Central Rigging and Contracting Corp.

342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that the Respondent, on September 15, 1959, discriminated in regard to the tenure of employment of Sammie Lee Hardwick, Chester Bell, Harvey Daniels, and Cleophus Burrough, it will be recommended that these employees be made whole for any loss of pay suffered as a result of the discrimination against them. Backpay shall be computed in accordance with the formula in F. W. Wool- worth Company, 90 NLRB 289. Inasmuch as the parties indicated some disagreement as to the exact date of recall of these employees, a matter for compliance, it will be further recommended that the Respondent, upon request, make available to the Board and its agents all payroll and other records pertinent to the dates of recall and to the analysis of the amounts of backpay due. Since the violations of the Act which the Respondent has committed are related to other unfair labor practices proscribed by the Act, and the danger of their com- mission in the future is reasonably to be anticipated from its past conduct, the pre- ventive purpose of the Act may be thwarted unless the recommendations are co- extensive with the threat. To effectuate the policies of the Act, therefore, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed by the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case I make the following: CONCLUSIONS or LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 4. By discriminatorily laying off Sammie Lee Hardwick, Chester Bell, Harvey Daniels, and Cleophus Burrough on September 15, 1959, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) by terminating the employment of Cleophus Burrough on September 30,1959. [Recommendations omitted from publication.] Central Rigging and Contracting Corporation and David Edwin Beard, Robert Thomas Quinnelly, Wesley B. Lasseter, Robert Bruce Beard, and George Lawrence Eunice Lodge 554, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, and its Agent C. K. Curry and Robert Thomas Quinnelly, Wesley B. Lasseter, Robert Bruce Beard, George Lawrence Eunice, and David Edwin Beard. Cases Nos. 10-CA-4082, 10-CA-4083, 10-CA-4084, 10-CA-4085, 10-CA-4087, 10-CB-1086, 10-0B-1087, 10-CB-1088, 10-CB-1089, acid 10-CB-1090. October 11, 1960 DECISION AND ORDER On April 21,1960, Trial Examiner Sidney Lindner issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair 129 NLRB No. 37. CENTRAL RIGGING AND CONTRACTING CORPORATION 343 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. Thereafter the Respondents filed exceptions to the Intermediate Report and supporting briefs.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Fanning]. 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 Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions,' and recom- mendations of the Trial Examiner.' 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. The Respondent Company, Central Rigging and Contracting Corporation , its officers, agents, successors, and assigns, shall: 'Respondent Union , Lodge 554, also requested oral argument . The request is hereby denied as the record , exceptions , and briefs fully present the issues and positions of the parties 2 We find , in agreement with the Trial Examiner , that the Respondents maintained an oral agreement , arrangement, or understanding whereby only boilermaker employees who were cleared or referred by Respondent Union , Boilermakers Lodge 554, were hired or retained in the employ of Respondent Employer The safeguards required in Mountain Pacific Chapter of the Associated General Contractors , Inc, et al, 119 NLRB 883, 897, must be observed even where the hiring agreement is not reduced to writing , and a failure to observe these safeguards is, as here, a violation of Section 8 (a) (1) and ( 3), and Section 8(b) (1) (A) and (2) of the Act, as amended Walter Rasmussen, dlb/a C Ras- inussen & Sons, 122 NLRB 674, 679, see also Harbor Terminal Company, 126 NLRB 659, footnote 1 3 Chairman Leedom and Member Fanning, who constitute the majority of the panel, find that the order, recommended by the Trial Examiner , against Respondent Company, which directs it, inter alga, to cease from entering into, performing , or giving effect to any oral agreement, arrangement, or understanding with Lodge 554, "or any other labor organization," must be limited in scope to Lodge 554 only. Similarly , they find the order against Respondent Union, which , as recommended, directs the Union to cease entering into, performing, or giving effect to any oral arrangement or understanding with Re- spondent Company, "or any other employer over whom the Board will assert jurisdiction," must be limited in scope to the Respondent Company , as must that part of the order directing the Respondent Union to cease causing Respondent Company, "or any other employer . ." to discriminate against employees Also, the provision ordering the Re- spondent Company to cease encouraging union membership must likewise be limited to membership in Lodge 554. Chairman Leedom and Member Fanning find that the fore- going modifications in the recommended order are required in that there is no substantial evidence in the record showing that either Respondent has a proclivity for unlawful conduct, that either customarily enters into the type of arrangements here proscribed, or that the conduct found unlawful is the first step in a scheme to extend the improper practices to other labor organizations or to other employers . See Communications TVorkers of America, et al. v. NLR B. (Ohio Consolidated Tele Co ), 362 US. 479 , N.L.R B. v. Brandman Iron Company , 281 F. 2d 797 (C A. 6) ; N L R.B v. Bangor Building Trades Council, 278 F. 2d 287 (C.A. 1) In view of the circumstances of this case and the testimony of the Union 's business agent, Member Rodgers would not narrow the scope of the order recommended by the Trial Examiner 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Entering into, performing, or giving effect to any oral agree- ment, arrangement, or understanding with Lodge 554, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, which conditions the hiring of applicants for employment or the retention of employees in their jobs upon referral, clearance, or approval by or upon membership in such labor organization. (b) Encouraging membership in Lodge 554, International Brother- hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, by granting preference in hiring to its members or by discriminating in any other manner in respect to the hire or tenure of employment, or any term or condition of employment. (c) Discriminating against David Beard, Robert Beard, George Eunice, Wesley Lasseter, and Robert Quinnelly, or any other appli- cant for employment, by refusing to hire any of them without approval of or referral by the above-named Union. (d) Discriminating against Robert Quinnelly, or any other em- ployee or applicant for employment, for the reason that he filed unfair labor practice charges against it with the Board. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Sec- tion 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 Boilermakers, Lodge 554, make whole David Beard, Robert Beard, George Eunice, WWresley Lasseter, and Robert Quinnelly for any loss of earnings each may have suffered because of the discrimination against him in the manner set forth in the section entitled "The Remedy" in the Intermediate Report. (b) Jointly and severally with Boilermakers, Lodge 554, refund to the boilermakers in its employ at the Bestwall job, all moneys unlawfully exacted from them, including initiation fees and dues, as a result of the illegal hiring arrangement with Boilermakers Lodge 554. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payments records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay and other moneys due under the terms of this Order. (d) Post at its offices and jobsites, within the terriorial jurisdiction of Boilermakers, Lodge 554, copies of the notice attached hereto marked "Appendix A." 4 Copies of said notice, to be furnished by 4In 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 " CENTRAL RIGGING AND CONTRACTING CORPORATION 345 the Regional Director for the Tenth Region, shall, after having been duly signed by a representative of Respondent Central, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees or job applicants are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (e) Post at the same place and under the same conditions as set forth in (d), above, as soon as they are forwarded by the Regional Director, copies of the Boilermakers, Lodge 554, notice herein marked "Appendix B." (f) Mail to the Regional Director for the Tenth Region, signed copies of the notice attached hereto marked "Appendix A" for posting by Boilermakers, Lodge 554, at its offices, hiring halls, and meeting halls, in places where notices to members and to other persons using Boilermakers, Lodge 554's, hiring hall are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being signed by a representative of Respondent Central, 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 haG taken to comply herewith. B. The Respondent Union, Lodge 554, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Help- ers, AFL-CIO, and its Agent C. K. Curry, its officers, agents, repre- sentatives, successors, and assigns, shall: 1. Cease and desist from : (a) Entering into, performing, or giving effect to any oral agree- ment, arrangement, or understanding with Respondent Central Rigging and Contracting Corporation which conditions the hiring of applicants for employment or the retention of employees in their jobs, with such employer upon clearance, referral, or approval by the said Respondent Union, or which conditions employment upon mem- bership in the Respondent Union. (b) Causing or attempting to cause Respondent Central Rigging and Contracting Corporation to discriminate against David Beard, Robert Beard, George Eunice, Wesley Lasseter, and Robert Quin- nelly, or any other employee or applicant for employment, in viola- tion of Section 8 (a) (3) of the Act. (c) In any like or related manner restraining or coercing employees or prospective employees of Respondent Central Rigging and Con- tracting Corporation in the exercise of their rights guaranteed in Section 7 of the Act. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Jointly and severally with Respondent Central Rigging and Contracting Corporation make whole David Beard, Robert Beard, George Eunice, Wesley Lasseter, and Robert Quinnelly for any loss of earnings they may have suffered because of the discrimination against them in the manner set forth in the section entitled "The Remedy" in the Intermediate Report. (b) Jointly and severally with Respondent Central Rigging and Contracting Corporation refund to all boilermakers employed by Respondent Central at its Bestwall job, all moneys unlawfully ex- acted from them, including initiation fees and dues, as a result of the illegal hiring arrangement with Respondent Central. (c) Preserve and, upon request, make available to the Board or its agent, for examination and copying, all records, reports, and out- of -work lists and other documents necessary to analyze the right to employment and the amounts of moneys due under the terms of this Order. (d) Notify Central Rigging and Contracting Corporation and David Beard, Robert Beard, George Eunice, Wesley Lasseter, and Robert Quinnelly, in writing, that it has no objection to their employment. (e) Post in Boilermakers, Lodge 554's, business offices, hiring hall, and meeting halls, copies of the notice attached hereto, marked "Ap- pendix B." 5 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 Boilermakers, Lodge 554, be posted by the said Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and to other persons using Boilermakers, Lodge 554's, hiring hall are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that the said notices are not altered, defaced, or covered by any other material. (f) Post at the same place and under the same conditions as set forth in (e), above, as soon as they are forwarded by the Regional Director, copies of the Respondent Central's notice herein marked "Appendix A." (g) Mail to the Regional Director for the Tenth Region, signed copies of the notice attached hereto marked "Appendix B" for posting by Respondent Central Rigging and Contracting Corporation, at its offices and jobsites within the territorial jurisdiction of Boilermakers, Lodge 554, including all places where notices to employees or job 5 See footnote 4, supra. CENTRAL RIGGING AND CONTRACTING CORPORATION 347 applicants are customarily posted. Copies of said notices, to be fur- nished by the Regional Director, shall, after being duly signed by a representative of Respondent Union, be forthwith returned to the Regional Director for such posting. (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. APPENDIX A NOTICE TO ALL EMPLOYEES AND 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 notify our employees that : WE WILL NOT enter into, perform, or otherwise give effect to any oral agreement, arrangement, understanding, or practice with Lodge 554, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL- CIO, which conditions the hire of applicants for employment or the retention of employees in employment upon membership in or approval, clearance, and referral by the aforementioned labor organization. WE WILL NOT discriminate against David Beard, Robert Beard, George Eunice, Wesley Lasseter, and Robert Quinnelly, or any other applicant for employment, by refusing to hire him with- out approval, clearance, and referral of the above-named Union. WE WILL NOT in any like or related manner interfere with, re- strain, or corece employees in the exercise of their rights guaran- teed in Section 7 of the Act. WE WILL NOT discriminate against Robert Quinnelly, or any other applicant for employment, by refusing to hire him because he has filed unfair labor practice charges against us with the National Labor Relations Board. WE WILL make whole David Beard, Robert Beard, George Eunice, Wesley Lasseter, and Robert Quinnelly for any loss of pay suffered by them as a result of the discrimination against them and offer them employment in the manner set forth in The Remedy section of the Intermediate Report. WE WILL refund to all boilermakers employed on our Bestwall job from April 13, 1959, any initiation fees, dues or other moneys they were illegally required to pay to Lodge 554, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, in order to secure or retain 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment with us under the illegal hiring arrangement be- tween our Company and the said Union. CENTRAL RIGGING AND CONTRACTING CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL MEMBERS OF LODGE 554 , INTERNATIONAL BROTHERHOOD OF BOILERMAKERS , IRON SHIP BUILDERS , BLACKSMITHS , FORGERS AND HELPERS, 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, as amended, we hereby notify our members that : AVE WILL NOT enter into, perform, or otherwise give effect to any oral agreement, arrangement, understanding, or practice with Central Rigging and Contracting Corporation which con- ditions the hiring of applicants for employment or the retention of employment in their jobs with such employer upon approval, clearance, or referral by us, or which conditions employment upon membership in our organization. WE WILL NOT cause or attempt to cause Central Rigging and Contracting Corporation to discriminate against David Beard, Robert Beard, George Eunice, Wesley Lasseter, and Robert Quin- nelly, or any other employee or applicant for employment, in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL make whole David Beard, Robert Beard, George Eunice, Wesley Lasseter, and Robert Quinnelly for any loss of pay suffered as a result of the discrimination against them, in the manner set forth in the section of the Intermediate Report en- titled "The Remedy." WE WILL refund to all boilermakers employed by Central Rig- ging and Contracting Corporation on its Bestwall job from April 13, 1959, any initiation fees, dues, or other moneys they were illegally required to pay in order to secure or retain employment with the said Company under the illegal hiring arrangement between our Union and the said Company. CENTRAL RIGGING AND CONTRACTING CORPORATION 349 WE WILL notify, in writing, Central Rigging and Contracting Corporation that we have no objection to the hiring or employ- ment of David Beard , Robert Beard, George Eunice, Wesley Lasseter, and Robert Quinnelly. WE WILL notify, in writing, David Beard, Robert Beard, George Eunice, Wesley Lasseter, and Robert Quinnelly that we have withdrawn our objection to the hiring of them by Central Rigging and Contracting Corporation or to their employment by any other employer. LODGE 554, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS , IRON SHIP BUILDERS, BLACKSMITHS , FORGERS AND HELPERS, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- C K CURRY, Business Agent 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 This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), was heard in Brunswick , Georgia, on December 8 and 9, 1959, pursuant to due notice, with all parties represented by counsel and participating in the hearing. An order consolidating cases, complaint, and notice of hearing in Cases Nos. 10-CA-4082, 4083, 4084, 4085, and 4087 and Cases Nos. 10-CB-1086, 1087, 1088 , 1089, and 1090 , based on charges duly filed, was issued by the General Counsel of the National Labor Relations Board on September 9, 1959, against Central Rigging and Contracting Corporation (herein called Re- spondent Central) and Lodge 554, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO (herein called Re- spondent Union and Boilermakers, Lodge 554), and its Agent C. K. Curry ( herein called Curry). The complaint alleged in substance that Respondent Central has engaged in unfair labor practices proscribed by Section 8(a)(1), (3 ), and (4) of the Act and that Respondent Union has engaged in unfair labor practices proscribed by Section 8 (b) (1) (A) and (2) of the Act by reason of the following: (1) Since on or about April 10, 1959, Respondent Central and Boilermakers, Lodge 554, have maintained and given effect to an agreement, arrangement, practice, or understanding under which Respondent Central hired and retained in its employ only employees who have been referred to it by Boilermakers, Lodge 554, through its Agent Curry; (2) the said agreement , arrangement, practice , or understanding failed to incorporate, and Respondents failed to put into effect , standards or criteria for preference in referral, and explicit provisions respecting the nondiscriminatory bases of selection of applicants for referral , and Central's right to reject applicants referred as pre- viously described , and failed to post notices containing all provisions relating to the function of the exclusive referral arrangement ; (3) on or about April 13, 1959, and at all times thereafter, Respondent Central pursuant to the agreement , arrangement, practice, or understanding refused to employ David Beard , Robert Beard, George Eunice, Wesley Lasseter, and Robert Quinnelly at its Bestwall job because they had not been referred to it by Curry and because they were not members of Boilermakers, Lodge 554; (4) on or about April 10, 1959 , and at all times thereafter, Respondent Central refused to hire Robert Quinnelly because he had previously filed unfair labor practice charges against it with the Board ; and (5) since on or about April 10, 1959, Respondents have required employees and job applicants of Central to pay Boiler- makers, Lodge 554, union dues, fees, assessments , and fines while maintaining and 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enforcing the agreement, arrangement, practice, or understanding heretofore described. By their answers Respondent Central and Respondent Union denied the allega- tions of unfair labor practices. Briefs were received on January 13, 1960, from counsel for the various parties and have been duly considered. Counsel for Respondent Central also submitted proposed findings and proposed conclusions. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF CENTRAL RIGGING AND CONTRACTING CORPORATION It was stipulated by and among counsel for the various parties that Central Rigging and Contracting Corporation is a New York corporation with its principal office located in New York City, New York. It is engaged in construction work in various States of the United States and is domesticated to do business in the State of Georgia. During the period February 10 through November 17, 1959, Respondent Central purchased in Brunswick, Georgia, materials valued in excess of $50,000, which materials originated outside the State of Georgia. During 1959 Respondent Central performed services valued in excess of $50,000 for the Bestwall Gypsum Company, a firm engaged in interstate commerce within the meaning of the Act, at its Brunswick, Georgia, plant. I find that Central Rigging and Contracting Corporation is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Lodge 554, International Brotherhood of Boilermakers , Iron Ship Builders , Black- smiths, Forgers and Helpers , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Respondent Central had a prime contract with the Bestwall Gypsum Company and the Port Authority of Brunswick, Georgia, to install all mechanical equipment and piping in the newly constructed Bestwall plant at Brunswick, Georgia. Charles Guck, Central's vice president in charge of engineering, testified that in order to perform the work called for in its contract, which started about January 15, 1959,1 it was necessary to employ' millwrights, ironworkers, boilermakers, pipefitters, operating engineers, carpenters, and laborers as the job progressed. Guck also testified that since most of Respondent Central's contracts are performed outside of its home office area (New York City), it is the general policy of the Company to obtain qualified craftsmen from a union hiring hall which has jurisdiction of the craft in the area. Guck stated that Respondent Central makes "arrangements" with the union business agent to recommend qualified mechanics to it, who are subse- quently hired at the gate as the need for them arises. About the first part of February, Earl Stapleton, Respondent Central's general superintendent on the Bestwall job, called a conference at his office of the business agents of the various craft unions to review the job blueprints and ascertain the work jurisdiction of each craft. Included among the others, were C. K. Curry, business agent of Boilermakers, Lodge 554, Brunswick, Georgia, and W. E. Cowart, business agent of Boilermakers, Lodge 26, Savannah, Georgia? Stapleton testified that just I All dates herein are In 1959 unless otherwise specified. 2 By letter dated January 8, 1959, re merger Lodge 554 with Lodge 26, William A. Calvin, International president of the Boilermakers, advised all members "former sub- ordinate Lodge 554" that under the authority of the International and subordinate lodge constitutions, the International executive council at its meeting in September 1958 adopted, among others, the following action s • t • ► s Lodge #26, Savannah, Georgia, and Lodge #554, Brunswick, Georgia, their monies, funds, property of all kinds and membership, to be merged into one Local Lodge, which Local Lodge shall have jurisdiction over field construction in all the counties in the State of Georgia now allocated to the two Lodges. (a) The headquarters office of the merged Lodge shall be In Savannah, Georgia, with a branch office In Atlanta, Georgia. The letter also contained the following : On October 15, 195'8, joint instructions were issued to Brother W. E. Cowart of Lodge #26 and Brother C. K. Curry of Lodge #554 on effectuating the merger ol. CENTRAL RIGGING AND CONTRACTING CORPORATION 351 as the conference started, a sheriff of the State of Georgia came into the office and asked Cowart to step outside with him. Cowart returned in about 5 minutes and told the others he "had just had a court order served" on him and "[I'm] restrained from this territory, from doing any business here." 3 He was sorry but he had to leave. Stapleton also testified that at the end of the conference he asked Curry if he could recommend boilermakers to him when he called. Curry replied that he could not. Bill Drury and Robert Quinnelly, members of Boilermakers, Lodge 26, Savannah, Georgia,4 testified they went to the Bestwall jobsite seeking employment as boiler- makers every several days during January and February. Robert Beard first inquired about work as a boilermaker from Stapleton in the latter part of January and about an average of twice a week thereafter. They were all told by Stapleton he would have work later. Stapleton testified that sometime in the latter part of February several cars of material had arrived at the jobsite which had to be unloaded. Buck Thrower and Cliff Harper happened to apply for work as boilermaker-riggers at the gate. After verifying their experiences, they were hired. Thrower was designated foreman. They worked a short time in February and again on March 8 and 9, when they were laid off because of lack of work. On April 9, Drury was hired as boilermaker-foreman by Whitey Williamson, Respondent Central's superintendent for the installation of mechanical equipment, to start work on April 13. While Drury and Williamson were talking on the jobsite, Guck walked up. Williamson introduced Drury to Guck and told the latter that Drury was to bring the boilermakers into the job on Monday morning. Guck said, "That's fine." Guck told Drury he did not want him to bring one certain man down to the job because "He tried to enter a suit against us." 5 Guck also told Drury to hire local men. Drury agreed, noting that many local men needed work. Before Drury left the jobsite that day, he talked with one Reitz, assistant to Stapleton in charge of the millwright work, who told him to come back the next morning at which ,time he would have Drury signed up and get him ready for Monday morning. Reitz also told Drury to "go ahead and get your men ready." On the morning of April 10 Drury returned to the jobsite. He signed W-2 forms in the office, preparatory to going to work on Monday. Reitz then instructed Drury to get together with one Thomas regarding the length of boom on a crane and the location the crane was to be spotted for Monday morning. Drury told Reitz they would hire one rigger and two boilermaker-welders on Monday morning. While Drury was talking with Reitz, word came to him to see Stapleton at the office. Stapleton told Drury he decided that he had "better hire the boilermakers." Drury remarked that Stapleton would have to call Curry and that the latter would send boilermakers who would resent working for him (Drury). Stapleton replied he would get the men and have them there Monday morning. Furthermore, if they did not work for Drury, he was to bring them into the office where they would the two Locals and on November 11, 1958, the two Business Managers were in- structed to complete the merger, effective December 1, 1958 You are advised, therefore, that Lodge #554 ceased to exist as of December 1, 1958, and this letter is being sent to each member of former Lodge #554 in order that your good standing in the International Brotherhood will not be jeopardized and you are instructed as follows. If your membership was originally in Lodge #554, your dues should be forwarded to : W E. Cowart, Business Manager, Lodge #26 2201 Bay Street, Ext. Savannah, Georgia 3 On February 6, 1959, Judge Douglas F Thomas, Superior Court, Glynn County, Georgia, issued an order in Case No. 6710 in which Cowart was named a defendant, providing among other things, "the defendants are restrained and enjoined from taking any step toward abolishing or changing the status of Boilermaker Local 554, Brunswick, Georgia, . . . from entering its territorial jurisdiction . . to obtain employment for members of any other local, organization, or labor union in its craft . . . 4 Drury and Quinnelly who resided in Brunswick, Georgia, as did Robert Beard, David Beard, and Wesley Lasseter, were formerly cardholders in Boilermakers, Lodge 554. Brunswick, but transferred their memberships to Lodge 26 in December 1958 and January and February 1959 In accordance with the instructions of International President Calvin set forth in his "merger" letter, supra 8 Guck was referring to Quinnelly who had filed an unfair labor practice charge against Respondent Central, which will be taken up in detail hereinafter. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be paid off. Drury left the jobsite. Upon his return home that afternoon, Drury was told that Stapleton wanted to talk to him before 4:30 p.m. Drury returned to the jobsite. Stapleton told Drury that he could not use him Monday morning; that he called Curry who told him that Drury's union membership "is no good here anymore"; that Stapleton could not use either Drury or any of the other men who had transferred their memberships to Lodge 26, Savannah; and that Stapleton would have to work the men who Curry sent down to the job. Stapleton told Drury he wanted to pay him for the day. Drury indicated that Stapleton did not owe him anything. After some discussion about this, Drury accepted a check for the day's pay and remarked that he would be at the job Monday morning. As heretofore noted Robert Quinnelly, Robert Beard, David Beard, and Wesley Lasseter, boilermakers who had transferred their memberships from Lodge 554 to Lodge 26 but who resided in Brunswick, Georgia, made periodic visits to the Bestwall jobsite commencing in January when work started in an effort to obtain employment with Respondent Central. Uniformly they were told by either Stapleton or Williamson that when Respondent Central was ready for boilermakers, they would be hired at the gate. They left their names, addresses, and telephone num- bers, where they could be reached, with the clerk. George Eunice, a boilermaker- welder and burner, who resigned from Lodge 554 in 1947, and who was not a mem- ber of any union during the times material herein, testified that when he asked Stapleton for a job in March, he mentioned that he was not a member of either Lodge 554 or Lodge 26. Stapleton said he did not care in what Lodge Eunice held membership, in fact he did not care whether he was a union member, and that as soon as the materials came to the project, boilermakers would be hired at the gate. Eunice filled out a slip of paper with his name, address, telephone number, and precise occupation, and left it with a clerk at the jobsite. Over the April 11 weekend Drury advised Robert Beard, Wesley Lasseter, and Robert Quinnelly that boilermakers were to be hired at the Bestwall job on April 13, and if they wanted jobs they had better go down and see about them. David Beard testified that Drury previously told him he had been hired as foreman by Respondent Central and David Beard was to go to work for him. At 8 a.m. on April 13, Drury reported at the jobsite accompanied by David Beard. Lasseter and Robert Beard had also come to the project to apply for work and were in the office at the time, together with a number of other men. Drury told Stapleton he was there ready for work. Stapleton inquired if Drury was a welder. He answered, "No, sir. I was not hired as a welder. I am not looking for a job as a welder." Stapleton thereupon pointed to Curry's name on the bottom of a paper,6 which he displayed to Drury and David Beard, and said, "Now, that's the man that says he can legally put the men on this job." Before leaving the office Drury asked Stapleton if he did not say on Friday afternoon that he would not hire any of the men who left Lodge 554 and transferred their memberships to Lodge 26. Stapleton verified that he made such a statement. Drury's testimony was corroborated by David Beard. Lasseter and Robert Beard testified they came to the office that morning to talk with Stapleton about employment and after they heard Stapleton's remarks to Drury they left the jobsite without talking to him. Eunice testified that he talked with Stapleton on April 13 and inquired if he was going to hire that morning. Stapleton replied, "I don't hire nobody that's not recommended by Mr. Curry down here." The record reveals that on April 13, Respondent Central hired Buck Thrower as boilermaker-foreman, Harper as boilermaker-rigger, and two boilermaker-welders who came to the project with introductions signed by Curry attesting to their individual skills. Stapleton testified he discharged Drury on April 10, because Respondent Central had Buck Thrower, a foreman, already in its employ. When asked if he was not aware on April 9 when he talked to Drury, after the latter was hired, that Thrower was formerly the boilermaker-foreman, he answered "no" with the explanation that because he had not seen Thrower on the job for a period of time, he took for granted that he had been discharged. He admitted however that he talked with Curry several hours before he discharged Drury and that it was Curry who called his attention to the fact that Respondent Central still had a boilermaker-foreman on the payroll. He alo admitted that but for his talk with Curry, it was his intention to use Drury as foreman. Guck testified that he was at the jobsite in Brunswick on April 9. As a matter of fact, he came down from the New York office to check costs and as a result of his investigation that day, he discharged Williamson, the superintendent who hired Drury. Guck stated he did not object to Drury, if he was needed. Later that day 6 See General Counsel's Exhibit No. 5 In evidence. CENTRAL RIGGING AND CONTRACTING CORPORATION 353 he recalled that Respondent Central previously had boilermakers on its payroll and he questioned Stapleton as to what happened to them. Stapleton said they were laid off because of lack of work. Guck wanted to know why the boilermaker- foreman was not called back. Stapleton replied, "Just nobody thought of it." Stapleton's explanation for Drury's discharge is in conflict with Guck's testimony. I do not accept their testimony in this regard. I find, based on Drury's testimony which I credit, that the real explanation for his discharge was that after talking with Curry who said that Drury's union membership "is no good here any more" and that Stapleton could not use either Drury or any of the other men who had transferred their memberships to Lodge 26, Savannah, Stapleton reconsidered Respondent Central's position, called Drury back to the jobsite, and discharged him. Admittedly Stapleton called Curry on April 10 to advise that he needed two boilermaker-welders for April 13 with the request that Curry recommend some men. As noted previously the two boilermaker-welders who came to the jobsite with introductions from Curry were hired. Indeed, Stapleton admitted that when Respondent Central was in need of additional boilermakers after April 13 he called Curry to send him men and Stapleton employed them based on Curry' s "recom- mendations " The record reveals that each week from April 13 to September 30,7 Respondent Central had in its employ a minimum of one boilermaker-foreman and one boilermaker and a maximum of one boilermaker-foreman and nine boiler- makers, all of whom, with the exception of Thrower and Harper, were "recom- mended" by Curry. Thomas Powell, a boilermaker-welder, was a member of Lodge 554 until he transferred to Lodge 26 in June 1959. Powell testified that in or about April or May, Curry sent him to the Bestwall job with an introduction, which contained the language "T. 0. Powell to replace E. 0. Goodyear." Powell gave the referral to Thrower who in turn took him to Stapleton. He was not questioned regarding his qualifications to handle the job or as to whether he was a certified welder. Stapleton signed him up on the required forms and Powell went to work and continued on the job for about 7 weeks. Powell had not previously applied for a job at Bestwall. Powell also testified that during the period he was a member of Lodge 554, a job referral system was operated by Curry but there were no rules regarding the same posted in the union hall.8 C. K. Curry has been the business agent of Boilermakers Lodge 554 for 18 years. He was also a member and secretary-treasurer of the Port Authority of Brunswick. In his latter capacity he visited the site of the Bestwall plant on num- erous occasions to disburse funds, the proceeds of a bond issue used to construct the building. Curry testified that as business agent of Lodge 554 he visited the site once or twice. Curry denied that Lodge 554 or he as its agent had any under- standing, agreement, or arrangement with Respondent Central whereby the Com- pany was to hire boilermakers only from Lodge 554. He also denied that he made any demand upon Respondent Central to discharge Drury or that he had anything to do with the fact that the Charging Parties herein were not hired. In explanation of the language, "T. 0. Powell to replace E. 0. Goodyear," on Powell's referral, he stated that no particular significance should be attached to his language, he merely wanted Stapleton to know that the Union was attempting to comply with his request for a repacement of a man who had quit. Curry testified that neither Drury nor any of the Charging Parties in this proceeding, who had transferred their union membership cards from Lodge 554, thereafter came to him or the Union for assist- ance in any manner in securing employment. He explained that when Lodge 554 was requested by an employer to furnish a man, it did so by sending him to the job with an introductory notice which "outlines the qualifications of the member of the local union." He testified that he keeps a record of employment and lay- offs, and the man whose name is at the top of the list is notified that work is avail- able. Curry also testified, "We operate a union hall or union for members of the organization who pay dues, and they pay my salary; and (I haven't been asked by any non-members for an introductory card or referral card, as such, in the 18 years that I have served this local union." With regard to the posting of rules and regu- lations concerning referrals to jobs, Curry stoutly maintained that there is posted in the Union's outer office a copy of the Southeastern Agreement. Prior to January 1957, the Union signed the Southeastern Agreement with employers who used boilermakers. Since that date the agreement has not been used. These are the only rules and regulations posted. 7 During the week of August 19 no boilermakers worked, 8 This testimony was corroborated by Drury and Quinnelly 586439-61-vol 129 24 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusions I do not infer a discriminatory hiring arrangement either from Respondent Cen- tral's asserted policy of using the Union as the primary source of qualified mechanics, or from its unilateral action on and after April 10 in calling upon Boilermakers, Lodge 554, to furnish it men. See N.L.R.B. v. Thomas Rigging Co., 211 F. 2d 153 (C.A. 9), cert. denied 348 U.S. 871. Certainly, it should not be, where, as in the present situation, the employer's action has been plausibly accounted for on some other basis. See Maxon Construction Company, Inc., 112 NLRB 444; Del E. Webb Construction Company v. N.L.R.B., 196 F. 2d 841 (C.A. 8). Nor does it matter that the Union made it its invariable practice to furnish the employer with men, whenever it was requested to do so. The offense that makes a hiring hall arrangement unlaw- fully discriminatory is an agreement or understanding, expressed or implied, to hire only those who are union members, or-without satisfying the Mountain Pacific 9 safeguards-to hire only those who have been referred by the Union; in short, the conditioning of employment upon union membership, referral, or clearance. What does the evidence reveal in this regard in the instant situation? First- Stapleton did not deny that he told Drury and several of the Charging Parties that he could not use them because their memberships were in Lodge 26, Savannah. Second-Stapleton admitted that on'April 10 he requested Curry to send him boiler- makers to start work on April 13, and from that date on only hired men who were "recommended" by Curry. Third-even though the men were allegedly "recom- mended" by Curry to Respondent Central, it is clear from the message on Powell's slip that this was a referral or clearance by the Union. Fourth-on and after April 13, all men referred by Curry to Respondent Central were members of Boiler- makers, Lodge 554, Brunswick. And finally-Curry's testimony that "the men who pay dues want work opportunities," followed by "[we] operate a Union Hall or Union for members of the organization who pay dues, and they pay my salary." True, this practice was not invariably applied, as for example when Thrower and Harper were hired for the first time, and as a matter of fact may not have been the original intention of Respondent Central when Stapleton hired "at the gate," before he was told by Curry that he would have to work the men who Curry referred to the job. This, however, does not cure it of its illegal taint nor disprove the existence of an illegal hiring hall. The mere fact that there were exceptions made the illegal impact of that practice no less so upon those who were or might be subjected to it. See Local 138, International Union of Operating Engineers AFL-CIO, et al (Nassau and Suffolk Contractors' Association, Inc.), 123 NLRB 1393; Local 369, Interna- tional Hod Carriers' Building & Common Laborers' Union of America, A.F.L. (Frommeyer & Company), 114 NLRB 872, enfd. in part 240 F. 2d 539 (C.A. 3). I conclude from the above and the entire record that from on or about April 10, 1959, Respondent Central and Boilermakers, Lodge 554, and its Agent Curry main- tained, enforced, and gave effect to an oral agreement, arrangement, or practice under which Respondent Central hired and retained in its employ only employees who were referred to it by Boilermakers, Lodge 554, through its Agent Curry with- out providing the safeguards deemed necessary by the Board as set forth in its Mountain Pacific decision, supra: (1) Selection of applicants on a nondiscrimina- tory basis in no way affected by union membership, rules, obligations, and the like; (2) the right of rejection by the employer of referred applicants; and (3) the parties post provisions relating to the hiring arrangement together with adopted safeguards, violated Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2), respectively. Such an unlawful hiring arrangement encourages union membership for the purpose of obtaining or retaining employment, thereby coercing employees hired pursuant to the said arrangement to pay union initiation fees, dues, and other moneys I have found above that on various dates from the time the Bestwall job opened in January 1959 up to and including April 13, 1959, David Edwin Beard, Robert Beard, George Eunice, Wesley Lasseter, and Robert Quinnelly 10 sought employ- e Mountain Pacific Chapter of the Associated General Contractors, Inc., et at., 119 NLRB 883. I am aware that the Ninth Circuit Court of Appeals in N.L R B. v. Mountain Pacific Chapter of the Associated General Contractors, Inc., et at., 270 F. 2d 425, re- manded this matter to the Board for further consideration. With due respect for the opinion of the court, as a Trial Examiner I must apply controlling Board precedents even though they may be at variance with the opinion of the court of appeals. 10 Quinnelly was unable to find Stapleton at the jobsite on April 13 to ask for work. He returned to his home. In view of the illegal hiring arrangement between Respondent Central and Boilermakers, Lodge 554, an application for employment by Quinnelly, I find, would have been futile. Indeed, the Board and the courts have held that neither un- CENTRAL RIGGING AND CONTRACTING CORPORATION 355 ment from Stapleton or Williamson at the jobsite but were denied equal access to the available jobs on April 13 and were thereafter refused employment pursuant to the unlawful hiring arrangements between Respondents. Accordingly, I find that Respondent Central violated Section 8(a)(1) and (3) and Boilermakers, Lodge 554, and its Agent Curry violated Section 8(b)(I)(A) and (2). It is normally not enough to show that a discriminatory policy or condition of hire existed in order to prove specific discrimination against an individual with regard to hire, sufficient to support a "make whole" order running in his favor. It must also be proved by direct evidence or reasonable inference (1) that there was available at the time an existing vacancy for which the applicant had applied and for which he was qualified ii and (2) that the application for employment was denied on an unlawful basis. That is not to say, however, that the General Counsel is obliged in all cases to establish, as a prerequisite for a finding of individual discrimination, the specific job or jobs that the complaining individual would have obtained were it not for the discrimination. There may be circumstances under which job availability may be inferred without marking out any particular job. Thus, the Board at times has inferred from the existence of a discriminatory hiring arrangement, coupled with a showing of the recurrent nature of job openings of the kind applied for, that, but for the discriminatory practices and in the normal course of events, the complaining individual would have gained employment in some one or more unspecified jobs that became available after his job application was made. And on the basis of such an inference, the Board has found specific discrimination against that individual sufficient to sustain a remedial order in his favor. The complaint also alleges that Respondent Central refused to hire Quinnelly on or about April 10, 1959, because he had previously filed charges against it with the Board. Drury's testimony that Guck told him on April 9, "There's one man [Quinnelly] I don't want you to bring down here. He tried to enter a suit against us," stands undenied in the record. Indeed, Stapleton admitted that because Quin- nelly filed an unfair labor practice charge against Respondent Central with the Board, "that would be a bad man to have on the job because he might do something else. He might file any kind of a charge against you; you never know." Although I have previously found that Respondent Central violated Section 8(a)(3) in dis- criminating against Quinnelly as a result of its unlawful hiring arrangements, and the remedies for violations of Section 8(a)(4) and (3) are substantially the same, this does not preclude a finding that both sections were violated. See Underwood Machinery Company, 79 NLRB 1287, enfd. 179 F. 2d 118 (C.A. 1); Southern Bleachery and Print Works, Inc., 118 NLRB 299. Under the circumstances I find Respondent Central has violated Section 8(a)(4) IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connec- tion with the operations described in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. availability of work or lack of application for a particular job serves as a defense to a discriminatory hiring policy when it Is clear that no job would be proffered In any event. See Mountain Pacific Chapter of the Associated General Contractors, Inc, et al, supra; Daniel Hamm Drayage Company, Inc, 84 NLRB 458, enfd. 185 F. 2d 1020 (C.A. 5) ; Seabright Construction Company , 108 NLRB 8 ; J. R. Cantrall, et al., 96 NLRB 786, enfd. 201 F. 2d 853 ( C.A. 9), cert. denied 345 U S. 996 ; N.L.R.B. v. Swinerton and Walberg Company, 202 F 2d 511 (C A. 9). 11 Respondent Central through Guck adduced testimony that it was "a good practice" to hire boilermaker-welders, as distinguished from riggers , burners , or fitters , for the reason that a boilermaker who can weld, generally can do any other part of the craft. I am satisfied from the testimony of Robert Beard , David Beard , Eunice, and Quinnelly that , although they were not certified welders , their experience would have enabled them to do the necessary welding called for in this job. Moreover , I credit the testimony of Powell that Respondent Central had only four welding machines on the job at a time when it had in its employ as many as nine boilermakers I also credit Powell's testimony that Respondent Central hired Beckham, who was referred by Curry, even though he had very little welding experience , certainly not as much as four of the Charging Parties Furthermore, even though Lasseter did not weld, It is clear from the entire record and I find that he was qualified to perform other boilermaker work which was performed on the Bestwall job. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondents have violated the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I shall recommend among other things that Re- spondents jointly and severally make whole David Beard, Robert Beard, George Eunice, Wesley Lasseter, and Robert Quinnelly for any loss of pay suffered by reason of the discrimination against each. Since I cannot precisely determine from the record herein made the dates when the discriminatees would have gained employment and for how long they would have remained on the job absent the discriminatory hiring practices, it is recommended that the determination of the extent to which Robert Beard, David Beard, George Eunice, Wesley Lasseter, and Robert Quinnelly should be made whole be deferred for the compliance stage of this proceeding. Backpay shall be computed in accordance with the formula promulgated in F. W. Woolworth Company, 90 NLRB 289.12 I have also found that Respondents were parties to an illegal hiring arrangement Established Board law requires under such circumstances that the Brown-Olds remedy (115 NLRB 594) be invoked.13 Accordingly, it will be recommended that the Respondents, jointly and severally, reimburse all boilermakers in Respondent Central's employ subsequent to April 13, 1959, for all dues, fees, assessments, or other moneys that were unlawfully exacted from them as a condition of obtaining or retaining employment with Respondent Central during the aforesaid period. I shall also recommend that Respondents cease and desist from maintaining and giving effect to the illegal hiring arrangement found herein. It shall also be recom- mended that Respondent Central cease and desist from discriminating against any of its employees or applicants for employment for filing unfair labor practice charges with the Board or giving testimony under the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 14 1. Central Rigging and Contracting Corporation is engaged in commerce within the meaning of the Act. 2. Lodge 554, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire of employment of David Beard, Robert Beard, George Eunice, Wesley Lasseter, and Robert Quinnelly, by refusing to hire them without approval, clearance, and referral by Boilermakers Lodge 554, Respond- ent Central has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act. 4. By causing and attempting to cause Central to refuse to hire David Beard, Robert Beard, George Eunice, Wesley Lasseter, and Robert Quinnelly because they had not obtained approval, clearance, and referrals, Boilermakers, Lodge 554, and its Agent Curry have engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 12 The record shows that Respondent Central did not use boilermakers on the Bestwall job after September 30 It is therefore unnecessary to recommend that Respondent Central offer the discriminatees jobs However, since Respondent Central may, in the future, obtain contracts In the jurisdictional area of Boilermakers, Lodge 554, I shall recommend that Lodge 554 notify Central and the discriminatees in writing that it has no objection to their employment. See International Union of Operating Engineers, Little Rock Local 382-382A, AFL-CIO (Armco Drainage & Metal Products, Inc ), 123 NLRB 1'833. 13 See Nassau and Suffolk Contractors' Association Inc., et al., 123 NLRB 1393, where the Board stated : . . , the existence of an unlawful contract Is sufficient in and of itself to establish the element of coercion in the payment of monies pursuant to the requirement of such a contract. Accordingly, the above remedy is applicable to all closed-shop and exclusive-hiring agreements, which do not provide the safeguards set forth in the Mountain Pacific decision, 119 NLRB 883, whether or not proof of the actual payment is established. 34 Those proposed findings and proposed conclusions submitted by counsel for Respond- ent Central which are consistent with the findings and conclusions made In this report are accepted, the remainder are rejected. UNITED STEELWORKERS OF AMERICA, AFL-CIO, ETC. 357 5. By entering into, maintaining, and giving effect to, an oral agreement or under- standing whereby employment at the Bestwall job was conditioned on membership in and clearance and referral by Boilermakers, Lodge 554, Respondent Central has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and ( 3) of the Act, and Boilermakers , Lodge 554, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 6. By discriminating against Robert Quinnelly because he filed unfair labor prac- tice charges with the Board against it, Respondent Central has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (4) 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.] United Steelworkers of America, AFL-CIO, and Local Union 2140, United Steelworkers of America , AFL-CIO and Inter- national Molders and Foundry Workers of North America, AFL-CIO and Local Union 256, International Molders and Foundry Workers Union of North America, AFL -CIO and United States Pipe and Foundry Company. Cases Nos. 10-CB- 1205 and 10-CB-1206. October 11, 1960 DECISION AND ORDER On May 26,1960, Trial Examiner Thomas F. Maher issued his order on motions to dismiss in the above-entitled proceedings, granting the Respondent's Motion to Dismiss on the ground that the General Coun- sel had failed to established a prima facie case, and dismissing the consolidated complaint in its entirety, as set forth in the copy of the Order attached hereto. Thereafter, the Charging Company filed ex- ceptions to the Order and a supporting brief, in effect appealing the Trial Examiner's Order and requesting that the hearing be reopened for the presentation of the Respondent's defense. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman Leedom and Members Rodgers and Fanning]. 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 and reviewed the Trial Examiner's order, considered the exceptions and the brief, and the entire record in these cases. The Board finds no merit in the exceptions and the request to reopen the hearing, and hereby denies the Charging Company's appeal of the Trial Examiner's order.' 'The consolidated complaint alleges that the Respondent Unions violated Section 8(b) (3) of the At by failing to bargain in good faith . The complaint's gravamen is the insistence of Respondent Unions for a common expiration date of their contracts covering the employees in two of the Charging Company's plants represented by them and in a 129 NLRB No. 42.