Animated Displays Co.

ANIMATED DISPLAYS COMPANY 999. Animated Displays Company and Dewayne C. Johns Carpenters' District Council of Detroit, Wayne and Oakland Counties and Vicinity, United Brotherhood of Carpenters, and Joiners of America, AFL-CIO and Dewayne C. Johns.. Cases Nos. 7-CA-3016 and 7-CB-745. June 28, 1962 DECISION AND ORDER On October 5, 1961, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the Interme- diate Report attached hereto.' He also found that Respondents had not engaged in certain other unfair labor practices as alleged in the complaint and recommended dismissal of these allegations. There- after, the General Counsel filed exceptions to the Intermediate Report, together with 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 to the extent consistent with the instant decision. As more fully detailed in the Intermediate Report, Johns was hired as a decorator for work in a decorating department which the Com- pany hoped to establish, with the understanding that he was to per- form carpentry work whenever there was no decorating work available. At all material times, Johns was in fact performing car- pentry work about 75 percent of the time. There is no claim that the initial understanding under which Johns was employed was in viola- tion of the Union's contract with the Company or inconsistent with any of its provisions. Nor is there any contention that Johns was not qualified, by reason of skill or training, to perform the carpentry work in question 2 Indeed, there was no objection to Johns' employment. at carpentry work until the Company laid off two employees who had been performing carpentry work 100 percent of their time and retained Johns. At this time the Union successfully exerted coercive pressures s The Trial Examiner's finding that Respondents violated the Act because of the union- security clause in their contract was not excepted to and we adopt it pro forma 2 We note, among other things, that in questioning the managerial agent who effected' Johns' discharge concerning Johns' status , that Respondent Union's counsel referred to Johns as a "carpenter journeyman and decorator and a member of the Carpenter 's Union."' 137 NLRB No. 99. 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the Company to discharge Johns 3 and to reemploy one of the laid- ,off employees. The General Counsel contends that the Respondents thereby violated the Act because Johns' discharge reflected the en- forcement of an internal understanding between the two constituent locals of the Respondent Union in the area (namely, Decorators Local 877 and Carpenters Local 1433) relating to members' job priorities. We find merit in this contention. The facts supporting the above-stated contention are not seriously disputed. As found by the Trial Examiner, there was an understand- ing between Local 877 and Local 1433 that members of the former would not be employed at carpentry work if members of the latter were in layoff status. It is also clear that Johns was a member of Local 877, that the laid-off employees were members of Local 1433, and that the discharge action benefitted the latter at the expense of Johns and implemented the interlocal understanding. Thus, in seek- ing Johns' discharge, the Respondent Union advised the Company about this interlocal understanding and represented to the latter that the other employers in the area with whom the Union had contracted had acquiesced in the terms of this understanding as a matter of prac- tice.' However, the Respondent Company refused to recognize or .acquiesce in the alleged "practice" as a reason for discharging Johns and it effected the discharge solely because the Union exerted coercive pressures upon it. Respondents' contract contains no terms which limit or restrict the Company in its assignment of carpentry work, nor which in any way provides a basis for the Union's demands for Johns' discharge in the circumstances described. We note also that the said contract estab- lishes the Respondent Union as the contractual representative in a unit encompassing "all employees performing carpentry work," and that the provisions detailing the agreed-upon terms and conditions of -employment of such employees draw no distinctions between those hired as "decorators" and those hired as "carpenters." In sum, all the facts support the view that Johns was discharged only because he was a member of Local 877, rather than of Local 1433, and because his continued employment in the circumstances violated the interlocal agreement regulating the job priorities of the respective members of each. Nonetheless, our dissenting colleagues suggest that the Union was doing no more than demanding from the Company its 3 In adopting the Trial Examiner 's findings that the Union "caused" Johns ' discharge, we note specifically that the Union 's discharge request, backed by the threat to "pull" Johns' card , occurred in a context in which carpenter-members of the Carpenters' Local 1433 were "milling around" the shop in protest of Johns' employment at carpentry work with the knowledge of the Union ' s representatives and/or with their approval and sub- sequent ratification of this action 4 while we do not deem it significant in the disposition of this case , we note that the sole support for this union representation is the testimony of the agent of one or more employers in the area to the effect that some employers "have sort of gone along" with the mentioned Interlocal understanding or practice. ANIMATED DISPLAYS COMPANY 1001 application "of a principle of craft or departmental preference in an economic layoff," in accord with a "fair and equitable arrangement" reflecting disposition of a recurring grievance among the crafts. But what they have done is to hypothesize a case for the Respondents, not proved upon the record. Nothing in the record supports an in- ference that Johns was any less a carpenter craftsman than the laid- off employee who replaced him, nor that his length of service in the carpenters' unit, wherein he was employed, was any less than the em- ployee who replaced him. What our dissenting colleagues seem to assert, therefore, is that a union may seek preference in employment between individuals on no more rational basis than the Union's arbi- trary claim that one employee is a "carpenter" and another employee is a "decorator," although both are similarly employed and, insofar as appears, equally qualified to do carpenter's work. We know of no case which permits a union to discard all objective criteria by which an employees' right to employment can be determined and simply to rest its claim on a mere assertion that one employee is a "carpenter" and another is not. Where this occurs, the inference is inescapable that the Union's use of the occupational title derives from membership in the particular union. In such circumstances, a union's insistence on an employee's discharge, because it did not consider him to be a mem- ber of the craft which it represents, clearly encourages membership in or adherence to its organization and discourages membership in other unions, for only by maintaining membership in the particular- union, and avoiding membership in another union, can an employee be certain of his occupational title and hence, as in the circumstances of this case, that his employment rights will not be affected. It is clear, therefore, that Respondent Union's insistence that Johns was not a "carpenter" as a basis for its discharge demand would not vali- date the discharge action here taken. For such action encourages Johns' membership in or adherence to the Carpenters' local and dis- courages his membership in the Decorators' local. It does not suffice to say that the arrangement entered into between the Carpenters' local and the Decorators' local may be agreeable to those unions, for, as concerns the employees, it is discriminatory and unlawful.' Furthermore, we cannot agree with our dissenting colleagues that their views find support either in Bricklayers, Masons and Plasterers' International Union, etc. (Plaza Builders, Incorporated), 134 NLRB 751, or International Hod Carriers, Building and Common Laborers Union of America, Local 7 (Yonkers Contracting Co., Inc.), 135 NLRB 865 (Member Rodgers dissenting). In the former case, the Board found no evidence that the union demand for preferential em- ployment of one member over another in the construction industry was based on anything other than its stated reason that it sought to en- 5 Cf. N.L.R.B. v. Rockaway News Supply Company, Inc., 345 U.S. 71. 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD force the there permissible and "objective criterion" of area residence. Likewise, in the latter case, the Board majority found that the union demand for preferential employment of an incumbent employee over a job applicant involved no more than application of the legitimate and objective criterion of length of service. Furthermore, we fail to see wherein the Supreme Court's decisions in Local 357, International Brotherhood of Teamsters, etc. (Los Ange- les-Seattle Motor Express) v. N.L.R.B., 365 U.S. 667, or Ford Motor Company v. Huffman, 345 U.S. 330, or Aeronautical Industrial Dis- trict Lodge 727 v. Campbell, et al., 337 U.S. 521, cited by the minority, lend any comfort to their position. In Local 357 the Court, there referring to its Radio Officers' holding, stated in part that "some con- duct may by its very nature contain the implications of the required .intent, the natural foreseeable consequences of certain action may war- rant the inference. . . . The existence of discrimination may at times be inferred by the Board, for `it is permissible to draw on experience in factual inquiry.' e It is such inference that we have drawn in the instant case. As to the Huffman and Campbell cases, respectively, the Court merely held that preference in seniority accorded to veteran ,employees generally and to union officers, were based on reasonable seniority classifications within a framework of a valid contract and were not in violation of section 8 of the Selective Training and Serv- ice Act. Clearly, Johns' discharge in the instant case was not dictated by considerations of a seniority provision in a lawful contract? Accordingly, we find that by its conduct the Respondent Company violated Section 8 (a) (3) and (1) of the Act, and by causing the Com- pany to engage in such unlawful discriminatory conduct, the Respond- ent Union violated Section 8(b) (2) and (1) (A) of the Act' THE REMEDY Having found that the Respondents have engaged in unfair labor practices, we shall order them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. In addition to the remedial provisions recommended by the Trial Examiner we shall order Respondent Company to offer Dewayne C. Johns immediate and full reinstatement to his former or substan- tially equivalent position, without prejudice to his seniority and other U Cf Alvado v General Motors Corp., 50 LRRM 2292 (C.A. 2), May 24, 1962 'Compare International Union of Operating Engineers, Local No . 12, AFL-CIO (Engi- neers, Limited and Pacific Pipeline Construction Company, as a joint venture ), 135 NLRB 1252, where the Board stated* "To provide legal justification for a labor organization's discharge demand based on hiring hall procedures the burden rests on that organization to show that the procedures under which the discharge was required were contained in a binding , unequivocal , lawful agreement" 8 See The Radio Officers' Union of the Commercial Telegraphers Union (A II Bull Steamship Company ) v N.L R B., 347 U S. 17; Verve Records, Inc, 127 NLRB 1045; Brunswick Corporation, 135 NLRB 574; Local No 12, International Union of Operating Engineers, AFL-CIO ( Engineers Limited and Pacific Pipeline Construction Company, as • a joint venture ), supra. ANIMATED DISPLAYS COMPANY 1003 rights and privileges. And we shall order Respondent Union to notify Respondent Company and Dewayne C. Johns, in writing, that it has no objection to Johns' employment. We shall also order Respondents, jointly and severally, to make Dewayne C. Johns whole for any loss of pay he may have suffered by reason of the discrimination against him by payment of a sum of money equal to that which he normally would have earned as wages from the date of discrimination against him by Respondents on Janu- ary 11, 1961, to the date of an offer of reinstatement consistent with our Decision and Order herein,9 less his net earnings for such period. Backpay shall be computed on a quarterly basis in accordance with the formula adopted in F. W. Woolworth Company, 90 NLRB 289, and in A.P.W. Products Co., Inc., 137 NLRB 25. In view of the nature of the unfair labor practices committed, we shall order Respondents to cease and desist from infringing in any manner upon the rights of employees guaranteed by Section 7 of the Act. 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 : A. The Respondent Company, Animated Displays Company, Warren, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Maintaining in effect, enforcing, or renewing paragraph (B) of article I of the agreement executed on May 10, 1960, with Respond- ent Union or from executing or maintaining in effect any agreement with the Respondent Union which contains union-security provisions not authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) Encouraging membership in Carpenters' District Council of Detroit, Wayne and Oakland Counties and Vicinity, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization of its employees, by discriminatorily discharging employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act, as modi- fied by the Labor-Management Reporting and Disclosure Act of 1959. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or refrain from joining Carpenters' Dis- trict Council of Detroit, Wayne and Oakland Counties and Vicinity, e Respondent Union may terminate its liability for further accrual of backpay by written notice to the Company and Johns that it withdraws its objections to Johns' employment, in which event its backpay liability will terminate 5 days after giving such notice. 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America, AFL- CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in 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 requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Eliminate paragraph (B) of article I from the agreement exe- cuted with Respondent Union on May 10, 1960, or from any renewal thereof, or from any other agreement executed with Respondent Union. (b) Offer to Dewayne C. Johns immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plant in Warren, Michigan, copies of the notice attached hereto marked "Appendix A." 10 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Post at the same places and under the same conditions as set forth in paragraph (d), above, and as soon as they are forwarded by the Regional Director, copies of the Respondent Union's notice at- tached hereto marked "Appendix B." (f) Furnish the Regional Director for the Seventh Region signed copies of the notice attached hereto marked "Appendix A" for posting by the Respondent Union. (g) Notify the Regional Director for the Seventh Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. 10 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." ANIMATED DISPLAYS COMPANY 1005 B. The Respondent Union, Carpenters' District Council of Detroit, Wayne and Oakland Counties and Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from : (a) Maintaining in effect, enforcing, or renewing paragraph (B) of article I of the agreement executed on May 10, 1960, with Display Designers and Manufacturers Association of Greater Detroit on be- half of its members, including Respondent Company, or from execut- ing or maintaining in effect any agreement with said Association, its successors or its members, which contains union-security provisions not authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) Causing or attempting to cause Animated Displays Company, its officers, agents, successors, or assigns, to discriminate against De- wayne C. Johns, or any other employee, in violation of Section 8 (a) (3) .of the Act. (c) In any other manner restraining or coercing employees of Animated Displays Company in the exercise of their rights guaran- teed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8 (a) (3) .of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Eliminate paragraph (B) of article I from the agreement executed with the aforenamed Association on May 10, 1960, or from any other agreement executed with said Association, of which Re- spondent Company is a member, or its successors. (b) Notify, in writing, Animated Displays Company and Dewayne C. Johns that it has no objection to the employment of Dewayne C. Johns. (c) Post at its offices and meeting halls in Detroit, Wayne, and 'Oakland Counties, Michigan, copies of the notice attached hereto marked "Appendix B." 11 Copies of said notice, to be furniished by the Regional Director for the Seventh Region, shall, after being duly signed by Respondent Union's representative, be posted by it imme- diately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or cov- ered by any other material. u See footnote 10, supra 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post at the same places and under the same conditions as set forth in paragraph (c), above, and as soon as they are forwarded by the Regional Director for the Seventh Region, copies of the Respond- ent Employer's notice attached as hereto marked "Appendix A." (e) Furnish the Regional Director for the Seventh Region, signed copies of "Appendix B" for posting by Respondent Company at its plant in Warren, Michigan. (f) Notify the Regional Director for the Seventh Region, in writ- ing, within 10 days from the date of this Order, what steps Respond- ent Union has taken to comply herewith. C. The Respondents, Animated Displays Company, its officers, agents, successors, and assigns, and Carpenters' District Council of Detroit, Wayne and Oakland Counties and Vicinity, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall jointly and sev- erally, in the manner set forth in the section of this Decision and Order entitled "The Remedy" make whole Dewayne C. Johns for any loss of pay he may have suffered because of the discrimination against him. CHAIRMAN MCCULLOCH and MEMBER FANNING, concurring in part and dissenting in part: We agree with our colleagues and with the Trial Examiner that the Respondent Company and the Respondent Union violated the Act by maintaining in effect and enforcing in their contract a union-security provision not authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. To that extent we agree that the Respondent Company violated Sec- tion 8 (a) (1) and (3) of the Act and that the Respondent Union vio- lated Section 8(b) (1) (A) and (2) of the Act. Accordingly, we adopt the remedial order herein insofar as it is based on these findings. We do not agree with the majority, however, that the Respondents violated the Act in connection with the layoff of Dewayne C. Johns on January 11, 1961. Here also we find ourselves in agreement with the Trial Examiner who recommended dismissal in this regard. As the Trial Examiner correctly noted : ... action taken by an employer in derogation of an employee's employment status, if caused by a labor organization is [not] per se violative of the Act, regardless of its character or the motive for it. The decisions of the Supreme Court in Radio Officers' Union, etc. v. N.L.R.B., 347 U.S. 17, and in Local 357, Interna- tional Brotherhood of Teamsters, etc. [365 U.S. 667 at 675], make it clear that it is the "true purpose" or "real motive" for the con- ANIMATED DISPLAYS COMPANY 1007 duct "that constitutes the test." Where . . . the true purpose or real motive for the conduct is unrelated to union membership, fealty, obligation, or the like, there can be no basis for a finding that such conduct encouraged or discouraged . . . union mem- bership... . We find ourselves wholly in agreement with this statement of the controlling legal principles and we conclude, as did the Trial Ex- aminer, that the application of these principles to the facts relating to the discharge of Johns does not afford a basis for an unfair labor practice finding either on the part of the Respondent Company or on the part of the Respondent Union. The majority's conclusion to the contrary is for the most part predi- cated on wholly different considerations. Thus, they point out that Johns, though admittedly hired as a decorator, was in fact doing car- pentry work; that the discharge of Johns was not pursuant to a spe- cific contract provision, but reflected rather an internal understand- ing between two constituent locals of Respondent Union respecting the relative job priorities of the employees; that the discharge of Johns, a member of the Decorators' local, benefitted those who were members of the Carpenters' local; and finally that the Respondent Union's demand for the discharge of Johns was an "arbitrary" claim not based on any "objective" criteria. Quite apart from what we consider to be the legal infirmities of the majority's analysis-a matter to which we shall presently address our- selves-it appears to us that the majority inadvertently glosses over several significant facts of record. While it is true that Johns was a member of the decorators group in the Respondent Union, more spe- cifically Local 877, and that there was also a carpenters group, Local 1433, in that Union, it is undisputed that Respondent Union was the bargaining representative of all the employees. This was not then, as the majority appears to suggest, a contest between two separate unions vying for preference for their respective adherents. Rather, it was a situation where the Respondent Union in its role as bargaining rep- resentative for all the employees sought to accommodate their varying interests. It is this accommodation which gave rise to the matter at issue here. Hence, the precise nature of the accommodation becomes significant, Respondent Union represented both carpenters and decorators in a single Associationwide unit of which the Company's employees were a part. As the Trial Examiner more fully set forth in his Intermedi- ate Report, these separate trades were well defined. Accordingly, Respondent Union, to insure proper representation of both groups, made it a practice that decorators were not to be used for carpentry 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work if there were a carpenter in a layoff status and, conversely, car- penters were not to be used for decorator work if there were decorators in a layoff status.12 Display companies in the area were conversant with this practice or understanding and have honored it over the past years. The treatment accorded Johns in the instant case was wholly con- sistent with that practice . Johns was a member of the decorators group or local and, as the majority correctly states , was hired by Respondent Company in October 1960 as a decorator . It was the Com- pany's plan to build up a decorating department with Johns as fore- man. This plan was not immediately successful , however, and Johns spent most of his time doing carpentry work as no decoration work was available. This state of affairs continued from October 1960 until January 1961 with no objection from Respondent Union. On January 11, 1961, representatives of Respondent Union met with the Company's general manager, Clyde Light, on a matter wholly unrelated to Johns. Toward the end of that meeting Light volun- teered that there was dissension in the shop caused by carpenters milling around. The union representatives learned that two carpen- ters had just been laid off and that Johns, who had been hired as a decorator, was doing carpentry work. The union representatives then insisted, in conformity with the settled practice, that Johns be laid off. The Company complied. Johns was laid off and a few days later one of the two laid-off carpenters , Simons, was recalled . Decorating work was admittedly not available at that time and did not become available until April, 3 months later. As soon as it become available, Johns was recalled with no objection by Respondent Union. On this state of the record-and the facts in this regard are not in dispute-we find it difficult to perceive any tenable basis for a find- ing of unfair labor practices. Granted that Johns, as a decorator, was a member of Local 877 and that the carpenters adhered to Local 1433, Respondent Union represented all the employees and nowhere does the record suggest that any disparity of treatment was predicated on the fact of such separate membership . On the other hand, it is clear that the Respondent Union did, with the acquiescence of the display companies in the area, make an accommodation between the two groups insofar as they represented separate skills.13 The circumstance that the individuals possessing these separate skills were affiliated with separate groups within the Respondent Union is in the context of this case wholly a fortuity. 'z Absent a layoff situation , of course, there would be no occasion to invoke the practice 13 We think it no more relevant that Johns, a decorator, may have been qualified to do carpentry work than it would be if a carpenter were qualified to do decorating work and were retained for that purpose while decorators were in a layoff status. The uncontro- verted fact is that Johns was hired as a decorator and was doing carpentry work at a time when employees hired as carpenters were in a layoff status. ANIMATED DISPLAYS COMPANY 1009 Our colleagues protest that the conduct here under consideration was in any event "arbitrary" and was not based on "objective" cri- teria. The conduct here was neither arbitrary nor lacking in ob- jective criteria. Whatever benefits accrued to carpenters over dec- orators in a given situation accrued to decorators over carpenters in it converse situation. On its face it appears to be a fair and equitable arrangement. The record in this case contains no suggestion that it was a device to favor carpenters over decorators or, it may be noted in passing, to encourage membership in one affiliated local rather than another. Nor is there a lack of objective criteria. The applicable test, as here, is (1) whether the employee is employed as a carpenter or decorator,14 and (2) whether the assignment of a decorator to car- pentry work, or the contrary, had caused the displacement of em- ployees regularly assigned to such work. The majority position, in essence, seems to be that the Company had an absolute right to lay off a carpenter rather than a decorator when -a reduction in force became necessary, but that if the Company, as a result of union pressure unrelated to union considerations, reversed the order of layoff, then both the Company and the Union acted un- lawfully. The majority's conclusion sounds, in terms of a jurisdic- tional dispute, like an award to Johns of carpentry work because the Company had assigned it to him. Apart from the serious implications of the majority's decision in relation to the other provisions of the Act relating to jurisdictional conflicts, however, we believe that the real issue in this case is whether a union, representing a unit of employees, may lawfully pressure an employer to apply a principle of craft or departmental preference in an economic layoff. Realistically, this is an omnipresent problem in labor-management relations. Unions must and do, in the discharge of their representa- tive function, constantly assert superior rights of certain employees over their fellows in disputes over seniority, transfer, promotion, or other terms and conditions of employment. To the employees affected the question of who is to be unemployed first is a matter of critical importance. It is the sort of question that they can in many cases best resolve among themselves or work out by agreement with their em- ployer before the contemplated layoff occurs. Obviously, any policy would affect some employees adversely when the critical moment ar- rived. In the instant case the employees believed they had developed the fairest policy-decorator's work for decorators and carpentry work for carpenters. Whether such a preferential arrangement is worked out by the union and applied by the employer at the union's request, as here, or as agreed upon in advance by both parties, we, like the Trial 14 As already noted , these are separate and readily identifiable skills. 649856-63-vol. 137-65 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner, do not find this to be a form of discrimination outlawed by the statute.15 To recapitulate, the basis of the preference in the instant case is un- related to union membership, loyalty, the acknowledgment of union authority, or the performance of union obligations. It is not unlike the geographical preference as between two employees who were both union members, which the Board recently permitted in Bricklayers, Masons and Plasterers, etc. (Plaza Builders, Incorporated), 134 NLRB 751, or the preference to incumbent employees over new em- ployees, even more recently approved by the Board in Yonkers Con- tracting Co., Inc., 135 NLRB 865.16 The Board has held that a union as bargaining representative may legitimately seek such preferences to protect the job rights of the employees it represents." Similarly, the preference of the carpenter employee over a decorator employee doing carpentry work is a legitimate protection of job rights in this case, and it does not warrant a finding of an unlawful motivation to encourage or discourage union membership. Local 357, International Brother- hood of Teamsters, etc. (Los Angeles-Seattle Motor Express) v. N.L.R.B., 365 U.S. 667. The basis of the preference here is not like that in Radio Officers, cited by the majority, where the reason for the action against Boston was his late payment of dues and against Fowler for his failure to conform to union regulations for reporting and hiring, or in Bruns- wick Corporation where the action against Borden was clearly in retaliation for his flouting of union authority. Had the employer on his own motion laid off Johns first, because he was hired as a decorator, surely no one would contend he had engaged in unlawful discrimination to encourage or discourage union mem- bership in violation of Section 8(a) (3). We do not believe such un- lawful encouragement can properly be found, either, merely because the Union caused or demanded such a preference. Absent is the es- sential element of illegality where, as here, it is clear that the prefer- 15 Accordingly , we must reject the suggestion , advanced by the majority, that the resolu- tion of the issue here presented, turns on the presence or absence of a contract provision. In this context, at least, a lawful practice does not become unlawful because of the absence of a contract , and an unlawful practice cannot be made lawful by incorporating it into a contract International Union of Operating Engineers , Local No 12, AFL-CIO (Engineers Limited and Pacific Pipeline Construction Company ), 135 NLRB 1252, relied upon by the majority, is not to the contrary . There the union argued that its discharge demand was justified under a contract which covered the job in question The Board found that the contract did not cover the job in question. This is not, of course, a holding that a union request for a discharge is permissible only if there is a relevant and valid contract provision "In neither of the cited cases was a contract justification urged before the Board or relied upon by the Board 17 See also Ford Motor Company v. Huffman, 345 U. S 330 , and Aeronautical Industrial District Lodge 727 v Campbell, et al, 337 U S 521, for further examples of situations where a union may validly create a system of preferences as between employees it represents. ANIMATED DISPLAYS COMPANY 1011 ence was attributable to considerations unrelated to union membership or fealty. The statute in Section 8(b) (2) does not make a union's action in causing an employee's discharge, without more, unlawful. It is only causing such a discrimination by an employer in violation of Section 8(a)(3). And we do not believe past Board holdings or the Supreme Court's decisions in Radio Officers or in Local 357 warrant us in find- ing the unlawful motivation in both the Employer's and the Union's action here from the simple fact of the Union's demand. Moreover, to hold, as the majority in effect does, that the carpentry employees could not, through their bargaining representative, challenge the Com- pany's unilateral determination to lay off Simon rather than Johns when carpentry work became slack seems to us to go far beyond the proscriptions of Section 8(b) (2) and to impinge upon the Section 7 rights of these employees. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT maintain in effect, enforce, or renew paragraph (B) of article I of the agreement executed on May 10, 1960, with Carpenters' District Council of Detroit, Wayne and Oakland Counties and Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. WE WILL NOT enter into or maintain in effect any agreement with the above-named labor organization which contains union- security provisions not authorized by Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT encourage membership in Carpenters' District Council of Detroit, Wayne and Oakland Counties and Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization of our employees, by discriminatorily discharging employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form labor organizations, to join or refrain from joining Car- penters' District Council of Detroit, Wayne and Oakland Coun- 1012,, DECISIONS OF NATIONAL LABOR RELATIONS BOARD ties and Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8 (a) (3) of the Act. WE WILL eliminate paragraph (B) of article I from the agree- ment executed with the above-named labor organization on May 10, 1960, or from any renewal thereof, or from any other agreement executed with the above-named labor organization. WE WILL offer Dewayne C. Johns full and immediate reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and will make him whole for any loss of pay suffered as a result of the discrimination practiced against him. All our employees are free to become, or refrain from becoming, members of the above-named Union, or any other labor organization, except to extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the Act. ANIMATED DISPLAYS 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. Employees may communicate directly with the Board's Regional Office, Industrial Building, 232 W. Grand River, Detroit 26, Michigan, Telephone Number Woodward 2-3830, if they have any question con- cerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL MEMBERS OF CARPENTERS' DISTRICT COUNCIL OF DETROIT, WAYNE AND OAKLAND COUNTIES AND VICINITY, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT maintain in effect, enforce, or renew paragraph (B) of article I of the agreement executed on May 10, 1960, with Display Designers and Manufacturers Association of Greater ANIMATED DISPLAYS COMPANY 1013 Detroit on behalf of its members, including Animated Displays Company. WE WILL NOT enter into or maintain in effect any agreement with said Association, its successors, or its members which con- tains union-security provisions not authorized by Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT cause or attempt to cause Animated Displays Company, its officers, agents, successors, or assigns, to discrim- inate against Dewayne C. Johns, or any other employee, in viola- tion of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees of Animated Displays Company in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. AVE WILL eliminate paragraph (B) of article I from the agree- ment executed with the above-named Association on May 10, 1960, or from any other agreement executed with said Association or its successors. WE WILL make whole Dewayne C. Johns for any loss of pay suffered as a result of the discrimination practiced against him. WE WILL notify, in writing, Animated Displays Company and Dewayne C. Johns that we have no objection to the employment of Dewayne C. Johns. CARPENTERS' DISTRICT COUNCIL OF DETROIT, WAYNE AND OAKLAND COUNTIES AND VI- CINITY, UNITED BROTHERHOOD OF CARPEN- TERS AND JOINERS OF AMERICA, 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. Employees may communicate directly with the Board's Regional Office, Industrial Building, 232 W. Grand River, Detroit 26, Michigan, Telephone Number, Woodward 2-3830, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED REPORT STATEMENT OF THE CASE This case, with the parties represented , was heard in Detroit, Michigan, on August 3 and 4, 1961 , on complaint of the General Counsel and answers of Re- spondents . The issues were whether ( 1) Respondent Union had caused Respondent 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company to, and whether Respondent Company did, terminate an employee in vio, lation of Section 8(a)(3) of the Act, and (2) a 7-day union-security clause, con- tained in a contract enforced by Respondents, was permissible under Section 7(f) of the Act. The General Counsel and the Respondents engaged in oral argument before the close of the hearing, and have thereafter filed briefs which I have fully considered. Upon the entire record in the case, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT COMPANY Animated Displays Company, a Michigan corporation with its principal office and place of business in Warren, Michigan, is engaged in the design, manufacture, fabrication, and distribution of exhibits and displays used for decorative or adver- tising purposes. During the calendar year 1960, a representative period, Respondent Company shipped products, valued in excess of $200,000, from its Michigan place of business directly to points outside the State of Michigan. Upon the above undisputed facts, I find that Respondent Company is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answers admit , the record shows, and I find that Car- penters' District Council of Detroit, Wayne and Oakland Counties and Vicinity, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, the Respond- ent Union herein sometimes called the Union , is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issue involving the termination of Dewayne C. Johns, the Charging Party herein The Respondent Company has long been a member of the Display Designers and Manufacturers Association of Greater Detroit. At all times material herein, this Association 1 had a collective-bargaining agreement with Respondent Union, con- taining a union-security clause and covering all employees performing carpentry work coming under the jurisdiction of the United Brotherhood of Carpenters and Joiners of America. Decorating work is regarded as a subtrade or subcraft of Respondent Union. Employees working in the carpentry trade or craft are members of Local 1433 affiliated with Respondent Union, while employees working in the decorating trade or craft are members of Local 877 of the Display, Decorators & Awning Workers and Sheet Metal Fabricators, also affiliated with Respondent Union. The Respondent Union was the bargaining representative for all affiliated locals and the contract applied to both carpenters and decorators. At all times material herein, the carpenters employed by Respondent Company were members of Local 1433 and Johns, as a decorator, was a member of Local 877, both affiliated with Respondent Union. The designations of carpenters and decorators made in this report has reference to individuals working as carpenters or decorators and not to their re- spective union affiliations. The complaint alleges that the Respondent Union caused the Respondent Company to, and that Respondent Company did, terminate the employment of Johns, the Charging Party, "because he failed to adhere to and comply with Respondent Union's policy prohibiting its members from working with and supervising nonunion em- ployees and because he failed to comply with Respondent Union's area trade policy that the Charging Party, as a decorator, could not do carpentry work as long as carpenters were on layoff." 1. Background In May 1960, Johns was tried by a trial board of the District Council for working at a tool show behind a picket line established by the Carpenters' District Council and 11 affiliated locals, including Johns' Local 877. He was fined $200, which he paid. i Since the execution of this agreement in May 1960, the name of the Association has been changed to Michigan Chapter of the Exhibit Producers and Designers Association. ANIMATED DISPLAYS COMPANY 1015 2. Sequence of events 2 a. Johns' employment by Respondent Company Johns was first employed by Respondent Company on October 30, 1960. He was hired by President Dopkowski as a decorator to help in building up a decorating de- partment which the Company was hoping to establish. It was understood that until the decorating department became large enough, he was to perform carpentry work whenever there was no decorating work available, and that when the department became established he would be its foreman. The contract rates for decorators and carpenters are the same. This was the first time that the Company had employed a decorator. Until his termination on January 11, 1961, Johns did carpentry work about 75 percent of his time, building crates for exhibits under the supervision of Carpenter Foreman Wayne Madlo. On two occasions he worked outside the shop, supervising a group of men at the jobsite. On such occasion he was paid the foreman's rate. One took 3 days on a decorating job involving the erection and takedown of Crowley's Christmas decoration in Detroit, and the other took 4 days in the erection and take- down of a revolving turntable for a Dodge show in Indianapolis, Indiana. The latter job was not regarded as decorating work. b. The Indianapolis job The erection of the revolving turntable for the Dodge show in Indianapolis, Indiana, which Johns supervised, was performed in November 1960. The labor was furnished by Dodge, and Johns had no say in the hiring of such help, which was nonunion. A few days after his return from this job, Marvin Grisham, the then business representative and an admitted agent of Respondent Union, spoke to Johns at the plant in the presence of Carpenter Foreman Madlo and Carpenter Steward Mangsen. Grisham mentioned the subject of Johns working out of town with nonunion help. Johns replied that union help was not available and that he had no authority over the hiring of help because Dodge handled that. Grisham asked why Johns had not reported to the District Council in Indianapolis, and stated that Johns should have take a plane home if he did not have union help. Grisham also reminded Johns about his previous trouble in crossing the picket line at the tool show, and stated that he should watch his step because they did not want anyone in the Union who would not cooperate with them. About the same time, Grisham also complained to Clyde Light, the Company's general manager, in the latter's office, for having sent Johns to Indianapolis. Gris- ham stated that Johns had worked with nonuion labor and that he would not allow him to go out of the city because he wanted to watch him. He also mentioned Johns' conduct in working behind the picket line at the tool show. Manager Light replied that he would look into the matter.3 c. The Buffalo job Johns was scheduled to go out on a 1-day job in Buffalo on January 5, 1961, which was similar to the one at Indianapolis. In other words, he was to supervise the erection of a turntable for a Dodge automobile show and was to be paid a fore- man's rate. As previously noted, this was not regarded as decorating work. Early in the morning of January 5 General Manager Light received a telephone call from Grisham who stated that he understood Light was going to send Johns to Buffalo. When Light answered in the affirmative, Grisham stated, "I told you that you could not send Mr. Johns out of town." Light replied that he had no one else to send because all his men were working at Cobo Hall, a convention hall in the city of Detroit. Grisham thereupon told Light to send Johns down to Cobo Hall and "we will send someone from Cobo Hall to Buffalo." At this point Light asked if ' Unless otherwise indicated, the findings herein are based on credited testimony which is undenled or admitted. 'Grisham admitted that he had complained to the Company about Johns working in Indianapolis and that he might have told Light about Johns having been fined for violat- ing a union rule; he did not deny having made the statements to Light and Johns, set forth in the text 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grisham was running his business or if Light was? The conversation ended with Light promising to get in touch with Grisham before the day was over 4 ,On January 5, two of the carpenters working for the Company at Cobo Hall had been told that they would be laid off at the end of the workday at 4:30 p.m. About 4 p in. that day Grisham talked to President Dopkowski at Cobo Hall. He told Dopkowski that the carpenters were complaining that he had laid off two carpenters while at the same time he was sending a decorator out of town to do the work of a carpenter. He further explained that the respective locals had an oral understanding, that a decorator should not be working on carpentry work while a carpenter was laid off, and that the other display companies had adhered to such a practice. The men were milling around and not working, and Grisham was threatening a strike because Light was sending Johns to Buffalo. Dopkowski thereupon telephoned to Light, in- formed him that he had a strike on his hands at Cobo Hall, and that they would have one at the shop also if Johns were sent to Buffalo. They thereupon decided to send the Carpenters' union steward, Darwin Mangsen, who was working as a carpenter at Cobo Hall at the time. Dopkowski then informed Grisham of the decision to send Mangsen, instead of Johns, to the Buffalo job. Grisham, in turn, relayed this information to the men and told them to go back to work, which they did.5 d. January 11 meeting between Union and Company Pursuant to a prior appointment made by telephone, Grisham and Weir, the secretary and an admitted agent of the Union, went to see Light on January 11, 1961, about a problem involving the Company's use of a bearing which was made at another company under nonunion standards. After this business had been taken care of, Light stated that he had a problem with dissension in the shop and the car- penters milling around. The steward was called in to find out why there was dis- sension and milling around in the shop, and the reason given was that Johns was doing carpentry work while qualified carpenters had been laid off. The findings in the preceding paragraph are based on the credited and undisputed testimony of Grisham. The only ones who testified about this meeting were Grisham and Light, and there is some conflict in their testimony concerning the remainder of the discussion relating to Johns. Light testified as follows on direct examination: The union representatives told him that he would have to get rid of Johns. He replied that they had work for Johns on a decorating basis, that they had not been successful in building up a decorating department, but that they were still trying. The union representative stated that Light could not send Johns out of town, that the men in the shop would not work with him, and that it would be to Light's advantage to get rid of Johns. Weir stated that if Light did not do so, he had sufficient evidence on file in his office so that he could pull Johns' union card and then the Company would not be able to employ Johns because he would not be a union member. Mention was again made of the fact that Johns had worked at the Indianapolis job with nonunion labor and about Johns having crossed a picket line at the tool show the preceding year. On cross- examination Light admitted that the union representatives had brought up the fact that Johns was being kept on the payroll while they had laid off carpenters. He further admitted that carpenters had in fact been laid off. 4 The findings in this paragraph are based upon the credited and undenied testimony of Light Gnsham testified that he remembered having a telephone conversation with Light about the Buffalo job but did not "remember what we said exactly " He testified that lie was complaining to Light because Light was sending a decorator to replace a carpenter while carpenters were being laid off, but that he did not remember what Light said. Light denied that the question of carpenters being laid off was brought up I do not credit Grisham's testimony in this respect, in view of his admission that it was between 3 and 4 p.m. that day that he was informed that two carpenters were being laid off at the end of the day. Light further testified that Grisham threatened to pull the men out of the shop and put up a picket line if Light sent Johns to Buffalo Grisham denied that anything was said about a strike in that telephone conversation In view of the fact that Light did not mention any talk of a strike when he first related his conversation with Grisham but did so at a later point only when the General Counsel called the subject to his attention, and in view of his failure to indicate to President Dopkowski, when the latter informed him by telephone later that day of the Union's threat to strike, that he was already aware of it, I do not credit Light's testimony in this respect. 5 The findings in this paragraph aie based on a composite of the mutually consistent testimony of Dopkowski and Grisham. ANIMATED DISPLAYS COMPANY 1017 Grisham testified as follows: Light told the men that they had been trying to establish a decorating department and that Johns had been hired for that purpose. Grisham explained about the understanding which the respective locals had concerning the work of carpenters and decorators and that the practice in the past had been for a decorator not to be given carpentry work when a carpenter had been laid off. They complained that Light had replaced a carpenter with a decorator by keeping the decorator and laying off a carpenter, and asked Light to follow this past practice to which the other display companies had adhered by recalling Simons, one of the laid-off carpenters, to do the carpentry work which was being performed by Johns. Light replied that he would have to talk to Dopkowski about it and they left. On cross-examination he admitted that Weir could have said that they would try to find work for Johns elsewhere, and that Grisham could have said that Johns had problems too, that he had worked behind a picket line and the carpenters did not like that. He denied that any request was made that Johns be laid off because of his past troubles with the Union or that he be laid off at all. The undisputed facts are that two carpenters, Simons and Olson, had in fact been laid off by the Company a few days previously, that Johns was in fact performing carpentry work at the time because there was no decorating work available, and that a few days after Johns' layoff Simons, the carpenter, was recalled. Moreover Johns admitted that, when he sought an explanation for his layoff, Light told him the fol- lowing day that the Union said that Johns would not be able to work as long as there were carpenters laid off. Finally, it is also undisputed that the Company had no decorating work until sometime in April and that at that time Johns was reem- ployed to perform the decorating work without objection by Respondent Union. Upon consideration of all the foregoing, I find that on January 11, the union representatives, in substance, complained that Light was using a decorator to per- form carpentry work while a carpenter had been laid off and that this was contrary to the understanding which the locals had and to the past practices of the other display companies in the area; requested that Simons, one of the laid-off carpenters, be recalled and that the carpentry work be taken away from Johns and given to Simons; stated that if Light did not have enough decorating work available to keep Johns on the payroll, they would try to find work for him elsewhere; and threatened that, if Light would not comply with their request, they could have Johns' union card pulled and thereby prevent the Company from employing Johns in any capacity. I find that it was in connection with the latter threat that they men- tioned the problems which Johns had about having worked out of town with non- union labor and in having crossed a picket line on another occasion. I credit Grisham's testimony that no request was made that Johns be laid off because of his conduct in these respects .6 e Johns' termination on January 11 and reemployment in April About 2:30 pm. on January 11, Carpenter Foreman Madlo, acting upon the superintendent's instructions, informed Johns that he was being laid off as of 4:30 that day, and that if he wanted to know the reason he could talk to the superintendent. The next day Johns went to Light's office for an explanation. Light told Johns that Respondent Union had said that Johns would not be able to work for the Com- pany as long as there were some carpenters who had been laid off. Respondent Company had no decorator's work available from the time of Johns' layoff until April, when Johns was reemployed for 2i/ days on decorator's work, without objection by Respondent Union or the union steward. 6 In arriving at my findings in this paragraph, I have also fully considered the follow- ing testimony of Charles Hines, a sales representative of Respondent Company: I-lines testified that 1 or 2 days after Johns' layoff Hines was at Cobo Hall standing by when Grisham was explaining the reasons for Johns' layoff to two other men, that Hines could not "specify the details" of Grishiun's conversation but "remembered specifically" that in the course of the conversation Crisham made reference to (1) Johns' trial in connec- tion with the tool show incident, (2) the claim that Johns had worked with "non- carpenter or decorator union labor" on the Crowley-Milner decorating job, and (3) Johns having worked with nonunion labor on the Indianapolis job. It is obvious from a con- sideration of Hines' testimony and the entree record as a whole, and I find, that, whether it was because he had not heard or did not remember, Hines did not relate the entire conversation by Grisham concerning the reasons for Johns' layoff and that the reference to the three incidents has not been related by Hines in context tinder all the circum- stances, I cannot regard Hines' testimony in this respect as rendering unwarranted the findings in the text or as being probative of the true reasons for Johns' layoff 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Contentions of the parties The General Counsel contends that Respondent Union caused Respondent Com- pany to lay off Johns; that the Union was displeased with Johns as an individual because of his past infraction of union rules such as crossing a picket line and work- ing with nonunion labor; that it was because of Johns' union misconduct in these respects as well as the Union's efforts to enforce a practice of not using a decorator for carpentry work while there is a carpenter who had been laid off that Respondent Union caused Respondent Company to lay off Johns ; that such conduct constituted a violation of Section 8(b)(2) and 8 ( a)(3) of the Act on the part of the Union and the Company, respectively; and that the conduct was equally unlawful even if the Union's sole reason for causing John's layoff was its desire to enforce the practice of not giving carpentry work to a decorator so long as there was a carpenter on layoff status. Counsel for Respondent Company contends that the Company would not have laid off Johns but for the demands of the Union and the fear of a strike if it did not yield to these demands ; that such conduct was unlawful on the part of Respondent Union; and that, while Respondent Company's conduct in yielding to the Union may be regarded as a technical violation fairness requires that no backpay liability be assessed against the Company. Counsel for Respondent Union contends that the Union merely objected to Johns performing carpentry work, and had no objection to Johns working as a decorator; that the Union sought to enforce the area practice of not using a decorator for carpentry work when there was a carpenter in a layoff status ; that what the Union did was tantamount,to the processing of a grievance on behalf of the laid-off carpenter to get him back to do carpentry work in place of Johns who was hired as a decorator; that the Union's requests had no relationship to union membership or union fealty; and that neither the Union 's conduct nor the Company's conduct in yielding to the Union's request were violative of the Act. 4. Concluding findings The General Counsel admits that Johns' conduct in having worked behind a picket line the preceding year is to be considered solely as background against which to evaluate the Union's true motives on January 11, 1961. This incident, which occurred almost a year before Johns' layoff, was closed when Johns paid the fine assessed against him. I cannot attach any significant weight to this incident in determining the Union's true motivation for its conduct on January 11. It is true, as previously found, that Grisham criticized Johns for working with nonunion labor on the Indianapolis job, objected to Light sending Johns out of the city because of his conduct in this respect , and on January 5 threatened the Com- pany with a strike if it sent Johns to Buffalo as planned . However, Johns' conduct in this respect was not one of the reasons which motivated the Union 's conduct on January 11 , as previously found. Thus, the appointment which the union representa- tives made with Light for January 11 was for the sole purpose of discussing a subejct matter wholly unrelated to Johns. The problem involving Johns was raised toward the end of the meeting after Light had volunteered that he was disturbed about the dissension in the shop caused by the carpenters milling around. The union representatives were then apprised of the fact that Johns, who had been hired as a decorator, was being used for carpentry work while the Company had just laid off two carpenters . It was at this point that they requested Light to adhere to the area practice of not assigning carpentry work to a person in the decorating trade who had been hired as a decorator while persons in the carpentry trade who had been hired as carpenters were in a layoff status . The fact that Johns was subsequently re- employed by the Company to perform decorating work , without objection by the Union, is proof positive that the conduct of the union representatives on January 11 was not motivated by Johns conduct in having worked nonunion labor or in having failed to adhere to other union rules. Light admitted that there was no decorating work available until Johns' reemployment in April and that Johns would in any event have been laid off a few weeks later when there was a general layoff. I -therefore find that in seeking to have Johns replaced on carpentry work by one of the laid-off carpenters , the union representatives were motivated solely by a desire to have the Company adhere to the understanding among the locals and the practice followed by other display companies in the area . However, I find .that the Union's conduct in this respect, backed by its threat to have John 's union card pulled if the Company did not acceed to its request, caused the Company to lay off Johns on January 11, 1961. ANIMATED DISPLAYS COMPANY 1019 The question still remains whether such conduct was, nevertheless, unlawful on the part of the Union and the Company. I find that it was not. There is a well-understood distinction in the trade between carpenters' work and decorators' work. A decorator works with fabric, bunting, and other types of soft material. His function is to decorate a building or other existing structure or what may have been built as an exhibit. A carpenter works with wood, masomte, and other types of hard structural material. His function is to cut and shape these materials and to build whatever is required with them. The Carpenters' and Decorators' locals, affiliated with Respondent Union, have an oral understanding that decorators should not be used for carpentry work if there are carpenters in a layoff status, and carpenters should not be used for decorators work if there are decorators in a layoff status. The display companies in the area have voluntarily honored this understanding and have followed this practice over the past years. While it is true that those working in the carpentry trade or craft were members of the Carpenters' local and those working in the decorators trade or craft were members of the Decorators' local, the designations of "decorators" and "carpenters" as used in this controversy had reference to individuals who were trained and skilled in the re- spective trade or craft, and not to members of the respective locals. There is no evidence, nor indeed any claim, to the contrary. Johns admittedly was hired as a decorator and was trained and skilled in the decorators' trade or craft. However, he did carpentry work most of the time be- cause there was insufficient decorating work available. The Union had no objec- tion to Johns performing carpentry work 100 percent of his time so long as there was enough carpentry work available for those who had been hired as carpenters. However, when the Company laid off two employees who had been hired as car- penters for lack of carpentry work shortly before January 11 but continued to use Johns, who had been hired as a decorator, to perform carpentry work, the Union sought to enforce the area practice of not using decorators for carpentry work while carpenters were laid off. This practice of preserving job rights was based, not on any type of union membership, fealty, obligation, or the like, but on training, trade, or craft skills. The Company did not have enough carpentry work available to use both Johns and Simons. The Company had therefore decided to lay off Simons. The Union wanted the Company to recall Simons and to lay off Johns, instead, be- cause Simons had been hired as a carpenter by trade or craft while Johns had been hired as a decorator by trade or craft, in accordance with the practice followed by the display companies in the area of not using a decorator for carpentry work if that would result in insufficient carpentry work being available for those who had been hired as carpenters. As the Supreme Court recently stated,? "the Act deals with discrimination either by the employers or unions that encourage or discourage union membership." In the instant case, the Respondent Union was the duly authorized collective-bargain- ing representative of all the carpenters and decorators; both Johns and Simons were paid-up members of Respondent Union. It cannot be found that Respondent Union's conduct "was without substantial justification in terms of legitimate . union purposes." 8 The Union's purpose in seeking to preserve the job rights of the intra- union crafts is based, not on any union membership, fealty, or obligation, but on training, trade, or skill and hence is just as legitimate a purpose as that based on seniority or residence. The Company's conduct in replacing Johns with Simons un- der the circumstances previously described is also a legitimate exercise of a man- agement prerogative because differentiation in treatment based on training, trade, or skill does not encourage or discourage union membership within the meaning of Section 8(a)(3) of the Act. Moreover, even if it may be said that Johns' layoff did encourage or discourage membership in a union, it is not the type of encourage- ment or discouragement which falls within the proscription of Section 8(a) (3) of the Act because the layoff was for reasons "unrelated to union membership and the performance of union obligations." 9 Nor can I agree with the General Counsel's position that any action taken by an employer in derogation of an employee's employment status, if caused by a labor organization, is per se violative of the Act, regardless of its character or the motive for it. The decisions of the Supreme Court in Radio Officers' Union, etc. v. N.L.R.B., 347 U.S. 17, and in Local 357, International Brotherhood of Teamsters, etc. supra, ?Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N.L.R.B. (Los Angeles-Seattle Motor Express), 365 U.S 667, at 674 slbid, at p. 684 (concurring opinion of Mr . Justice Harlan). 6 Daugherty Company, Inc, 112 NLRB 986, 989, Studebaker Corporation, 110 NLRB 1307; of Central States Petroleum Union, Local 115 (Standard Oil Company), 127 NLRB 223. 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at p. 675, make it clear that it is the "true purpose" or "real motive" for the con- duct "that constitutes the test." Where, as I have found, the true purpose or real motive for the conduct is unrelated to union membership, fealty, obligation, or the like, there can be no basis for a finding that such conduct encouraged or discouraged the type of union membership proscribed by the Act.io For the reasons stated above, I find that the General Counsel has not sustained the allegation of the complaint that Respondent Company violated Section 8(a)(1) and (3) of the Act by laying off Johns on January 11, 1961, and that Respondent Union violated Section 8(b)(2) and (1)(A) of the Act by causing the Company to lay off Johns. I will, accordingly, recommend the dismissal of these allegations. B. The issue involving-the legality of the 7-day union-security clause On May 10, 1960, Display Designers and Manufacturers Association of Greater Detroit, on behalf of its signatory members,, including Respondent Company, exe- cuted a collective-bargaining agreement with Respondent Union. Article 1(B) of this agreement is as follows: The Employer agrees that in the employment of workmen to perform the vari- ous classifications of labor required under this Agreement, it will not dis- criminate against applicants because of membership or non-membership in the Union. Each employee shall, as a condition of employment, thereafter be- come and remain a member of the Union for the term of his employment after the 7th calendar day after the beginning of his employment or the effective date of this Agreement, whichever is later, by the Employer or Employers covered by this Agreement. The seven day period after which an employee agrees to join the Union shall be computed from the first day such employee enters the employment of an Employer signatory to this Agreement. The parties stipulated that the Respondents are still maintaining in effect and en- forcing this provision of the agreement. The General Counsel contends, as the complaint alleges, that this provision ex- ceeds the permissible union-security limits prescribed in the proviso to Section 8(a) (3) of the Act,ii and that, in accordance with well established precedent, by maintaining in effect and enforcing this provision Respondent Company has violated Section 8 (a) (1) and (3) of the Act and Respondent Union has violated Section 8 (b) (1) (A) and (2) of the Act Respondent Union concedes that this provision does not satisfy the requirements of Section 8(a)(3) of the Act but contends, as it affirmatively as- serts in its answer, that it is permissible and lawful under Section 8(f) of the Act. So far as herein pertinent, Section 8(f) of the Act provides that- It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged . in the build- ing and construction industry with a labor organization of which building and construction employees are members . . . because . . . (2) such agreement requires as a condition of employment, membership in such labor organiza- tion after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later, . .. . Thus, Section 8(f) establishes three requirements. all of which must be net in order to make permissible the 7-day union-security clause. There are (1) the agreement must cover employees who are engaged in the building and construction industry, (2) the agreement must be with a labor organization of which building and construction employees are members, and (3) the agreement must be with an em- 10Diteinational Association of Bridge, Structural and Ornamental Iron Workers, Local No 494, AFL-CIO (Spiegelberg Lumber and Building Company), 128 NLRB 1379, relied on by the General Counsel, is inapposite The General Counsel admits in his brief that the Spiegelberg case "is not on all fours with the instant matter factually." 'Moreover, in my opinion, the premise on which this decision is bottomed has been rejected by the Supreme Court's holding in Local 957, International Brotherhood of Teamsters etc, supra, that it is the "true purpose" or "real motive" for the conduct "that constitutes the test " n The proviso to 'Section 8(a) (3) reads as follows. Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization . to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agree- ment, whichever is later ANIMATED DISPLAYS COMPANY 1021 player engaged primarily in the building and construction industry. The General Counsel and the Respondent Union concede that only the third requirement is in issue here and that a finding that Respondent Company is or is not an "employer primarily engaged in the building and construction industry" will be dispositive of the legality of the union-security clause. Although the legislative history is replete with reference to the "building and construction industry," it is virtually barren of any definition, as such, of what con- stitutes building and construction. This would tend to indicate that Congress had reference to that term in the traditional sense in which it is customarily used in com- mon parlance as well as in the parlance of the industry itself. The 1937 Supplement to Volume 3 of Construction Review, published jointly by the U.S. Department of Commerce and the U.S. Department of Labor, defines con- struction work on page 69 as follows: COMPONENTS OF CONSTRUCTION Construction covers the erection, maintenance, and,repair (including replace- ment of integral parts), of immobile structures and utilities, together with service facilities which become integral parts of structures and are essential to their use for any general purpose. It includes structural additions and alterations. Struc- tures include buildings, dams, storage reservoirs, levees, canals, docks, refineries, storage tanks and silos, highways, airfields, bridges, tunnels, railroads and street railways, roadways, tracks, water and signal towers, and all similar work which are built into or affixed to the land. Utilities include electric light and power transmission and distribution lines; petroleum and gas pipelines and distribution lines; telephone and telegraph lines; radio, television, and radar towers, water supply lines; sewers; and all similar installations above or below ground for the purpose of supplying utility services. Construction covers those types of immobile equipment which, when installed, become an integral part of the structure and are necessary to any general use of the structure. This includes such service facilities as plumbing, heating, air- conditioning and lighting equipment, elevators, and escalators and some equip- ment in certain industries, such as chemicals and petroleum refining, in which production facilities are often an integral part of the structure, and generally are fabricated on site. In general, construction does not include the procurement of special purpose equipment designed to prepare the structure for a specific use. Examples of such equipment are steam tables in restaurants, pews in churches, dockers in school buildings, conveyor lines in factories, and refrigerators or dishwashers in homes. Furthermore, construction does not include the in- stallation of such equipment, except when the installation involves structural changes and then only to the extent of such structural changes. Where a change in use involves structural changes, such as the erection of partitions in a loft building to convert it to office use, the making of such structural changes is construction. Likewise, any change in exterior walls, such as remodeling of a store front, is construction. The Standard Industrial Classification Manual issued by the Bureau of the Budget for 1957 classifies the building construction industry under division C, Contract Construction. Under that heading fall three major groups, viz, Group 15, Building and Construction-General Contractor; Group 16, Construction other than Build- ing-General Contractor; Group 17, Construction Special Trade Contractor. A general definition of contract construction found at page 35 of this manual reads, "The term `construction' includes new work, additions, alterations, and repairs. Three broad types of construction activity are covered, namely, (1) building con- struction by general contractor, (2) other construction by general contractor, and (3) construction by special trade contractor." The manual goes on to define "general building contractors" as those enterprises primarily engaged in the construction of dwellings, stores, farm buildings, office buildings, and related structures. Heavy construction involves the building of highways, streets, bridges and tunnels, water projects including sewage collection and disposal, docks, piers, dams, storm systems, airfields, and other activities involving earth moving or the erection of structures and appurtenances other than buildings. Nowhere in the categories of construction listed on pages 70 to 74 of the Con- struction Review or in the pages (35 to 39) devoted to the construction industry in the Standard Industrial Classification Manual is any mention made of the display and exhibit field. Significantly, references in the manual to the type of activities in which the display and exhibit companies are engaged appear in the manufacturing 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD division and not in the construction division .la It is also noteworthy that the index of Associations and Societies of the Building Industries in the United States, which was compiled by the Building Research Institute in 1955, fails to list as a member or associate member any enterprise or association engaged in either the display or exhibit manufacturing fields. Animated Displays Company, the Respondent Company herein , designs and manu- factures exhibits, animations , cutaways, demonstration devices, and teaching aids, pri- marily for trade shows and conventions . These devices are manufactured by it pri- marily at its location on Groesbeck Highway in Warren , Michigan. Approximately 95 percent of the fabrication and construction of these displays is carried on by the Company in its own plant and only about 5 percent is actually constructed on the jobsite. Respondent Company is a member of the Display Designers and Manu- facturers Association of Detroit and the Michigan Chapter of the Exhibit Producers and Designers Association. It is not a member of any general contractors associa- tion. Although the Company may be called upon to build virtually any type of a construction or display, these structures are constructed for display purposes only. The Company does not in the normal course of its business construct buildings, resi- dential dwellings, factories , or plants, or any structure of a permanent nature. However, if it were to become necessary as part of a display to erect a building in the traditional sense of the term , that particular work would be let out to a general contractor . Furthermore, the only work the Company actually performs on a jobsite is to erect displays or exhibits which have been prefabricated in its own plant. After the purpose for which the display has been created has been dissipated, the display is taken down and either completely dismantled or stored until it is next needed. In addition to the fabrication of such displays, the Company also provides a service in the management of trade shows which may or may not involve any fabrication at all. The Company normally employs about 35 employees on a semi- steady basis. The employees engagel in the fabrication of displays are essentially classified as machinists , electricians, carpenters, painters, signmen, and truckdrivers. These employees are laid off during slack periods and recalled when business picks up. To support its position that Respondent Company is engaged primarily in the building and construction industry , Respondent Union called as its witness , Raymond L. Johnson, who is vice president and general manager of the George P. Johnson Company. The business of the George P. Johnson Company is also that of design- ing, fabricating, erecting, transporting, warehousing, and servicing of exhibits. George P. Johnson Company also does the bulk of its display fabricating at its plant on Groesbeck Highway in Warren , Michigan. As one of the larger enterprises in the display industry, this company did fabrication for display purposes virtually on any type of display or structure that might 'be required for a project . Johnson testi- fied that his company would build a mockup of airplanes , of rocket ships, a small model of a bridge or building , conveyor, a stage, a pond, and at one time actually built a quonset hut on the site of the Michigan State Fair grounds. However, he was quick to add that normally his company does not erect quonset huts and that the par- ticular one referred to was the only one ever built by it. He admitted that his com- pany did not build highways , homes, and factories ; nor place conveyors in factories; nor does his company regularly employ bricklayers , stone masons, or reinforced concrete workers; nor does his company dig basements , put in sewer pipe or soil pipe, or do any of the traditional work in which a building contractor engages. As in the case of Respondent Company, Johnson testified that after the display has served its purpose for the particular show or exhibit for which it was constructed, it is dis- assembled and removed from the site. He admitted that regardless of the various types of display structures his company might be called to fabricate , he is not in the conveyor business, the airplane manfuacturing business, the rocket manufacturing business , or the construction business. Upon the consideration of all the foregoing , I conclude and find that Respondent Company is not an "employer primarily engaged in the building and construction industry" within the meaning of Section 8(f) of the Act, and that therefore the re- quirements of that section which render permissible a 7,day union -security clause have not been met . Accordingly, I find that by maintaining in effect and enforcing article 1(B) of their agreement, Respondent Company has violated Section 8(a) (1) and (3 ) of the Act and Respondent Union has violated Section 8(b) (1) (A) and (2) of the Act. ^Establisbments Primarily Engaged in Advertising Novelties ( p. 99, par 3499) ; Establishments Primarily Engaged in Manufacturing Electrical , Mechanical, Cut-Out or Plate Signs and Advertising Displays Including Neon Signs and Advertising Novelties (p. 121, par. 3993). LOCAL 294, INT' L BROTHERHOOD OF TEAMSTERS , ETC. 1023 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above , occurring in con- nection with the operations of the Respondent Company described in section I, above, have a close , intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondents have violated the Act by maintaining in effect and enforcing an illegal union-security provision in their contract. The only remedy which the General Counsel is seeking in connection with this phase of the case is an order requiring the parties to cease giving effect to, and to eliminate , the illegal union-security provision . I agree that, under the circumstances disclosed by this record, such a remedy will be sufficient to effectuate the policies 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. Animated Displays Company, the Respondent Company herein, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Carpenters' District Council of Detroit, Wayne and Oakland Counties and Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, the Respondent Union herein , is a labor organization within the meaning of Section 2(9) of the Act. 3. By maintaining in effect and enforcing in their contract a union -security pro- vision not authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959, the Respondent Company has violated Section 8(a) (1) and (3) of the Act and the Respondent Union has violated Section 8 (b) (1) (A) and (2) 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 Respondents Union and Company have not, as alleged in the complaint, violated the Act in connection with the layoff of Dewayne C. Johns on January 11, 1961. [Recommendations omitted from publication.] Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , Independent [Valletta Motor Trucking Co., Inc.] and George Monty. Case No. 3-CB- 505. JUne 2811962 DECISION AND ORDER On October 19, 1961, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. 137 NLRB No. 112.