violate the Act by the dis- charges,of , Mayes and Moss who were from another area and were not members of Respondent Local 508 but were working under its SATCHWELL ELECTRIC CONSTRUCTION COMPANY, INC. 1271 permit and referral, the Trial Examiner accepted Job Steward Jeff ers' and Foreman McLaughlin's denials that they told the dischargees they were being removed to make room for unemployed local members, and Superintendent Nelson's denial that he mentioned to them any- thing about being out of his or their jurisdiction. The General Coun- sel asserts that the Trial Examiner ignored factual evidence in the record, some undisputed and some corroborated by Respondent Com- pany's witnesses, requiring a different conclusion. Jackson, a distinterested witness subpenaed by the General Counsel and characterized by the Trial Examiner as obviously confused, was a member of Respondent Local 508 and worked on the job herein involved from February 1958 until it was completed in early July. He testified that two or three electricians, who were local men belonging to Respondent Local 508, were hired the Monday following the dis- charges of Hayes and Moss. He could not name the specific elec- tricians hired at that time, but was firm in his recollection that they were members of Respondent Local 508 with whom he had previously worked on other jobs." In this respect, Nelson at first testified that he did not hire three men on the Monday after Hayes and Moss were discharged. Later he indicated that he hired three men, but after the Monday following the discharges. He then explained that arrangements were made with Fitzpatrick on Thursday before Hayes and Moss were discharged for the employment of three electricians but that only one came in on Monday and two more reported to work after Monday. Nelson's testimony ultimately confirms Jackson's that additional employees were hired following the discharges of Hayes and Moss, except according to Nelson, only one reported to work on Monday and the others reported thereafter. Although the Trial Examiner indicates there was no proof that the employee who reported to work on Monday was a Local 508 member, Jackson's testimony that the new recruits were to his knowledge all members of Respondent Local 508 was not denied or contradicted. We are impressed with the candor of this disinterested witness whose testimony was substantially cor- roborated by Respondent Company's own witness, and find that Jack- son was not confused even though he may have been in error as to "Jackson very candidly testified that his only knowledge as to the reason for the discharges of Hayes and Moss was merely "talk " On examination by the Trial Exam- iner as to the firmness of his recollection of local men being hired following Hayes' and Moss' discharges when he could not specifically recall their names, he gave the following plausible explanation. On Friday an electrician he was working with told him Hayes and Moss , "two of these out-of-town men" were being "let go to make room " for some local members It was suggested that some of the "boys from Brunswick must be tired of working in savannah." Jackson had "two good friends" working in Savannah whom he knew wanted "to get closer to home" and harbored the hope that the replacements for Hayes and Moss might be his friends , so he looked particularly to see if his friends would report to work the following week. He was disappointed because the replacements turned out not to be his "friends" but other men he knew as belonging to Local 508 and with whom he had previously worked. 1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the number of new employees who reported to work on Monday. In view of the Trial Examiner's reasons for rejecting his testimony which we find to be without basis, we shall accord weight to Jackson's testi- mony in reaching our conclusion. Counihan, business manager of Local 508, admitted that Respondent Local 508 had, in the past, taken steps to remove nonlocal men from jobs in favor of unemployed local members. This practice was in accord with provisions contained in Respondent Local 508's area con- tracts and permitted by that section dealing with the 48-hour notice arrangement referred to by Nelson as part of his "private" agreement with Fitzpatrick. Counihan further testified that as a result of charges filed in other cases it was disclosed that Respondent Local 508's contracts were unlawful and that it was given until September 1958, by its International, to get its contracts in order with the National Labor Relations Board rulings. Although Counihan asserted that since this ruling Respondent Local 508 had not tried to remove non- local men in favor of local unemployed, he admittedly was not directly involved in any of the events concerning the cases of Hayes and Moss after his initial referral of them to his assistant, Fitzpatrick. It is apparent, therefore, that he could not speak from direct knowledge of the circumstances in the instant case which occurred within that geographical -portion of the Respondent Local 508's territory under the direct authority of Fitzpatrick. Union Steward Jeffers testified that on the day Hayes and Moss were laid off, McLaughlin came to him around noon, gave him their money, and said he would have to lay them off, and, to Jeffers' request for the reason, McLaughlin replied they were not producing and "had laid off work" a couple of days without notifying anyone. However, when asked to state exactly what McLaughlin had said to him, Jeffers testified "Well, he came up and said, we are going to have to let Moss and Hayes go. Give them their money; and he gave me their money." Jeffers was read that portion of his affidavit which stated that it was Superintendent Nelson who advised him of the decision to discharge Hayes and Moss. Jeffers acknowledged his affidavit and that this was what he had stated. On further examination Jeffers recognized that there was a discrepancy between the affidavit and his testimony. He acknowledged that it was McLaughlin and not Nelson who spoke to him. He then testified that the affidavit was wrong. Jeffers was asked to relate in his own words what happened after McLaughlin spoke to him regarding Hayes and Moss and testified as follows : A. Well, after we went back to work, I went around and told Mr. Hayes and Mr. Moss, I believe his name is, that we had to let them go. Q. Did you tell them why? A. I don't remember them asking me why. SATCHWELL ELECTRIC CONSTRUCTION COMPANY, INC. 1273 Jeffers denied telling Hayes and Moss he was sorry to see them go. However, his affidavit contains his statement to the contrary. This statement was read to him, but no attempt was made to reconcile this inconsistency between his testimony and his affidavit. Although Jeffers denied giving Hayes and Moss any reason for their discharges, his testimony in this respect is couched in language of uncertainty, or lack of memory. His only clear denial of the con- versation as related by Hayes and Moss was in response to a question with directions to give a "yes" or "no" answer, but on cross-examina- tion his answers with respect thereto were again couched in the language of uncertainty.12 Moreover, on cross-examination and after being confronted with statements in his affidavit to the contrary, he repudiated that portion of his testimony on direct examination wherein he had indicated he had never before the hearing heard of the reason for discharge which Hayes and Moss testified he had given them. This places considerable doubt upon his denial that he in fact gave them the reason claimed by them. Foreman McLaughlin denied engaging in any conversation with either Hayes or Moss with respect to their discharges. He testified that a little before noontime Nelson told him of a decision to let Hayes and Moss go and gave him the absenteeism and nonproductivity rea- sons and their pay envelopes. After lunch, McLaughlin gave Jeffers their pay envelopes and "just told him . . . Nelson was laying them off." He gave as his reason for not speaking to Hayes and Moss the fact that it was normal practice for the job steward to take care of these matters. Nelson admitted going out to the truck as Hayes and Moss were leaving and telling them he was "sorry." Nelson explained that he went out to say "good-by" to them for "good relationships." The only portion of the version of this conversation given by Hayes and Moss which Nelson denied related to the comment about being out of his jurisdiction. Nelson testified that he is the one who makes the decision to termi- nate an employee and that he then notifies the employee. He denied that the duty of terminating employees was delegated to the job steward. With respect to the discharges of Hayes and Moss, Nelson claimed to have made the decision. However, he admitted that he did not personally notify them but rather instructed both the foreman 120n cross-examination, Jeffers testified as 'follows Q. Would you go over again for me, if you would, please, the conversation you had with Mr. Hayes and Mr. Moss at their termination , when you handed them their check? A I just gave them their check and told them they would have to go ; that we was laying them off. Q. Was there any reason given them ? Did you tell them why they were being laid off? A. I don't believe there was any reason given. I don't believe they asked me, if I remember right. A274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the job steward, and that both then notified Hayes find Moss of the termination. He gave as his reason for following this latter pro- cedure in this instance the fact that he•"had nothing to say to them." On further examination, Nelson testified that it was standard practice for the job steward to notify employees who were being terminated, and that he notified both the foreman, and the job steward about the termination in this situation and in each instance when the discharge occurred while the man was on the job. As is apparent from the foregoing, not only was Nelson's testimony self-contradictory, but it also conflicted in various important respects .with the testimony of the foreman and the job steward. Thus, al- though he claimed that the practice was for him to make the decision and to terminate the employee himself, he admitted that he did not ,notify the employees of their termination in this 'instance. ' His'reason for 'not personally notifying Hayes and Moss-that' he had' nothing -to say to them-is unconvincing to say the least, in view of the fact that a few hours later he admittedly found it advisable, "for good relationships," to go to them before they left the jobsite to tell them he Was sorry, etc. Nelson denied that it `gas the practice of the job steward to notify the employee of termination, contrary to the fore- man's testimony, then later asserted that this was the standard prac- tice. He claimed to have instructed both the foreman and the job steward concerning the discharges of Hayes and Moss and gave his special reason for following this procedure; then asserted that this was the standard practice whenever the dischargee was still on the job. Jeffers' repudiation of his sworn statement that Nelson told him of the decision to discharge Hayes and Moss and his insistence that it was Foreman McLaughlin only, constitutes a contradiction of Nelson's testimony that he personally instructed both the foreman and the job steward in this instance. Although Nelson testified that both the foreman and the job steward notified Hayes and Moss of their discharges, McLaughlin and Jeffers, in agreement with Hayes -and Moss, testified that it was only the job steward. Nelson did not testify whether or not he gave any reason with his instructions for the discharge. McLaughlin testified that Nelson gave him the nonproductivity and absenteeism reasons. However, McLaughlin gave their pay envelopes to Job Steward Jeffers and "just told him that . . . Air. Nelson was laying them off." Jeffers testified that he asked for and received from the foreman the "reason for the discharges, but when asked .to relate exactly what the foreman had 'said to him at that time he omitted any reference to the reason .foi. the discharges. None of them. testified, as to any instructions as to the hour at which work was to cease. Yet when he notified Hayes and 'Moss of their termination, Jeffers instructed them to' continue work until the time specified by him. He also testified that they had pay SATCHWELL ELECTRIC CONSTRUCTION COMPANY, INC. 1275 coming to them in addition to that which they received in the enve- lope at noon and that he obtained this for them while they were at the tool shed packing to leave. Thus, although Nelson testified that no one from Respondent Local 508 had anything to do with the termi- 'liation of Hayes and Moss, admittedly it was Job Steward Jeffers who notified them of their termination, gave them instructions as to the • time to report to the tool shack to gather their tools, gave them their pay, collected their receipts therefor, asked for relinquishment of their identification badges, and proceeded to escort them off the property. In view of the above, we believe that the Trial Examiner, by omit- ting from his consideration the testimony of Jackson and other perti- nent testimony, made findings which were contrary to the clear pre- ponderance of all the relevant evidence. As we view the evidence, the illegal oral argument reached by Nelson and Fitzpatrick permitted Respondent Local 508 to replace 'Respondent Company's nonmember employees with Respondent -Local 508 members on 48 hours' notice. Pursuant to this under- standing, Nelson and Fitzpatrick arranged on Thursday for Local • 508 member electricians to replace nonmembers Hayes and Moss the following Monday." Job Steward Jeffers then told Hayes and Moss that they were being replaced by Local 508 members, as testified by them, but because their replacements were not scheduled to report to work until Monday, he permitted them to remain on the job until late Friday. Because the reason for the discharges was to replace non- members with Local 508 members, a right given to Respondent Local •508 under the agreement between Nelson and Fitzpatrick and a union matter, the job steward, as representative of Respondent Local 508 and Respondent Company, handled the discharges. This is also why Nelson had nothing to say to them when they were discharged but went to bid them goodby, to tell them he was sorry, and to invite their future employment with the Company at its. home territory of oper- ation voicing -recognition of the fact that both the Company and the •dischargees were operating outside their territory and the Company was complying with the dictates of the territorial rules of Respondent 'Local 508. Under all the circumstances we are persuaded and find that Re- spondent Local 508 caused Respondent Company to discharge Hayes and Moss because of their nonmembership in Respondent Local 508 in order to make room for members and thus to discriminate against ,i3 We do not regard as a persuasive argument against this conclusion, as the Trial Examiner apparently does, the fact that two other electricians who were similarly nonmembers and working under -a temporary Local 508 permit , were not also replaced. Obviously, the number of replacements at any given time depends upon the number of un- employed members seeking placement and the number of available jobs. 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them; that Respondent Local 508 thereby violated Section 8(b) (2) and (1) (A) ; and, that Respondent Company, by discharging them, thereby violated Section 8(a) (3) and (1) of the Act.14 3. The General Counsel has excepted to the Trial Examiner's failure to find that Respondent Company violated Section 8 (a) (3) and (1) and Respondent Local 508 violated Section 8(b) (2) and (1) (A) of the Act by applying their illegal agreement to job applicant Thornton. The General Counsel urges that the Trial Examiner erred in (1) resolving the issue solely on the basis of the demeanor and candor of two witnesses-Nelson and Thornton; (2) crediting Nelson forthwith and completely ignoring significant testimony of Williamson, a dis- interested witness; (3) overlooking the fact that Nelson proved to be a self-contradictory witness; and (4) disregarding the fact that the Thornton application occurred in the context of the illegal hiring arrangement between Nelson for Respondent Company and Fitz- patrick for Respondent Local 508. Thornton, a member of Respondent Local 508, applied directly to Superintendent Nelson on May 6, 1958, for employment as an elec- trician with Respondent Company. He gained entrance to the jobsite by permission of the chief guard at the gate who assigned a guard to accompany him on the grounds. In response to his request for em- ployment Thornton testified that Nelson replied, "I couldn't hire you because I can't hire anyone except through the union." Nelson asked whether Thornton had seen Fitzpatrick, then told him he would have to see Fitzpatrick. Thornton asked who Fitzpatrick was and Nelson told him. Thornton further testified that he attempted several times to contact Fitzpatrick but was unable to do so and returned to the plant again on May 12 and went to the gate guard as he had done before to obtain admittance to the plant area to see Nelson. The chief plant guard told Thornton he "didn't think it was any use to go in as Nelson had phoned the previous Friday to state he was expecting Thornton and if he came to tell him Nelson was not hiring anybody, but was laying off." Nelson denied having given the reply testified to by Thornton. Instead he claimed that he told Thornton they were not hiring anyone as the job was in the process of finishing and he was trimming his crew. Nelson further testified that Thornton was the only person who had inquired about work on the job; that he did not know how Thornton got onto the jobsite but observed that a guard was standing nearby; that he thereafter called the gate guard and "complained" about people coming to see him on the job; and that he told the guard he was not hiring anyone else. On cross-examination Nelson testified 14 Member Fanning does not believe that the illegal oral agreement covers the precise situation of Hayes and Moss, but holds that the evidence set forth above amply supports the conclusion, in which he concurs, that their discharge was caused by the Respondent Local because of their nonmembership therein. SATCHWELL ELECTRIC CONSTRUCTION COMPANY, INC. 1277 that he had not "complained" to the guard, that he merely told the guard he was not hiring anyone else, and denied that he left word with the guard for any specific person. He did not fix the date of the call, except that it was after Thornton came to see him. Williamson, a plant guard for Brunswick Pulp and Paper Com- pany, testified that he received a call from Nelson who stated he was expecting a man to come in to see him and that this man, whom he identified as Thornton, might come in that day; that if he came Nelson did not care to see him because he did not have any jobs open, that he was laying off men, and the guard could give this message. As part of Williamson's duties he keeps the gate guard logbook in which passes and telephone calls are recorded. Williamson further testified that admittance to the construction job was not permitted unless the person had a badge or a referral card or was accompanied by a guard-only the chief guard could send in a guard escort with someone-and that the policy was not to permit job applicants in without referral cards. He had not known Thornton before Thornton came to the jobsite to see Nelson and was referred by him to the chief guard who sent an- other guard as Thornton's escort. He saw Thornton again when Thornton returned and conversed with the chief guard but was not admitted to the jobsite. As noted, the Trial Examiner made no reference to and apparently did not consider Williamson's testimony. We regard such testimony of a disinterested witness as shedding considerable light on the con- flict between the testimony of Nelson and Thornton, as well as upon the more credible version of Nelson's self-contradictory story. Nelson admittedly made a call to the guard gate after Thornton's first visit. Whichever version of Nelson's testimony is accepted the apparent pur- pose was to prevent any job applicant from gaining admittance. Moreover, in view of Nelson's own statement that Thornton was the only applicant for a job who had been admitted to the jobsite, and thus the cause for the "complaint," it would have been unnecessary to leave a message that he was not hiring anyone else unless he was expecting an applicant-namely Thornton-to return. Williamson, who received the call, testified that the message was left for Thornton. If Nelson had in fact told Thornton while he was applying that no hiring was being done, there would have been no necessity to call the guard to leave a message to that effect. For there would have been no reason to expect Thornton to return. On the other hand, if Nelson in fact told Thornton he could be hired only through Local 508 and to contact Fitzpatrick, he could well have expected Thornton to return and thus telephoned the guardhouse with a message for Thornton. Nelson's statement to Thornton, as testified to by Thornton, was likewise in keeping with the actual arrangement between Nelson and Fitzpatrick-namely, that Nelson would secure his employees only 1278 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD through Fitzpatrick. The instruction's at the guard gate to enforce the policy not to permit job applicants without referrals was an im- plementation of this illegal agreement. Nelson's "complaint" to the guard was to direct continuance of this policy and also confirms its existence as applied to Thornton. Thus, we find, as testified to by Thornton, that Nelson told him "I couldn't hire you because I can't hire anyone except through the union" and advised him to see Fitz- patrick. Moreover, even if Nelson had not made this statement to Thornton, the fact was that Thornton could not have been hired by Nelson because of the illegal agreement, arrangement, practice, and understanding entered into between Respondent Company and Re- spondent Local 508. This being true, it is basically unimportant whether or not Nelson told Thornton this was the reason. If he did tell him, Nelson was merely telling the truth. Thus, regardless of whether or not he told Thornton of the illegal arrangement, the ar- rangement was still there. It was still in effect; it still barred Thorn- ton from securing employment with Respondent Company except through Respondent Local 508. Regardless of what Nelson did or did not say to Thornton, the illegal arrangement was a barrier be- tween Thornton and employment 15 Under these circumstances, Respondent Company violated Section 8(a) (3) and (1) and Respondent Local 508 violated Section 8(b) (2) and (1) (A) of the Act. - 4. The General Counsel, under the misapprehension that the Trial Examiner failed to make findings thereon, urged the Board to rule de nova upon whether Respondent Fitzpatrick also violated Section 8(b)-(2) and (1) (A) of the Act in all respects found against Respond- ent' Local 508 as alleged in the complaint. We note that in the con- clusions of law of the Intermediate Report, the Trial Examiner found that Respondent Fitzpatrick has not violated the Act with respect to Hayes, Moss, or Thornton, but did fail to make a finding concerning Fitzpatrick's responsibility with respect to the illegal agreement. We find, in agreement with the General Counsel, that because of his active participation in all the unfair labor practices committed by Respond- ent Local 508, Respondent Fitzpatrick, a responsible agent of Re= spondent Local 508, thereby violated Section 8(b) (2) and (1) (A) of the Act. THE REMEDY In addition to finding, as the Trial Examiner did, that Respondent Company violated Section 8(a) (3) and (1) of the Act and Respond- ent Local 508 violated Section 8(b) (2) and (1) (A) of the Act by their illegal agreement, we have found that Respondents also violated the Act by discriminating against Earnest F. Hayes and R. W. Moss, 15 See Permanente Steamship Corporation , 107 NLRB 1111, 1113. SATCHWELL ELECTRIC CONSTRUCTION COMPANY, INC. 1279 by discharging them because of their nonmembership in Respondent Local 508 in order to replace them with members, and by refusing to hire Gus Thornton without a Local 508 referral. With regard to Hayes and Moss, the Respondent Company offered to reinstate them to their former or substantially equivalent positions by a letter sent registered mail on June 6, 1958. By this offer the Respondent Company fulfilled its legal obligation to reinstatement and has, therefore, tolled its backpay liability. Accordingly, neither Hayes nor Moss is entitled to further offer of reinstatement and each is entitled to receive from the Respondents jointly and severally back- pay in the amount he would normally have earned from March 28 only to June 6, 1958, the date of Respondent Company's offer of reinstatement.ls As to Thornton, the General Counsel in his brief to the Board states that no order of reinstatement or backpay is sought because (1) the job has been completed and (2) he adduced no evidence that there was in fact a vacancy which Thornton could have filled. Regarding (1), as the Respondent Company has completed the work contracted for and is no longer engaged in business in the geographical area of Re- spondent Local 508, no order requiring the Company to hire Thorn- ton is feasible or possible." However, with respect to (2), liability for backpay does not under the circumstances herein depend upon the availability of a job. For, it is settled that where there is a discrimi- natory hiring policy or practice which has been communicated to an applicant for employment, regardless of whether a job is available at the time of application, discrimination dates from that time because it- can be inferred that further application would be futile.18 It is clear from the record that Thornton applied to Respondent Com- pany Superintendent Nelson for a job on May 6, 1958. Accordingly, the. discrimination against Thornton by both Respondents began at that time. However, under the backpay order we shall issue, no actual backpay 'would start to accrue until work became available. Therefore, we leave to the compliance stage the question as to whether there were openings on May 6, 1958, and subsequent thereto capable of being filled by Thornton and the amount of backpay due him jointly and severally from the Respondents. We shall order the Respondents to notify Thornton that they have no objection to his employment in the event Respondent Company should in the future resume operations in the geographical area of Respondent Local 508. Backpay for Hayes, Moss, and Thornton shall. be, computed in -accordance with the formula stated in F. W. Woolworth, Co? npanyi 90 NLRB 289. 10 R. J. Ott & Refining Co, Inc, 108 NLRB 641. 17 K. M.,& M. Construction Co., 120 NLRB 1062, 1064. 10Mountain, Pacific Chapter of the Associated General Contractors, Inc., et at, 119 NLRB 883, footnote 3, at 884, and cases cited in footnote 13, at 899. 1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have also found that H. G. Fitzpatrick, an agent of Respondent Local 508, shares responsibility with Respondent Local 508 for the unfair labor practices committed herein and shall also direct our order against him. However, in accord with our usual practice, we shall not hold the business agent personally liable for backpay and for refund of unlawfully collected dues and assessments.19 The Trial Examiner found that union dues and assessments were deducted from the pay of employees Hayes and Moss by Respondent Company and paid to Respondent Local 508 without written authori- zation by either Hayes or Moss, and recommended that Respondent Company and Respondent Local 508 be jointly and severally required to refund to all journeymen and apprentice electricians employed by the Respondent Company on the particular job, the dues, initiation fees, assessments, permit fees, etc., paid by said employees as a price for their employment. However, the record fully establishes that such unauthorized deductions were made from the pay of all employees and not only from the pay of Hayes and Moss, as might be inferred from the Trial Examiner's statement of facts. As we have found that dues and assessments were collected by Re- spondent Company and paid to Respondent Local 508, not only as a. form of applying their illegal agreement as the price employees paid in order to obtain or retain their jobs, but also without appropriate authorization by any of the employees, we do not believe it would effectuate the policies of the Act to permit the retention of payments which have been unlawfully exacted from them. Accordingly, we shall order Respondents, jointly and severally, to refund to employees of Respondent Company on the Brunswick Pulp and Paper Com- pany job, the moneys thereby exacted.20 These remedial provisions, we believe, are appropriate and necessary to expunge the coercive effect of Respondents' unfair labor practices. We shall also order the Respondents to make available to the Board, upon request, pay- roll and other records to facilitate the checking of the amount of backpay due. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following : ADDITIONAL CONCLUSIONS OF LAW By discriminating in regard to the hire and tenure of employment of Earnest F. Hayes, R. W. Moss, and Gus Thornton, Respondents • 3° See Lexington Electric Products Co., Inc., et al., 124 NLRB 1400, and cases cited therein. m As the record clearly establishes that initial employment and work performed by Respondent Company on this job commenced within 6 months prior to the filing and service of the initial charge against each Respondent herein , their liability should therefore extend to all such moneys thereafter collected during the said electrical construction project. SATCHWELL ELECTRIC CONSTRUCTION COMPANY, INC. 1281 Company, Local 508, and Fitzpatrick have engaged in and are en- gaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) and 8(b) (2) and (1) (A) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that : A. The Respondent, Local Union No. 508, International Brother- hood of Electrical Workers, AFL-CIO, its officers, representatives, agents, successors, and assigns, and the Respondent, H. G. Fitzpatrick, its business representative, shall : 1. Cease and desist from : (a) Entering into, performing, maintaining, or enforcing any agreement, arrangement, practice, or understanding with Satchwell Electric Construction Company, or any other company within its territorial jurisdiction over whom the National Labor Relations Board will assert jurisdiction, which conditions the hiring of applicants for employment, or the retention of employees in their jobs, with such employer upon clearance or approval by the said Respondents, or which requires that preference in employment or retention of employ- ment be given to members of the Respondent Union. (b) Operating an exclusive hiring hall, except under the standards specified in the Mountain Pacific case.21 (c) Causing or attempting to cause Satchwell Electric Construction Company, or any other employer within its territorial jurisdiction over whom the National Labor Relations Board will assert juris- diction, to discriminate against Earnest F. Hayes, R. W. Moss, or Gus Thornton, or any other employee or applicant for employment, in violation of Section 8 (a) (3) of the Act. (d) In any like or related manner interfering with, restraining, or coercing employees or applicants for employment in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Jointly and severally with Respondent Company reimburse all employees of the latter for moneys illegally exacted from them in the manner and to the extent set forth in the section of this Decision and Order entitled "The Remedy." (b) Jointly and severally with Respondent Company make whole Earnest F. Hayes, R. W. Moss, and Gus Thornton in the manner set forth in the section of this Decision and Order entitled "The Remedy," for any loss of earnings incurred as a result of the discrimination- against them. 21119 NLRB 883 1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all membership, dues, and permit fees, reports, out-of-work lists, and other documents and records neces- sary to analyze and compute the amounts of moneys due under the terms of this Order. (d) Post at its business offices and meeting halls copies of the notice attached hereto marked "Appendix A." 22 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by an authorized representative of the Re- spondent Local 508, and by the Respondent Fitzpatrick, be posted by the said Respondents immediately upon receipt thereof and be main- tained by Respondent Local 508 for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respond- ents to insure that the 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 paragraph (d), above, and as soon as they are forwarded by the Regional Director, copies of Respondent Company's notice herein marked "Appendix B." (f) Mail to the Regional Director for the Tenth Region signed copies of "Appendix A" for posting by Respondent Company as pro- vided herein. Copies of said notice, to be furnished by the said Re- gional Director, shall, after being signed by Respondent Local 508 representative and by Respondent Fitzpatrick, be forthwith returned to the Regional Director for such posting. (g) Notify Respondent Company and Earnest F. Hayes, R. W. Moss, and Gus Thornton, in writing, that it has no objection to the employment by Respondent Company or any other employer of the individuals named herein. (h) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. B. Respondent Satchwell Electric Construction Company, Inc., its officers, agents, successors, and assigns , shall : 1. Cease and desist from : (a) Entering into, performing, maintaining, or enforcing any agreement, arrangement, practice, or understanding whereby member- ship in, clearance from, or approval of Local Union No. 508, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, is required as a condition of employment, or retention of employment, or which requires that preference in employment be given to members of the Respondent Local 508. u In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a decree of the United States Court of Appeals , Enforcing an Order." SATCHWELL ELECTRIC CONSTRUCTION COMPANY, INC. 1283 (b) Encouraging membership in Local Union No. 508, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, or in any other labor organization, by discharging Earnest F. Hayes and R. W. Moss and replacing them with union members or by refusing to hire Gus Thornton without referral and clearance, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. (c) In any like or related manner interfering with, restraining, or coercing employees or applicants for employment in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with Respondent Local 508, reimburse all employees for moneys illegally exacted from them in the manner and to the extent set forth in the section of this Decision and Order en- titled "The Remedy." (b) Jointly and severally with Respondent Local 508, make whole Earnest F. Hayes, R. W. Moss, and Gus Thornton in the manner set forth in the section of this Decision and Order entitled "The Remedy," for any loss of earnings incurred as a result of the discrimination against them. (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to compute the amount of backpay due under the terms of this Decision and Order. (d) Post at their offices and building projects within the territorial jurisdiction of the Respondent Local 508, copies of the notice attached hereto marked "Appendix B." 23 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the representatives of the Respondent, be posted by them immediately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Company 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 paragraph (d), above, and as soon as they,are forwarded by the Regional Director, copies of the Respondents Local 508's and Fitzpatrick's notice herein marked "Appendix A." (f) Mail to the Regional Director for the Tenth Region signed copies of the notice attached hereto marked "Appendix B" for posting ' In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant-to a Decree of the United States Court of Appeals , Enforcing an Order." 1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Respondent Local 508 at its offices where notices to members and other persons using its facilities are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by representatives of the Respondent Company, be forthwith returned to the Regional Director for such posting. (g) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL 508 , INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO ; TO ALL EMPLOYEES OF SATCHWELL ELECTRIC CONSTRUCTION COMPANY, INC.; AND TO ALL APPLICANTS FOR EMPLOYMENT :'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 give notice that : WE WILL NOT enter into, either directly or indirectly, any ar- rangement, understanding, or practice, with Satchwell Electric Construction Company, Inc., or any other employer within our territorial jurisdiction over whom the National Labor Relations Board would assert jurisdiction, which requires employees or prospective employees to obtain job referrals or permits from us, or which requires that preference in employment be given to our members. WE WILL NOT cause or attempt to cause Satchwell Electric Construction Company, Inc., or any other employer over whom the National Labor Relations Board would assert jurisdiction, to discriminate against employees by discharging, refusing to hire, or requiring membership in any labor organization. WE WILL NOT in any like or related manner restrain or coerce employees, or prospective employees, of any employer over whom the National Labor Relations Board would assert jurisdiction in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL jointly and severally with Satchwell Electric Con- struction Company, Inc., make whole Earnest F. Hayes, R. W. Moss, and Gus Thornton for any loss of pay suffered as a result of the discrimination against them. AVE WILL jointly and severally with Satchwell Electric Con- struction Company, Inc., refund any and all dues, initiation fees, assessments, permit fees, and/or "dobies" collected from each and every employee employed by said Company on the Bruns- SATCHWELL ELECTRIC CONSTRUCTION COMPANY, INC. 1285 wick Pulp and Paper Company job during the period from February 18 through July 3,1958. LOCAL 508, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) Dated---------------- By------------------------------------- ( H. G. FITZPATRICK , Asstistant Business Manager). This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL EMPLOYEES 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 enter into, maintain, or enforce, either directly or indirectly, any arrangement, understanding, or practice, with Local 508, International Brotherhood of Electrical Workers, AFL-CIO, Savannah, Georgia, or any other labor organization, which requires employees or prospective employees to obtain job. referrals or permits from any labor organization as a condition of obtaining or retaining employment, or which requires that preference in employment be given to members of that union. WE WILL NOT encourage membership in Local 508, International Brotherhood of Electrical Workers, AFL-CIO, Savannah,, Georgia, or any other labor organization, by discharging, refus- ing to hire, or in any other manner discriminating in regard to^ hire or tenure of employment or any term or condition of em- ployment, or by entering into, maintaining, or renewing any agreement or understanding which requires employees to join,, or to maintain their membership in such labor organization as a condition of employment. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees, or applicants for employment, in the exercise of rights guaranteed them in Section 7 of the Act. WE WILL jointly and severally with Local 508, International Brotherhood of Electrical Workers, AFL-CIO, make whole. Earnest F. Hayes, R. W. Moss, and Gus Thgrnton for any, loss. of pay suffered as the result of the discrimination against them. 5 7 7684-81-vol 128-82 1286 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD.. WE WILL jointly and severally with Local 508, International Brotherhood of Electrical Workers, AFL-CIO, refund any and all dues, initiation fees, assessments, permit fees, and/or "dobies" collected from each and every employee of this company on the Brunswick Pulp and Paper Company job, Brunswick, Georgia, during the period from February 18 through July 3, 1958. All our employees are free to become or remain, or to refrain from becoming or remaining, members in good standing of any labor organization. SATCHWELL ELECTRIC CONSTRUCTION, COMPANY, INC., 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. INTERMEDIATE REPORT STATEMENT OF THE CASE This consolidated proceeding with all parties represented was heard before the duly designated Trial Examiner, James T. Rasbury, in Savannah, Georgia, on March 18 and 19, 1959, on complaint of the General Counsel and answers of the respective Respondents. The issues litigated involved the alleged violations of Section 8(a)(1) and (3) and 8(b)(1)(A) and (2) of the Labor Management Re- lations Act, as amended, herein referred to as the Act. Briefs were submitted by the General Counsel and the respective Respondents. Upon the entire record in the cases, and from my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF THE RESPONDENT Respondent Company is a Florida corporation having its principal office in Jackson- ville, Florida, where it is engaged in the electrical construction business. The complaint alleges, and the answer admits, that for the past 12 months Respondent Company performed services valued in excess of $100,000 for firms engaged in commerce. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union No. 508, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Respondent Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The unlawful contract The Respondent Company at all times material herein was a member of the North Florida Chapter, Inc., of the National Electrical Contractors Association. The Association had at all material times herein a collective-bargaining contract with Local Union No. 177, International Brotherhood of Electrical Workers, AFL- 010, which contained the following pertinent provision: Article Ill, Section 9: Local Union No. 177 is a part of the International Brotherhood of Electrical Workers and any violation or annulment of working rules or agreement of any other local union of the IBEW, or the subletting, assigning, or the transfer of any work in connection with electric work to any SATCHWELL ELECTRIC CONSTRUCTION COMPANY, INC. 1287 person, firm, or corporation not recognizing the IBEW as the exclusive repre- sentative of his, employees, will be sufficient cause for cancellation of this agreement, with. the individual employer involved, after the facts have been determined by the International office of the Union. In the instant case the Respondent Company was engaged in performing electrical services on behalf of and on the premises of Brunswick Pulp and Paper Company at Brunswick, Georgia, which is located within the territorial jurisdiction of Re- spondent Union, Local 508, IBEW. The Respondent Union at all times material herein had collective-bargaining agreements with employers engaged in the elec- trical construction work. within their territorial jurisdiction and such collective- bargaining agreement contained the following pertinent provisions: Article II, Section 1(b) : Members of the Union shall not work for other employers-except those who comply with the working rules appended to this agreement. However, this does not apply to regular maintenance municipal or government work when this is not done by the employer for its local. Article II, Section 5: Local Union 508 is a part of the International Brother- hood of Electrical Workers and any violation or annulment of working rules or agreement of any other local'union of the IBEW, or the subletting, assigning, or the transfer of any work in connection with electrical work to any person, firm or corporation not fair to the IBEW-or the employment of other than IBEW members on any electrical work in this jurisdiction of this or any other local union-by the employer, will be sufficient cause for cancellation of this agreement, after the facts have been determined by the International office of the Union. Article II, Section 7: The employer shall hire only workmen who are referred to them from the local union, but should the union be unable to furnish the employer with workmen within 48 hours of the time the union or its repre- sentatives receive the request the union shall issue temporary work cards to work- men who apply and are recommended by the employer, until such time as the union can furnish workmen and give employer, 48 hours notice for such replacement. Any such workman shall receive at least minimum wages and work under this agreement. Article III, Rule 3: (a) Membership in Local Union 508, IBEW, shall be classified as follows: cable splicer, journeymen, foreman and apprentice. The foreman shall have the ability to instruct journeymen wiremen in the proper installation of electrical work. He shall not be allowed to work with the tools. Article III, Rule 6: On all jobs requiring over three journeymen, one shall be designated foreman by the employer. When Job requires more than two (2) foremen, a general foreman must be designated by the contractors. For every eight (8) foremen or fraction thereof, a general foreman be designated. Article III, Rule 22(a): The employer further agrees to use members of Local Union 508 to perform all work on all jobs or positions covered by Article XXVII of the constitution of the IBEW, controlled directly or indirectly by him under the terms of this agreement. Article XXVII of the IBEW consti- tution deals with jurisdiction. Article III, Rule 34: No member shall work on any job where the constitution, bylaws, or working rules of this local union are violated. The bylaws of Respondent Union described the duties of stewards as follows: Article X, Section 2: To have a copy of the constitution, bylaws, working agreements and rules with them at all times. To see that all journeymen and other workmen at their respective shops or jobs have paid up dues receipts and cards or valid temporary working cards of the local union. To see that no trade or workmen encroach upon the jurisdiction of this local union. To see that all overtime at any shop or job is equally and impartially allotted to all the members employed there, insofar as practical. To report to the business manager any violation of our laws, rules or agreement. The constitution of the International Brotherhood of Electrical Workers contains the following provision: Article XVII, Section 10: Except when decided otherwise by the I.P. [Inter- national President] agreements between local unions and employers must 1288 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD contain a provision that the local union is part of the IBEW , and that a violation of annulment of the agreement with any local union , violates all agreements entered into with the same employer , corporation or firm, and any other local union in the IBEW. The language of article II, section 7, requires the employer to hire only employees referred from the local union and further gives the union the right to remove employees that are issued temporary workcards at the request of the employer. Clearly this creates an exclusive hiring hall with a right of removal of employees by the union for reasons other than those set forth in Section 8(b) (2) and 8(a) (3). When the hiring hall clause is read in conjunction with other provisions containing such meaning as-union members shall not work for employers who do not fully comply; employers shall hire only members to perform all work ; and all workmen must have paidup dues receipts and cards; the result is to create a closed shop in violation of 8(b)(2) and ( 1)(A) and 8(a)(3) and ( 1) of the Act. Any further analysis or explanation of this Examiner 's reasoning in reaching this conclusion seems obviated by the prior forthright pronouncements and reasoning expressed by the Board.' The Respondent Company contends that it cannot be guilty of violating the Act as alleged by the General Counsel because it has never had any agreement, either oral or written , which would embody the illegal contract clauses and bylaws as set forth above. Respondent Company's witnesses testified , and they were sup- ported in their position by Respondent Union 's witnesses , that the only agreement reached between Respondent Company and Respondent Union was that the Respond- ent Union would furnish Respondent Company with workers as and when requested by the Respondent Company. The General Counsel contends , however, that article II, section 9, of the Respondent Company's working agreement with Local 177, IBEW, required the Respondent Company to adhere to the working rules and agreement of any local union of the IBEW in whose territorial jurisdiction the Respondent Company might perform any work. Mr. T. E. Satchwell, Jr., president of the Respondent Company, testified at the hearing that "it is customary, when we go into another jurisdiction, to abide by the agreement , provided that there are no conflicts in our thinking of what is correct and incorrect . In that instance there is an arbitration clause in which we can call local members of the union, plus mem- bers of National Electrical Contractors Association , and arbitration on any point on which we are not in agreement . We do not have to abide by the agreement verbatim." The counsel for Respondent Union ably argues in his brief that there could not have been an agreement between Respondent Company and Respondent Union because of the lack of "mutual assent." While the Examiner does not dis- credit the testimony of Mr. Satchwell concerning the arbitrability of certain pro- visions in the working agreement between Respondent Company and Local Union No 177, of the IBEW, I do not feel that it is an effective legal explanation which would in any manner relieve the Respondent Company from their obligations as set forth in article 11, section 9, of their contract . The language of article II, section 9, unmistakably obligates the Respondent Company to abide by the working rules and agreement of Respondent Union , when the Respondent Company is working within the territorial jurisdiction of the Respondent Union, under pain of having their contract with Local 177 canceled in the event of any failure to abide by such working rules and agreement as might exist between Local Union 508 and any of the electrical construction employers within their territorial jurisdiction . To accept the argument of Respondent Union that there was no mutual assent between Respondent Union and Respondent Company would be to wholly ignore the realities of industrial life and the everyday working relationship between employers and craft unions in the building and construction industry . As, the Board has stated in the Marley case under analogous facts- "More precisely , it [the contract] makes the rules and regulations established by the local of any particular area determinative of working conditions . The fact that the working rules . . . were thus incorporated into the contract by reference, makes them no less a part of the contract than if they had been physically embodied in the document itself." 2 r therefore find that because of the contractual commitments made by the Respondent Company with Local Union No. 177, IBEW, wherein the Respondent Company See County Electric Co, Inc, et al , 116 NLRB 1080, and Mountain Pacific Chapter, etc, et al, 119 NLRB 883 2 See also Corbin on Contracts. vol I, p 336, sec. 107, The Marley Company, 117 NLRB 107 ; and Mechanical Handling Systems, Incorporated, 122 NLRB '396. SATCHWELL ELECTRIC CONSTRUCTION COMPANY, INC. 1289 agreed to abide by the working rules and agreements of other local unions of the IBEW in whose territorial jurisdiction they performed electrical work, that they therefore assumed the obligation of adhering to such contractual provisions, bylaws, and constitutional provisions as were effective within the territorial jurisdiction of Local Union 508. Having found the Respondent Company a party to the illegal clauses it therefore follows that the Respondent Company is guilty of having violated Section 8(a) (3) and (1) of the Act .3 B. The alleged discrimination against Hayes and Moss The factual situation concerning the discharge of Hayes and Moss by the Re- spondent Company is essentially identical and their cases shall be considered jointly in this report. Both Hayes and Moss are members of Local 776 of the International Brotherhood of Electrical Workers located in Charleston, South Carolina. Hayes contacted Business Agent M. J. Counihan of the Respondent Union who arranged for both Hayes and Moss to contact H. G. Fitzpatrick, the assistant business manager of the Respondent Union. Thereafter, both employees followed the usual procedure of exhibiting their paid dues receipts from their local in Charleston, South Carolina, to Fitzpatrick. He in turn prepared referral tickets for each of them and went with them to the Brunswick jobsite where they were placed on the job without more formalities than the mere signing of the usual W-2 forms for tax purposes and the listing of their social security numbers and the number of their dependents. After working the week of March 17, 1958, Moss and Hayes returned to their home in Charleston, South Carolina, as was their customary practice. Because of the illness of Hayes' wife and illness of Moss' young son, both employees failed to return to work on the following Monday and Tuesday, March 24 and 25. They both testified that they did not attempt to contact the Company to notify it of their absence or to indicate when they would return to work. Upon their return to work on March 26, they were not questioned concerning their absence, or the reasons therefor, by representatives or agents of either the Respondent Company or the Respondent Union. They continued at their usual work without further incident until sometime Friday, March 28, shortly after noon. Both Moss and Hayes testified that shortly after lunch on the 28th of March the union steward, W. L. Jeffers, came up to where they were working and told them, "we are going to have to lay you boys off today." At that point Hayes interrupted to ask if it was because they had been off 2 days of that week, and Jeffers answered, "No; it's not because you were off and it's not because of your work, and I don't want you to feel bad. We're having to lay you off because we have two members of our Local Union that are loafing, and want to come to work, here; so we have got to put them to work." Thereafter at about 3 o'clock on the same afternoon Hayes and Moss proceeded to the company tool shack as instructed by Jeffers. They packed their tools, turned in their badges, and received their final paychecks. Hayes testified that just before leaving the jobsite, Superin- tendent Edgar H. Nelson came to the back of the truck and shook hands with Hayes and Moss and said, "I am sorry to see you fellows go; but you know we are out of our jurisdiction, and we have to go along. If you are ever in [Jacksonville] and want a job, look us up." Moss further testified that he talked to T. B. McLaugh- lin, the foreman, during the time he and Hayes were at the tool shanty preparatory to checking out, and that McLaughlin had told him that he "understood that there were some fellows in, off of a Florida job, who were back in town, wanting work; and probably we were being replaced by those fellows." It is undisputed that while on the job, working assessments, dues, and/or dobies in the amount of $2.56 per week were deducted from the checks of Hayes and Moss and paid to Respondent Union without written authorization by Hayes and/or Moss. (See Section 302(c) (4) of the Act.) Jeffers and McLaughlin deny that they ever had such conversations with either Moss or Hayes and Superintendent Nelson credibly testified that he made the decision to discharge Hayes and Moss and that they were terminated because of absenteeism and nonproduction. Nelson further testified that the Respondent Company had a strict policy of discharging any employee who is absent for as much as 2 days and that there were other employees discharged from this particular job being per- formed for the Brunswick Pulp and Paper Company, because of absenteeism, and that one K. E. Gilbert was released from the job because of nonproduction. The company policy of releasing an employee for absenteeism of 2 days was confirmed 8 See County Electric Co., Inc, supra, and Mountain Pacific Chapter, supra. 1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by-the Respondent Company president, Satchwell. Nelson further credibly testi- fied that he had never been asked by any member of Respondent Union or any other union to discharge any employees from the Brunswick Pulp and Paper Company job. The General Counsel sought to corroborate the testimony of Moss and Hayes by the testimony of employee George Jackson who stated that he was a member of Respondent Union and had been employed on the Brunswick job that was performed by the Respondent Company. Jackson testified that there were either two or three men hired on the following Monday after Moss and Hayes were terminated on Friday, March 28. However, Jackson was unable to furnish the names of the men whom he believed had been employed on Monday following the release of Moss and Hayes, nor could he describe the individuals he had in mind. In view of the fact that the payroll records fail to reflect that there were two or three additional men hired by the Respondent Company on March 31, I am forced to conclude that Jackson was in error and must have confused other employees on the job (that may have been working for the general contractor) with those em- ployees working for the Respondent Company. The payroll records do indicate that E. Harris' name first appeared on the payroll records on March 31, 1958, but the only proof that he was a member of Respondent Union is the bare statement of an obviously confused witness that "they were men that belonged to 508, that I had worked with before." [Emphasis supplied.] 4 From a careful consideration of all the evidence and testimony, I am of the opinion Hayes and Moss were released by Respondent Company because of absenteeism and low prodilction and not for discriminatory reasons as alleged by the General Counsel. In reaching this conclusion I am persuaded not only by the "facts of life" and the reality of the manner in which responsible, experienced, and reasonable adults conduct themselves, but also by the fact that employees Rush and Gilliland, two electricians that were hired on the same day that Hayes "and Moss were hired and who were not members of the Respondent Local, continued on the Respondent Company's, payroll until the latter stages of completion of the Brunswick job by Respondent Company. •I shall, therefore, recommend dismissal of the allegations of individual discrimination against Hayes and Moss. C. The alleged discrimination against Gus Thornton' Thornton testified that he was a member in good standing of Local 508, IBEW, and that he- had followed the electrician trade for some 17 years. Thornton testi- fied, that on May 6, 1958, he applied for work as an electrician with the Respondent Company by speaking directly to Superintendent Nelson. In response to his request for employment, Nelson told him that he could not hire him because "I can't hire anyone except through the Union." According to Thornton, Nelson told him that he would have to contact Fitzpatrick, the assistant business agent for Respondent Union, before he could be hired. Nelson specifically denied that he told Thornton that- he would have to get cleared by the Respondent Union before he could be hired,, but instead stated that he told Thornton that we "wasn't hiring anyone; that the fob was in the' process of finishing.' In other words, I was trimming my crew down." Thornton further testified that following his conversation with Superintend- ent Nelson he tried twice on the same day to reach Fitzpatrick by telephone and on one occasion' drove by his home, but was unsuccessful in reaching Fitzpatrick From my observation of the deiiieahor and candor of these two witnesses, I credit the testimony'of Nelson. I shall recommend dismissal of the allegation of the com- plaiht.which' alleges that Respondent Company refused to employ Gus Thornton pursuant to an agreement, arrangement, -practice, and understanding with the Re- spondent Union and its agent, Fitzpatrick, all of which would be violative of the Act. s The General Counsel did not subpena, nor did the Respondent Company have available at" the hearing, the payroll records for the weeks ending April 8 and 15, 1958. At my request, and iyith agreement of all parties, the record was kept open to receive this further infoimation to be marked"Respoiideiit' Company's Exhibits Nos. 4 and 5. The exhibits were first forwarded by Respondent Company to counsel for General Counsel in order that he might examine them and 'make his objections, if any. I was advised by letter dated April 2, 1959, from counsel for General Counsel that he had no objections and was forwarding the Respondent Company's Exhibits Nos. 4 and 5 to the reporter for marking and inclusion in the exhibit file. There being no objections, Respondent Company's Exhibits Nos. 4 and 5 are herewith received and made a part of the official record. SATCHWELL ELECTRIC CONSTRUCTION COMPANY, INC. 1291 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents as set forth in section III, above , occurring in connection with the operation of Respondent Company described in section 1, above, have a close, intimate, and substantial relation to trade, traffic , and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found Respondent Company to have violated Section 8(a)(3) and (1) of the Act and Respondent Union to have violated 8 (a) (2) and ( 1) (A) of the Act, I shall recommend below that each of the respective Respondents cease and desist from their unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. In view of the nature of the unfair labor practices committed and the obvious dovetailing of local agreements in such a manner as to create a single comprehensive scheme for complete evasion of the statutory ban on all closed shops, a broad order prohibiting any infringement upon the rights guaranteed employees by Section 7 of the Act shall be recommended. To the extent that the Company has deducted dues, initiation fees, assessments, permit fees , and/or "dobies" from the wages of employees on the Brunswick job, it will be recommended that the Company and Union , jointly and severally, reim- burse the employees for such moneys 5 illegally deducted. - Upon the basis " of the foregoing finding of. fact, and on the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent Company has by agreement with a local of the International Brotherhood of Electrical Workers become a party to an agreement , arrangement, understanding, and/or practice with Respondent Local 508 of the International Brotherhood of Electrical Workers, establishing illegal closed-shop conditions of employment and an unlawful hiring hall arrangement which was discriminatory in regard to the terms and conditions of employment of its employees , illegally en- couraged membership in the Respondent Union , and interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)(3) and ( 1) of the Act." 4. The Respondent Union by the provisions of their bylaws , working agreements, and the constitution of the International Brotherhood of Electrical Workers became a party to an agreement; arrangement , understanding, and/or practice with Respoiid- ent Company establishing illegal closed-shop conditions of employment and an' unlawful hiring hall arrangement causing or attempting to cause the Respondent Company to discriminate against its employees in violation of Section 8(a)(3) and (1) of the Act, and has restrained and coerced such employees in, the exercise of their rights guaranteed in Section 7 of the Act , thereby engaging in unfair labor , practices within the meaning of Section 8 (b)(2) and ( 1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- mercewithin the meaning of Section 2(6) and (7) of the Act. 6. The Respondent Company has not violated Section 8 (a)(3) and ( 1) of the Act and neither has Respondent Union or its agent, Fitzpatrick , violated Section. 8(l)(2) and ( 1)(A) of the Act insofar as the complaint alleges violations of this section in regard to Earnest F. Hayes, R. W. Moss, and Gus Thornton. [Recommendations omitted from publication.] "The record clearly establishes that the initial ' work performed by the Respondent' Company on the Brunswick Pulp and Paper Company job was begun within 6 months prior to the filing and service of the initial charge against the Respondents herein and their liability should therefore extend to all money collected during the said electrical construction project. United Association of Journeymen d Apprentices of Plumbers & Pipefitting Industry, etc. (J S. Brown-E. F. Olds Plumbing and Heating Corporation), 115 NLRB 594 ; Broderick Wood Products Company, 118 NLRB 38 , enfd. 261 F. 2d 548.