Local 450, Int'l Union of Operating Engineers

LOCAL 450, INT'L UNION OF OPERATING ENGINEERS 937 carrier boys are not employees of the Employer.' Accordingly, and as the record clearly indicates that circulation salesmen do not exer- cise supervisory functions as to distributors, we find that they are not supervisors within the meaning of the Act. As for the Employer's. contention that the proposed unit is inappro- priate because circulation salesmen lack the same interests as dis- tributors, it is clear that the efforts of both groups of employees are directed toward the distribution and sale of the Employer's news- papers, and that they have sufficient interests in common to warrant their establishment in a single unit. Accordingly, we find that a unit of the following employees is appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act : All employees in the outside circulation department of the Em- ployer, including distributors and circulation salesmen; but excluding independent contractors, office clerical employees, supervisors as de- fined in the National Labor Relations Act, guards, and professional employees. [Text of Direction of Election omitted from publication.] 6 Solar Electric Corporation, 128 NLRB 35 ; Lampcraft Industries, Inc., at al., 127 NLRB 92. Local Union No. 450, International Union of Operating Engi- neers, AFL-CIO [Proton] and Charles C. Hart, et al. Cases Nos. 23-CB-208, 23-CB-209, 23-CB-232, 23-CB-234, 23-CB-237, 23-CB-239, 23-CB-242, 23-CB-248, 23-CB-249, and 23-CB-256. December 15, 1960 DECISION AND ORDER On July 27, 1959, Trial Examiner Eugene K. Kennedy issued his Intermediate Report in the above -entitled proceeding , finding that the Respondent, Local Union No. 450, International Union of Operat- ing Engineers, AFL-CIO, hereinafter referred to as the Union, had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recom- mended that the complaint be dismissed with respect thereto. There- after the General Counsel and the Respondent filed exceptions to the Intermediate Report. 129 NLRB No. 115. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, and the exceptions, and the entire record in the case. The Board finds merit in certain of the General Counsel's exceptions, and adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. 1. The General Counsel excepts to the Trial Examiner's failure to find the existence of an illegal hiring-hall arrangement between Procon, hereinafter referred to as the Company, and the Union. We find merit in this exception. In 1957 the Company commenced construction of an oil refinery in Port Arthur, Texas. The construction of the project was broken down into various jobs designated by numbers. Operating engineers employed for work on these jobs were secured by the Company ex- clusively through the Union. Although the record reflects that only union members were employed by the Company, it does not appear that the Union at that time had requested any arrangement or threat- ened sanctions if the Company did not employ union members, or if the Union was not made the Company's exclusive hiring source. The particular jobs involved in this proceeding are 1269, 1270, and 1405. Jobs 1269 and 1270 were in progress during the fall of 1957, and a number of the Union's members were employed thereon. Job 1405 was scheduled to begin in early 1958, a fact which was commonly known, and employees expressed an interest in being transferred to 1405 when their work on 1269 and 1270 ended. In December 1957 Homer Pierce, a representative of the Union, re- quested a meeting with the Company' s superintendent, McReynolds. At this meeting, Pierce told McReynolds that he "had people .. . loafing in the hall," and that, on job 1405, he wanted "to rotate his people so that he could offer more jobs to his people." Pierce also told McReynolds that he wanted the Company "to hire new people for 1405, or otherwise, hire them out of the hall." Pierce stated that the Company "possibly . . . might get some of the same people back if they was on the list, that way [the Company] might get some of the same people back that was working for [the Company] at present." Pierce wanted the Company "to start off with a new crew on 1405." After contacting his home office, McReynolds, on January 30, 1958, told Pierce he would hire a new crew for 1405, and on February 7, 1958, three operating engineers referred by the Union were em- ployed to work on the new project. LOCAL 450, INT'L UNION OF OPERATING ENGINEERS 939 In agreement with the Trial Examiner, we find that by the con- versations between Pierce and McReynolds an arrangement was made obligating the Company to staff 1405 with union members. Contrary to the Trial Examiner, we further find that by this arrangement the Company also agreed to use the union hiring hall exclusively as the source of its operating engineers. In the light of the Company's past practice of hiring exclusively through the Union, it is obvious that both Pierce and McReynolds understood that the members employed on 1405 were to be similarly obtained. Moreover, as noted above, Pierce referred to the possibility of the Company's obtaining for work on 1405 some of its old employees if those employees were "on the list." We think it also clear that Pierce was, in this connection, referring to the Union's out-of-work list which was to be the basis for employment under the Union's job rotation plan; and that, by its acceptance of the Union's rotation proposal, the Company obli- gated itself to hire exclusively through the Union. Thus, what may have previously been a unilateral practice on the Company's part now became a commitment. In the Mountain Pacific case,' the Board established the rule that an exclusive hiring-hall agreement or arrangement could be valid only if it provided certain safeguards. None of these safeguards was made a part of the arrangement between the Company and the Union here. As this arrangement thus did not conform with the Mountain Pacific standards, and also because this arrangement obligated the Company to employ none but members of the Union, we find that the Union by entering into and maintaining this arrangement violated Section 8(b) (1) (A) and (2) of the Act. 2. The General Counsel also excepts to the Trial Examiner's failure to find that all 10 of the Charging Parties were discriminated against as alleged. As to these 10 employees (all of whom were terminated from jobs 1269 and 1270 and, during the period material here, were not employed on job 1405), the Trial Examiner found that 1 (Smith) was discharged' for cause,,2 (Stirling and McNeil) were terminated in violation of the Act, and that the General Counsel failed to estab- lish a violation as to the remaining 7. We agree with the Trial Examiner that Smith was discharged for cause, in view of McReynolds credited testimony that Smith was dis- charged because of a delay in reporting back from a doctor. We also agree with the Trial Examiner that Stirling and McNeil were un- lawfully terminated, and we do so not only for the reasons stated by the Trial Examiner, 2 but for the additional reasons given herein. 'Mountain Pacific Chapter of the Associated General Contractors , Inc., et al., 119 NLRB 883. 2 Contrary to the Respondent's contention, the record clearly establishes, as found by the Trial Examiner, that it was the custom in that locality for operating engineers to follow their rigs and equipment ; and it is also apparent that the Company 's failure to 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contrary to the Trial Examiner, and in agreement with the General Counsel, we also find that the remaining seven employees were dis- criminated against. As noted above, the fact that the Company intended to begin work on 1405 in early 1958 was common knowledge. As McReynolds testi- fied, operating engineers employed on jobs 1269 and 1270 "consist- ently" asked him if they were going to be employed on job 1405. As also noted, however, before commencement of work on 1405 Mc- Reynolds entered into the arrangement with Pierce, the effect of which was to bar 1269 and 1270 operating engineers from employment on 1405. While it may be, as the Trial Examiner found, that after February 1958 the Company no longer used the union hiring hall exclusively, it is clear that the parties did continue in force the Com- pany's obligation to employ a new crew of union members for work on 1405. McReynolds testified that Wolaver, Phelps, McNeil, and Serrat, all of whom were terminated after February 1958, would have been transferred to 1405. Although McReynolds stated that their transfer would have depended upon the availability of work for them on 1405, the clear import of his testimony is that lack of work was not the reason they were not so transferred ; for McRey- nolds further testified that he did not know whether there was work for them when they were terminated. The only reasonable inference to be drawn from McReynold's testimony is that it was the arrange- ment-unlawful because it provided for a closed shop-that caused him to deny these employees work on 1405. McReynold's gave similar testimony with respect to the employees on 1269 and 19,70 in general. Thus, in response to a question of whether there was any reason other than the arrangement with Pierce why employees on 1269 and 1270 were not transferred to 1405, McReynolds testified : "I am sure we would have transferred some of the operating engineers over there if it had been possible, yes." It is thus clear that in refusing to give those employees who worked on 1269 and 1270 employment on 1405, McReynolds was carrying out the unlawful arrangement with Pierce, and that the net effect of McReynold's action was discrimination against the 1269 and 1270 employees as a group. While it does not appear that any of the operating engineers in question made formal application to the Company for employment on 1405 subsequent to the arrangement between the Company and the Union, we do not consider their failure to do so material. It is clear that any such application would have been futile. Not only did the transfer Stirling and McNeil to 1405 with their equipment contrary to this custom, was in furtherance of the unlawful arrangement . With respect to Stirling, it is not material that this employee may have been offered continued employment on jobs 1269 and 1270 in lieu of employment on job 1405. His failure to accept the offer may have a bearing upon his right to backpay, but that does not change the fact that Stirling was dis- criminatorily denied employment of undoubtedly longer tenure of fob 1405. LOCAL 450, INT'L UNION OF OPERATING ENGINEERS 941 arrangement prevent the Company from assigning them to work on 1405, but the Union threatened to strike if they were so assigned. In fact, as the Trial Examiner found, the temporary assignment, in February 1958, of job 1269 and 1270 operating engineers to job 1405 work occasioned a short union-sanctioned strike. Nor do we consider material, as the Trial Examiner did, the fact that no showing was made that there were specific jobs available for these seven employees on 1405. The record establishes that new operating engineers were hired on 1405 continually during the period of the layoffs on 1269 and 1270. McReynolds testified that he had been satisfied with the crew he had had on 1269 and 1270, but notwithstanding this satis- faction, McReynolds staffed 1405 with new employees. Thus, it is readily apparent that McReynolds did not even consider the 1269 and 1270 operating engineers for employment on 1405, and that the only reason he did not consider them was because of the arrangement with Pierce. In these circumstances, we think it clear that these em- ployees were victims of the unlawful arrangement. Accordingly, we find that the Union, by maintaining and enforcing the unlawful ar- rangement caused the Company to discriminate against these em- ployees in violation of Section 8(b) (1) (A) and (2) of the Act. THE REMEDY Having found that the Union engaged in certain unfair labor practices within the meaning of Section 8(b) (2) and (1) (A) of the Act, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, we have found that the Union caused the Company to discriminate against Hendrix, Hart, Brady, Stirling, Cassel, Wolaver, Phelps, McNeil, and Smith. Accordingly, we shall order these indi- viduals to be made whole for any loss of pay suffered as a result of this discrimination. The record does not clearly establish the exact dates these discriminatees would have been employed on job 1405 but for the unlawful arrangement, but this can be determined in com- pliance proceedings. The backpay ordered herein shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289. We have also found the arrangement between the Company and the Union unlawful in that it originally provided for an exclusive hiring arrangement which did not meet Mountain Pacific standards, and fur- ther because at all times it provided for a closed shop. We shall, therefore, order the Union to cease and desist from entering into, per- forming, maintaining, or otherwise giving effect to any agreement or arrangement which conditions employment on membership in the Union, or which provides for an exclusive hiring arrangement with- out containing the Mountain Pacific safeguards. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contrary to the Trial Examiner, we find that the unlawful hiring arrangement necessarily had the effect of coercing those opening en- gineers who received employment on job 1405 into making dues and other payments to the Union. We shall, therefore, order a reimburse- ment to these employees of the dues and other payments thus unlaw- fully exacted . United Association of Journeymen c.0 Apprentices of Plumbing f Pipe fitting Industry of the United States and Canada, Local 213, AFL-CIO (J. S. Brown-E. F. Olds Plumbing d Heating Corporation), 115 NLRB 594. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local Union No. 450, International Union of Operating Engineers, AFL-CIO, its of- ficers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Entering into, performing, maintaining, enforcing, or other- wise giving effect to any agreement, arrangement, or understanding or practice with Procon, or any other employer over whom the Board would assert jurisdiction, which provides for an exclusive hiring hall but does not explicitly provide for the minimum safeguards stated in Mountain Pacific, etc., supra, or which requires membership in the Respondent Union as a condition of employment, except as authorized by the proviso to Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. (b) Causing or attempting to cause Procon, or any other employer over whom the Board would assert jurisdiction, to discriminate against employees or applicants for employment in violation of Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (c) In any other manner restraining or coercing employees or ap- plicants for employment in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be af- fected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Reimburse all employees of Procon employed on job 1405 under the arrangement between Procon and the Respondent Union for moneys illegally exacted from them in the manner set forth in the section herein entitled "The Remedy." LOCAL 450, INT'L UNION OF OPERATING ENGINEERS 943 (b) Make whole L. C. Hendrix, Earl C. Stirling, Charles Hart, Harry R. Brady, V. E. Cassel, Billy F. Wolaver, John M. Phelps, T. H. McNeil, and Mert Serratt for any loss they may have suffered as the result of the discrimination against them in the manner set forth in the section herein entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records necessary to analyze the amounts of backpay and of reimbursement due under the terms of this Order. (d) Post in conspicuous places at the business offices, hiring hall, meeting places, and all other places where notices or communications to its members are customarily posted, copies of the notice attached hereto and marked "Appendix." 3 Copies of such notice, to be fur- nished by the Regional Director for the Twenty-third Region, shall, after being duly signed. by an authorized representative of the Re- spondent Union, be posted immediately upon receipt thereof, and maintained for a period of 60 consecutive days. Reasonable steps shall be taken by the Respondent Union to insure that said notice posted and maintained by it shall not be altered, defaced, or covered by any other material. (e) Mail to the Regional Director for the Twenty-third Region signed copies of the notice attached hereto marked "Appendix" for posting, Procon willing, at Procon's operations at the Gulf refinery project, Port Arthur, Texas. (f) Notify the Regional Director, in writing, within 10 days from the date of this Order, as to what steps the Respondent has taken to comply herewith. MEMBER JERKINS, dissenting in part: I disagree with my colleagues' imposition of a Brown-Olds reim- bursement remedy in this case. I stated in my separate concurrence and dissent in Shear's Phar- macy, Inc., 128 NLRB 1417, that I regard the existence of a causal relationship between the unfair labor practices and the moneys paid to the Union as a sine qua non in determining whether or not the im- position of this reimbursement remedy is appropriate. A careful analysis of the facts and circumstances of this case convinces me that no such causal relationship exists here. As found by the Trial Examiner, the record in this case "is replete with evidence" that approximately half of the employees obtained em- ployment through the Union and half by direct application to the Employer. Moreover, the Trial Examiner found on the basis of the 3In 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 " 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preponderance of testimony of the General Counsel's own witnesses that dues were paid by union members "as a matter of choice and not of coercion." In the light of the record evidence, the Trial Examiner concluded, correctly in my opinion, that the record does not establish a causal connection, i.e., coercion in the payment of dues arising out of the unfair labor practices, and would therefore be unrelated to the remedial function of the Board in rectifying and preventing unfair labor practices. This was stated in even more precise language by the Supreme Court in the Virginia Electric case (319 U.S. 533, at pp. 539-540) when the Court adverted to the Board's administrative de- termination in fashioning a remedy by a clear indication that such a determination will stand "unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act." I submit that where no causal relationship exists between the unfair labor practices and the payment of moneys to the Union, it cannot fairly be said that the impo- sition of the drastic Brown-Olds remedy effectuates the policies of the Act. Applying this reasoning to the facts of this case, it seems clear that the Union's attempt to obtain work for members by requesting a rota- tion of employees on job 1405 could not have had any coercive effect with respect to their payment of dues to the Union. And while I con- cur in the finding of unfair labor practices in this case, I would not, in the factual context of this case, and in the absence of causality between the unfair labor practices and the moneys paid, invoke the reimburse- ment remedy. As I view it, there must be a predicate based upon proof of coercion. A remedy should be related to the facts of each case and tailored to meet the needs of each case. It should not be used as a puni- tive weapon or become an unjust penalty to the union or provide a windfall to employees. The Supreme Court in N.L.R.B. v. Express Publishing Company, 312 U.S. 426, stated : ... The breadth of the order, like the injunction of a court, must depend upon the circumstances of each case, the purpose being to prevent violations, the threat of which in the future is indicated because of their similarity or relation to those unlawful acts which the Board has found to have been committed by the em- ployer in the past. Consistent with this statement of principle, it is my belief that the Boards determination with respect to the applicability of the Brown- Olds reimbursement remedy is a matter of "informed discretion," as that term was used by the Supreme Court in the Virginia Electric case, and not a matter of strict stare decisis. Facts differ from case to case; no two are ever alike. The informed discretion that the Board has LOCAL 450, INT'L UNION OF OPERATING ENGINEERS 945 been admonished to exercise in fashioning a remedy should not be con- verted into a mechanistic application of precedent which, if permitted to operate as an automatic formula , will be neither informed nor an exercise of discretion. For these reasons, I decline to join in the remedial provision which imposes the reimbursement remedy on the basis of the Brown-Olds formula. APPENDIX NOTICE TO ALL MEMBERS OF LOCAL UNION No. 450 INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, AND TO ALL EM- PLOYEES OF PROCON 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 you that: WE WILL NOT enter into, perform, maintain, enforce, or other- wise give effect to any agreement, arrangement, or understanding or practice with Procon, or any other employer over whom the Board would assert jurisdiction, which requires membership in our organization as a condition of employment, except as author- ized by the proviso to Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT enter into, perform, maintain, enforce or other- wise give effect to any agreement, arrangement, or understanding or practice with Procon, or any other employer over whom the Board would assert jurisdiction, which requires that the employer hire its employees through us exclusively unless that agreement, arrangement, understanding, or practice explicitly provides that: (1) Selection of applicants for referral to jobs shall be on a non- discriminatory basis and shall not be based on, or in any way affected by, union membership, bylaws, rules, regulations, con- stitutional provisions, or any other aspect or obligation of union membership, policies or requirements; (2) the employer retains the right to reject any job applicant, which we may refer; and (3) all parties to the agreement, arrangement, understanding, or practice post in places where notices to employees and job appli- cants are customarily posted, all provisions relating to the func- tioning of the hiring arrangement, including these provisions. WE WILL NOT cause or attempt to cause Procon, or any of her employer over whom the Board would assert jurisdiction, to discriminate against employees or applicants for employment in violation of Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 586439-61-vol 129--61 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner restrain or coerce employees or applicants for employment in the exercise of the rights guar- anteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL make whole L. C. Hendrix, Earl C. Stirling, Charles Hart, Harry R. Brady, V. E. Cassel, Billy F. Wolaver, John M. Phelps, T. H. McNeil, and Mert Serratt for any loss of pay each may have suffered as a result of the discrimination against them. WE WILL reimburse all employees of Procon employed on job 1405 under our arrangement with Procon for the dues and other moneys they were required to pay our Union. LOCAL UNION No. 450, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE A hearing in this matter was conducted in Beaumont, Texas, on 5 hearing days between April 6 and 13, 1959. The consolidated complaint was issued on 10 individual charges alleging that Local Union No. 450, International Union of Operating Engineers, AFL-CIO, herein called the Union, had violated Section 8(b).(1)(A) and 8 (b)(2) of the National Labor Relations Act, herein called the Act. The Union's verified answer denied the charging allegations of the complaint which will be summarized below. The Union's motion to dismiss the complaint in whole or part, on which ruling was reserved, is disposed of by the findings and conclusions herein. At the conclusion of the General Counsel's case the Union did not offer any evidence, but contended that violations of the Act had not been established by the evidence. A brief filed by the Union has been considered. There are two general issues raised by this record: (1) Whether the Union and the Employer Procon, herein called Procon, entered into an illegal hiring arrange- ment; and (2) whether any or all of the 10 charging parties were terminated or refused employment in violation of Section 8(b) (2) of the Act. Upon .the entire record and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE JURISDICTION OF THE BOARD AND NATURE OF THE COMPANY' S BUSINESS Procon, a construction company with main offices in Ilinois, is found to be engaged in interstate commerce within the meaning of the Act and to have inter- state operations bringing it within the jurisdiction of the National Labor Relations Board i 'The parties stipulated and It Is so found that : The Employer in the course and con- duct of Its business operations during the past 12 -month period, which period is repre- LOCAL 450, INT'L UNION OF OPERATING ENGINEERS 947 The operations of Procon involved in this proceeding occurred at the Gulf Oil Company refinery in Port Arthur, Texas. In 1957, Procon started the first of five construction projects at this location. Each project had a number the first being 1251, the second 1269, the third 1270, the fourth 1405, and the fifth 1408. The total value of all five projects approximated $20,000,000. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges and the answer admits and it is found that the Union is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that on or about August 13, 1957, the Union and Procon entered into an illegal hiring arrangement whereby the Union was the exclusive hir- ing agent causing discrimination against employees. Although this paragraph al- leges the Union entered into an illegal exclusive hiring arrangement with other employers at the same time, the General Counsel was explicit that his case was, aimed only at the arrangement between Procon and the Union. The evidence adduced at the hearing in the opinion of the Trial Examiner reflects that the Gen- eral Counsel was correct in limiting the issue to the hiring practice of Procon and the Union, and it is found that the evidence does not support a finding that an un- lawful hiring arrangement existed between other employers than Procon and the Union. The complaint alleges that the Union caused Procon to discharge and failed to reinstate the employees listed below because the Union did not approve of their union activities or because they engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. These activities by the Union are alleged to have violated Section 8(h)(1)(A) and (2) of the Act. The complaint also charges that since the date of the discharge the Union has caused Procon to refuse reinstatement to the employees listed below. The termina- tion of the Charging Parties occurred on the dates indicated. L. C. Hendrix ------------------------------------ January 8, 1958 Charles C. Hart __________________________________ February 7, 1958 Harry R. Brady---------------------------------- February 7, 1958 Earl C. Stirling_________________________________ February 12, 1958 Archie B. Smith -------------------------------- February 12, 1958 V. E. Cassel____________________________________ February 28, 1958 Billy F. Wolaver__________________________________ March 25, 1958 John M. Phelps___________________________________ March 24, 1958 T. H. McNeil______________________________________ April 4, 1958 Mert Serratt_______________________________________ April 24, 1958 The Alleged .Illegal Hiring Practices As previously noted, the complaint alleges that on August 13, 1957, the Union entered into an illegal exclusive hiring arrangement with Procon. The evidence presented does not support this contention. Proton's superintendent, McReynolds, a witness for the General Counsel, specifically denied that either Procon or the Union had requested any hiring arrangement. In 1957 when McReynolds assumed charge of the Procon construction he unilaterally started the practice of securing operating engineers through the Union. He also testified that he reserved the right to reject employees sent by the Union but that he did not find it necessary inasmuch as the Union sent him competent personnel. The question of an unlaw- ful hiring arrangement on job 1405 will be considered separately, but with respect to a general practice of an illegal exclusive hiring arrangement between Procon and the Union the record is barren of any request or act by the Union or Procon aimed at securing an illegal hiring arrangement between Procon and the Union. In addition to using the union hall as a means of expeditiously obtaining employees with the requisite skills, it is quite likely that McReynolds regarded this mode of securing operating engineers as an aid in avoiding labor disputes and work stoppages. sentative of all times material hereto, purchased raw materials, equipment, products, supplies consisting principally of steel, machinery, building products, chemical and refining equipment, necessary for the construction and erection of chemical and petroleum plants valued in excess of $500,000, which was shipped in interstate commerce into the State of Texas from points other than the State of Texas and in interstate commerce generally and in foreign commerce 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Such an impression is not a sufficient substitute for an essential element necessary to establish that an exclusive illegal hiring arrangement existed.2 The area practice with respect to the method of hiring operating engineers sup- ports the conclusion that the decision to use the union hiring hall was a voluntary unilateral determination by Procon. Master Mechanic Smith, one of the Charging Parties, testified that commencing in February 1957, operating engineers secured work by direct application to employers who paid the union wage scale. Moreover, after their termination at various times in 1958, the Charging Parties testified they secured some jobs through the union hall and some by direct application. McReynolds also testified that at no time did the union representatives threaten a strike if Procon did not use the Union as its exclusive agent to obtain operating engineers. Although it appears from the record that probably all of Procon's operating engineers were members of the Union, this does not provide a basis for a finding that the Union was a party to an illegal exclusive hiring arrangement. It appears that the operating engineers in the Union here involved, value their membership apart from any right to secure employment through the Union. In addition to the fact that union members secured employment by direct application to employers, commencing in February 1957, all of the Charging Parties testified that they were union members in April 1959, despite the fact that they all returned to work at Procon in the fall of 1958 without being referred by the Union, and that since their earlier termination in 1958 the general pattern of employment was that some of the jobs were obtained through the Union and some were obtained by direct application to an employer. The evidence in this case does not support a finding that Procon delegated its hiring of operating engineers to the Union or made the Union its agent for such a purpose. At all times material herein, Procon not only reserved the right to reject any operator sent by the Union but also as far as this record indicates it was also completely free to change its hiring policies and take direct applications as did other employers in the area, where union operating engineers were employed, which it in fact did in February 1958. On this record it is found that the general practice of obtaining employees from the Union resulted from a unilateral determination by Procon. Since the Union was not a party to a hiring arrangement the question of the exclusive utilization of the Union to obtain employees by Procon is not a determina- tive factor on the question as to the legality of the hiring practice. However, McReynolds' testimony here quoted reflects the conflict as to when the Union ceased being the exclusive supplier of Procon's operating engineers and is relevant in showing union members did not hire operating engineers for Procon.3 (By Mr. WHITTAKER) : Q. Would you tell us what has been your practice up until, say, September of 1958, of recruiting people to do operating engineers work? A. Our hiring practice has been that we would, either the assistant super- intendent in the field or the master mechanic under his instructions, would issue a request for labor; in other words, we put in a requisition for labor. That would come up to my office and be initialed by me and would either go to our accounting man, which was John Infield; he would call the hall, or in some cases I would call the people, that is, for people we needed as the classification. Later, in response to another question, McReynolds testified with respect to Procon's hiring practice before September 1958 as follows: z International Alliance of Theatrical Stave Emploijeas and Moving Picture Machine Operators, etc (Columbia Broadcasting System, Inc ), 119 NLRB 810: in NLRB v Brotherhood of Painters, etc (Spoon Tile Co ), 242 F 2d 477 (CA. 10), enfg as mod 114 NLRB 1171, the court found that a unilateral policy of an employer to obtain em- ployees from a union could not constitute a violation of the Act on the part of the union involved While the court disagreed with the Board on the inference to be drawn from the evidence presented, I do not find in the Board's opinion anything opposed to the principle that a unilateral decision by an employer to secure employees through a union does not provide a basis for finding that the union has violated the Act. 3 The General Counsel introduced a copy of the constitution of the International Union of Operating Engineers, which included a provision requiring that members hire only people in good standing Inasmuch as this record does not indicate any hiring done by members of the Union, this provision does not aid in establishing an illegal exclusive arrangement between Procon and the Union Also Procon's knowledge of this provision was not shown LOCAL 450, INT'L UNION OF OPERATING ENGINEERS 949 I don't think we have deviated from calling the hall. I will put it that way. It may have been that we might have seen one of the business agents and told him we needed a certain man. It might have been verbal or by calling the ha1L On cross-examination by counsel for the Union, McReynolds gave the following testimony: Q. Since-and I would like to ask you particularly on this question if you would just confine yourself to answering it since February of '58. Has Procon abandoned calling Local 450 to send out operators when they need them on the job? A. Yes we have. Q. Since February of 1958, how do you recruit your workmen? A. Usually calling them by name. Q. You call the workmen by name? A That's right. Q. You mean you contact them at their home? A. That's correct. In most cases, they are rehired, people that we have had on the payroll before. It is noted that Hart filed the first unfair labor practice charge here involved on February 13, 1958, and Brady on February 17, 1958, presumably against Procon at the same time the charges were filed against the Union. These unfair labor practice charges could well explain why Procon changed its hiring policy in Febru- ary 1958 Because of the repetitive allusions to February 1958 in the above ques- tioning, the timing of the filing of the labor practice charges, and the previous testimony above quoted wherein McReynolds stated that before September 1958 he would sometimes call the people, it is found, despite other conflicting testimony of McReynolds, Procon's practice of using the union hall as the exclusive source of labor supply ended sometime during February 1958. The Question of an Illegal-Hiring Arrangement on Job 1405 The record reflects that at least some employees on jobs 1269 and 1270 expressed an interest in being transferred to job 1405 which started on February 7, 1958, by making such requests to McReynolds. Homer Pierce, the main union business representative, met with McReynolds in December of 1957 and requested that, because many operating engineers were unemployed, 1405 be made a new job so that the employees could be rotated and new operating engineers be employed on 1405. The exact testimony of McReynolds with respect to this conversation is important because it is susceptible of at least three interpretations: (By Mr. WHITTAKER) : Q. What did Mr. Pierce say about 1405? A. Well, he wanted us to hire new people for 1405, or otherwise, hire them out of the hall; he said possibly we might get some of the same people back if they was on the list, that way we might get some of the same people back that was working for us at present. "Otherwise" as used by McReynolds might reflect his conclusion that Pierce was giving him an ultimatum on using the hiring hall with respect to 1405, or it might reflect Pierce's statement of what the practice was with respect to other employers. That is, the request to rotate was aimed at getting new Union operating engineers for 1405 whether through the hall or "otherwise " Because the record is devoid of any request or strikes aimed at securing an exclusive hiring hall, the above statement appears more compatible with the conclusion either that it expressed an assumption of McReynolds rather than a statement by Pierce, or it expressed a desire by Pierce to get new Union operating engineers on 1405 whether or not obtained through the union hall rather than as a threat designed to force Procon to use the union hall exclusively, and it is so found. The subsequent conduct of McReynolds also suggests that Pierce did not make a threat in connection with his request for rotation McReynolds called his home office in Illinois and testified: They told me they couldnt see anything wrong with the idea and we at that time thought the 1269 would be nearer finished before 1405 started. And unfortunately, we had bad weather and delayed the completion of 1269. And there was an overlapping of operating engineers . We still had operating engi- neers on 1269 when 1405 started. 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 30, 1958, McReynolds told Pierce that he had decided to hire a new crew for 1405, more than a month after the initial request without any evidence ,of any union activity suggesting threatened economic coercion in the interim. On February 7, three operating engineers were employed to work on job 1405. Later in February there was a strike of an hour or so occasioned by operating engineers from 1269 and 1270 being assigned to work on 1405. After this strike, MMcReynolds gave orders to Master Mechanic Smith not to send operators from 1269 or 1270 to 1405. The record is clear that this strike was sanctioned by the 'nion to prevent employees from 1269 and 1270 working on 1405.4 The two conversations between Pierce and McReynolds establish that an arrange- ment eventuated from such conversations designed to get union operating engineers to work on 1405 who were out of work. This arrangement is a violation of 8(b) (1) (A) and (2) of the Act as it was union conduct affecting tenure of employ- ment which at least would tend to encourage union membership on the part of employees hired on 1405. As previously indicated, the evidence does not warrant a finding that Procon was agreeing to use the union hiring hall exclusively, but it is found that Procon agreed in January 1958 to staff 1405 with union operators, resulting in discrimination with respect ,to tenure of employment of some of Procon's employees on 1269 and 1270. The employees who were adversely affected by this arrangement will be included below in an examination of the facts relating to the termination of each of the Charging Parties. Since Procon had been employing union operators prior to this agreement it may be reasonably inferred that it continued to do so with respect to job 1405. It is also reasonable to infer .that the reason for Procon's employment of union operators rather than using the U.S. Employment Service to secure nonunion operators was because of a preference by Procon to have all union employees on its construction projects.5 This preference can logically be attributed to the fact that the various crafts in .the construction industryare usually organized and employment of nonunion and union employees in one craft would be a potential source of discord among the employees of that craft as well as among the employees of other crafts, with a potential of adversely affecting .the progress of the construction project. The Question of Discrimination Because of Union Activities The contention of the General Counsel that the employees on 1269 and 1270 were caused to be terminated because of their past union activities is not supported by the evidence. The General Counsel relies on two strikes unrelated to any issues in this case in the fall of 1957 by some of Procon's operating engineers to establish discriminatory motivation against the Charging Parties by the Union. During the course of these strikes, according to some versions of the testimony, the union repre- sentatives in Beaumont were displeased at the lack of promptness with which some of the operating engineers left their jobs and there were comments attributed to a union representative evidencing displeasure with five of the employees who were slow in walking off. When jobs 1269 and 1270 were being diminished in the number of employees, many of the people who did not participate in these strikes were being laid off along with the people that did. This evidence is too remote and conjectural on which to base a finding that the Charging Parties, many of whom did not participate in the 1957 strikes, were discriminated against because of the conduct of some of them during these strikes. The General Counsel also uses as a basis for establishing discriminatory moti- vation on the part of the Union a talk given by Homer Pierce, the main union busi- ness representative, on one noon occasion at the Procon construction site in December 1957. The testimony of various witnesses may be summarized by saying that Pierce expressed his disapproval of what was going on at the Procon site in that the com- plaints which he had heard directed against him were hurting the Union. It is probable that the dissatisfaction among the operating engineers on 1269 and 1270 stemmed from the fact that Archie Smith, one of the Charging Parties, was made master mechanic on those jobs rather than one B. A. Scott.6 Since several of the 4 The uncontroverted testimony which attributes to Union Representative Musgrove the statement that 1405 would be shut down if operators from 1209 and 1270 worked on 1405 establishes that the short strike in February 1958 was sanctioned by the local union. 5 McReynolds testified that he was aware that nonunion operators could be obtained through the U.S. Employment Service but he did not utilize it. 6 McReynolds testified that the operating engineers were talking about quitting when Smith was made a master mechanic instead of Scott in 1957. LOCAL 450, INT'L UNION OF OPERATING ENGINEERS 951 Charging Parties at that meeting were not involved in either of the 1957 strikes, the remote inference claimed by. the General Counsel is nonexistent as establishing union reprisal for concerted employee activity. The testimony of the Charging Parties also completely fails to establish animus by Pierce as a reason for their termination. The rotation arrangement of employees provides the only unlawful basis for the termi- nation of some of the employees, and it is so found. The Question of Discrimination With Respect to Each Charging Party Before discussing the individual cases, there are common factors which will apply to all of the Charging Parties. McReynolds' testimony makes it clear that absent any arrangement between Procon and the Union the whole complement of the operating engineers on 1269 and 1270 would not have been used on 1405, but that some of them would have been used if possible. It is noted that the Charging Parties were terminated on various dates be- tween January 8 and April 24, 1958. Job 1405 did not commence until February 7, 1958, as far as the records of Procon were concerned-each job had its own bank account, badge numbers, and accounting.? The record also reflects that 1405 grad- ually expanded until about July of 1958, when all production was shut down for about 3 months by a carpenters' strike. The General Counsel has the burden of proving which of the Charging Parties were terminated because of union action in initiating the rotation policy and which employees were refused reinstatement because of this rotation practice. All of the Charging Parties were long-time members of Local 450 and were still dues-paying members of Local 450 in April 1959 despite the fact that they were re- employed by Procon in October and November of 1958 after the National Labor Re- lations Board entered into a settlement agreement with Procon. The record demonstrates that it was a common practice among the operating engineers to be laid off a job when the work for their particular equipment was not required. The record does not definitely answer whether Procon after February 1958 ob- tained union members for 1405, although because of the past practice of Procon in hiring union operators it will be assumed that Procon called for employees at their home who were members of the Union. After the termination of the Charging Parties the record reflects that none of them requested the Union or Procon that they be employed on job 1405. The testimony of McReynolds indicates that after February of 1958 he was calling some people directly rather than through the union hall. There is no probative evidence that Procon would have called any of the Charging Parties to work on 1405, absent the unlawful rotation policy.8 It is evident that when a man finished on 1269 or 1270 he would have been laid off unless there was work available on 1405 at that time. The individual cases of the Charging Parties will be discussed separately. L. C. Hendrix Hendrix started his employment at Procon in April 1957, and was terminated on or about January 8, 1958. The following illustrates that all of the employees at 1269 and 1270 would not have been transferred to 1405. In response to a question by Mr. Whittaker, counsel for the General Counsel, McReynolds testified as follows: Q (By Mr. WHITTAKER.) Other than Mr. Pierce wanting to make 1405 a new job, was there any other reason why you would not have tried to use the crew of operating engineers you had on 1269 and 1270 on Job 1405? A. I am sure we would have transferred some of the operating engineers over there if it had been possible, yes. 'The General Counsel introduced considerable evidence that operating engineers from 1269 and 1270 did preparatory work such as building roads and delivering materials to the site where the construction labeled as job 1405 was to be accomplished. This does not seem to have significance in connection with any issue presented here. 8In addition to the fact that after their respective terminations none of the Charging Parties asked either Procon or the Union for work at Procon, the record establishes that all the Charging Parties secured other work either through the Union or by direct appli- cation. Consequently, it is left to conjecture as to the availability of the Charging Parties for work on 1405, as well as the determination as to whether Procon would have called the Charging Parties for work on 1405. Although Pierce, according to McReynolds, stated some of the 1269 and 1270 men might be obtained through the Union, the record does not indicate that Procon ever called the Union to obtain men on 1405 who were formerly employed on 1269 and 1270. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record is clear that Hendrix would not have been one of the individuals trans- ferred there. Job 1405 had not started and there was no work for him on 1269 and 1270 or on 1405. McReynolds was specific in stating that the termination of Hendrix was in no way caused by the Union.9 It is found that the Union did not cause the termination or failure to reinstate Hendrix by Procon. Charles C. Hart Hart was employed on August or September , 1957, and terminated on February 7, 1958. His work on 1269 and 1270 was completed and there was no evidence that there was any work available for him on 1405. McReynolds testified that he would not have employed Hart or Brady on 1405, indicating they were not qualified to start the job, and that the termination of Hart was due solely to lack of work and that the Union had nothing to do with his termination. It is found that the Union did not cause the termination or failure to reinstate Hart by Procon. Harry R. Brady Brady was employed in June 1957, and terminated on February 7, 1958. Mc- Reynolds testified, as in the case of Hart, that Brady was laid off because there was no more work for him on 1269 or 1270, and his termination was caused solely because of lack of work. Because of this, it is found that the Union did not cause Procon to terminate Brady or fail to reinstate him.io Earl C. Stirling Stirling started working for Procon in January 1957, and was terminated on Feb- ruary 12, 1958. He was appointed union steward sometime after his employment. The circumstances of Stirling's termination are distinct from the other Charging Parties. Stirling's equipment was sent to 1405 and he was informed by Master Me- chanic Smith that he could continue working on some other equipment on 1269 and 1270. Stirling stated that he would not want to work under these circumstances. McReynolds testified about Stirling's conversation with him which was undenied and is credited and which indicated that Stirling's rig was going to be used and the fair inference was that it was going to be used on 1405 with another operator. In view of the custom among the operating engineers to continue with the rig or piece of equipment that they were using, this incident involving Stirling must be regarded as affecting his tenure of employment, as the record supports a finding that Stirling would probably have worked longer on 1405 than on 1269 and 1270. Consequently, it is found that the arrangement between the Union and Procon adversely affected the tenure of Stirling's employment with Procon and was a violation of Section 8(b) (2) of the Act, thereby causing Procon to violate Section 8(a)(3) of the Act.11 Archie B. Smith Smith was employed by Procon in April 1957, and terminated February 12, 1958. Smith was the master mechanic and did not employ operating engineers but when instructed to lay off operating engineers would select the individuals pursuant to instructions from his superiors. McReynolds testified that Smith was fired on February 12, 1958, because of a delay in reporting back from the doctor. He also admitted that he was quite put out with Smith on this date and that this was the reason for his discharge even though 9 McReynolds, a witness called by the General Counsel and the superintendent of con- struction for Procon, was uncontradicted in his testimony and it is credited wherever quoted The conflict in his testimony as to whether Procon stopped using the union hiring hall in February or September 1958 presents the only credibility resolution, which was made above 10 McReynolds, as a witness for the General Counsel, had testified that he was dis- pleased with the oilers on 1269 and 1270 The record reflects that an oiler was hired just before Brady's termination. Although Brady was an oiler, the credited testimony of McReynolds precludes a finding that his termination was caused by the rotation arrangement II Whether or not there was any economic loss to Stirling caused by the Union's viola- tion of the Act must be determined in a compliance conference or proceeding. LOCAL 450, INT'L UNION OF OPERATING ENGINEERS 953 he was the master mechanic and the master mechanic is ordinarily the last one to be terminated on any job. The General Counsel offered evidence that Smith was currently in the employ of Procon as a master mechanic following his employment in October 1958, as a result of settlement between Procon and the National Labor Relations Board. In view of McReynolds' credited testimony , it is found that the Union had nothing to do with the termination of Smith nor did it prevent his reinstatement between February 12, 1958, and the date he was recalled by Procon . In view of this finding it is imma- terial whether Smith was a supervisor within the meaning of the Act. V. E. Cassel Cassel was employed by Procon on February 4, 1958 , and terminated on February 15, 1958. As far as the record indicates, Cassel was terminated because of lack of work on 1269 and 1270 , and he stated that there were no jobs available on 1405, and it is so found . The General Counsel in connection with Cassel has introduced no evidence which would suggest that he would have been recalled by Procon prior to his employment in October 1958, following a National Labor Relations Board settlement with Procon . It is found that the Union did not cause Procon to termi- nate Cassel or to refuse to reinstate him. Billy F. Wolaver Wolaver was employed at Procon in April of 1957, and terminated on March 25, 1958. With respect to Wolaver , it is found that the General Counsel has failed to offer proof upon which a finding could be made that Wolaver would have been employed on 1405 absent any agreement between the Union and Procon to make 1405 a new job. There is nothing in the record that would suggest that Wolaver would be recalled rather than any other operating engineer between the date of his termination and when he returned to work for Procon in October 1958. It is found that the Union did not cause Procon to terminate Wolaver or fail to reinstate him. John M. Phelps Phelps was employed by Procon in April of 1957, and terminated on March 24, 1958. The evidence fails to establish that on the date of his termination there was employment for Phelps on 1405. Absent such proof there can be no finding that the Union caused Procon to fail to transfer Phelps to 1405. It is found that the Union did not cause Procon to terminate Phelps or fail to reinstate him. T. H. McNeil McNeil was employed by Procon in July 1957, and terminated on April 4, 1958. McNeil was taken off a winch truck that was assigned to 1405. As in the case of Stirling, it is found that this establishes that the Union adversely affected McNeil's tenure of employment with Procon and that the Union violated Section 8 (b) (2) of the Act with respect to McNeil's termination , and thereby caused Procon to violate Section 8 (a) (3) of the Act. Mert Serratt Serratt was employed January 7 , 1958, and terminated April 24, 1958. There is no evidence that Serratt had work available for him on 1405 at the time be was terminated . Consequently , it cannot be assumed that the termination of Serratt was caused by any arrangement between the Union and Procon. It is found that the Union did not cause Procon to terminate Serratt or fail to reinstate him. Summary of Findings In view of the above, it is found that Stirling and McNeil were the only Charging Parties whose employment was unlawfully affected as a consequence of the Union's request for rotation of employees. It is also found that the rotation arrangement and the strike in support of it con- stituted violations of Section 8(b) (1) (A) and (2 ) of the Act, causing Procon to violate Section 8 (a) (3) of the Act. V 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union described in section III, occurring in connection with the operations of Procon set forth in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY The appropriate remedy to be recommended in this case with respect to Stirling and McNeil, and the Union's action in causing violations of the Act with respect to them has clear guidelines set by the Board. However, the question as to whether this is an appropriate case to order the Union to refund moneys to Procon's employees presents a more complex problem. This entails a consideration of the remedy first prescribed by the Board in the Brown-Olds case.12 This remedy has been considered again in the Nassau Contractors' case.13 In this case the Board stated: In our opinion, the existence of an unlawful contract is sufficient in and of itself to establish the element of coercion in the payment of moneys by em- ployees pursuant to the requirements of such a contract. Accordingly, the above remedy is applicable to all closed-shop and exclusive hiring hall agreements, which do not provide the safeguards set forth in the Mountain Pacific decision, 119 NLRB 883, 893, whether or not proof of actual exaction of payments is established. It will be assumed that this record warrants a finding in connection with the rotating arrangement that Procon and the Union entered into an agreement to employ only union members on 1405. Since the agreement existed only with respect to job 1405, and two employees on 1269 and 1270 were terminated because of this agreement, it appears obvious that the employees on 1269 and 1270 were not coerced by the Union into paying dues. The Brown-Olds case, supra, and its sequels, impose the Brown-Olds remedy because the contract or hiring arrangement is regarded as coercive in requiring union members to obtain or retain employment by paying moneys to a union. Stated another way, coercion in paying moneys to a union is an essential predicate for imposition of the Brown-Olds remedy. I do not read the Nassau Contractors' case, supra, as calling for the Brown-Olds remedy where the facts of a particular case negate convincingly the element of coercion in paying moneys to a union. Here the Union attempted to obtain work for members "loafing around the hall," by requesting a rotation of employees on 1405. Since the reasonable inference is that the union members for whom work was sought were already paying dues, it is difficult to see how seeking to obtain work for them had any coercive effect with respect to their payment of moneys to the Union. The duration of the hiring arrangement on 1405 is not established by the record, although ,it existed in at least part of February 1958. The testimony of the Charging Parties in connection with the Union's meeting in February demonstrated that the agreement as to rotation may have been suspected but was not known by the union membership. This seems significantly different from the import of the facts in the Nassau Contractors' case where the union's contumacious persistance in enforcing a closed-shop contract in defiance of the Board and a Federal court would spell out to its members the necessity of paying moneys to the union to gain or retain employment. In the case at bar the record is replete with evidence that union operating engi- neers obtained approximately half their employment through the Union and half by direct application. As previously indicated, the testimony of the General Counsel's witnesses preponderate in establishing that dues were paid by union members as a matter of choice and not of coercion. '2 United Association of Journeymen & Apprentices of Plumbing & Pipe fitting Industry of the United States and Canada, Local 231, AFL-CIO (J. S. Brown-E. F Olds Plumb- ing & Heating Corporation), 115 NLRB 594. 's Local 138, International Union of Operating Engineers, AFL-CIO, et at. (Nassau and Suffolk Contractors' Association, Inc., et al. ), 123 NLRB 1393. LOCAL 450, INT'L UNION OF OPERATING ENGINEERS 955 The Nassau Contractors' case in imposing the Brown-Olds remedy finds casual connection, i.e., coercion in the payment of moneys between the unfair labor practice and the payment of moneys to the Union. This record does not provide such a connection. The Trial Examiner is persuaded that the imposition of the Brown-Olds remedy with respect to employees on 1405 is not indicated by Board precedents. Such a recommended order would be unrelated to the remedial function of the Board in rectifying and preventing unfair labor practices. In N.L.R.B. v. Express Publishing Company, 312 U.S. 426, which analogized the function of the Board to that of a court of equity the Supreme Court stated at 436: . . . The breadth of the order, like the injunction of a court, must depend upon the circumstances of each case, the purpose being to prevent violations, the threat of which in the future is indicated because of their similarity or relation to those unlawful acts which the Board has found to have been com- mitted by the employer in the past. The sense of the Express Publishing case as projected into a consideration of the case at bar would prevent an application of Brown-Olds remedy because the record does not demonstrate any relationship between the payment of moneys to the Union and the unfair labor practices and an order requiring such, would be punitive rather than remedial. The total effect of the rotation arrangement was to cause discrimination against Stirling and McNeil on jobs 1269 and 1270 and by that fact to permit two employees, presumably union members, to work on 1405 instead of them. This single episode by which the Trial Examiner finds the Union has violated the Act, even though initiated for a beneficient purpose requires the application of the Board's remedial processes. However, for the reasons stated the Brown-Olds remedy is not indicated. It will be recommended that Stirling and McNeil be made whole for any loss of wages suffered, according to the usual Board formula 14 and that notices be posted as set out in the Appendix. Since Stirling and McNeil were both reemployed by Procon and since the record reflects that job 1405 has been completed, it would be useless to require the Union to notify Procon of its nonopposition to having Stirling and McNeil employed on job 1405 and it will not be recommended in this case. It will be recommended that the Union notify, in the manner set forth below, its members that employment by Procon or the lack of it will not be affected by union membership. CONCLUSIONS OF LAW 1. Procon, a corporation, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 450, International Union of Operating Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By causing or attempting to cause Procon to discriminate against Earl C. Stirling and T. H. McNeil in violation of Section 8(a)(3) of the Act, the Respond- ents have engaged in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 4. The arrangement entered into between Procon and the Union and the strike of the Union to enforce this arrangement, was a violation of Section 8(b)(1) (a) and 8(b)(2) of the Act, since the arrangement to rotate employees with respect to job 1405 of Procon initiated by the Union, would have a tendency to encourage or discourage union membership. 5. By the aforementioned acts the Union has restrained and coerced the em- ployees of Procon in the exercise of their rights guaranteed by Section 7 of the Act and has thereby engaged in and is engaging in unfair labor practices within of Section 8 (b) (1) (a) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 7. Except as herein indicated the allegations of the complaint charging unfair labor practices have not been established. [Recommendations omitted from publication.] 14P. W. Woolworth Company, 90 NLRB 289.