Combustion Engineering, Inc.

184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an embezzlement or some other act disqualifying him as an acceptable employee, would be in the position of any respondent claiming that it had complied with the recommended order of the Trial Examiner or the order of the Board. Presumably, if the General Counsel was satisfied that there had been compliance that would be the end of the matter. On the other hand, if the General Counsel was of the opinion that the evidence showed that in fact the employee in question had not committed the alleged embezzlement or other disqualifying act he could take the position that there had been no compliance. Such a position would be comparable to any situa- tion where an employer offers reinstatement and then straightway discharges the employee under circumstances that might convince the General Counsel that the reinstatement was no more than a sham and was not the bona fide remedial action required.71 In any event, any issue as to whether or not there had been compliance by Respondent with the recommended order or order would be litigable in a com- pliance proceeding. Briefly summarized, it is the Trial Examiner's opinion that, procedurally, the issue of whether or not Shepard, after his termination by Respondent, subsequently, while working for another employer under circumstances wholly unrelated to the events or actions of himself and Respondent at the latter's plant, committed an embezzle- ment, was a collateral issue and not properly or appropriately litigable at the hearing in chief before the Trial Examiner; the policies of the Act and the rights of the em- ployer would both be effectuated and protected by confining the issue of the alleged subsequent embezzlement to the compliance stage, if such might occur. Upon the basis of the foregoing findings of fact and conclusions, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Through threats, interrogation, and surveillance, as found in section III, above, in the period commencing on March 13, 1960, and thereafter, Respondent Georgia Creosoting Corporation has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By refusing to hire or rehire employees Alva Lee Shepard and Ozie Lee Cooks on or about March 21, and 23, 1960, respectively, for the employment period com- mencing March 23, 1960, Respondent has discriminated in regard to their hire and tenure and conditions of employment, thereby discouraging membership in a labor organization or in concerted activity, and has engaged in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act. 3. Respondent has not engaged in unfair labor practices by its refusal to hire or rehire employee Lamar L. Bennett. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 71 The issue of guilt or innocence of the alleged embezzlement would not necessarily be the sole compliance issue, e.g., there might be evidence that other employees with known records of offenses were employed. Combustion Engineering, Inc. and Norman Markus, Thomas M. O'Connor, Andrew Findley International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 83, AFL-CIO and Thomas M. O'Connor, Norman Markus, Andrew Findley. Cases Nos. 17-CA-1426, 17-CA-1127, 17-CA-14928, 17-CB-216,, 17-CB-9217, and 17-CB-9218. February 13, 1961 DECISION AND ORDER On November 10, 1959, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled proceeding, finding that the 130 NLRB No. 24. COMBUSTION ENGINEERING, INC. 185 Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respond- ents and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report,2 the exceptions and briefs, and the entire record in this case, and hereby adopts the findings and conclusions of the Trial Examiner, modifies his recommendations respecting the remedy, and adopts them as modified. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, they will be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that the Respondent Company unlawfully dis- criminated against employees Andrew Findley, Norman Markus, and Thomas O'Connor. We have also found that the Respondent Union unlawfully caused the discrimination against these employees. The record shows that Markus and O'Connor were denied employ- ment on a temporary job which has since been completed. Accord- ingly, we shall not order reinstatement for Markus and O'Connor but shall limit their remedy to backpay. We shall, however, order re- instatement for Findley. The Respondent Employer and the Respondent Union shall jointly and severally make whole Markus, O'Connor, and Findley for any loss of pay they may have suffered as a result of the discrimination against them. Backpay shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289. By letter dated July 13, 1959, the Respondent Union notified the Respondent Employer, with copies to the Charging Parties and the Regional Director, that the Union had no objection to the Employer's employing the three men, and that the Union would continue to refer r The Respondent Union also filed a request for oral argument . The request is hereby denied as the record-, exceptions, and briefs adequately present the issues and the posi- tions of the parties. 2 We correct an inadvertent error in the Intermediate Report as to when the charging party Findley was suspended from the Union. Section III, A, line 13, of the Intermediate Report, should read "January 9, 1959," rather than "1957." We also take cognizance of the fact that the mention in section III, B , of Superintendent of Erection Bevlin as a member of the Union since 1936 is not a reference to current membership in the Respondent Local No. 83 but to current membership in Local 606, Charleston, West Virginia, affiliated with International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the men to jobsites of the Employer or any other employer. We shall not direct that a second notice of like import be served upon the Employer. We shall also terminate the Respondent Union's backpay liability 5 days after July 13, 1959, the date of the Respondent's letter to the Employer as herein described.' We shall further require, in accordance with our usual practice, that the Respondent Employer, upon request, make available to the Board and its agents all pertinent records necessary to compute the amount of backpay due. Our order shall include an affirmative requirement that the Re- spondent Employer, upon receipt from the Regional Director of signed copies of Appendix B, shall post such notices in the same manner and under the same conditions as apply to Appendix A. We shall also re- quire that the Respondent Union furnish copies of its notice to the Regional Director for posting by the Employer at its jobsites and offices. As there is no substantial evidence in the record showing special justification or necessity for a broad order in this case, we shall limit the scope of the Trial Examiner's recommended order. That part of the order which requires the Employer to cease and desist from en- couraging membership in the Respondent Local No. 83 "or any other labor organization" must be limited to Local No. 83. Similarly, the order against the Respondent Union which, as recommended, directs the Union to cease and desist from causing or attempting to cause the Respondent Employer "or any other employer" to discriminate against employees, will be limited in scope to the Respondent Employer.4 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: A. Respondent Combustion Engineering, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from encouraging membership in International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, 'Plumbers and Steamfitters Union Local 100, at at . (Beard Plumbing Company), 128 NLRB 398 * Consistent with his dissent in Central Rigging and Contracting Corporation, 129 NLRB 342 Member Rodgers would not narrow the scope of the order recommended by the Trial Examiner. He is of the opinion that the circumstances of this case warrant a broad older He notes in particular that the discrimmatees here were special objects of union resentment, and if these discriminatees are to be given any real protection from unlawful acts of the Union the protective scope of the order should extend to their em- ployment by any other employer Moreover, Member Rodgers believes that the decision of the majority here is incon- sistent with other action being taken by the Board-specifically the Board's action in h L R B v Brandman Iron Company, 281 F 2d 797 (C A 6), a decision decided ad- versely to the Board on the same matter and from which the Board has filed with the Supreme Court a petition for certiorari. COMBUSTION ENGINEERING, INC. 187 Forgers and Helpers, Local No. 83, AFL-CIO, by discriminatorily discharging any of its employees. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Andrew Findley immediate and full reinstatement to his former or substantially equivalent position, without prejudice to the seniority or other rights and privileges he may have enjoyed. (b) Jointly and severally with the Respondent Union make An- drew Findley, Norman Markus, and Thomas M. O'Connor whole for any loss of pay they may have suffered by reason of the discrimination against them, as set forth in the section of this Decision and Order entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post in its office at its Montrose, Missouri, jobsite and at any other jobsite offices that it may have within the territorial jurisdiction of Local No. 83, copies of the notice attached hereto marked "Appen- dix A." a Copies of such notice, to be furnished by the Regional Di- rector for the Seventeenth Region, shall, after being duly signed by Respondent's representative, 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 are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notice is not altered, defaced, or covered by any other material. (e) Post in the same places and under the same conditions as set forth in (d) above, and as soon as they are forwarded by the Regional Director, copies of the Respondent Union's notice herein marked "Appendix B." (f) Notify the Regional Director for the Seventeenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent Employer has taken to comply herewith. B. Respondent International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 83, AFL-CIO, its officers, agents, representatives, successors, and as- signs, shall : 1. Cease and desist from causing or attempting to cause Combustion Engineering, Inc., to discharge or otherwise discriminate against An- 51n 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." 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drew Findley, Norman Markus, Thomas M. O'Connor, or any other employee, in violation of Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Jointly and severally with the Respondent Employer make whole Andrew Findley, Norman Markus, and Thomas O'Connor for any loss of earnings they may have suffered by reason of the discrimi- nation against them, as set forth in the Section of this Decision and Order entitled "The Remedy." (b) Notify its members in writing, with copies to be sent to Andrew Findley, Norman Markus, and Thomas M. O'Connor, that it has no policy that requires or expects its members to refuse to work with Findley, Markus, O'Connor, or other nonunion member employees, and that it expects, intends, and directs that its members not refuse to work with Findley, Markus, or O'Connor, or any employees, for the reason that such employees are not members of the Union. (c) Post at its offices in Kansas City, Missouri, and at the jobsite offices of Combustion Engineering, Inc., at the Montrose, Missouri, job, and at other jobs of the said Employer within the territorial juris- diction of Local No. 83, copies of the notice attached to this Decision and Order marked "Appendix B." 6 Copies of such notice, to be fur- nished by the Regional Director for the Seventeenth Region, shall, after being signed by Respondent Union's representative, 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 members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notice is not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the Seventeenth Region signed copies of the notice attached hereto marked "Appendix B," for posting by the Employer at its jobsites and offices. (e) Notify the Regional Director for the Seventeenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. CHAIRMAN LEEDOM and MEMBER FANNING took no part in the con- sideration of the above Decision and Order. 6 See footnote 5, supra. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : COMBUSTION ENGINEERING , INC. 189 WE WILL NOT encourage membership in International Brother- hood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 83, AFL-CIO, by discriminatorily dis- charging any of our employees. WE WILL offer to Andrew Findley immediate and full rein- statement to his former or substantially equivalent position, with- out prejudice to the seniority or other rights and privileges he may have enjoyed. WE WILL, jointly and severally with International Brother- hood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 83, AFL-CIO, make Andrew Findley, Norman Markus, and Thomas M. O'Connor, and each of them, whole for any loss of pay suffered by reason of the discrimination against them. All our employees are free to become, to remain, or to refrain from becoming or remaining, members of the above-named Union, or any other labor organization , except to the extent that this right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized by Section 8(a) (3) of the Act. COMBUSTION ENGINEERING, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL MEMBERS AND ALL EMPLOYEES OF COMBUSTION ENGINEERING, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL not cause or attempt to cause Combustion Engineer- ing, Inc., to discharge or otherwise discriminate against Andrew Findley, Norman Markus, Thomas M. O'Connor, or any other employee, in violation of Section 8 (a) (3) of the Act. WE WILL, jointly and severally with Combustion Engineering, Inc., make Andrew Findley, Norman Markus, and Thomas M. O'Connor, and each of them, whole for any loss of pay suffered as a result of the discrimination against them. WE HAVE no policy that requires or expects our members to refuse to work with Andrew Findley, Norman Markus, Thomas 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. O'Connor, or other nonunion member employees. We expect, intend, and direct that you will not refuse to work with Findley, Markus, or O'Connor, or any employees, for the reason that such employees are not members of the Union. INTERNATIONAL BROTHERHOOD OF BOILER- MAKERS, IRON SHIP BUILDERS, BLACK- SMITHS, FORGERS AND HELPERS, LOCAL No. 83, 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 STATEMENT OF THE CASE Upon charges filed by Norman Markus, Thomas M. O'Connor, and Andrew Findley, herein called Markus, O'Connor, and Findley, the General Counsel of the National Labor Relations Board, herein called the Board, issued a consolidated complaint against Combustion Engineering, Inc., herein called Combustion or the Company, and International Brotherhood of Boilermakers, Iron Ship Builders, Forg- ers and Helpers, Local No. 83, AFL-CIO, herein called the Union. In substance, the complaint alleged that Combustion had terminated Markus, O'Connor, and Findley, because they were not members in good standing of the Union although Combustion had reasonable grounds for believing that such mem- bership was not available to the aforementioned individuals on the same terms and conditions applicable to other members or because their membership had been ter- minated for reasons other than failure to tender periodic dues and initiation fees. The complaint alleged that the Union caused or attempted to cause the foregoing action by Combustion. In their answers, Combustion and the Union denied the commission of unfair labor practices and Combustion further asserted that Markus and Findley had filed grievances against Combustion regarding the same circum- stances as those covered in the charges; Combustion denied that copies of the charges in Cases Nos. 17-CA-1427 (O'Connor) and 17-CA-1428 (Findley) had been served upon it on March 27, 1959, as alleged. The Regional Office of the Board had on August 3, 1959, served or made additional service upon Combustion of the charges in Cases Nos. 17-CA-1427 and 17-CA-1428. The August 3 service was subsequent to the issuance of the complaint, dated June 30, 1959, but prior to the commencement of the hearing, August 10, 1959. At the hearing Combustion amended its answer so that it admitted receipt of the charge in Case No 17-CA-1427 but denied receipt of the charges in Cases Nos. 17-CA-1426 and 17-CA-1428 prior to issuance of complaint. Combustion explained that it had simply made a mistake as to the case number of the charge that it has admittedly received on March 30, 1959. The General Council thereupon served combustion at the hearing with a copy of the charge in Case No. 17-CA-1426. It is Combustion's position that charges served after issuance of a complaint can- not serve as a basis for a complaint. The General Counsel introduced into the record three copies of letters from the Board's Regional Office, dated March 27, 1959, transmitting copies of the three charges to Combustion with sworn certifica- tions on each letter to the effect that the respective charges were served by regis- tered mail on March 27, with a return postal registry receipt showing receipt by Combustion on March 30, 1959 Apparently all charges were mailed purportedly in one envelope and Combustion asserts that the envelope contained only the charge in Case No 17-CA-1427. Combustion points to the fact that on April 8, 1957, it wrote to the Regional Office of the Board setting forth its position with respect to the charge in Case No. 17-CA-1427, with no reference being made to the other charges. COMBUSTION ENGINEERING, INC. 191 Since the Board's Rules and Regulations provide for service by registered mail and further provide that the return post office receipt shall be proof of service (Sections 102.88; 102.89; 102.90) it would seem possible to dispose of Combustion's contentions on this ground . Further, the Trial Examiner is of the opinion that there is a presumption that official duty has been regularly performed by the clerical employee in the Regional Office. If the aforementioned type of proof of service can be impugned a difficult problem of administration can be envisaged. Prescinding from the foregoing observations, it is possible, on the evidence in this case, particularly the fact that consistent with its later asserted position, Com- bustion on April 8 gave its defense to the Regional Director on only one charge, Case No. 17-CA-1427, that Combustion did not receive copies of the other charges in the envelope that purported to contain copies of all the charges. This omission could be due to a clerical error in the Regional Office but it is also possible that there was some omission or oversight in Combustion's handling of the documents that prevented them from reaching Combustion' s responsible authorities or its at- torneys. Combustion maintains an office on the jobsite at Montrose, Missouri, where the alleged unfair labor practices occurred. W. E. Bevlin is in charge of the Montrose office and has some clerical assistants in that office. The district superintendent of Combustion, Paul Motz, has offices in Kansas City, Missouri, a distance of about 75 miles from Montrose. There is also an office, apparently the main office of Combustion, in New York City. The charge or charges were sent to the Montrose office by the Regional Office of the Board Motz testified that Bevlin telephoned him upon receipt of the charges and that he read them to Motz. Metz did not recall whether Bevlin mentioned any name or names but as far as Motz was concerned there were three men who had been discharged and who had filed charges. Motz was not certain whether he instructed Bevlin to forward the charge(s) to his office in Kansas City and Metz thereafter transmitted them to the New York office or whether Metz had directed Bevlin to send the charge(s) to New York directly. In the course of this handling it is at least as possible that human error occurred as that the error occurred in the Board's Regional Office, particularly in view of the sworn certification of service by the government clerk in the course of performing her official duties.' At the hearing, counsel for Combustion stated that during the course of the Regional Office's investigation Combustion was or became aware of the charge in Cases Nos. 17-CA-1426 and 17-CA-1428 in addition to Case No. 17-CA-1427 previously received, but had never been officially apprized of the charges in Cases Nos. 17-CA-1426 and 17-CA-1428 until after issuance of the complaint. Adopting arguendo, Combustion's position regarding service of the charges, the Trial Examiner concludes that the charge in Case 17-CA-1427 was received prior to issuance of the complaint and that the complaint could and did include closely interrelated alleged unfair labor practices such as the discharges of Markus and Findley who with O'Connor were discharged on March 27, 1959, for the same reason and under the same circumstances. It is further found that all charges were filed within 6 months of March 27, 1959, that Combustion did receive copies of all charges, and that Combustion was aware both prior to and subsequent to the issuance of the complaint that all three discharges were in issue. The complaint was therefore properly issued. Cathey Lumber Company, 86 NLRB 157, 185 F. 2d 1021 (C A. 5), set aside on other grounds 189 F. 2d 428; N.L.R.B. v. United States Gypsum Com- pany, 206 F 2d 410 (C.A. 5); N L R.B. v. Pecheur Lozenge Co , Inc., 209 F. 2d 393 (CA. 2); Kingston Cake Company, Inc., 191 F. 2d 563 (C.A. 3); The Co- lumbus Show Case Company, 111 NLRB 206. The hearing was held in Kansas City, Missouri, from August 10 to 14, 1959, inclusive. All parties examined and cross-examined witnesses and thereafter filed briefs On the basis of the entire record in the case, and upon the observation of the de- meanor of the witnesses at the hearing, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Combustion Engineering, Inc , is a Delaware corporation with its principal place of business in New York, New York. It is engaged in the manufacture, sale, con- i Ilevlin's testimony indicated some uncertainty He at first testified that he did see all three charges shortly after the discharge of the three complainants He later asserted that he saw one charge and two grievance claims which he had mistakenly referred to as charges in his original testimony 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD struction, and installation of industrial boilers. In the course of its operations, Com- bustion performs work and renders services valued in excess of $10,000,000 annually throughout the United States. Since early in 1957 Combustion has been engaged in and is still engaged in the construction of a power unit at the Montrose Steam Electric Station Plant of Kansas City Power and Light Company in Henry County, Missouri. The value of this project is in excess of $1,000,000. The Trial Examiner finds that Combustion' s business operations are in commerce and affect commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 83, AFL-CIO, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In August 1957 the Union had held an election for the office of business manager. The successful candidate was William A. Akers, then president of Local 83, who had been opposed by a group of members including Findley, Markus, and O'Connor, the complainants herein. Between 1957 and the date of the hearing the Findley faction had instituted litigation against the Union apparently with reference to such matters as its books, records, and financial affairs. On January 9, 1957, Findley, who had been a member of Local 83 since 1942, was suspended from the Union and was expelled therefrom on February 2, 1959. About this same time Markus, O'Connor, and a total of about 19 or 20 other members were similarly dealt with by the Union. The aforementioned court litigation had been well publicized by the Kansas City newspapers since that city was the situs of both Local 83's and the International Union's headquarters. The suspensions and expul- sions of the dissident members had also been publicized in the press and their status was well known. At the time of the hearing the expulsions were pending on appeal to the executive council of the International Union. B. The events of March 25, 26, and 27, 1959 Pursuant to a referral by Akers, Findley reported to the Montrose construction site on March 25, 1959. The Montrose project involved the erection of a generating unit including boilers and related equipment by Combustion for the Kansas City Power and Light Company. The project had been underway since January 1957 and in March 1959 there were 30 boilermakers, plus Lester Davis, general foreman of boilermakers, and three assistant boilermaker foremen or pushers, employed? The Montrose job was the first to which Findley had reported on referral by the Union after his expulsion from that organization in February 1959. Starting time on the job was 8 a.m. and Findley arrived at the site shortly prior thereto. He entered the building where was located the project office, the toolroom, a waiting area outside the toolroom where a milk vending machine was located, and the rooms used for changing clothes, referred to as the change room, which was upstairs. After first going to the change room Findley came into the office where the company's timekeeper filled out various employment forms for Findley and another boilermaker, Hendrix, who was also reporting for work. Findley was then told to go 2 As previously mentioned Bevlin was superintendent of erection, sometimes referred to as the erector, in charge of the entire project for Combustion. There were three other erectors under Bevlin. In addition to boilermakers, the other craft unions on the project were ironworkers, steamfitters, millwrights, carpenters, laborers, installers, and brick- layers, all of whom had stewards except the laborers. Henry Redel was the boilermakers' steward. All boilermakers on the Montrose job were members of the Union and all had been referred to the job by the Union. Bevlin has been a member of the Union since 1936 and was a member in good standing at the time of the hearing Davis was a member of the Union and had been sent out to the job In response to Bevlin's request to the Union for a general foreman The assistant foremen were also union members. At the hearing counsel for the General Counsel stated that he did not propose to go into the question of the legality of the hiring hall operation and the complaint did not attack the hiring hall or contract. COMBUSTION ENGINEERING, INC. 193 up to Ira Sparks' gang which was working near the top of the boiler .3 Sparks was the assistant foreman of a gang consisting of O'Dell, Jones, Singleton, Gilio, Hendrix, and Findley. When Findley reached the area where Sparks' gang was working, Sparks told O'Dell that he was not going to work with Findley.4 O'Dell stated that he was not going to work with Findley and proceeded to go down from the top of the boiler. En route O'Dell met Balestrere, a member of another gang, and, in response to the latter's query as to where he was going, O'Dell replied that he was walking off because Findley was working. Balestrere stated that if Findley was working he was walking off also. When O'Dell and Balestrere reached the ground they looked for Redel, the union steward. They told Redel that they were not going to work with Findley. Redel's only comment was that he would contact General Foreman Davis. The men re- ported to Davis what they had said to Redel about not working with Findley. Davis suggested that Bevlin, the superintendent, should be contacted and, according to Balestrere, Davis said, "You do not have to work if you do not want to." Bevlin was not available and Davis instructed Redel to go up on the boiler to find out in whose gang the two men worked. Upon reaching a point about 20 or 25 feet below where Sparks and his gang were working Redel told Sparks that O'Dell and Balestrere had walked off because they did not want to work with Findley. Sparks testified that he stated to Redel that he did not want to work with Findley either.5 Sparks told Findley that the men did not want to work with him because he did not have a ticket.6 Findley said he had a [union] card but Singleton, who was in the group, remarked, "Findley, you know you don't have a card, it was taken from you, and I don't want to work with you and if the shoe was on the other foot you would not work with me." Hendrix also said that he would not work with Findley. Redel testified that he, Redel, then said that he would not work with him either; Redel said to Findley, "The men refuse to work with you, you don't have a ticket"; and Redel suggested that they go down to the office. Findley, Redel and the others then pro- ceeded down the stairs from near the top of the boiler and by the time they reached the ground all the boilermakers on the job had left their work stations and had come down.? 8 The boiler was approximately 180 feet high with stairs from the ground level to the top portion interspersed by a series of levels or landings . The men were working in groups or gangs at various points on the boiler. In response to a question whether to his knowledge he was the first man in his gang to say that he would not work with Findley, Sparks replied that he had told O'Dell that he was not going to work with Findley. s Redel testified that when O'Dell and Balestrere had spoken to him on the ground and when he spoke to Davis about the two men, Davis told him to go up on the boiler to find out in what gang the two men belonged . Redel said he believed the men were in Sparks' gang but he went up to where Sparks was working to inquire. According to Redel be asked Sparks whether O'Dell and Balestrere were in his gang and Sparks replied in the negative. The conversation between Redel, Sparks , and the others then ensued The Trial Examiner finds unconvincing Redel's explanation of why he went to the top of the boiler after O'Dell and Balestrere told him that they were not going to work with Findley. It appears unlikely that Davis, who was the Immediate superior of the three assistant foremen or pushers and who assigned men to their gangs , did not know In what gang the two men worked. There is no apparent reason why Davis or Redel could not ask O'Dell and Balestrere, who had come down from the boiler and were on the ground talking to them, for the information. Also neither Findley, Sparks, Singleton, or Hendrix, who were with Sparks on the, boiler when Redel asserted he asked Sparks , presumably in a loud tone since he was about 25 feet below him, whether the two men worked for him, testified to any such inquiry by Redel. Finally , Redel's testimony, that, consistently with his reason for going up the boiler he asked Sparks the question and received it negative reply, Is im- plausible because O'Dell was in Sparks ' gang and Sparks , shortly before Redel's advent, had spoken to O'Dell at the work station on the boiler and had told him he was not going to work with Findley. Davis, Balestrere, and Sparks rode together in the same car pool. 6 A ticket is a dues receipt and Findley as an expelled member did not have one. In this connection it may be noted that Findley 's uncontroverted testimony was that he had offered to pay his dues for January, February, and March but Akers refused to accept the dues. 'Hendrix, formerly an assistant business agent in another local of the Union, had, like Findley, reported for work that morning. He and Findley had been in the office together aTth^rnh Fin1ley had been sh nerl in fir'-t and had nnpiirentTy arrived at his work station in Sparks' gang before Hendrix started up the stairs to report to the same gang. Ad- ii,; ^_S4--Pl-vol ] '0--1-i 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A group consisting of Davis, Redel, and Findley then went into the office. Present in the office were Bevlin and the timekeepers. Davis said, the men refuse to work with Findley. Redel testified that he told Bevlin that he was not going to work with Findley. Bevlin then telephoned Akers and informed him that the men were walking off the job because of Findley. Akers' reply, according to Bevlin, was that he could not force them to stay on the job .$ Akers also spoke to Davis at this time and testified that he told him that the men had to go back to work. Redel was then put on the telephone and Akers informed him that he should tell the men that they have to go back to work. Redel said he would do so although he did not think it would do any good. The conversation ended on this note. Neither Davis nor Bevlin thereafter, at any time, addressed the men to ask or to direct them to return to work. When Redel finished speaking to Akers on the telephone, Redel spoke to Findley and was so observed by Bevlin although the latter did not hear what was said. Findley, whom the Trial Examiner found to be a credible witness with a good memory and not prone to exaggeration or inaccuracy, testified that Redel said to him, "Why don't you go home; these men won't work with you, you don't have a ticket " Findley, Davis, and Redel then walked out of the office and outside the door Redel again said, "Why don't you go home." Findley replied that he did not have to go home. Findley then walked back through the office to the toolroom where Parks, the toolroom attendant, asked him why he did not go home.9 Outside the toolroom the majority of the boilermakers, who had walked off the job, as previously described, were waiting in a type of anteroom provisioned with several vending machines. Redel walked up to the group of boilermakers and said, "Any of you men that want to work with Findley can go back to work." Many of the men replied that they did not want to work with Findley because he did not have a ticket Those present, including Redel, then threw in their brass 19 and proceeded to go home.ii mittedly, Hendrix and every other man on the job knew that Findley was no longer a member of the Union On his way up the boiler, Hendrix spoke to White and various ho,iermakers about Findlev being on the lob Hendrix testified that he had been waiting for an excuse, or an "out" so that he could walk off the job because of Findley's presence His testimony was that lie found the excuse during the conversation (Redel, Sparks, Singleton), previously described, at his work station, when Singleton said that he was not going to work with Findley Hendrix stated that as far as he could observe none of the men were walking off as lie was going up the stairs although Findley was at this work station at the top of the boiler Various witnesses called by the Union, all of whom were boilermakers on the Montrose lob, testified that they walked off the job at approximately the time they saw Findley on the boiler, e g , Boyd, Kenneriey, Jones, Kapler, and White Boyd, Kennerley, and Kapler were in the same work gang and Jones was a member of Sparks' gang Boyd testified that after telling some fellow workers that he was not going to work with Findley lie was the first man to walk off but lie then waited 30 to 45 minutes to see what the other men would do Kennerley stated that when he saw Findley at the top of the boiler he went over to some other boilermakers who were working and asked how come Findley was on the job. Kennerley said, "we will go down and find out the reason" and "we" started down Although Jones was in Spaiks' gang, he testified that lie did not hear Sparks, Singleton, or Hendrix say anything before he went donn After learning that Findley was working, Kapler, before leaving his work station, waited awhile wondering how many others were going to walk off In Kapler's words, "I wondered 'how many of them were just going to accidentally walk off with me . " Akers did not controvert Bevlin's testimony on this point He testified that lie might have talked to Bevlin on that occasion but he was not sure and did not recall talking to hun Since Bevlin testified to the affoiedescribed conversation at several points in his testimony and impressed the Trial Examiner as a credible witness regarding the matter, the Trial Examiner finds that the conversation took place as described by Bevlin 9 Parks held the elected position of inside guard or inspector in the Union The duties of the job consisted principally of checking to see whether all persons attending union meetings were members in good standing to "Brass" refers to a numbered metal tag and a series of tags or chips Each man picks up his tag or brass when lie goes to work and return, it at the end of his workday "Brass" serves the general function of a time check The chips are used in checking out tools 11 O'Dell testified that after lie came down from the boiler lie was around for about 40 minutes or an hour ; he stood around the toolroom "waiting to see what they were going to do about it . we were all milling around there waiting to turn our brass in when COMBUSTION ENGINEERING, INC. 195 Although Bevlin testified that on March 25, when the men walked off, nobody had told him the exact reason why the men would not work with Findley he admitted that he had a pretty good idea of the cause of the walkout "because I knew that his [Fmdley's] card had been taken." Following the vacating of the jobsite on March 25, BBevlin telephoned Motz, the Company's division superintendent in Kansas City, and informed him that the Union had sent Findley to the job and the men had walked off. It was Bevlin's opinion in talking to Motz that the latter understood the implications of what he reported and knew as well as Bevlin that Findley had been deprived of his union card "because it was in all the papers" and Motz "has been in this territory quite a while." 12 In the course of the conversation, according to Motz, Bevlin reported that he had called the local union about the walkout. Although neither Motz nor Bevlin testified as to what the latter had told the former about the result of Bevlin's call to Akers, it is a legitimate inference that Bevlin, under the circumstances, did advise his superior what success or lack of success Bevlin had had in contacting the local union and of what Akers had said, supra.13 This conclusion is to a degree confirmed by the testimony of both Bevlin and Motz that Motz in the aforesaid conversation instructed Bevlin to stand by while Motz contacted somebody about getting the men back to work. Motz would hardly have felt the need of contacting someone for such a purpose if Bevlin's report on his call to the local union had been fruitful or had indicated that the business manager had undertaken to put the men back to work.14 After speaking to Bevlin, Motz endeavored without success, to contact Akers and Osbourne, president of Local 83 and assistant business manager. Motz then spoke to W. H. Shahane, a vice president of the International Union and former business manager of Local 83, whose offices were in Kansas City. According to Motz the conversation with Shahane took place on Wednesday and Shahane told him on that occasion that the men had been ordered back to work.15 Redel came in and said, `anyone that wants to work with Findley there, they can if they want to ; if you want to work then go on back to work' "i O'Dell then turned in his brass and left Balestrere testified that Redel gave him a choice of working or not work- ing and that Balestrere then turned in his brass and left Singleton testified that he was standing around and heard Redel ask if anyone wanted to work with Findley. Boyd testified to the same effect and described Redel's statement as, "if anybody wanted to work with Square [Square Head Findley was the latter's nickname], go on back to work " Findley, who was present in the office and was also around the toolroom when Redel spoke to the men, corroborates the foregoing union witnesses as to what Redel said and Findley specifically denied hearing Redel make any reference to Akers or his orders. Redel testified that aifter speaking with Akers on the telephone he told the men, "You guys are all supposed to go to work." He testified that none of the men said anything but then changed his testimony to state that many of the men said they were not going to work and Redel said, "The business agent says you are supposed to work" ; at this point, according to Redel many men threw In their brass as did Redel. Elsewhere, Redel testi- fied that he made reference to Business Manager Akers' wishes when he spoke to the men on Thursday, March 26 In appraising the foregoing and other portions of the record the Trial Examiner finds that Redel's conduct and statements on March 25 were as described above in the body of this report 12 In his testimony Motz stated that news of the dissident movement in the Union had been in the newspapers for weeks and weeks, that it was common knowledge, and that he was aware that Findley, Marcus, and O'Connor were dissidents and no longer union mem- bers and that "we knew what was going on." 13 Although Mote could not remember all the details of his talk with Bevlin he stated that Bevlin would have given him all the information he had relating to the walkout and the surrounding circumstances i{ Bevlin had called Akers, as we have seen, when the men left the jobsite He did so because in his view "the men, they work under Akers and he is sort of their boss in a way He is their Business Manager " Since Bevln had been superintendent of erection for Combustion for 11 years, in the construction industry, and a member in good stand- ing in the Boilermakers Union since 1936, he was eminently qualified to make a realistic appraisal of the situation and of the interrelationships therein. 15 Since the record indicates that Bevlin called Mote on Wednesday right after the men had walked off, it appears that their conversation was probably no later than 10, am Mote then tried to contact Akers and Osbourne and was successful in reaching Shahane. In view of the urgency of the situation fi om Mote' standpoint it Is probable that he talked to Shahane on that same day. However, it is not entirely clear how Shahane knew that the men had been ordered back to work at that point unless lie had talked to Akers Akers testified that Shahane spoke to him Wednesday night or Thursday morning, indi- 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Wednesday afternoon, Markus and O'Connor were at the union hall in Kansas. City. While they were there, Davis, Singleton, and two or three other boilermakers, who had walked off the Montrose job that morning, arrived. Singleton announced to the aforementioned men that they (Singleton, of al.) had walked off the job. because Findley was on the job and he did not have a card. Shortly thereafter Akers called Markus and O'Connor into his office, together with Davis. Akers asked- Davis whether "they" had walked off because they did not like Findley or because Findley did not have a card. Davis apparently did not answer the question directly. Akers told Markus and O'Connor that he was referring them to the job at Montrose and that they should report for work there the next morning. That evening, Wednesday, Findley telephoned Akers and reported to him what- the men had said and done and what Redel had said and done at Montrose about not working with him. He asked Akers what he should do. Akers told him to go back to the Montrose job in the morning. Findley, Markus, and O'Connor drove to the job together on Thursday morning, March 26. While Markus and O'Connor went into the office to sign their employ- ment papers, Findley went to the toolroom area to pick up his brass. Some of the other boilermakers had already picked up their brass and some had not and they were all standing in the general area outside the toolroom. When Findley appeared the men who had picked up their brass threw them back in the box and all the men proceeded to leave the jobsite. Meanwhile, Markus and O'Connor were in the office being processed together with two other boilermakers, Boofer and Bruin, whom the Union had referred to. the job. Present, in addition to the foregoing, were Bevlin and the timekeeper. Redel then came in and said to Boofer and Bruin, "Are you fellows going to work with these two? They haven't got a ticket." Bruin shook his head negatively and Boofer said he would do whatever Akers wanted him to do. Redel repeated that Markus and O'Connor did not have a ticket and Boofer shook his bead negatively. Markus asked Bevlin what he and O'Connor were to do and Bevlin said, "I can't use just two of you, so I guess we're going home." 16 Thereafter there was no work performed on the job that day, Thursday, everyone having gone home. Davis telephoned Akers from the jobsite, advised him of the walkout, and Akers instructed; Davis to have the men come to the union hall so Akers could talk to them. Substantially all the boilermakers who had walked off the job reported to the union hall either before or at about noon on Thursday. Davis and Redel were among those present. Akers was not there initially but came in sometime in the early part of the afternoon. Akers testified that he first dictated a letter of instruc- tion to his secretary in his office. He then came out and told the men that, while he could not make them work if they did not want to, "you guys are going to have to go back on the job"; that he was having letters typed that he would give them. Some of the men, including Singleton, said to Akers that they were not going to- return to work. Akers made no reply but turned around and walked away.17 By cated that he, Shahane, had heard about the walkout and directed Akers to get the men back on the job. This testimony of Akers tends to indicate that Shahane probably learned of the walkout from speaking to Motz but it is not easy to understand how Shahane was able at that prior point to tell Motz that the men had been ordered back unless there was two conversations with Motz or unless there was some generally understood predeter- mined union position. is The foregoing incident in the office is based on the testimony of Markus, substantially corroborated by O'Connor, both of whom impressed the Trial Examiner as credible wit- nesses, and it is found that the incident occurred as thus stated. Bevlin testified that he heard Redel tell Markus and O'Connor that the men would not work with them because they did not have a ticket and that he telephoned Motz and advised him what had hap- pened and what Redel had said. According to Redel, he told Boofer that he was sup- posed to work with Markus and O'Connor and he did not recall what Boofer said but Bruin stated that he did not want to work with them because they did not have a card. 17 The Trial Examiner has credited Akers' testimony as to what he told the men at the union hall except in those respects where it did not jibe with or was controverted by the testimony of boilermaker witnesses, called by the Respondent Union, who were present. Thus Akers testified that when Singleton said he was not going to return to work Akers told him that while he could not make him go back to work but he wished that he would. Singleton testified that Akers said nothing in reply to Singleton's statement but turned and walked away. Akers testified that he told the men that the International had ordered him to direct the men that they should not walk off and should return to work No one else who was present testified that Akers had made any reference to the International and O'Dell, Kapler, White, Hendrix, and Singleton asserted that Akers' statement was, COMBUSTION ENGINEERING, INC. 197 4 p.m. all the aforementioned letters had been typed and a letter was handed to each individual who was present . Similar letters were mailed to a few boilermakers who had walked off the job but who were not present . The letters , dated that day, March 26, stated: Please be advised that you have not received permission from this office to walk off your job at the Montrose Station, and I am hereby ordering you to return to your job at Montrose Station immediately. The letters were signed by Akers, "Secretary-Business Manages." That same evening, March 26, Findley, Markus, and O'Connor received telegrams from Akers telling them to report back to the job the next day and stating that he had instructed the other boilermakers to report back to the job.18 In addition to the foregoing events on March 26 , we have seen that Bevlin had notified Motz on that morning that the men had again walked out and had apprised him of the steward's remarks in the office, supra. Later, on the same day, Motz, who had gone from Kansas City to Omaha on business , telephoned Bevlin from Omaha sometime during the afternoon and ordered him to discharge Findley, Markus, and O 'Connor for causing dissension on the job. Bevlin, on Thursday, thereupon instructed the timekeeper to make out the termination slips and paychecks for the three men. The slips and checks were ready for the three men when they reported for work on Friday morning , March 27, and were handed to them by the timekeeper as described hereinafter. When Findley, Markus, and O'Connor, who rode together, arrived at the Montrose jobsite on March 27 , it was approximately 7:40 a.m . Findley went in first, evidently to the change room which was upstairs. Markus and O'Connor, who had arrived in their working clothes, went back to the restroom which was on the first floor. There were boilermakers in the change room and others in the area around the toolroom when Findley was ready to pick up his brass in front of the toolroom. At this juncture, about 7:50 a.m., the timekeeper told Findley that he had orders to hold up his brass and the assistant timekeeper called Findley over to behind the toolroom and handed Findley his paychecks and termination slip. The last named document stated the reason as "causing dissension on the job." When Findley went into the office he asked Bevlin why he was being separated . Bevlin said it was for causing dissension on the job , that was his orders. Markus and O'Connor, after going to the restroom , which was in a separate build- ing from that in which the office , toolroom, and change room were located, were met by the timekeeper who came out the back door of the office and gave them their checks and termination slips. The latter set forth the same reason as that which appeared on Findley 's slip. The above incident took place at approximately 7:55 a.m . When the whistle blew at 8 a.m. the other boilermakers went to work and Findley , Markus, and O'Connor left the jobsite .19 The Trial Examiner finds that they had to report back or go back to work . In the Trial Examiner's opinion if there had been a reference to the International 's orders this fact would have registered in the minds of the men at least to the extent that they or one of them would have recalled the reference. "Akers testified that on Thursday evening a number of boilermakers , including Davis and Sparks , visited him at his home. On this occasion , Akers, in response to questions about returning to work, stated , "There is nothing I can tell you about it only you boys are going to have to go back on the job" 19 Markus testified and the Trial Examiner finds, that prior to 8 a.m , when the above- described events occurred , all the boilermakers whom Markus observed were wearing their work clothes and some of them had their tools in hand . The Trial Examiner also finds that customarily some of the boilermakers changed their clothes , picked up their brass shortly before the whistle blew , and then went out to work at the sound of the whistle ; that others customarily changed their clothes, picked up their brass when the whistle blew, and went out to work ; that the foregoing patterns were followed on Friday, March 27, although few had picked up their brass at 7 •50 a in. and some of the men had not changed their clothes or picked up their brass until a minute or two after the 8 a.m. whistle blew. Thus, White testified that he had changed his clothes before the whistle and that he usually picks up his brass as he goes out to work when the whistle blows : he followed this practice on Friday and went to work at the sound of the whistle. Hendrix was in the change room when the whistle blew and he picked up his brass and went to work "a minute or so" after the whistle. Boyd had changed his clothes , picked up his brass before 8 a in., and went to work at the whistle O'Dell had changed his clothes before 8 am., picked up his brass , and went to work at the whistle . Kapler had not changed his clothes and did not go to work until he heard that Findley had been terminated 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that with one or two exceptions all the boilermakers came to the jobsite on Friday morning shortly before 8 a.m.; that some of the men intended to and would have worked because of Akers' instructions in the letters of March 26, supra; that some of the men, notwithstanding the letter, would not have worked if Findley, Markus, and O'Connor had gone to work on that morning; that it is a fair inference that some of the men were undecided when they arrived and would probably have followed the action of the majority or the action of those who, for one reason or another, they would decide to follow. At one point in his testimony Motz stated that he saw a copy of Akers' March 26 letter on the jobsite and he believed that he saw the letter before the men returned to work. However, Motz subsequently testified that he first saw the letter when Kramer, an attorney of the Board's Regional Office, showed it to him on Monday, March 30, following the discharges 2° In other portions of his testimony Motz was uncertain as to dates, e.g., he testified that he spoke to Bevlin and gave the orders to discharge the men on Friday, March 27; he later corrected his testimony to the effect that he spoke to Bevlin and gave the discharge order on Thursday, March 26. The Trial Examiner is satisfied and finds that Motz did not see nor is there any evidence that he was aware of Akers' March 26 letter prior to the time that Motz issued orders for the discharges or prior to the actual discharges. Bevlin, like Motz, impressed the Trial Examiner as being imprecise with respect to dates.21 He testified that he believes that he had a copy of Akers' letter on Thursday morning, March 26, and that he had picked it up on Wednesday evening; he also testified: "I believe I received it on the 26th. It had been mailed out before that." Since it is clear that the letter was not dictated until Thursday afternoon, March 26, and was not typed and distributed until about 4 p.m. in Kansas City on that day, the Trial Examiner finds that Bevlin, who was at Montrose, did not have a copy of the letter on Thursday, when pursuant to Motz's orders, he gave instructions to the timekeeper to prepare the discharge papers for the three men. The Trial Examiner is also of the opinion and finds that the letter did not come to Bevlin's attention until sometime after the discharge on March 27.22 Lucille Tuter, office clerk and secretary at the office of Local 83, and Akers testified in detail regarding the preparation and distribution of the March 26 letters. No mention was made of any transmittal to a representative of Combustion. Moreover, notwithstanding the lack of evidence that a copy of the letter was sent to Montrose, if it is assumed that a copy was mailed from Kansas City on March 26 it would not have reached Bevlin until 9 a.m. or after, on March 27, which was subsequent to the discharges 23 In concluding the description of events on March 25, 26, and 27, it is appropriate to consider the testimony of various union witnesses regarding the reason or reasons why they would not work with Findley, et al.24 Kennerley testified that the 20 As previously noted, the charges were filed on Friday, March 27, subsequent to the discharges, and Kramer was not on the jobsite until after the charges had been filed 21 Bevlin testified that after he received a copy of O'Connor's charge in March, he re- ceived the others' charges around April 20 He then testified that the latter date could have been August 3 instead of April Subsequently, he stated that he did not receive the additional charges but that he had been referring to grievances filed under the con- tract He testified that Kramer, the Board attorney, had been to the jobsite and had spoken to Bevlin, the timekeeper, and others about a month after the discharges Bevlin then admitted that Kramer's visit was probably on March 31 22 During the opening statement of counsel for the Union reference was made to the letter issued by the Union instructing the men to return to work. The following colloquy then occurred TRIAL EXAMINER • Had the Union advised the company that they were giving these individuals instructions to go back to work 'I Mr LANGSDALE • I do not know if that information was conveyed to the company by the Union or not-We will have to develop that . 23 The parties stipulated that Combustion maintains a P 0 box at Clinton, Missouri, for the Montrose job "The hour of pick-up is frequently later than 9 00 to 9 -30 a.m but never earlier , " 24 At the hearing counsel for the Union stated the Union's position to be that most of the men had walked off the job because of the litigation that Findley and his group had instituted against the Union and because these men were causing dissension of the job and not because Findley, Markus, and O'Connor were not union members In his brief, counsel for the Union states that "the union boilermakers, as individuals, refused to continue on the job because they believed Findley to be a troublemaker, antagonistic to the Union, and no longer a union member " COMBUSTION ENGINEERING, INC. 191 9 only reason he walked off the job on March 25 was because Findley, a nonunion men, was on the job 25 O'Dell testified that he did not like Findley's opposition to the Union, particularly what he said at union meetings , and that when Findley ceased to be a member he decided that he would not work with Findley. Boyd gave as his reason for walking off the fact that Findley had sued the Union and because Boyd is "not in the habit of working with a nonunion member." Hendrix's explanation was that Findley was not a member, that he was a troublemaker and that if Hendrix was in Findley's shoes Findley would not have worked with him. Hendrix had been a member of the Union for 19 years and when he joined he was aware of the provision of the union constitution that members shall if possible avoid working with nonunion mechanics and helpers. He thought the provision was still in the constitution until, when the instant unfair labor practice proceeding arose, he checked in the new constitution and could not find such a provision. Jones testified that it was his understanding that the constitution or bylaws of the Union provide that members are not to work with nonmembers. He has never worked with anyone who did not have a union card and he did not want to do it on March 25 when Findley appeared. Balestrere did not approve of Findley's litigation against the Union but he stated that he probably would have stayed on the Montrose job with Findley if the latter had not been expelled from the Union. Singleton's conversation on the boiler on March 25 indicates that the fact that Findley no longer held a union card was a determining factor. Redel testified that he believed in the Union and held a union card which he did not propose to lose by working with a nonunion man. White testified that it was not the policy of the Union to work with boilermakers who were not members of the Union. Superin- tendent Bevlin stated that based upon his experience in the construction industry and as a union member in the trade, the members of the Union will not work with someone who is nonunion. C. Conclusionary findings Based on the foregoing evidence the Trial Examiner is of the opinion that on March 25 when the initial walkout occurred the boilermakers ceased work primarily because Findley was not a member of the Union. While some of the men were hostile toward Findley because of his opposition to the Union, the determining factor was his nonmembership. This is made abundantly clear by the fact that Findley's antiunion conduct had covered the period from August 1957 to the date of the hear- ing; his conduct had been open and well known to all the members of the Union and had included litigation against the organization; substantially all the men on the Montrose job in March 1959 had worked on jobs with Findley during the aforemen- tioned period of his opposition to the Union but had at no time walked off a job be- cause of Findley's presence; it was not until the March Montrose job, the first new job to which Findley had been referred and to which he had reported after his ex- pulsion from union membership on February 2, 1959, that a walkout occurred. Counsel for the General Counsel has taken the position that the reasons given by the union witnesses for their walkout, such as dislike of Findley, Findley's opposition to the Union, and Findley's nonmembership, are unworthy of belief. He advances the contention that the action of the men was collective action and that collective action by the union members simply does not take place unless directed by the Union. It is counsel's position that the conclusion is inescapable that the Union had passed the word to the members that they should walk off when Findley et al., appeared. While the Trial Examiner is in agreement, as heretofore stated, that personal feel- ings of dislike and Findley's litigation against the Union were not the determining causes of the walkout, he cannot agree that Findley's nonmembership was not the cause of the walkout. It is true that Findley and the other expelled men were work- ing on a job with other members at the time of their expulsion in February 1959, and no walkout occurred, and this fact lends some support to the General Counsel's theory. However, the fact that they were already on the job and had been working thereon for some time, and the fact that the job was near completion, serve to dis- tinguish the situation from Montrose which was the first job to which Findley re- ported to start work after his expulsion. The full import of the February expulsion may well have taken some time to be digested by the Union and its members. In any =6 Kennerley and others, hereinafter mentioned, testified that neither the Union nor any union official over told him or them anything in regard to a policy- of not working with nonunion people 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD event, on the evidence in this record, the Trial Examiner concludes, as stated, that the walkout was caused by Findley's nonmembership in the Union. The aversion of the union boilermakers at Montrose to working with a nonunion member had, according to their testimony, its inception in the past at a time when they joined the Union. As late as 1953 the constitution of the instant Union's Inter- national provided that members of the Union shall avoid working with nonunion mechanics and helpers . Some of the union witnesses , prominent in the walkout, testi- fied that as late as the inception of the instant proceeding they believed that the aforementioned provision was still in effect. The union steward, Redel, testified that he did not intend to lose his union card by working with a nonunion man such as Findley 26 The Trial Examiner is of the opinion that this Union's traditions, stem- ming from past rules and practices, were. a factor in the walkout in March 1959. Aside from the foregoing, the Trial Examiner finds that on March 25, when Find- ley appeared on the job, the evidence shows that the various boilermakers, with pos- sibly one or two exceptions, concertedly walked off the boiler where they were working. The men with each other referred to Findley's presence, stated what they proposed to do or waited to see what others were going to do and then left their work, all at approximately the same time. Typically, Sparks spoke to O'Dell; O'Dell spoke to Balestrere; Kennerley spoke to several others; Hendrix spoke to White and others and testified that his cue or excuse to walk off was Singleton's remark made in the conversation with Redel, Sparks, and others; Kapler did not leave until he saw what others were doing since he was wondering "how many of them were just going to accidentally walk off with me." Moreover, even after coming off the boiler the men stood around together on the jobsite waiting to see what the others and each of them were going to do. When Redel, the steward, was told by O'Dell and Balestrere, two of the first men to walk off, that they were not going to work with Findley, he in no way remon- strated with them or in any way indicated that he, as the union steward, did any- thing,but acquiesce in and accept their position. The Trial Examiner is of the opinion that Redel was an agent of the Union at least to the extent that he was the union representative on the job and was the conduit or transmitter of union policy to the members on the job. Redel's subsequent conduct in going up to near the top of the boiler and announcing to Sparks, who was 25 feet away from him at the time, that O'Dell and Balestrere refused to work with Findley, had the effect, actual or calculated, of certainly not abating the concern of the other men, still on the job, about remaining with a nonunion worker. Redel also took this occasion when he was up on the boiler to state specifically that he himself would not work with Findley. Later, on that same day, after talking to Akers, Redel in his capacity as steward undertook to transmit to the men assembled around the toolroom what action they should take. His statement, "Any of you men that want to work with Findley can go back to work," was calculated to and did, in the opinion of the Trial Examiner, have no other effect than to confirm in the minds of the hearers the fact that the Union and its steward were at least acquiescent in their action of walking off if not encouraging such action.27 Since a principal is responsible for the act of his agent within the scope of the agent's general authority , or the "scope of his employment" if the agent is a servant, even though the principal has not specifically authorized or indeed may have spe- cifically forbidden the act in question, the Trial Examiner concludes that the Union was responsible for the walkout on March 25 .28 26 The 1957 constitution of the Union does not contain a provision about not working with nonunion mechanics and helpers. Local 83's bylaws did at one time contain the same provision as the aforementioned 1953 constitutional provision concerning the duty of not working with nonunion men. Osbourn, president of Local 83 and chairman of the bylaws committee, testified that since June 1957, the local union has had no bylaws. "'The expression "To damn with faint praise" is a familiar one and its meaning is evi- dent To speak to a group of building trades union members possessing the backgrounds, practices, and traditions previously mentioned, as Redel did, conveys somewhat the same idea or, more precisely, it may be likened to saying to strikers if anyone wants to be a scab he can go back to work 28 It is enough if the principal actually empowered the agent to represent him in the general area within which the agent acted. Restatement Agency, Sections 219, 228-237. This is the effect of Section 2 (13) of the Act which provides In determining whether any person is acting as an "agent" of another person so as to make such other person responsible for his acts, the question of whether the COMBUSTION ENGINEERING , INC. 201 The conversation between Superintendent Bevlin and Akers on March 25 was not inconsistent with but tended to be confirmatory of the foregoing conclusion regarding the Union's acquiescence in the walkout since Akers simply told Bevlin that he would not make the men stay on the job. Without going into a discussion of the legal theory at this point, it is the opinion of the Trial Examiner that if Findley had been discharged on March 25 after the foregoing events, there would have been a vio- lation of Section 8(a)(1) and (3) and 8(b)(1) and (2) of the Act by the Respond- ents.29 However, no discharge was made on March 25 and subsequent to the walkout on that day and subsequent to Bevlin's conversation with Akers, Motz was told by Shahane, a vice president of the International Union, that the men had been ordered back to work 30 This intelligence, in the opinion of the Trial Examiner, if believed by Motz, would have tended to create at least a doubt in the mind of the Company that the Union was acquiescing in the walkout. There would indeed be a question whether a discharge at this point was caused by the Union. However, whatever doubts or hopes that Combustion may have had on March 25 were quickly resolved or dispelled on March 26. Although the men came to the jobsite on March 26 they refused to work because of the presence of Findley, Markus, and O'Connor, all nonunion men. The reason for not working was the same as on March 25 and in the interval the Union had done nothing that would alter the Union's previously found legal responsibility although Akers was aware of what had happened on March 25. Indeed, with respect to the Company, Redel, by his actions in actively inducing two new employees, Boofer and Bruin, who were reporting for work on March 26, not to work with Markus and O'Connor because they did not have union cards, made it unmistakably clear that the Union was not only acquiescing in the walkout but was affirmatively inducing its continuance. The decision by Combustion to discharge Findley, Markus, and O'Connor was made on March 26 after the aforementioned events. Motz gave the orders to Bevlin and Bevlin had the papers prepared that evening, Thursday, March 26. Shortly before 8 a.m., the starting time for work, on March 27, the three complainants were given their termination slips and discharge papers. Neither Matz nor Bevlin on March 26 or 27, prior to the discharges, was aware that Akers on the afternoon of March 26 had told the men to go back to work and had given them letters to that effect. The Company acted under the impetus of the events of March 25 and 26 as they took place on the jobsite and these events made it abundantly clear that the union members, with the acquiescence and encouragement of the Union, were not going to work with Findley, Markus, and O'Connor because these three men were not union members. The Trial Examiner concludes that Combustion discharged the three men because of the pressure exerted by the Union which convinced Combustion that unless the nonunion men were terminated there would be no work performed on the Montrose boiler job. It is clear, in the opinion of the Trial Examiner, that Combustion, through its agents, Division Superintendent Motz and Superintendent of Erection Bevlin, was fully aware that the cause of the union opposition to Findley, Markus, and O'Connor was their nonmembership in the Union and that their nonmembership was due to their expulsion from the Union because of their fight against that organi- zation. The discharges by Combustion under these circumstances was violative of Section 8(a) (1) and (3) of the Act. Combustion in its brief argues that, faced with a choice of discharging the three men or having its job shut down, it simply made a business decision to get the job going and that the union membership status of the three men had nothing to do with specific acts performed were actually authorized or subsequently ratified shall not be controlling In the course of the debates of the 1947 amendments to the Act, Senator Taft, explain- ing the intent of the cited section, stated (93 Cong. Rec. 7001) : 29 Similarly union business agents or stewards, acting in their capacity of union officers, may make their union guilty . . . when they engage in an unfair labor prac- tice in the bill, even though no formal action has been taken by the union to authorize or approve such conduct. The Trial Examiner deems it helpful under the circumstances of this case to consider the legal responsibility of the parties at various stages since there were specific actions taken that may have altered the matter of responsibility at various points The ultimate conclusion will of course be based upon the final posture of the evidence at the time of the discharges ii At a prior point in this report some puzzling aspects of this conversation have been discussed. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the decision to discharge them. The following language of the Court of Appeals for the Ninth Circuit in N.L R.B v. Star Publishing Co., 97 F. 2d 465, 470, enunciates the principle which is and has been applicable to situations of this type: The respondent further contends that it was necessary to make the transfer, and thus engage in the unfair labor practice, because its business would otherwise be disrupted, and therefore, under all the facts, the transfer was excusable. We think, however, the Act is controlling The Act prohibits unfair labor practices in all cases It permits no immunity because the employer may think that the exigencies of the moment require infraction of the statute. In fact, nothing in the statute permits or justifies its violation... .31 The Trial Examiner is of the opinion that the existence of a grievance procedure and the fact that Findley and Markus did file initial statements of grievance respect- ing their discharges does not foreclose their resort to the processes of the Board. The grievants never filed the necessary factual statements required by the contract for the processing of grievances and the Company in fact rejected the grievances as untimely filed and declined to process them on this and other grounds. Cf. N.L.R.B. v. Walt Disney Productions, 146 F 2d 44, 47-48 (C.A. 9); N.L R.B. v. The Radio Officers Union of the Commercial Telegraphers Union, AFL, (A. H. Bull Steamship Company), 196 F. 2d 960, 965 (C.A. 2) affd. 347 U.S. 17. Based on the findings and analyses hereinabove made the Trial Examiner also concludes that the Respondent Union has violated Section 8(b) (1) and (2) of the Act by causing the employer, Combustion, to discharge Findley, Markus, and O'Connor because of their nonmembership in the Union 32 31 The principle advanced by Combustion in its brief would go far to nullify the con- gressional intent of Section 8(a)(3) and 8(b)(2) of the Act because all discharges of nonunion employees under threat of or under the actual existence of a strike by a union would be attributable to the employer's desire to avoid disruption of his business The cases cited by Combustion, NLRB. v Edinburg Citrus Association, 147 F 2d 353 (C A. 5) ; N.L R B. v I. Spiewak & Sons, 179 F 2d 695 (C A. 3) ; Studebaker Corporation, 110 NLRB 1307, are distinguishable on their facts In Edinburg, the court noted that "Racial antipathies were involved and feeling was bad" between the two workers who were discharged and the rest of the workers The fact that there was also resentment because the discharged employees were prounion as contrasted with the sentiments of the other employees was not determinative since the union aspect was found by the court to be not an element in the employer's decision to discharge. The Spiewak case, inter aha, involved a refusal to reinstate certain strikers whose conduct the court found was not legitimate concerted activity protected by the Act The court found that the activities of the particular strikers had antagonized the other employees and they were unwilling to work with them. In finding that the refusal to reinstate was not illegal the court noted that part of the employees' opposition to working may have been due to the union activity of the strikers but on all the facts of the particular case the court was satisfied that the employer had not acted illegally In Studebaker the Board found, in effect, that the employees refused to work with certain of the employees who owned cars other than Studebakers and that the employer suspended the non-Studebaker owners. It was found that the union had no policy on the matter of car ownership and did not cause or attempt to cause the work stoppages By way of contrast with all the foregoing cases, the instant dischargees were engaged in activity protected by the Act and such activity, or status, particularly their nonmembership in the Union, was the cause of the walkout, ratified and approved by the Union. 32 In considering the evidence and the legal theory of the case the Trial Examiner did examine and analyze the question of whether Aker's statement and letter to the boiler- makers on March 26 would alter the effect of the Union's prior conduct on March 25 and on the morning of March 26 and thereby exculpate the Union from responsibility for causing the discharges As previously stated, the Trial Examiner has found that since ,the Employer was unaware, prior to the discharges, that the Union had, through Akers, addressed the men, orally and in writing, on March 26, in the manner that it did, the answer to the question of whether or not the Union on the afternoon of March 26 had repudiated or neutralized its previously instituted causative pressures, was not essential to the decision of the case. Clearly, if the Union had made the Company aware that it had issued the March 26 letter, it could be urged that Union was no longer causing or attempting to cause the discharges in view of its instructions to the men to report for work and its advice that the Union had not authorized the walkout On the other hand, it might be urged that the entire episode at the union hall, including the letter, was a patently transparent device and that the statements of Akers were pro forma only in view of the rather cryptic statements of Akers at the hall, and the tolerated and unremedied COMBUSTION ENGINEERING, INC. 203 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 substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, it will be recommended that they be ordered to cease and desist therefrom and take certain affirmative active action, appropriate to the circumstances, designed to effectuate the policies of the Act. It will be recommended that Respondent Combustion, offer Andrew Findley, Norman Markus, and Thomas M. O'Connor reinstatement to their former or sub- stantially equivalent position without prejudice to their seniority, if any, and other rights and privileges. As it has been found that both Respondent Company and the Respondent Union are responsible for the discrimination against the aforementioned individuals, it will be recommended that the Respondents, jointly and severally, shall make these employees whole for any loss of pay they may have suffered by reason of the discrimination against them 33 Under the circumstances of this case, it will be recommended that the Union may terminate its liability for backpay by notifying the Respondent Company, in writing, that the Respondent Union has no objection to the employment of Findley, Markus, O'Connor, or any other nonunion member employees employed pursuant to the contract, and that the Union will take or has taken effective means to notify its members that (a) the Union has no policy that requires or expects its members to refuse to work with nonunion member employees, and (b) when the Union, in the course of operating a nondiscriminatory hiring hall referral system, refers men to a job, it expects, intends, and directs that its members not refuse to work with any men so referred for the reason that such men are not members of the Union and that the Union expects compliance by its members with such a policy.34 CONCLUSIONS OF LAW 1. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 83, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Combustion Engineering, Inc., is an employer within the meaning of Section 2(2) of the Act. 3. By discharging and discriminating in regard to the hire and tenure of employ- ment and terms and condition of employment of its employees, David Findley, Norman Markus, and Thomas M. O'Connor, thereby encouraging membership in a labor organization, Combustion Engineering, :Inc., 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 Combustion engineering, Inc., to discharge and to discriminate in regard to hire and tenure of employment and terms and conditions of employment open defiance of Akers' request by some of the men at the 'hall. Another aspect of the problem would be the possible contention that whichever of the two foregoing interpreta- tions was placed on the Union's actions and letter, the decisive factor would be the Company's reaction thereto in appraising the circumstances on the morning of March 27, i e., if the Company was convinced that the Union was repudiating and counteracting the walkout the Union would not be in the position of causing the discharges ; but, if the Company was of the opinion that the Union had simply made an ineffectual gesture the answer might be otherwise. It could also be urged that the Company's actual reaction was determinate only if it was the proper one under the facts 'as found, e g., if it was found that the evidence indicated that the men were prepared to go back to work pursuant to Akers' instructions whereas the Company had concluded in good faith that they would not do so because the Union had merely made a meaningless gesture in that direction. ii Reimbursement is to be made in the customary manner Republic Steel Corporation v. N L.R B., 311 U S. 7 ; F. TV. Woolworth Company, 90 NLRB 289 84 Operation of an exclusive but nondiscriminatory hiring hall by a union, whose mem- bers have been conditioned not to work with nonmembers or who follow such a practice, can well be an anomaly, particularly where, as here, substantially all workers with the necessary skill and experience are members of the Union 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in violation of Section 8(a) (3) of the Act as aforedescribed, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1) and (2) 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. [Recommendations omitted from publication.] Leo Fenster, doing business as Mercury Die Cutting Company and Robert Johnson. Case No. 3-CA-7517. February 13, 1961 DECISION AND ORDER On November 9, 1960, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that he cease and desist therefrom and take affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in this 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, Leo Fenster, doing business as Mercury Die Cutting Company, his officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Truck Drivers' Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other labor organization, by dis- criminatorily discharging any of his employees because of their union membership or activities, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing his employees in the exercise of their right to self-organization, to form, join, or assist Truck Drivers' Local Union No. 807, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain col- 130 NLRB No. 20.