Int'l Hod Carriers, Building , Etc., Local 7

INT'L HOD CARRIERS, BUILDING, ETC., LOCAL 7 865 International Hod Carriers, Building and Common Laborers Union of America, Local 7, AFL-CIO and Harris Ford Backus and Yonkers Contracting Co., Inc., Party to the Contract. Case No. 3-CB-483. February 6, 1962 - DECISION AND ORDER On July 26, 1961, Trial Examiner Samuel Ross issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain of the un- fair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices also alleged in the complaint, and recom- mended that these particular allegations be dismissed. Thereafter, only the Respondent filed exceptions to the 'Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the Trial, Examiner's evidentiary findings, but not his conclusions or recommendations, as indicated herein.' We do not agree with the Trial Examiner that the Respondent violated Section 8(b)(2) and (1) (A) of 'the Act by effectively, re- questing the .Company.•to promote employee Burrows, to the job vacancy in question, rather than hire applicant Backus.. The Trial Examiner predicated his conclusion of a violation upon a finding that it was unlawful per se for the Respondent to make the request, since compliance would necessarily encourage membership in the Respond-, ent and adherence to its policies as a condition for securing employment., , The record indicates that the Company desired to begin drilling operations, and requested Respondent's job steward, Clune, to fur- nish men who could perform this type of -work. Clune recommended Burrows. - At the same time, the Company also arranged with Backus, 1 No exceptions were filed to the Trial Examiner's finding that there was no exclusive hiring arrangement, understanding , and/or practice between Respondent and the Company. Furthermore, as noted by the Trial Examiner, even assuming that such an exclusive hiring arrangement or practice existed, there is no evidence in the record that such an arrange- ment or practice required discrimination against nonunion applicants for employment See Local 357, International Brotherhood of Teamsters, etc. v. NLRB. (Los Angeles- Seattle Motor Express ), 365 U.S. 667 135 NLRB No 88. 634449- 62-vol 135 --56 S66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -who had just transferred his membership back to Respondent, to report for work when drilling operations began. The, Company -,therefore found that it had two employees competing for one job. :Steward Clune, upon learning of this, requested that Backus not be -hired, since Burrows was already working for the Company and was part of the brush crew which was about to be laid off. The Company, accordingly, did not retain Backus a The question, therefore, is whether it was unlawful for the Re- ,spondent to request the Company to prefer an employee, such as Bur- rows, who was part of a crew which was about to be laid off, over an ,outside applicant, such as Backus. We think the answer is clear. It is a union's' function to attempt to obtain benefits for the employees ,it represents. Here the Respondent was performing that function by inducing the employer to fill desirable new jobs from within the -working force rather than by hiring from outside. Although this might encourage union membership, it would be the type of encour- agement the Supreme Court was referring to when it stated in Local .357, International Brotherhood of Teamsters, etc. v. N.L.R.B. ,(365 -,U.S. 667, 675-676) : "The truth is that the union is a service agency ,that probably encourages membership whenever it does its job well." Finding a violation in this case would penalize the Respondent for ,attempting to preserve job opportunities for the unit employees it represented. Such a finding would mean that a union could not at- -tempt to improve general working conditions for the employees in the unit if, by such an attempt, a job applicant might be tem- porarily injured. The Respondent here prevailed upon the Company ;not,to hire an outside applicant, who was also a union member, when a present employee was about to be laid off. Clearly, this was an attempt by the Respondent to perform its'obligation of representing- the' employees: 'W'e find that- such action' in this case does not involve +unlawful 'encourag'ement of union membership within the meaning of Section 8(a) (3) or 8(b) (2) of the Act. Cf. Local 357, Teamsters, supra. Our dissenting colleague says that we are reversing the Trial Examiner's credibility resolutions and findings of fact. We are doing no such thing. Like the Trial Examiner, we find that Backus was a member of the Respondent on August 3, 1960. Also like the Trial Examiner, we find that the Respondent on that date insisted that the Company assign the available vacancy to old-time employee Burrows, who was about to be laid off for lack of work, rather than to Backus, -who had just applied to the Company for employment. Again like the Trial Examiner, we do not credit Clune's asserted reason (that he 2 It should be noted that without any specific requests by Backus, 5 days after this in- cident occurred, the Respondent at Steward Clune's suggestion referred Backus to an- .other job INT'L HOD CARRIERS, BUILDING, ETC., LOCAL 7 867 had instructions from the Company's general superintendent to trans- fer "good men" from the brush gang) for objecting to the Company's employment of Backus, even though this was confirmed by the com- pany superintendent. But this absence of credible evidence concern- ing the alleged 'instructions does not constitute affirmative evidence of an unlawful reason for the Respondent's action. Rather, the entire record satisfies us that the Respondent, in representing the employees already in the unit fully and fairly with respect to their opportunities for continued employment, was opposed to Backus because his em- ployment would have resulted in his getting ahead of and in effect "bumping" these regular employees. In view of the foregoing, we find that the Respondent did not cause or attempt to cause the Company to discriminate against Backus in violation of Section 8(a) (3) of the Act. We shall accordingly dis- miss the complaint in this matter in its entirety. [The Board dismissed the complaint.] MEMBER RODGERS, dissenting : My colleagues are here reversing the Trial Examiner's findings of fact; his credibility resolutions,, and- his conclusion that the Respond- ent Union violated Section 8(b) (2) of the Act by causing the Em- ployer to refuse to hire Backus. I would affirm the Trial Examiner's findings and conclusions. The facts, as found by the Trial Examiner, are as follows: On July 28, 1960, the Employer's head mechanic recommended Backus .as a capable driller. The Employer's superintendent agreed to hire Backus, instructing Backus to report to work August 3. On August 1, the ` superintendent asked' Local' 7, the Respondent Union, to- supply two men. On August 3, when Backus reported to work, Respondent's on-the-job steward objected to Backus being hired, stating that he, the steward, could not hire Backus because he did not know Backus. Backus, a former member of Respondent, who had worked outside Respondent's territory since 1956, produced'a'Local 7 card, indicating that he had transferred his membership into Local 7 the day before. The `steward nevertheless persisted 'in his objection to the hiring of Backus on the ground that he had men who had been waiting-2-weeks to go to work. The steward later told Backu's that he, the steward, would have hired Backus if Backus had applied for his job through the Union, instead of going directly to the Employer.3 The superintendent refused to allow Backus to go to work, and later told the head mechanic that Backus could not be hired unless he was 13 As no exceptions ,were filed-to the Trial Examiner's finding that , there * was no exclu- . siye'hiring agreement, arrangement, or practice between-the Employer and the Respond- ent, I would adopt this finding, pro forma. ' Moreover, I cannot agree to the gratuitous comment by my colleagues that assuming the parties had an exclusive'hiring arrangement, it, was nondiscriminatory,. In view of the manner in which the discrimination 'against' Backus was_efected. ! • , , ' .' 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD straight with the Union. The superintendent testified that but for the steward's objection, 'Backus would have been put to work on August 3. As a predicate for the reversal of the Trial Examiner, my col- leagues are reversing one of his credibility resolutions, and are treat- ing the case as one in which the union steward interceded on behalf of a present employee who was competing with a nonemployee appli- cant for one job. It is true that the steward testified that he had ob- jected to the hiring of Backus only because he wished to effect the transfer of an employee, Burrows, who was already working on the "brush gang," and who might otherwise have been laid off. But the Trial Examiner specifically discredited this testimony by the steward. And, aside from the question of reversing a credibility finding without having observed the witnesses' demeanor,' the facts support the Trial Examiner's credibility. resolution. For the record shows that there were jobs enough for Burrows and Backus, and others as well, a cir- cumstance which renders the steward's explanation patently incred- ible. Thus, on the very day that the superintendent revoked his previous agreement to hire Backus, the superintendent not only put Burrows to work as a driller, but also hired two other men referred by the, Union, one of whom was a driller named Emericli. And, there- after, within the month of August, the Employer hired two additional drillers. In view of the number of men hired by the Employer after Backus was rejected, I find no significance in the fact that the Union later referred Backus to one job which lasted 8 days. I would find, in agreement with the Trial Examiner, that the Re- spondent Union caused the Employer to discriminate against Backus because he was from an out-of-town local union, only recently trans- ferred, and because Respondent's steward desired that the members of the Respondent, who were known to the steward, should have pref- erence in employment. This is not, as my colleagues say, a union's encouraging membership by doing its job well-it is rather a union's encouraging membership by doing its job in a prohibited manner. MEMBER LEEDOM took no part in the consideration of the above Decision an&Order. *Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F. 2d 362 (C.A •3) INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge of unfair labor practices duly filed against the Respondent , Inter- national Hod Carriers, Building and Common Laborers Union of America , Local 7, AFL-CIO (herein called Local 7 or the Union); the General Counsel of the National Labor Relations Board issued a complaint dated January 20, 1961 , alleging that Local 7 had engaged in and is .engamng in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2 ) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act. In substance the complaint alleges that on August 3, 1960, Local 7 attempted to cause and did cause Yonkers INT'L HOD CARRIERS, BUILDING, ETC., LOCAL 7 869 Contracting Co., Inc. (herein called the Company), to discriminatorily refuse em- ployment to the Charging Party, Harris Ford Backus, in violation of Section 8(a) (3) of the Act, for reasons other than his failure to tender dues and initiation fees uniformly required for acquiring and retaining membership in the Union, and that in July and August 1960, Respondent and the Company entered into, and maintained in effect, an oral agreement, arrangement, or practice, which provided that all em- ployees of and applicants for employment with the Company be members of Respondent and be cleared, approved, or referred by Respondent as a condition of employment. The complaint further alleged that such oral agreement failed to incorporate the protective provisions which the Board, in Mountain Pacific Chapter of the Associated General Contractors, Inc., et al., 119 NLRB 883, required for hiring hall arrangements to be lawful. Respondent filed an answer denying the substantive allegations of the complaint and the commission of unfair labor practices. Pursuant to due notice, a hearing was held before Samuel Ross, the duly designated Trial Examiner, in Binghamton, New York, on February 28 and March 1 and 2, 1961. All parties, including the Company as party to the contract, were represented at the hearing by counsel and were afforded full opportunity to be heard, to introduce evidence, to examine and cross-examine witnesses, to present oral arguments, and to file briefs. I have carefully considered the briefs filed by all of the parties. Upon the entire record of the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. COMMERCE The Company, a New York corporation whose principal office is located in Yonkers, New York, is engaged in the business of road construction. Since May 1960, Yonkers has been engaged in the construction of a diversionary' highway at Cannonsville, New York, for the Board of Water Supply, State of New York, the contract price of which is $3,400,000. The Company is also engaged in the con- struction of roads in the State of New Jersey, the value of which is approximately $11,000,000. The Company admits that it annually performs road construction services valued in excess of $50,000 outside the State of New York. Accordingly, I find that the Company is engaged in interstate commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits that it is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES In April 1960, the Company was awarded a contract to construct a Class 7M rural road for the Board of Water Supply, State of New York, near Cannonsville, New York. Completion of the contract is expected by June 1, 1962. In preparation for staffing the job, in May 1960 1 the Company executed a collective-bargaining agreement with Respondent recognizing the latter as the exclusive representative of all its employees in the laborer classification. The agreement contains a union- security clause requiring membership in Respondent "immediately following the 7th day" of employment but contains no provisions in respect to hiring. Before the execution of the said collective-bargaining agreement, there had been a meeting in May between Arthus E. Ellison, the Company's construction manager, and Peter Pavlisak, Respondent's business representative.2 According to Ellison, the discus- sion with Pavlisak at this meeting was only about wage rates. In respect to staffing the job, Ellison testified that he told Pavlisak, "we would prefer to use Union laborers if they were available," and that he asked Pavlisak whether "there were qualified men in the area." Pavlisak replied that he had some qualified men, and Ellison requested Pavlisak to refer them to the Company. Ellison denied that there was any agreement or understanding between the Company and Respondent in regard to the manner in which the job would be staffed by the Company. Pavlisak similarly denied that there was any agreement between the Union and the Company that all laborers had to be hired through the union office. The General Counsel does not contend that the written collective-bargaining agreement between Respondent and the Company is "violative of the Act." Instead, he asserts that there was a "tacit understanding between the parties that union ' Unless otherwise noted, all dates herein refer to the year 1960. 2 Representatives of the Teamsters and Operating Engineers also attended this meeting 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' approval, or clearance, was required before laborers and drillers could obtain employment." 3 The General Counsel relies on the foregoing as well as the following evidence to establish the existence of an unlawful understanding and/or practice between Respondent and the Company in respect to staffing the job. A. The Union's causation of the denial of employment to Harris Ford Backus The Company commenced the work of clearing brush from the right-of-way in May. On August 3, the Company started rock drilling and blasting, an operation under the supervision of Stanley Dearstyne , the Company's rock superintendent. On July 28, several days before rock drilling began, Harris Ford Backus, the alleged discriminatee, visited the Company's jobsite at Cannonsville, New York, to seek em- ployment as a driller . Backus had been a member of Respondent in 1956 , but had transferred to Local 17 of the Laborers in Newburgh , New York, in the fall of 1957. At the jobsite, Backus met the Company's head mechanic , John H . McClendon, who is in charge of maintenance of equipment and machinery . Backus, a friend of McClendon, asked the latter to recommend him to the appropriate supervisor for a job as a driller. In compliance with Backus' request, McClendon introduced him to Dearstyne . McClendon told Dearstyne that Backus "was a good rock driller" and "would make a good man for him." Dearstyne told Backus to return on Au- gust 3 and he would try him out "on the first drill." On August 2, Backus went to Respondent's office and transferred his union membership back to Respondent. On August 3, about 6 :45 a.m., Backus returned to the Company's jobsite as instructed by Dearstyne . When the latter arrived in a truck , Backus and Martin Clune, Respondent's job steward, walked over to the truck. Dearstyne said to Clime, "I need one driller and one chuck tender." Clime replied , "I thought you needed two drillers." Dearstyne said, "I did but I have one here now," and pointed to Backus. Clune retorted, "I can't hire him. I don't know him." Backus then interjected that he had a Local 7 book, and Clune replied, "I have had men waiting around here for two weeks waiting to go to work." Dearstyne and Clune then left. Backus remained at the jobsite. About a half hour later, Dearstyne came over to Backus and said, "I am sorry I can't hire you. I cannot fight City Hall." Still later that morning, Clune told Backus that he would have given him employment if Backus had not gone over his head to Dearstyne and McClendon. That afternoon Dearstyne told McClendon that he had been unable to hire Backus "because he was not straightened out with the Union," and Dearstyne also said, he "had to do the hir- ing through the Union ." Several days later, Backus asked Dearstyne whether he was going to hire any more drillers. Dearstyne replied that he was going to, but did not know when, and added that , Backus "would have to get straightened out with Local 7" before he could be hired .4 Dearstyne's testimony in respect to the manner in which Backus applied for but was denied employment by him was not substantially different from that of Backus 5 Dearstyne admitted that but for the intervention of Union Steward Clime , he would have hired Backus as a driller on August 3. Dearstyne testified that on Monday, August 1, he had asked Clime to refer to him "two good men," and that on August 3, he hired the two men referred by Clune,6 and also Edgar Burrows, a man who worked in the brush gang, on Clune's insistence that Burrows' transfer took precedence over the hiring of Backus . Dearstyne denied that there was any agreement or understand- ing which required union referral , clearance, or approval of men hired by the Com- pany. Yet, he admitted that he knew nothing of Burrows or his ability before that morning, nor of any company policy requiring him to accept the transfer of Burrows from the brush crew. When asked to explain his reason for acceding to Clune in respect to not hiring Backus, Dearstyne testified, I just didn't want to start trouble at the beginning of the job. I didn't want to, have trouble with anybody, so I just dropped the issue there. I figured he ['Union Steward Clune]' had a legal right to transfer men from the brush 8 General Counsel's brief, p 7. 4 The foregoing findings are based on the credited testimony of Backus and McClendon 5In many respects, Dearstyne was an evasive witness woo gave self-contradictory and implausible testimony as a consequence of which, I permitted the General Counsel to examine him as a "hostile" witness under Rule 43(b) of the Federal Rules of Civil Pro- cedure. For the same reasons which prompted that ruling, I do not credit Dearstyne's. testimony regarding the August 3 incident in those respects in which it differs from that of Backus , whose testimony I regard as reliable. 6 Arliss Emerich , a driller, and Charles Stanton, a chuck tender. INT'L HOD CARRIERS, BUILDING, ETC., LOCAL 7 871 crew to the drill crew . . . I wasn't going to stand there and argue with him . . . so I just walked out. However, Dearstyne was unable to explain what "legal right," Clime, a rank-and-file common laborer, had "to transfer men." Respondent's Job Steward Clune admitted that on August 3 he had objected to the hiring of Backus by Dearstyne. Clune asserted as the reason for his action, that he was following previous instructions from William P. Colvard, the Company's general superintendent, to transfer "good men" from the brush gang to the drill crew when the brush work was finished. Colvard testified that he had so instructed Clime in June. However, Colvard admitted that he did not know that Burrows was a driller, and Clime admitted that he knew only that Burrows said he was a driller, since he, had never seen Burrows do any drilling.' There was no testimony that Colvard specifically instructed Clune to transfer Burrows. Moreover, no explanation was. offered why Colvard's alleged general instructions or "policy" to transfer "good men" from the brush gang were not given to the Company's supervisors rather than to. Respondent's job steward.8 I therefore do not credit either Clune's or Colvard's. testimony regarding the alleged transfer instructions, and I likewise do not credit Clune's asserted reason for his objection to the hiring of Backus. After August 3, Backus frequented the Company's jobsite seeking employment but he was never hired although Dearstyne admittedly hired other drillers after that date.9 B. Other evidence in respect to the alleged unlawful hiring arrangement and/or practice Head Mechanic McClendon credibly testified that during the first week of Septem- ber, Respondent's Business Representative Pavlisak and Union Steward Clime accused him of writing letters to the Board on behalf of Backus, told him to keep his nose out of their business, and said "that they would do the hiring on the job." 10 Edwin C. Bonker, a member of Respondent, credibly testified that he applied for employment by the Company as a common laborer, and was told by General Super- intendent Colvard that "the Union done[sic] the hiring,"" and that thereafter, he- applied to Union Steward Clune for a job. The latter told him "they didn't need no men . they wasn't hiring." 12 Rock Superintendent Dearstyne testified that' all laborers, when hired by the Com- pany, were either members of Local 7 or some other local of the Laborers Union. Dearstyne also testified that he notified Union Steward Clime whenever a "man was being hired" so that "he [Clune] could check his book. . . .. Dearstyne testified that this was done after the man was hired, not pursuant to any agreement or under- standing, but as a matter of courtesy. The record also shows that not all employees hired by the Company were referred by Respondent, but that some were persons who had worked on other company proj- ects or were otherwise known to the Company's supervisors. These persons, on hiring, transferred their membership from other Laborers' locals to Respondent. In addition, Respondent' s Business Repesentative Pavlisak and Superintendent Colvard testified that two nonunion college boys were hired by the Company to work on the project during the summer of 1960 Pavlisak also testified that in 1959, he was advised by a Board agent that Respond- ent's contracts contained illegal hiring provisions, and that he later deleted these provisions from subsequent agreements negotiated by Respondent. Pavlisak was 7 Burrows did no drilling on the brush gang. 8 As aforestated, Dearstyne knew nothing of these instructions or "policy" at the time he refused employment to Backus There was also no testimony that the foreman of the brush gang was ever instructed regarding the Company's alleged policy to transfer men as brush work finished. 9 Backus secured other temporary employment as a result of referral by Respondent. The parties stipulated that Backus worked on this other job between August 8 and 16 10 McClendon was not certain as to whether it was Clune or Pavllsak who said the latter- n Although Colvard denied that he ever so told any job applicant, I do not credit his denial. 12 Clune did not deny the foregoing. Another job applicant, Raymond Fritz, testified that he was referred for job information to Union Steward Clune by a clerk in the Company's office, and that Clune told him "they were full" but would put him to work if "they should need someone " I conclude that Fritz' testimony establishes only that Clune was a better source of job availability information than the company clerk 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unable to remember the nature of the illegal hiring provisions which were later deleted, and his testimony in respect to the changes which were made in Respondent's referral system did not reveal the nature of the illegality. C. Analysis of the record and concluding findings In respect to the denial of employment to Backus, the basic questions for determi- nation are: whether in refusing employment to Backus, the Company, discriminated against him; whether the discrimination was of a type which encourages membership in a labor organization or adherence to its policies, and thus, a violation of Section 8(a),(3) of the Act; and whether the said discrimination was caused by Respondent, and, therefore, a violation of Section 8(b) (2) and (1),(A) of the Act. It is quite obvious that the record presents no real question regarding the Com- pany's discrimination against Backus, in view of the uncontroverted evidence that Dearstyne, although desirous of hiring Backus, nevertheless failed to do so only because- of Clune's insistence that Burrows the employee in the brush gang, be assigned to the job. I have hereinbefore found that the reason for Clune's objection to Backus was that he had failed to apply for the job through the Union, and had gone over Clune's head by applying directly to Dearstyne and McClendon. It is therefore quite obvious that the refusal to employ Backus was based on his failure to follow union protocol or policy. In The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H Bull Steamship Company) v. N.L.R. B.,13 a case involving a similar factual situation, the Supreme Court said: . . . encouragement of union membership is obviously a natural and foreseeable consequence of any employer discrimination at the request of a union. In referring to the Radio Officers' case, supra, the Board said in Turner Construction Company, 110 NLRB 1860, 1862: . discrimination by an employer against an employee (whether or not a union member) because- he is not sponsored by a union suffices to establish a violation of Section 8 (a) (3) of the Act. Thus, by denying employment to Backus because of Clune's objection, and by later conditioning Backus' employment on getting "straightened out" with the Union, which is the equivalent of securing union approval, the Company not only discriminated against Backus, but such discrimination necessarily encouraged Backus' member- ship in and adherence to the Union's policies as a condition for securing employment. I therefore conclude that such discrimination constituted a violation of Section S(a) (3) of the Act by the Company. We come then to the question of whether Respondent caused the discrimination against Backus within the meaning of Section 8(b)(2) of the Act This involves a determination of: (1) whether Clune's conduct in respect to the denial of employ- ment to Backus "caused" the discrimination against him, and (2) whether Respond- ent is responsible for Clune's conduct in this regard. Considering the latter question first, Respondent contends, inter alia, that it is not responsible for Clune's conduct in causing Backus to be denied employment by the Company. Clune was appointed as the Union's job steward by Respondent's Business Representative Pavlisak. His duties were to check the "books" of laborer employees on the job to determine their dues status, and to notify delinquent mem- bers to send in their dues to the Union. He was advised by Superintendent Dearstyne of all new hires for the like purpose of "checking their books," and under the col- lective agreement between Respondent and the Company, the initial presentation and settlement of grievances was within his authority.14 As found above, Pavlisak referred all job applicants to Clune, a clear indication that the latter was the Union's representative on the job Similarly, Dearstyne's utilization of Clime as the source of union referral of job applicants, and his denial of employment to Backus as a consequence of Clune's objection, and because he wanted no trouble with the Union, clearly indicates that Dearstyne also regarded Clune as the Union's agent on the job. For all the foregoing reasons, I find that Clune was the agent of the Respondent on the job, and I therefore reject Respondent's contention that it is not responsible for Clune's conduct.15 The final question in respect to the Company's discriminatory refusal to employ Backus is whether Respondent "caused" the discrimination within the meaning of 13347 U.S. 17, 52. 141n view of this provision in the contract, I do not credit Clune's testimony that lie had no authority to settle grievances is Brunswick-Balke-Collender Company, 131 NLRB 156 INT'L HOD CARRIERS, BUILDING, ETC., LOCAL 7 873 Section 8(b) (2) of the Act. Since, as hereinafter found, Clime's effective request that Backus be refused employment occurred without the legal sanction of a lawful, nondiscriminatory hiring hall contract, the "effective request . . . constitutes `cause' within the meaning of Section 8(b)(2) of the Act." 16 Moreover, it is immaterial that the discrimination against Backus was effected without threats.17 For all the foregoing reasons, I find and conclude that Respondent caused the Company to dis- criminate against Backus in violation of Section 8(a)(3) of the Act, and thereby engaged in unfair labor practices within the meaning of Section 8(b) (2) of the Act. Since the said conduct restrained and coerced Backus in the exercise of rights guar- anteed by the Act, I find that Respondent thereby also engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act We come then to the question of whether the evidence establishes the existence of an unlawful understanding or arrangement between Respondent and the Company in respect to the hiring only of laborers who are members of Respondent, and who are "cleared, approved, or referred by Respondent." There is no direct testimony of any such arrangement or understanding between Respondent and the Company. In fact, the only direct testimony, that of the Company's Construction Superintendent Ellison and Respondent's Business Representative Pavlisak, was that there was no arrangement or understanding in respect to staffing the job Accordingly, any find- ing that such an arrangement or understanding exists must depend on inference from other testimony in the record. In summary, the only evidence from which such an agreement or understanding can be inferred, if at all, is as follows: 1. The Company preferred to use union laborers. 2. The Company requested Respondent to refer qualified laborers to it, and some, but not all of the laborers hired by the Company, were referred by Respondent 3. All laborers hired by the Company, except for two immaterial exceptions, college boys hired for summer jobs, were, or subsequent to hiring, became members of Respondent. 4. The Company's general superintendent told a job applicant that the Union did the hiring, and Respondent's Agent Pavlisak and Union Steward Clone made like statements to Head Mechanic McClendon. 5. Respondent caused the Company to deny employment to Backus because he was not referred by the Union 6. Respondent's agent Pavlisak admitted that in 1959, he was advised by a Board agent that the hiring provisions of Respondent's contracts with other employers were illegal, and he thereafter deleted them from subsequent contracts I shall consider the foregoing testimony seriatini. 1. There is no evidence that the Company's preference for union laborers was based on any request or demand from the Union. The violation charged against Respondent is causing or attempting to cause an employer to discriminate against employees in violation of Section 8(a)(3) of the Act. Absent evidence that the Respondent caused the Company to adopt the said hiring policy, I can see no basis for holding the Union responsible for the Company's preference for union labor, even though such policy may contravene Section 8(a)(3) of the Act.18 2. The evidence that the Company requested Respondent to refer qualified laborers to it, is obviously insufficient to establish the existence of a hiring arrangement with the Union, especially where, as here, the Company did not rely upon Respondent as the sole source of its laborers, but hired employees known to the Company's super- visors by reason of their having worked on other company jobs. "It is not illegal for an employer to rely upon a union to provide it with employees." 19 3. In view of the collective-bargaining agreement between Respondent and the Company which contains a lawful union-security provision, the fact that all laborers in the employ of the Company are members of Respondent cannot be equated either with the hiring of only union members of their prior approval or clearance for hiring by the Union. to International Union of Operating Engineers, Little Rock Local 382-882A, AFL-CIO (Armco Drainage & Metal Products, Inc ), 123 NLRB 1833, 1835 17 Sub Grade Engineering Company, 93 NLRB 406, enfd. 216 F 2d 161 (C A 8) is Cf Del E. Webb Construction Company v N.L R B , 196 F 2d 841 (C A 8) ; N L R B v. A. B. Swmerton, et at, d/b/a Swinerton and Walberg Company, 202 F. 2d 511 (C.A 9). 19 N L R.B. v. International Association of Heat and Frost Insulators, etc (Rhode Island Covering Co.), 261 F. 2d 347, 350 (CA. 1) 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The statements of the Company's general superintendent and of the two union agents, that the Union did the hiring on the job, is obviously capable of an inference that there existed an arrangement for exclusive hiring by Respondent. However, there is no evidence in the record that the Union in fact did any hiring, but at most, only that it referred job applicants to the Company for hire. Moreover, the evidence does not show that union referral was exclusively practiced, for as aforestated, there were many cases in which the Company hired employees without such referral. Under these circumstances, I am not persuaded that the aforestated loose statements of the Company's and Respondent's officials are truly descriptive of the hiring prac- tices on the job, and I therefore will not infer therefrom that the Union did the hiring on the job. 5. My finding that Respondent caused the Company to discriminate against Backus is undoubtedly the strongest evidence in the record from which the existence of a hiring arrangement or understanding may be inferred. However, there are other facts disclosed by the record which detract from that inference. Dearstyne, the supervisor who submitted to Clune's objections to Backus, was a member of Re- spondent, and thus, particularly subject to the Union's influence. Moreover, at the time this incident occurred, Dearstyne had been a supervisor for only 1 month, and he had never before had any hiring authority. In view of these circumstances, the fact that one such supervisor succumbed to union influence in respect to one applicant for employment, is not, in my opinion, sufficient to establish either a practice, agreement, or understanding between the Company and the Union in respect to control of hiring. 6. Finally, we come to the admission of Union Agent Pavlisak that in 1959, Re- spondent's contracts with other employers contained illegal hiring provisions which Respondent subsequently deleted upon the advice of a Board agent. The General Counsel's brief suggests that because Pavlisak could not remember specifically what was illegal in the former contracts and what changes Respondent made in its referral practices to cure the illegality, it may be inferred that "the illegal hiring arrange- ment was not in fact discontinued." 20 I regard this contention as without merit for the following reasons: The burden of establishing that an unlawful hiring practice or agreement existed was on General Counsel. The specific nature of the illegality of the Respondent's former contracts was a matter susceptible of proof by the General Counsel by the subpena of the documents involved. Respondent's agent, a layman, obviously knew only what he was told by the Board agent, a conclusion on his part, in the absence of the agreement itself. It would require the exercise of pure specu- lation to assume that the illegality was based on an unlawful exclusive referral pro- cedure, rather than, for example, the absence of Mountain Pacific safeguards?' I refuse to indulge in such speculation. Moreover, since the record clearly shows that the Company had never, before the instant job, had contractual relations with Re- spondent,22 I can see no basis for inferring the continuance of an illegal hiring arrangement which never previously existed, so fas as the Company is concerned. Although the foregoing evidence is not free from suspicion that some understanding or arrrangement may have existed between Respondent and the Company in respect to hiring laborers, I cannot base a finding of violation of the Act on suspicion alone. Accordingly, for all the foregoing reasons, I conclude that the General Counsel has failed to prove by a preponderance of the credible evidence on the record as a whole that an exclusive hiring arrangement, understanding, and/or practice existed between Respondent and the Company. Moreover, even assuming that such an exclusive hiring arrangement or practice existed, there is no evidence in the record as to its terms, and none that such under- standing or practice required discrimination against nonunion sponsored applicants for employment. The theory of the complaint was that the arrangement or practice was unlawful because of the absence of the protective provisions which the Board, in Mountain Pacific, supra, held were necessary, in exclusive hiring hall cases, to counteract the encouragement of membership in a labor organization, which such a hiring arrangement or practice necessarily produces. Since the hearing in this case, the Supreme Court has concluded that the Board cannot base a violation of Sec- 20 General Counsel's brief, p. 9 2' Mountain Pacific Chapter of the Associated General Contractors, Inc, et al, 119 NLRB 883 22 The Company's construction job in the Cannonsville, New York, area, was its first within the Respondent's geographical jurisdiction. INT'L HOD CARRIERS, BUILDING, ETC., LOCAL 7 875 tion 8(b)(2) of the Act in exclusive hiring hall cases merely upon the absence of Mountain Pacific safeguards 23 The only evidence in the instant case that the arrange- ment or understanding, if one in fact existed, permitted discrimination by Respond- ent, is Respondent's causation of the discrimination against Backus. For the same reasons stated above for not finding the existence of an exclusive hiring arrangement on the basis of a single act of discrimination, I am impelled to find that the evidence is insufficient to establish that such arrangement, if it existed, permitted discrimination by Respondent. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Company set forth in section 1, 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 commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in vio- lation of Section 8(b)(2) and (1) (A) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies and purposes of the Act. It having been found that Respondent caused the Company discriminatorily to refuse to hire Harris Ford Backus on August 3, 1960, it will be recommended that the cRespondent cease and desist therefrom and notify the Company and Harris Ford Backus, in writing, that it has no objection to the employment of Backus . It will be further recommended that the Respondent make Backus whole for any loss of earnings he may have suffered by reason of the discrimination against him, by the payment of a sum of money equal to that which he would normally have earned from the date of the discrimination to a date 5 days after the giving of the aforesaid notice, or the date of completion by the Company of drilling operations at Cannons- ville, whichever shall first occur, less his net earnings during said period. Backpay shall be computed on a quarterly basis in a manner consistent with the policy estab- lished by the Board in F. W. Woolworth Company, 90 NLRB 289. In view of the nature of the unfair labor practices committed , the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed to employees under the provision of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Hod Carriers , Building and Common Laborers Union of America, Local 7, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By causing the Company to discriminate against Harris Ford Backus within the meaning of Section 8(a)(3) of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 3. By the aforesaid conduct , the Respondent has also restrained and coerced em- ployees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel has failed to establish by the preponderance of the record considered as a whole that there existed between the Respondent and the Company, an unlawful agreement in respect to hiring laborer employees. [Recommendations omitted from publication.] 2 Local 557 , International Brotherhood of Teamsters, etc (Los Angeles -Seattle Motor Empress ) v. NL.R.B., 365 U.S . 667. See also G. A. Rafel & Co., 131 NLRB 1191, and Sterling Precision Corp., Instrument Division, 131 NLRB 1229, In which the Board has followed the Supreme Court's holding.