Pipe Fitters Local Union No. 392, Etc.

PIPE FITTERS LOCAL UNION NO. 392, ETC. 663 representative of the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing in July and August 1959 to bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, as the exclusive representative of its employees in the aforesaid appropriate unit, and by unilaterally instituting merit wage increases on or about December 14, 1959, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By the aforesaid refusal to bargain , Respondent has interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL bargain collectively, upon request, with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW- AFL-CIO, as the exclusive representative of all our production and mainte- nance employees, excluding office clericals, professional employees, watchmen, guards, and supervisors, with respect to rates of pay, wages, hours of employ- ment, or other terms or conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL NOT unilaterally change conditions of employment without notice to the above-named labor organization as the representative of our employees and, upon request by said labor organization, we will bargain collectively con- cerning such proposed changes before making them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor or- ganizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement executed in conformity with Section 8(a)(3) of the Act. DURO FITTINGS COMPANY, 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. Pipe Fitters Local Union No. 392, United Association of Journey. men and Apprentices of the Plumbing and Pipe Fitting In- dustry of the United States and Canada, AFL-CIO [Alto Products, Inc.] and Ivan H. Lewis. Case No. 9-CB-873. Feb- ruary 23, 1961 DECISION AND ORDER On July 18, 1960, Trial Examiner Henry S. Salim issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 130 NLRB No. 50. 664 DECISIONS OP NATIONAL LABOR RELATIONS BOARD spondent 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following modifications. 1. The Trial Examiner found, and we agree, that Respondent vio- lated Section 8(b) (1) (A) and (2) of the Act through its mainte- nance of and participation in a hiring arrangement and practice whereby Alco Products, Inc., hired only pipefitter employees referred or cleared by the Respondent.' In reaching such conclusion, we rely particularly upon the demonstrated fact that Alco followed what the Respondent, in its brief, concedes to be discriminatory hiring proce- dures since 1955. Respondent asks the Board to accept its contention that Alco Prod- ucts, unilaterally, and without any arrangement, express or implied, with the Respondent, chose, as a matter of customary practice, to secure its pipefitter employees through Respondent, and sent all ap- plicants for work to Respondent to have their acceptability estab- lished in advance of putting them on the payroll. This we cannot do. The long-term continuing relationship between the Respondent and Alco renders it distinctly improbable that Alco's hiring proce- dures have continued and have been possible without the Respondent's knowledge, understanding, and cooperation .2 At a minimum, Re- spondent must be charged with knowledge of Alco's discriminatory procedures. We deem the Respondent's acquiescence in, and silent acceptance of, the fruits of such unlawful procedures as sufficient to make it a party' to an implied or tacit exclusive hiring arrangement violative of the Act.4 1 Respondent excepts to a finding that its written collective-bargaining contract with Alco constitutes an unlawful exclusive hiring agreement . We find merit in Respondent's exception , and to the extent that the Intermediate Report is susceptible to such an inter- pretation it is hereby reversed. 2 See Alexander-Stafford Corporation, 1118 NLRB 79, 103; Local 2023 of the United Brotherhood of Carpenters and Joiners of America, AFL (Baker & Coombs, Inc.), 114 NLRB 503, 513; Local 369, international Hod Carriers', etc. (A. C. Frommeyer, Charles M. Foley and Joseph E. Murphy, d/b/a Frommeyer & Company), 114 NLRB 872, 878, enfd. as mod. 240 F. 2d 539 (C A. 3) s See Bordas & Co , 125 NLRB 1335. ' The arrangement found here to exist falls to conform to the requirements and safe- guards set forth in Mountain Pacific Chapter of the Associated General Contractors, Inc, et al , 119 NLRB 883, and therefore is unlawful. Local 715, United Brotherhood of Carpenters and Millwrights (Charles S. Wood and Co.), 121 NLRB 543, 540 We find it unnecessary to pass upon the Trial Examiner's conclusion as to the effect of the Board's Supplemental Decision and Order in the Mountain Pacific case, 127 NLRB 1393. PIPE FITTERS LOCAL UNION NO. 392, ETC. 665 Moreover, it is clear that the Respondent was put on notice as to the existence of Alco's discriminatory procedures when Lewis first pre- sented himself for clearance. On that occasion, and during subse- quent conversations wherein it was made clear to Respondent's repre- sentatives that denial of clearance precluded Lewis from obtaining employment, the Respondent did not disclaim, question, or dispute its unfettered control over employment opportunities at Alco's plant. We conclude, therefore, that the Respondent's course of conduct in relation to Lewis supports our conclusion as to the existence of, and Respondent's participation in, an unlawful exclusive hiring arrangement.-' 2. The Trial Examiner recommended as the appropriate remedy herein, the requirement that the Respondent be required to reimburse all pipefitter employees of Alco Products, Inc., for all dues, fees, and assessments paid to Respondent during the Section 10(b) period.' He further recommended that the Board enter a broad cease-and- desist order against the Respondent relative to "any other employer" over whom the Board would assert jurisdiction. As Chairman Leedom and Member Fanning find that the Respond- ent has not violated the Act, and as Member Jenkins is of the opinion that the violations here found to exist, and the facts of this case, do not warrant or require the application of the so-called Brown-Olds remedy or a broad cease-and-desist order, only those portions of the Trial Examiner's recommended remedy and order that relate to the Re- spondent's hiring arrangement with Alco Products, Inc., and its duty to make Ivan H. Lewis whole for any loss in pay he may have suffered because of the discrimination against him, are adopted.7 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, Pipe Fitters Local Union No. 392, United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause Alco Products, Inc., to dis- criminate against Ivan H. Lewis or any other employee or applicant for employment in violation of Section 8(a) (3) of the Act. 5International Union of Operating Engineers , Little Rock Local 382, 382-A, AFL-CIO (Armco Drainage & Metal Products, Inc ), 123 NLRB 1833. 9 See United Association of Journeymen, etc., Local 231 (J. S. Brown-E. F Olds Plumb- ing & Heating Corporation ), 115 NLRB 594. 7 Members Rodgers and Kimball would adopt the Trial Examiner 's recommendation con- cerning the Brown-Olds remedy and the scope of the cease-and-desist order They would 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Enforcing, demanding, or requesting compliance with any agreement, arrangement, understanding, practice, or custom by Alco Products, Inc., regarding referrals and clearances for employment, ex- cept to the extent that such agreements, understandings, arrange- ments, practices, or customs are authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (c) Entering into, participating in, or giving effect to any agree- ment, contract, arrangement, or understanding with Alco Products, Inc., except to the extent that such agreements, contracts, arrange- ments, or understandings are authorized by and are lawful under Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (d) In any like or related manner restraining or coercing employees or applicants for employment at Alco Products, Inc., in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized by 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) In accordance with the Intermediate Report, make Ivan H. Lewis whole for any loss of pay he may have suffered because of the discrimination against him. (b) Notify Alco Products, Inc., immediately in writing that the Union withdraws all objections to the employment of Ivan H. Lewis. (c) Post in the Respondent Union's business offices and meeting hall copies of the notice attached hereto marked "Appendix." 8 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by Respondent Union's officer or representative, be posted by it immediately on receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and to other persons using the office or meeting hall in connection with the busi- ness of said Union are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the Ninth Region signed copies of said notice attached hereto marked "Appendix" for posting by Alco Products, Inc., if willing, at its employment offices and at all further find that pursuant to the arrangement between Respondent and Alco Products, Inc., closed-shop conditions of employment were created and maintained at Alco's plant. 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." PIPE FITTERS LOCAL UNION NO. 392, ETC. 667 other places where notices to employees and job applicants are cus- tomarily posted. (e) Notify the Regional Director for the Ninth Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. MEMBER FANNING, dissenting : I dissent from the majority's conclusion and finding that the evi- dence in this case discloses that Respondent violated Section 8(b) (2) and (1) (A). In my opinion, the evidence, though showing that Alco has followed discriminatory hiring policies, fails to show the existence of a tacit or implicit arrangement, agreement, or understanding be- tween Respondent and Alco, which may be said to have caused Alco to adopt such policies or to apply them so as to deny employment to Charging Party Lewis. Briefly the material evidence is as follows : Respondent and Alco are parties to a collective-bargaining contract, which contains a lawful union-security clause, but no provisions relating to hiring hall or union referral methods of hiring employees. Lewis applied for employment at Alco and was interviewed by Plant Superintendent Bartholomew, who gave him a letter of introduction to the business agent and assist- ant business agent of Respondent. Lewis took the letter to Respond- ent's offices and requested a referral slip, which was denied because some of Respondent's members were unemployed. Lewis went back to Bartholomew, who then stated that he could not hire him without a referral. Lewis tried again to obtain a referral from Respondent but was again refused. In addition to the foregoing the evidence shows, according to the testimony of Bartholomew, that since 1954 he has hired from 200 to 300 pipefitters, by requesting Respondent to furnish the necessary number of employees, and in 2 or 3 instances by sending applicants not referred by Respondent, to clear in with Respondent Union. Bartholomew testified, without contradiction, that he never discussed such procedures with Respondent, that there was no under- standing with the Respondent requiring Alco to follow such hiring procedures, and that Alco acted unilaterally in pursuing such policies. The foregoing hiring policies of Alco may contravene Section 8(a) (3) of the Act, but something more than Alco's maintenance and application of such policies to Lewis must be shown before Respondent can be found to have violated the Act. There must be evidence that Respondent caused Alco so to act. Even assuming, as found by the majority, that Respondent can properly be charged with knowledge of such policies, and even with acquiescence in and silent acceptance of the fruits of such policies, these findings are not equatable to a find- ing that Respondent caused Alco to adopt and apply such policies. Nor are such findings sufficient basis in law to hold that said policies 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were carried out pursuant to an implied or tacit understanding, arrangement, or agreement between Alco and Respondent. As the Ninth Circuit Court of Appeals said in the Thomas Rigging case : This failure to disavow looms large in the eyes of the Board as establishing an agreement to confine employment to members of the Millwrights, but we think it does not justify the significance given it. The burden of proof placed upon the general counsel was not satisfied by a mere showing that the existence of such an agreement was consistent with the Company's unilateral conduct. Many reasons may have motivated the Company in its discrimina- tory policy and it is not improbable that it voluntarily chose to do so on a unilateral basis.' "Acquiescence in, and acceptance of the fruits of the unlawful pro- cedures" is merely another way of saying Respondent failed to dis- avow Alco's discriminatory policies, and just as the latter does not establish the existence of an agreement, so the former does not. As there are "many reasons" which might have motivated Alco to ask Lewis to "clear in" with the Respondent, and to deny him employment because he failed to obtain clearance, there is lacking a "strong con- vincing link" 10 between the fact of Alco's discrimination and the exist- ence of an agreement requiring Alco so to discriminate. Absent an agreement with an employer, a union is under no obligation to refer members or nonmembers to an employer. This being so, Respondent's refusal to give Lewis a referral slip cannot constitute evidence of such an agreement. Nor does the fact that Alco may have consistently followed the prac- tice of requesting Respondent to refer pipefitters when it desired to hire additional employees add up to the existence of an unlawful exclusive hiring arrangement between it and Respondent. Just as there are "many reasons" why Alco might so act once, or twice, there are many reasons why it might do so as a matter of consistent policy, without being caused to do so by Respondent. "It is not illegal for an employer to rely upon a union to provide it with employees." 11 Nor is the fact that an employer uses a hiring hall, maintained by a union, as the source of its employees an unfair labor practice.12 While it may be surmised that Alco hired only employees referred or cleared by Re- spondent because it had agreed with Respondent to do so, such specu- lations are no substitute for proof of the existence of an agreement.ls N.L.R.B. v. Thomas Rigging Co., 211 F. 2d 153, cert. denied 348 U.S. 871. 10 Del E. Webb Construction Company v . N.L.R B., 196 F. 2d 841 (CA. 8). 11 N.L R.B. v. International Association of Heat and Frost Insulators and Asbestos Workers, AFL-CIO, Local 361, et al (Rhode Island Covering Co.), 261 F. 2d 347, 350 (C A 1). Morrison-Knudsen Company, Inc v. N L R B , 276 F 2d 63 (C.A. 9). 12 Morrison-Knudsen Company, Inc v N L R.B, supra 12 Cf Morrison-Knudsen Company, Inc v NLRB, supra; NLRB v. Ford Radio & Mica Corporation, 258 F. 2d 457, 461-462 (C.A. 2). PIPE FITTERS LOCAL UNION NO. 392, ETC. 669 Particularly is this so in this case, in view of the testimony of Superin- tendent Bartholomew, the only witness who testified on the point, that Alco acted unilaterally in pursuing its hiring policies, had not dis- cussed the matter with Respondent, and had reached no understanding with Respondent with respect thereto. Bartholomew's testimony was not contradicted and remained unshaken on cross-examination. Fur- thermore, Bartholomew participated in the negotiations of the collective-bargaining agreement between Alco and Respondent and was familiar with its provisions. That contract contained no referral system or hiring hall provisions, although it did contain lawful union, security provisions. Surely that contract affords no basis for a finding that Respondent actually maintained an unlawful hiring arrangement with Alco. If the existence of an agreement whether tacit or implied, requiring referral by Respondent, had been established'14 I could agree that Re- spondent's refusal to refer Lewis furnished the necessary evidence to show that the agreement or arrangement conditioned such referral upon union membership and was therefore an unlawful arrangement even apart from the absence of the necessary Mountain Pacific safe- guards.15 But as the evidence does not permit such a finding, I cannot find that Respondent violated Section 8 (b) (2) in refusing to refer Lewis, or that its refusal establishes that an unlawful referral agree- ment existed. Accordingly, as the General Counsel has failed to introduce inde- pendent evidence of the existence of an arrangement or understand- ing, whether tacit, implied, or express, conditioning employment by Alco on referral or clearance by the Respondent, I cannot join the majority in finding that Respondent violated Section 8(b) (2) and (1) (A), merely because the record shows that Alco denied Lewis employment for the reason that the Respondent failed to clear him 11 It is in this connection that the cases cited by the majority in footnotes 2 and 3 are distinguishable. In all of those cases there was independent evidence of the existence of an arrangement or understanding that hiring was conditioned on union clearance or re- ferral. In Alexander-Stafford there was a contract providing for a referral system, and evidence of joint union and employer action to deny employment for discriminatory rea- sons. In the Baker & Coombs case, the record shows that the employer and the union discussed hiring procedures and reached an understanding as to such procedures. Prac- tices thereafter lent support to the inference drawn from statements made in such dis- cussions, that an unlawful hiring arrangement had been agreed to. In the Frommeyer case the Third Circuit Court of Appeals granted enforcement , after noting agreement with the Thomas Rigging holding that the existence of a discriminatory hiring agreement cannot be inferred from unilateral action of an employer , because the evidence showed the union's participation in the discriminatory practices Such evidence included statements of the union's business agent to the employer's hiring official that he "was supposed" to refer job applicants to the union , and instructions given by the business agent to the union steward , in the presence of the employer's official , to check the books of new men and report to the business agent if they were "okay or not ." No such evidence exists in the instant case. In Bordas the unlawful hiring arrangement evolved out of a demand made by the union and subsequent agreement to the demand by means of public notice to employees by the employer. '-Mountain Pacific Chapter of the Associated General Contractors , Inc, et at., 119 NLRB 813, 897. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on request, and that Alco followed the practice of requesting Re- spondent to refer men for employment. I would dismiss the complaint. CHAIRMAN LEEDOM, dissenting : I would dismiss the complaint as, in my opinion, the matters deemed controlling by the majority are insufficient, in fact or in law, to es- tablish the existence of an exclusive hiring arrangement. I agree sub- stantially with the views expressed by Member Fanning in his dissent. APPENDIX NOTICE To ALL MEMBERS OF LOCAL No. 392 AND TO ALL APPLICANTS FOR EMPLOYMENT Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT enter into, maintain, perform, enforce, or other- wise give effect to any agreement, understanding, or arrange- ment with Alco Products, Inc., whereby applicants for employ- ment must obtain referral or clearance from such local union as a condition of employment, except in accordance with Section 8 (a) (3) of the Act and the Mountain Pacific standards. WE WILL NOT cause or attempt to cause Alco Products, Inc., to refuse employment to Ivan H. Lewis, or to discriminate against employees or applicants for employment in violation of Section 8(a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. WE WILL NOT in any like or related manner restrain or coerce employees or prospective employees in the exercise of the rights guaranteed in Section 7 of the Act, except in the manner per- mitted by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL make Ivan H. Lewis whole for any loss of pay he may have suffered because of the discrimination against him. PIPE FITTERS LOCAL UNION No. 392, UNITED ASSOCIATION OF JOURNEYMEN AND AP- PRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, 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. PIPE FITTERS LOCAL UNION NO. 3 92, ETC. INTERMEDIATE REPORT 671 ISSUES Whether the Respondent Union's hiring arrangements violated Section 8(b) (1) (A) and (2) by causing the employer allegedly to hire exclusively through the Respond- ent Local. Whether the Union caused the employer to refuse employment to the Charging Party, Ivan H. Lewis, who was denied employment for lack of a union referral, because he was not a member of the Respondent Local although he was a member of another local of the same International. Background The alleged discriminatee, Ivan H. Lewis, filed charges with the National Labor Relations Board on October 12, 1959, against the Respondent Union. The Regional Director, acting for the General Counsel, issued a complaint on December 1, 1959, alleging violations of Section 8(b) (1) (A) and (2) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. The Respondent filed its answer denying the commission of any unfair labor practices. A hearing was held in Cincinnati, Ohio, on March 9, 1960, before Henry S. Salim, the duly designated Trial Examiner. All parties were represented by counsel and were afforded full opportunity to participate in the hearing, to intro- duce relevant evidence, and to argue orally. Ruling was reserved at the hearing upon motion of the Respondent to dismiss the proceeding and is ruled upon in accordance with the findings and conclusions made herein. Briefs were filed by the parties. Upon the entire record in this case, upon consideration of the arguments and motions of counsel, including the briefs filed by the parties and citations of cases alleged to be dispositive of the issues in the proceeding, there are hereby made the following: 1 FINDINGS OF FACT Ivan Hardy Lewis, the Charging Party herein, has been for 13 years a member of Local No. 248, Ashland, Kentucky, of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO. Lewis was not a member of the Respondent Local but he was a member of another local affiliated with the same International Union. On April 20, 1959, he arrived in Cincinnati, Ohio, from his then home which was near Ashland, Kentucky, accompanied by Patterson A. Williams, his father-in-law. He came to Cincinnati pursuant to a telephone call from a friend of his, employed by Alco Products, Inc., Cincinnati, Ohio,2 who informed him that there was an opening at the plant for a pipefitter. He filled out a written employment applica- tion form and was interviewed by Harold Bartholomew, plant superintendent, who has done the hiring for Alco since 1954.3 At the conclusion of the interview, Bartholomew gave Lewis a paper dated April 20, 1959, addressed to James Maher or Douglas Herthel, business agent and assistant business agent,4 respectively, of Local Union No. 392, the Respondent herein .5 This paper reads as follows: Introducing Hardy Lewis to be hired at Alco Products as a fitter. H. BARTHOLOMEW. 1 Attorney Frank H. Stewart of the law firm of Taft, Stettinius & Hollister, represent ing Alco Products, Inc., who was present throughout the hearing, moved to intervene in the instant proceeding. His motion was denied. 2 Alco Products, Inc, herein called Alco, a corporation with its principal office and place of business at Schenectady, New York, owns and operates plants in several States of the United States in addition to its plant located in Sharonville, Ohio, which plant is engaged in the fabrication of pipe. During the past 12 months beginning December 1, 1958, which is a representative period, Alco sold, shipped, and delivered Its products valued in excess of $1,000,000 directly from its plants to persons, firms, and corporations in other States of the United States. It is conceded and found that Alco is engaged in commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, herein called the Act, and that it is subject to the jurisdiction of the National Labor Relations Board, herein called the Board 8 Bartholomew is a member of Local 250 of the Pipe Fitters International Union. 'It is conceded and found that James Maher and Douglas Herthel were agents of the Respondent Local Union No. 392 at all times material herein. 5 It Is conceded and found that the Respondent Union is a labor organization within -the meaning of Section 2(5) of the Act. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lewis then went to the offices of the Respondent Local Union and handed Busi- ness Agent Maher and Assistant Business Agent Herthel the paper Bartholomew gave him, along with his (Lewis) union book and showed them his "Travel Card." 6 After Maher and Herthel had examined his credentials, Lewis requested the Respondent's business agents to give him a referral slip to Alco where a job as pipefitter was awaiting him. Maher, Respondent's business agent, then told Lewis that "he would not give [him] a referral to Alco Products because his local men were loafing." Lewis then returned to the Alco plant and told Bartholomew what had occurred. Bartholomew then said to Lewis: "... he couldn't hire me without a referral slip from Local 392." Later the same day Lewis returned to the Respondent Local Union's hall and this time requested Assistant Business Agent Herthel to give him a referral slip. Herthel refused stating, "He could not give me [Lewis] a referral as . .. his local men were loafing." Still later the same day Lewis telephoned Maher at the union hall and asked him to reconsider his refusal to give him a referral slip to Alco. Maher again refused whereupon Lewis advised him that he was going to telegraph the parent Inter- national Union in Washington for help. Whereupon Maher replied: "... to go ahead, that would be perfectly all right." On April 20, 1959, Lewis telegraphed Peter Schoemann, president of the Pipe- fitters International, Washington, D.C. The telegram reads as follows: MR. SCHOEMANN: Pipe Fitters Local 392 Cincinnati Ohio have refused to accept my travel card as I have a written request for hire at the Alco Products Inc. Cincinnati Ohio. Will you please Advise Card No. 585978. On April 22 Lewis, the alleged discriminatee, received the following telegram from President Peter T. Schoemann of the International which is the parent body of the Respondent Local: Reurtel. Copy has been forwarded to General Organizer Hammer as well as request that he investigate the situation and then make his report to this office and, I am sure, he will contact you as soon as possible. Hammer, general organizer of the parent International, never contacted Lewis. Patterson A. Williams, father-in-law of Lewis, who accompanied him and who also was looking for work, corroborated Lewis' face-to-face conversations which Lewis had with Maher and Herthel at the union hall. Bartholomew, plant superintendent of Alco, testified that from 1954 to the time of the hearing he had hired 200 to 300 pipefitters. His practice was to contact the union hall and advise the Respondent's business agent of his requirements and the business agent would, in turn, then refer the requested number of pipefitters to Alco. All of these 200 to 300 pipefitters were referred to Alco by the Respondent Union in this manner with the two following exceptions. On these two occasions, Alco advertised for two "benders" (not pipefitters) 7 in newspapers. Pursuant to these newspaper advertisements, two men were hired but before they were "put to work," Bartholomew testified, "they were cleared through the Union . We just called the Union and told them we were putting them to work, and to send them down there." Later in his testimony Bartholomew testified that he sent these two men "down to the [Union] hall to clear in . . . with the Local Union" and that in addi- tion to these two "benders," "there's been a few other cases where we've done the same thing." Although Bartholomew testified that these men were already hired when he sent them down to clear with the Union, it is found, however, on the basis of Bartholomew's entire testimony that these benders were "hired" but subject to the approval of the Respondent Union. Corroborative of this conclusion is Bar- tholomew's testimony that he would have hired Lewis, the alleged discriminatee, if he had been able to obtain clearance from the Respondent Union. Also, highly significant, as well as corroborative of this conclusion, is the following testimony of Bartholomew: e A travel card is issued to members of the Union who desire to transfer from one local to another in order to avail themselves of the hiring facilities of the local union as distinct from their home local Travel cards are described at page 81 of the International's constitution. General Counsel's Exhibit No. 7. 'Evidently "benders" are a type of craftsmen difficult for the union hall to supply. PIPE FITTERS LOCAL UNION NO. 392, ETC. 673 Q. You stated that you did not allow any pipe fitters to go to work until they had cleared through the Union. A. Right .8 Contentions The General Counsel contends that Alco and the Respondent Union "were parties to a tacit understanding or arrangement" whereby all applicants for employment as pipefitters required union clearance and approval before they could be hired by the employer, Alco. The Respondent Union, to quote its counsel, defends this charge by stating: There is absolutely no evidence that there was any understanding or practice participated in by Respondent Local 392 of any hiring arrangement. If it was done at all it was unilateral. And, further, as far as the charging party [Lewis] is concerned, there is absolutely no evidence that connects the local union what- soever with his failure to be employed. It did not refer him. Within the administration of their own local union they don't have to refer anybody that comes to their local union. This alone doesn't make it a cause to discriminate. Discussion Alco and Respondent Union are signatories to a collective-bargaining agreement (General Counsel's Exhibit No. 2) which provides in part, in article II, section 1, as follows: The parties agree that the employer will utilize employees who, as a condition of employment, shall be required to maintain membership in the Union on the thirtieth (30th) day following the date of this agreement, whichever is later; ... . In the Mountain Pacific case,9 the Board held that unions and employers can agree to operate under exclusive hiring arrangements provided they set forth in their con- tract certain safeguards or criteria to be followed by the union in performing its functioning as hiring agent and which will constitute notice to applicants for employ- ment that the union does not have unilateral control of the employment relationship. The Board listed the following as among the safeguards against improper discrimina- tion over the recruitment and referral of employees to be included in the agreement: (1) Selection of applicants for referrals to jobs shall be on a nondiscrimina- tory basis and shall not be based on, or in any way affected by, union member- ship, bylaws, regulations, constitutional provisions, or any other aspect or obli- gation of union membership, policies, or requirements. (2) The employer retains the right to reject any job applicant referred by the union. (3) The parties to the agreement post in places where notices to employees and applicants for employment are customarily posted, all provisions relating to the functioning of the hiring arrangement, including the safeguards that we deem essential to the legality of an exclusive hiring agreement. Subsequent to the time that the Mountain Pacific decision issued, the Board in McCormick Construction Company," has amplified the third safeguard, supra, by holding that "This posting requirement includes the posting of out-of-work or referral lists." [Emphasis supplied.] The Board, in its Mountain Pacific decision held that a collective-bargaining agree- ment having a contract clause that grants a union exclusive control of the referral system without including in it the above three safeguards against union favoritism in the exercise of that control, is illegal in itself, apart from whether the referral ar- rangements in its operation results in unlawful discrimination to nonmembers of the contracting union. Such unilateral control, without these three provisions in the contract, said the Board, was notice "to the world at large that the Union is arbitrary master and is contractually guaranteed to remain so," ii as no criteria or methods are specified by which referrals are to be made by the union. This, concluded the Board, is a violation of the Act's provisions against exerting pressure upon job ap- 8 See Victory Construction Co., 127 NLRB 400, footnote 2, where the Board stated it is unlawful to condition employment upon union clearance. ° 119 NLRB 883 10126 NLRB 1246, footnote 6. u At page 896 of the Mountain Pacific decision, supra 597254-61-vol. 130-4 4 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plicants to comply with union obligations such as membership in a union being made a prerequisite to obtaining a job referral under an exclusive hiring hall contract. In practical terms this means that whether job applicants are referred to jobs depends solely on the union's disposition toward them as the union is "free to pick and choose on any basis it sees fit." 12 The United States Court of Appeals for the Ninth Circuit, however, refused en- forcement of the Board's Mountain Pacific decision and remanded the case for re- examination by the Board of its holding that a collective-bargaining agreement which does not include these three safeguards is illegal per se.13 According to the court, the absence of specific contractual safeguards against hiring preference for union members, regarded by the Board as establishing per se illegality, may be treated as no more than evidence of an intent to discriminate illegally. The court's reasoning is that the presence or absence of specific contractual safeguards has no direct rela- tionship to the existence of a violation. The inclusion of such clauses does not mean, says the court, that the parties will not practice discrimination, and their ab- sence does not mean that the parties do not intend to comply with the law. Still, holds the court, there is no reason why the Board, drawing upon its expertise, may not treat the absence of such provisions as evidence of an intent to violate the law. In the court's view, the absence of these three safeguards must be treated not as a question of law, to be determined by the provisions of the contract alone, but as a question of fact, to be determined by evidence as to either the intent of the parties or the operation or effect of the contract. The court concludes by stating that while this approach cannot be upheld in the instant case the Board can, however, legally give weight to this particular item of evidence, but the rule must operate prospectively. After the court's remand, the Board in a supplemental decision (127 NLRB 1393) stated: As instructed , having considered the entire record in these cases , we find that even though the hiring provision did not, on its face, give job preference to members of the Unions , the parties in fact gave them such preference . . . . Ac- cordingly, in view of the Local's practice of unlawfully giving preference to its members in supplying the employers with workmen , the Respondent Em- ployers violated Section 8 ( a) (3) and (1) of the Act and the Respondent Unions violated Section 8(b)(2) and ( 1) (A) by executing and maintaining a contract provision which required the Employers to hire only men referred by the Unions. [Emphasis supplied.] In a footnote, the Board states: ".. . We do not infer an illegal intent from the wording of the contract here in issue; rather we infer such intent from the parties' clearly illegal practices found herein." [Emphasis supplied.] It would appear, therefore , that the Board has reversed its holding enunciated orig- inally in the first Mountain Pacific decision ( 119 NLRB at 893 ) that a collective- bargaining agreement which does not include the three safeguards , detailed above, is illegal per se. Under Section 8(a)(3) of the Act, it is an unfair labor practice for an employer "by discrimination in . employment . .. to encourage or discourage member- ship in any labor organization .. .." By Section 8(b)(2) of the amended Act, this prohibition was extended to unions, which were forbidden "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) .. ..' Therefore , subject to a proviso permitting discharge of employees for failure to pay union dues and initiation fees pursuant to a union -security agree- ment, an applicant for employment may not be subjected to job discrimination at the hands of the union. The legislative history of Section 8(b)(2) shows that Congress sought to eliminate union abuses of control over employment .14 An "agreement that hiring of employees be done only through a particular union's offices does not violate the Act `absent evidence that the union unlawfully discriminated in supplying the company with personnel .' 95 NLRB at 435." N.L.R.B. v. A. B. Swinerton, et al., d/b/a Swinerton and Walberg Company, 202 F. 2d 511 , 514 (C.A. 9), cert. denied 346 U.S. 814. "'The factor in a hiring-hall arrangement which makes the device an 121d, at page 894. 1s N L.R.B. v. Mountain Pacific Chapter of Associated General Contractors, Inc, et al, 270 F 2d 425 (C.A. 9). 14H. Rep. No. 245, 80th Cong., 1st secs., p. '34; S Rep. No 105, 80th Cong, 1st sess., pp. 6, 7, 21, and 22, H. Conf Rep 510, 80th Cong, 1st sess., p 44; 93 Cong. Rec. 3837, 4135, 4191, 4193, 4432, 4886, 4887; S. Rep. 986, pt 3, 80th Cong., 2d sess., p. 52. PIPE FITTERS LOCAL UNION NO. 392, ETC. 675 unfair labor practice is the agreement to hire only union members referred to the employer.' Del E. Webb Construction Co. v. N.L.R.B. (C.A. 8), 1952, 196 F. 2d 841, 845." Eichleay Corp. v. N.L.R.B., 206 F. 2d 799, 803 (C.A. 3).15 Inasmuch as Section 8 (b)(2) and (a)(3) are interrelated, it is necessary to analyze both sections together. From such examination, 4t seems clear that it is an unfair labor practice for a labor organization or its agents to cause or attempt to cause an employer to discriminate against employees or applicants for employment in regard to hire or tenure of employment or any term or condition of employment. The decisions of the Board and the courts hold that the test of the legality of a referral system is whether in its actual operation, or effect, it results in unlawful dis- crimination to applicants for employment.16 Settled law establishes that, subject to one sharply defined exception,17 the power of a union or employer to discriminate in employment has been amended by the Act so that rights of an applicant for em- ployment may not be abridged nor may he be subjected to job discrimination. Ac- cordingly, an employer violates Section 8(a)(3) of the Act if he requires an ap- plicant to obtain a referral from the union as a condition precedent to employment. Likewise, a union violates Section 8(b)(2) of the Act, where by written agreement or by practice, it causes an employer to engage in such discrimination.18 It is concluded, therefore, that the record as a whole, establishes the application of a discriminatory hiring policy by the Respondent for the recruitment of pipe- fitters at Alco, and that this policy was discriminatorily applied to Ivan H. Lewis. The Respondent thereby committed unfair labor practices to cause discrimination in employment by conditioning the employment of pipefitters on being members of the Respondent Union. This denial to Ivan H. Lewis of equal access to the available jobs was a restrictive imposition in violation of Section 8(b) (2), and also Section 8(b)(1) (A) of theAct.19 The Trial Examiner has studied counsel for the Respondent's excellent brief and the cases therein cited in support of his contention that the General Counsel has failed to prove the unfair labor practices alleged in the complaint. Counsel's argu- ments, however, and the cases cited, particularly N.L.R.B. v. Thomas Rigging Co., 211 F. 2d 153 (C.A. 9), are premised on an interpretation of the facts in this case which the Trial Examiner does not share. Conclusions 1. The Respondent maintained in a discriminatory manner an exclusive hiring arrangement and practice requiring Alco Products, Inc., to hire only employees referred directly by the Respondent Local or who obtained clearance for hiring from the Local. The record evidence shows that the parties have been following a practice of requiring referral or clearance through the Local and giving preference in employment to Local members, although such practices are unlawful under Sec- tion 8 (b) (2) and (1)(A) ofiheAct20 2. Apart from any practice thereunder, the exclusive hiring agreement, described above, violated Section 8(b)(2) and (1) (A) under the Mountain Pacific doctrine.21 Such an agreement, giving a union complete and unfettered control over hiring, tends to encourage union membership in violation of the Act. It enables the union to cause 16 See Morrison-Knudsen Company, Inc. v. N.L.R.B., 276 F. 2d 63 (C.A. 9), particularly pages 2910 to 2911, inclusive. 19 N L R.B v. F. H. McGraw & Co., 206 F. 2d 635 (C.A. 6). 17 This exception permits a union through a valid union-security agreement to compel payment of union dues. See Sections 7, 8(a)(3), 8(b)(2), and the proviso to Section 8(a) (3) with respect to a union-security provision. 19 N.L R .B v. International Longshoremen's & Warehousemen's Union, at at. (Paciflo Maritime Assn, formerly Waterfront Employers' Assn ), 210 F. 2d 581 (C A 9) ; N L R B v. International Longshoremen's and Warehousemen's Union, Local 10, I.L.W.U., 214 F. 2d 778 (C.A. 9) ; N.L.R.B. v. Waterfront Employers of Washington, et at., 211 F. 2d 946 (C.A. 9) ; Enterprise Industrial Piping Company, 117 NLRB 995; Construction Specialties Company, 102 NLRB 1542, enfd. 208 F. 2d 170 (C.A. 10) ; George D. Auchter Company, at at., 102 NLRB 881, 885, enfd. 209 F. 2d 273 (C.A. 5). 19 Morrison-Knudsen Co. v N L R B., 275 F. 2d 914 (C A. 2) enfg. as mod . 123 NLRB 12; Local 401, International Brotherhood of Boilermakers, et at., 126 NLRB 832. 20 Sheet Metal Workers International Association, Local Union No. 99 (Dohrmann Hotel Supply Company), 120 NLRB 1366. See Local Union No. 450, International Union of Operating Engineers, AFL-CIO, et at. (Tellepsen Construction Company), 122 NLRB 564. 21 Mountain Pacific Chapter of the Associated General Contractors, Inc., et at., 119 NLRB 883. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employer to violate Section 8(a) (3). In the case at bar, the agreement operated in such a way as to favor Local members and so deny Lewis a job. The only ex- clusive hiring agreement allowed by statute is one where the parties have taken cer- tain steps, as enumerated in the Mountain Pacific case, supra, to disabuse employees of any fear that the union will prefer members to nonmembers. Such steps were not taken here. 3. It is concluded, therefore, that the Respondent violated Section 8(b)(2) and (1) (A) by causing the Company to withhold employment from the Charging Party, Ivan H. Lewis, because he was not a member of the Respondent Local and had no job referral from it.22 THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth above, occurring in connection with the operations of the Employer hereinabove described, 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. THE REMEDY Having found that Respondent Local 392 has engaged in unfair labor practices affecting commerce pursuant to an unlawful referral and hiring arrangement, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The record demonstrates that the Respondent Union does not refer applicants for employment to employers on a nondiscriminatory basis and that its referral practices are inconsistent with the nondiscriminatory operation of a referral or hiring hall. Accordingly, it will be recommended that the Respondent Union cease and desist from requiring employers for whom it supplies personnel to agree to any arrangement, oral or written, which by its terms requires these employers to dis- criminate against employees who are not members of the Respondent Union in regard to their hire or tenure of employment or any term or condition of employment except in accordance with the proviso in Section 8(a) (3) of the Act. The Supreme Court in Communications Workers of America, et al. (Ohio Con- solidated Tele Co.) v. NL.R.B., 362 U.S. 479, held an order of the Board that the respondent union, found to have violated Section 8(b) (1) (A) of the Act, by coercing employees of the Ohio Consolidated Telephone Company in the exercise of their statutory rights, shall cease and desist from so coercing employees of the telephone company "or any other employer" is invalid insofar as the order includes the quoted words. However, to paraphrase the language used by the Supreme Court in its decision, the testimony in the case at bar plainly does evidence a "generalized scheme" against all employers who availed themselves of the respondent union's referral services to require that all applicants for pipefittter employment should either be referred by the respondent union or receive its imprimatur. It will be recom- mended, therefore, that the cease and desist order apply not only to the named Employer, Alco Products, Inc , but also include "any other employer." Furthermore, it shall be recommended that Respondent Union cease and desist from discriminating against nonunion applicants for employment, or requiring job applicants to be members of the Respondent Union before they can be eligible for employment, or to accord preference in employment to union members. By enforcing closed-shop conditions of employment, the Respondent has in- evitably coerced employees to pay the dues, fees, and assessments necessary to achieve and retain membership in the Respondent or to receive a permit or clear- ance for them to work within the Union's jurisdiction. In order adequately to remedy the unfair labor practices found, and to encourage compliance with the Act in the future, the Respondent should be required to reimburse employees of Alco Products, Inc., for any dues, fees, assessments, or other moneys that were un- lawfully exacted from them as a condition of obtaining or retaining employment with the said Company as the record is clear that union membership is a prerequi- 12N.L.R.B. v. Local 176, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Dsmeo Construction Co.), 276 F. 2d 583 (C.A. 1). See, however, NLR.B. Y. E & B Brewing Co., 276 F. 2d 594 (CA. 6), where the court refused enforcement stating the Board cannot now declare illegal a hiring agreement, legal at the time it was made, retroactively illegal per se because It lacks all the safeguards prescribed in the ?fountain Pacific decision PIPE FITTERS LOCAL UNION NO. 392, ETC. 677 site to employment. Accordingly, it shall be recommended that the Respondent refund to all employees of the said Company the initiation fees, assessments, dues, and other moneys paid by them as the price of their employment. The liability of the Respondent Union for reimbursement should include the period beginning 6 months prior to the filing and service of the original charges herein and shall extend to all such moneys thereafter collected.23 The recommendation as to reimbursement set out in the preceding paragraph has taken into consideration the evidence introduced by Respondent that for the period April 12, 1959,24 to the date of the hearing, all pipefitters employed by Alco, who paid dues to Local 392 during said period, were members of and paying dues to Local 392, or were paying dues to Local 392 for no less than 2 months and as many as 10 years, prior to the date of their original employment. Such evidence, under Board decisions, is not material with respect to enforcement of the so-called Brown-Olds remedy, namely reimbursement of dues, initiation fees, and other moneys paid by members of a union under a closed-shop referral or hiring system or arrangement during the 6 months preceding the filing of the charge "whether or not proof of actual exaction of payments is established." Reimbursement, accord- ing to the Board, is required because "the existence of an unlawful contract is suffi- cient in and of itself to establish the element of coercion in the payment of moneys by employees pursuant to the requirement of [an illegal] contract." 25 It has been found also that the Respondent discriminated against Ivan H. Lewis. Therefore, it shall be recommended that the Respondent Union make whole Lewis for any loss of pay, if any there was suffered, as a result of the discrimination against him. It shall be recommended that the backpay period begin April 20, 1959, when Lewis appeared at the Respondent's offices and requested a referral slip to Alco; that Respondent notify Alco and Charging Party Lewis that it has no objection to his immediate employment; and that the backpay liability of Respondent shall be tolled 5 days after it serves such written notice on Alco and Lewis.26 The backpay, if any, shall be computed in accordance with the formula promulgated in F. W. Wool- worth Company, 90 NLRB 289. It will be recommended, also, that the Respondent maintain, preserve, and make available for the Board or its agents, upon request, for examination and copying, all records necessary to analyze and determine the amount of money, if any should be found due Lewis. Upon the basis 'of the above findings of fact and conclusions, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Alco Products , Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Pipe Fitters Local Union No. 392 , United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) -of the Act. Is International Hod Carriers , Building and Common Laborers ' Union of America, AFL- CIO, et al, Local No. 14 4 5, 126 NLRB 226; Lummus Corporation, 125 NLRB 1161; Local 244, Motion Picture Operators Union, 126 NLRB 376 See also The Ingalls Steel Construction Company, 126 NLRB 584 ; International Union of Operating Engineers, Local 150 , AFL-CIO v. N L R B., 273 F. 2d 833 (C.A D C.) ; Funeral Directors of Greater St. Louts, et at., 125 NLRB 241; N.L.R.B. v.,Millwrights' Local 2232 District Council of Houston, et at, 277 F 2d 217 (C.A 5) , Nordberg-Selah Frutit, Inc., et al , 126 NLRB 714, Chun King Sales, Inc., 126 NLRB 851; Local 569, United Packinghouse Workers of America, AFL-CIO (Frank Jaworski Sausage Company ), 126 NLRB 870 ; Orfeo Kos- tencich, at at., 127 NLRB 96. 24 This is the 6-month period prior to October 12, 1959, the date the charge was filed. v Nassau and Suffolk Contractors Association and its members, 123 NLRB 1393. In N.L R B . v. United States Steel Corp., 278 F. 2d 896 (C.A. 3), the court, at page 899, makes reference to "the Board refus[ing] to reopen the case and permit the union to offer testimony from employees that they were not coerced" for the reason that it was not relevant The court also suggests ( p. 900 ) that inasmuch as the orders of the Board are equitable in nature the General Counsel should have alleged in his complaint that lie was seeking the Brown-Olds remedy. 28 Mountain Pacific Chapter of the Associated General Contractors , Inc., et al, 127 NLRB 1393. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By restraining and coercing Ivan H . Lewis in the exercise of the rights guar- anteed him by Section 7 of the Act, as found above, Local 392 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 4. By causing and attempting to cause Alco Products, Inc., to discriminate against Ivan H. Lewis in violation of Section 8(a)(3), Local 392 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 5. The unfair labor practices found herein affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] American Stores Company, Petitioner and District Union Local No. 1, AFL-CIO, Amalgamated Meat Cutters, Butcher Work- men and Affiliated Crafts of N.A. American Stores Company, Petitioner and Local 34, Amalga- mated Meat Cutters, Butcher Workmen of North America, AFL-CIO. Cases Nos. 3-RM-217 and 3-RM-9218. February 23, 1961 DECISION AND ORDER Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, a consolidated hearing was held before Hymen Dish- ner, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in con- nection with the consolidated cases to a three-member panel [Chair- man Leedom and Members Jenkins and Kimball]. Upon the entire record in the consolidated cases, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. No question affecting commerce exists concerning the represen- tation of certain employees of the Employer for the following reasons : The Employer, by its petition, seeks a determination from the Board as to the appropriateness of a single or two separate units of certain of its employees. The petitions state that the Unions herein are seek- ing to represent and bargain separately for all its grocery store em- ployees, excluding supervisors, located within the Unions' respective jurisdiction. The Employer contends that a single unit of such em- ployees is alone appropriate. It also contends that if the unit issue is resolved, assistant store managers should be excluded from the unit or units. 130 NLRB No. 82.