Cedar Rapids Block Co., Inc.

986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cedar Rapids Block Company, Inc. and Cedar Sand and Gravel Company and International Union of Operating Engineers, Local 234, AFL-CIO Chauffeurs, Teamsters and Helpers Local Union No. 238 , affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America [Cedar Rapids Block Company, Inc. and Cedar Sand and Gravel Company] and Clarence C. Johnson. Cases Nos. 18-CA-1444 and 18-CB-179. July 31, 1963 DECISION AND ORDER On November 21, 1962, Trial Examiner Frederick U. Reel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety as set forth in the attached Intermediate Report. The General Counsel has filed exceptions and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. 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 this case, and finds substantial merit in the exceptions. The Trial Ex- aminer's findings, conclusions, and recommendations are adopted to the limited extent consistent with this decision. As found by the Trial Examiner, Cedar Sand and Gravel Com- pany, a wholly-owned subsidiary of Cedar Rapids Block Company, Inc., began the production of sand and gravel in the spring of 1957 and ceased such production in November 1958. Its stockpile of mate- rial was exhausted in 1959 and in 1962 the sand plant equipment was sold. Thereafter this Company became defunct. While the Trial Examiner found that the two Companies "may be considered as a single employer" for purposes of the Board's jurisdiction, he failed to find that the two Companies were, in fact, a single employer. The record shows that the sand company was acquired and operated by the president of the Block Company as an alternative source of supply for the latter Company. In 1959 the stock of the Sand Company was sold to the Block Company. At all times both Companies were com- monly owned, controlled, and operated as a single integrated enter- prise. Indeed, Johnson, the alleged discriminatee in this case, was originally paid by the Block Company, while an employee of the Sand Company, and thereafter performed work for both Companies. On 143 NLRB No. 106. CEDAR RAPIDS BLOCK COMPANY, INC., ETC. 987 these facts we find that the Sand Company and the Block Company, hereinafter called the Company, constituted a single employer for all purposes material to this case. Johnson was first employed by the Sand Company to install and operate the sand plant. When the sand plant ceased operations John- son was employed to operate a Koehring or crawler crane at the J Street plant of the Block Company, continuing to spend about 10 per- cent of his time at the sand plant. The employees of the Block Com- pany at the J Street plant were represented by Respondent Teamsters under a collective-bargaining agreement which provided, inter alia, that "Vacancies in jobs are to be filled on the basis of seniority among qualified employees bidding for such jobs." Assuming Johnson's work as a crane operator at the J Street location came within the coverage of the contract, the parties had orally agreed to exclude him from the unit. This was not distasteful to Johnson who was a member of Local 234, International Union of Operating Engineers, and regarded that Union, if any union, as his bargaining representa- tive. In the spring of 1961 the Block Company contemplated the in- stallation of an overhead crane which would eliminate virtually all of the work of the crawler crane and a certain amount of other yard- work. In April 1961 representatives of the Teamsters took the posi- tion, according to the credited testimony of L. F. Becker, vice president of the Block Company, that the operation of the overhead crane was a job covered by the Teamsters' agreement with that Company. Nevertheless, Johnson was sent by the Company to Mount Vernon, Illinois, to dismantle and ship the overhead crane to the J Street plant in May 1961, and was assigned the job of assembling and installing the crane at this location in the winter of 1962. Upon his return from Mount Vernon, Johnson was told by the Teamsters' assistant steward, Joe Shuff, that the overhead crane was a piece of Teamsters' equip- ment and that Shuff would be the operator. On April 6, 1962, Johnson was handed a letter signed by Clyde Stewart, then general manager of the Block Company, stating as fol- lows : "Due to the inactivity of our sand operation and causes beyond our control, your employment with this company will terminate as of Friday, April 6." However, Johnson continued to be employed at the sand plant location until the following May 11. In the interim Shuff, a yardman, who did not bid for the job, was assigned to operate the overhead crane until his promotion to foreman on May 14, 3 days after Johnson's final termination. Thereafter the crane was operated by Nile Mentzer, a yard employee, who, so faras the record shows, had no experience in this line of work. Testimony with respect to the reasons for Johnson's discharge is conflicting. According to Johnson's uncontradicted testimony he was told in mid-March by Stewart that "pressure was being put on by the 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters Union and he didn't want no labor trouble so he figured he would have to let me go." Becker, who was credited by the Trial Examiner, denied having told Johnson after the latter's discharge : "I hate to see you go . . . I heard that you didn't want to join the Teamsters Union . . . I don't blame you." According to Becker, the reasons for Johnson's discharge were related solely to the sale of the sand plant equipment "because we didn't need a sand plant operator if we didn't have a sand plant." Becker also believed Johnson was too high priced at a salary of $150 per week. Although Becker was one of the Company's officials who decided upon Johnson's discharge, he was unable to explain the meaning of the phrase "causes beyond our control" which appeared in Johnson's discharge letter of April 6. Leo Jasien, then J Street plant manager, expanded on the reasons for Johnson's discharge. Denying that he had told Johnson that Jasien was "pretty sure" Johnson could operate the overhead crane if he would join the Teamsters Union, Jasien testified that the Company at all times regarded Johnson as an employee of the Sand Company on "temporary" loan to the Block Company. The whole dispute, accord- ing to Jasien, might have been resolved if Johnson had agreed to be- come an employee of the Block Company. Jasien testified to several conversations with Melvin J. Smith, business representative of the Teamsters, in which the latter took the position that the job of the overhead crane belonged in the unit which his union represented. Ac- cording to Jasien, he suggested to Johnson that if the latter became an employee of the Block Company "either in a special seniority ca- pacity or as a new employee" Jasien believed "Mr. Shuff would have respected Mr. Johnson's ability and not pushed the fact that he had seniority over Mr. Johnson." Jasien further testified that he "as- sumed" Johnson would eventually become a member of the Teamsters Union if he became an employee of the Block Company. Johnson, again according to Jasien, rejected the suggestion of a special place on the seniority list or becoming a new employee of the Block Company. The threatened discharge of Johnson was referred to a committee of the local Building Trades Council as the result of a protest by E. A. Mahannah, vice president of the Operating Engineers. Ma- hannah, corroborated by Glen DeWald, business representative of the International Brotherhood of Electrical Workers, testified that Smith for the Teamsters took the position that Johnson had had an opportunity to join the Teamsters and, having failed to do so, had to go. Smith, corroborated by Joseph Fiala, then president of the Building Trades Council, testified that at all times he argued that Johnson had to become a member of the bargaining unit with seniority from the date of his transfer into that unit. A fifth witness, Earl Edwards, assistant business representative of the Carpenters, CEDAR RAPIDS BLOCK COMPANY, INC., ETC. 989 testified that Smith had stated that Johnson "was not a member of the Teamsters." Edwards did not recall Smith using the term "unit" or "union" in juxtaposition to the term "Teamsters." The Trial Examiner uniformly discredited all witnesses who testi- fied that officials of the Respondent Company and Respondent Union had stated that Johnson could not operate the overhead crane unless he joined the Teamsters' Union. A Trial Examiner's resolution of credibility is entitled to great weight and is normally accepted by the Board. Standard Dry Wall Products, Inc., 91 NLRB 544. Although the pattern of Becker's testimony compared with Jasien's and the text of the discharge letter of April 6 suggest shifting or unspecified rea- sons for Johnson's termination, the clear preponderance of all the evidence does not warrant a reversal of the Trial Examiner's credi- bility findings. On these findings the Trial Examiner concluded that Johnson was terminated because his services were no longer needed when it was decided that the sand plant would not be reactivated, even assuming that the Sand Company was another division of the Block Company. He concluded, further that the new crane job was encompassed within the unit represented by the Teamsters and the latter's pressure to cause Johnson's discharge was merely "a concomitant of proper allo- cation of the job." With respect to the alternative offered Johnson by Jasien, the Trial Examiner found that Johnson might have been assigned to the crane job if he had been willing, as he was not, to accept "the Teamsters as his bargaining representative." As to the Trial Examiner's first conclusion, it is perfectly clear that Johnson's services were at all times available to either or both Com- panies, which, as found above, constitute a single employer. He had been employed at the J Street plant from January 1959 to April 1962 as a crawler crane operator. It is not, and cannot be, denied that Johnson would have continued indefinitely at this job regardless of the disposition of the sand plant. The record shows that Johnson was the only employee at the J Street plant qualified to operate this crane. During his absences an outside operating engineer of similar qualifications rather than a member of the Teamsters' unit was em- ployed, as needed, to substitute for him. It is apparent, moreover, from Jasien's testimony that the Company was desirous of retaining Johnson's services if an accommodation could be reached between Johnson and the Teamsters. Jasien testified that Johnson "was a very industrious man and an excellent employee." He pointed out that Johnson's "advice and counsel in many cases was extremely valu- able to me." Whether the Company would have decided after its experience of 3 years to discontinue the use of a crawler crane at the J Street plant in the event the sand plant was reactivated is a_ matter of conjecture. The evidence indicates that a crane had become '990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so necessary a part of the Company's operations that in 1961 the Company bought and in 1962 installed a permanent overhead crane, admittedly a substitute for the crawler crane. In any event, no issue was raised as to Johnson's continued employment prior to the acquisi- tion of the overhead crane. On these facts we find that the Company's decision, at the insistence of the Teamsters, to discharge Johnson was due to the substitution of the latter crane for the former rather than the sale of the sand plant equipment. The Trial Examiner's final conclusion, that Johnson was discharged lawfully because his job as the operator of a crawler crane came to an end and the job of operating the overhead crane was simply not avail- able to him because it was work within the unit represented by the Teamsters, presents the critical issue in this case. The record sug- gests that proper allocation of the new crane job based upon unit considerations was not necessarily the reason for the inclusion of that job in the Teamsters' unit. It would have been just as proper to include the operation of the crawler crane in that unit. However, as indicated above, Johnson was the only employee at the J Street plant qualified to operate the crawler crane. On the other hand, the overhead crane could be operated by an employee less skilled in this line of work, such as Shuff or Mentzer. It would therefore seem more likely that the latter reason rather than mere unit considerations prompted the Teamsters to insist that the overhead crane was a piece -of Teamsters' equipment. However, this crane was more closely re- lated in function to the crawler crane than to other production jobs at the J Street plant. Johnson's superior qualifications to operate either crane is beyond question. He was entrusted by the Company with the job of disassembling and shipping the overhead crane from its original location and then reassembling it at the J Street site. So far as he was concerned, the operation of the new crane was work that he had been "doing down there." The Teamsters contract for the Block Company's employees covers "employees coming within the jurisdiction of Chauffeurs, Teamsters and Helpers Local No. 238" and that Union is recognized as the bar- gaining agent for "all classifications of employees covered by the agreement." Specific classifications enumerated for the Block plant are : "working foremen, operator-block machine, operator-grinding, sizing & beveling machines, operator-mixer, operator-power cuber, operator-lifttruck, operator-material conveyors or bins, operator- lintel maker, yardmen, truckdrivers." While "working foreman" and "all other employees" are included in the Joist plant, no mention is made of a classification designated "crane operator" at the J Street site. Whether Respondent Teamsters regarded a crawler crane oper- ator as outside their jurisdiction and an overhead crane operator as within their jurisdiction is a matter we need not decide. The literal CEDAR RAPIDS BLOCK COMPANY, INC., ETC. 991 language of the contract did not specifically include either classifica- tion. The first was deliberately excluded by oral agreement of the parties and the second was, at most, a classification not contemplated at the time the unit description was drawn. The inclusion of the overhead crane job was, therefore, an addition to the existing unit. In some circumstances Board representation law permits such an addition under the theory of accretion where the new job or jobs are no more than an extension of unit work or a new hiring in the same or similar classifications. But the right of parties to a contract to add a new classification to an existing unit is not absolute. In the instant case the overhead crane, while a new piece of equipment, did not create a totally "new" job. Johnson was given the curious al- ternative of agreeing to join the "Teamsters unit" or face replacement as a crane operator. It is clear from the record that he believed join- ing the "Teamsters unit" meant nothing more or less than joining the "Teamsters Union." He testified : "I figured I belonged to a labor organization already, so why should I join another one to do my work . . ." No official of Respondent Company or Respondent Union attempted to reassure him on this point. Indeed, Jasien as- sumed that Johnson would eventually become a member of the Team- sters Union if he accepted the terms proposed to him. On these facts we find that Johnson's discharge may not be defended on unit grounds. Having excluded the crawler crane job from the existing unit for a period of more than 3 years, the parties in this case were not free to include the overhead crane with the concomitant dis- charge of the crane operator because he was not "a member of the, unit." A defense of this kind would require irrefutable proof that the parties' unit determination, designed to coerce an employee to. accept unwanted union representation, was made in good faith and correct. Such proof does not exist in this case. Under these cir- cumstances, we find that Johnson's discharge constituted discrimi- nation against him which necessarily encouraged union membership. Accordingly, we conclude that the Respondent Union violated Sec- tion 8(b) (2) and (1) (A) of the Act by causing the Respondent Com- pany to discharge Johnson, and that the Respondent Company vi- olated Section 8(a) (3) and (1) of the Act by acceding to this demand. The activities of the Respondents set forth above, occurring in connection with the operations of the Respondent Company, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, we shall order that they cease and desist therefrom and 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take certain affirmative action designed to effectuate the policies of the Act. Since we have found that the Respondent Union and Respondent Company are both responsible for the discrimination suffered by Johnson, we shall order that they jointly and severally make Johnson whole for the loss of pay he may have suffered by reason of the discrimination against him, by payment to Johnson of a sum of money equal to that which he normally would have earned as wages from May 11, 1962, the date of the actual discrimination against him, to the date of a valid offer of reinstatement less net earnings to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, together with interest at the rate of 6 percent per annum.' We shall order the Respondent Company to offer immediate and .full reinstatement to Johnson to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. We shall order the Respondent Union to notify the Respondent Company, in writing, and furnish a copy to Johnson, that it has withdrawn its objections to the employment of Johnson as a crane operator by the Respondent Company and accedes to the Respondent Company's reinstatement of Johnson. The Respondent Union's lia- bility for backpay shall cease 5 days after such notifications. We shall further require, in accordance with our usual practice, that the Respondent Company, upon request, make available to the Board and its agents all pertinent records necessary to compute the amount of backpay due. CONCLUSIONS OF LAw 1. The Respondent Union, Chauffeurs, Teamsters and Helpers Local Union No. 238 is a labor organization within the meaning of Section 2(5) of the Act. 2. By causing the Respondent Company to discriminate against Clarence C. Johnson because he was not, and was unwilling to be, represented by the Respondent Union, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) and (1) (A) of the Act. 3. By discriminating against Clarence C. Johnson at the demand of Respondent Union, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. i Isis plumbing & Heating Co., 138 NLRB 716. CEDAR RAPIDS BLOCK COMPANY, INC., ETC. ORDER 993 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 Union, Chauffeurs, Teamsters and Helpers Lo- cal Union No. 238, its officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause the Respondent Company, its officers, agents, successors, or assigns, to discriminate against Clarence C. Johnson with respect to his employment as a crane operator or any term or condition of his employment because he is not, or is unwilling to be, represented by Respondent Union, except as author- ized by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. (b) In any like or related manner restraining or coercing em- ployees of the Respondent Company in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Notify the Respondent Company, in writing, with a copy to Johnson, that it has withdrawn its objections to the employment of Johnson as a crane operator and accedes to the Respondent Com- pany's reinstatement of Johnson. (b) Jointly and severally with the Respondent Company make Clarence C. Johnson whole in the manner set forth in the section entitled "The Remedy." (c) Post at its office and place of business in Cedar Rapids, Iowa, and at all locations where notices to members are customarily posted, copies of the attached notice marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by a representative of the Re- spondent Union, be posted by it immediately upon receipt thereof, and be maintained by it fora, period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Re- spondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Additional copies of the attached notice marked "Appendix A" shall be signed by a representative of the Respondent Union and I In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall he 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 " 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forthwith returned to the Regional Director for the Eighteenth Re- gion. These notices shall be posted, at places where notices to the Respondent Company's employees at its Cedar Rapids, Iowa, place of business are customarily posted. (e) Notify the Regional Director for the Eighteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. B. The Respondent Company, Cedar Rapids Block Company, Inc., et al., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Encouraging membership in the Respondent Union by dis- charging Clarence C. Johnson or discriminating against him in any manner because he is not, or is unwilling to be, represented by Re- spondent Union, except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the polices of the Act : (a) Offer Clarence C. Johnson immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and, jointly and sev- erally with the Respondent Union, make him whole in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social Se- curity payment records, timecards, personnel records and reports, and all other records necessary to insure expeditious compliance with this Order. (c) Post at its place of business at Cedar Rapids, Iowa, copies of the attached notices marked "Appendix B." 3 Copies of said notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by the Respondent Company's rep- resentative, 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 its employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Eighteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent Company has taken to comply herewith. 3 Sce footnote 2, supra. CEDAR RAPIDS BLOCK COMPANY, INC., ETC . 995 MEMBER BROWN, dissenting : I would accept the Trial Examiner's recommendation that this com- plaint be dismissed. The basic issue in the case is whether the Respondent Union caused the Respondent Company to remove Johnson as operator of the over- head, crane for a lawful or unlawful reason. The majority opinion, without reversing the Trial Examiner's credibility findings, recites both credited and discredited testimony. At the outset, therefore, I find it necessary to set forth my understanding of the pertinent facts. Johnson and one Fox were hired in 1956 to construct and operate a sand plant because the Respondent Company was then in need, of its own source of sand and gravel. A continuing need for the operation of this plant prevailed until late in 1958, when the plant stopped pro- duction. The Employer, however, continued to use an existing stock- pile until 1959, when it again became cheaper for it to use outside sources of supply. Although the stockpile was depleted in 1959, the Respondent Company decided to retain the sand plant as "insurance" against the possibility of its outside sources being cut off once more. Johnson was retained to maintain the sand plant for future operation by him if the need for it were to arise. The Respondent Company also decided to utilize Johnson's talents in other work while the sand plant lay idle. It assigned him to a variety of production jobs at the J Street plant, where he primarily operated, the crawler, or Koehring, crane. The Employer has long had contracts with the Respondent Union. Its latest agreement covers the J Street plant and states that job va- cancies at J Street are to be filled by seniority among the employees working there; seniority accrued in other divisions of the Respondent Company is not transferable to J Street. As early as 1960, the Re- spondent Union, in accordance with its contract, questioned the Re- spondent Company about Johnson's operation of the crane and his other participation in unit work. Its business agent insisted that, if Johnson was to continue working at J Street, he be formally desig- nated as a J Street employee and be placed on the J Street seniority list. The Respondent Company replied that Johnson's assignment to J Street was only temporary, pending reopening of the sand plant. However, Johnson continued to spend most of his time at J Street, and the Teamsters repeatedly renewed its protest. The Respondent Com- pany sought to placate the Respondent Union with assertions that Johnson's stay was only temporary. J Street's plant manager, Jasien, also testified that on occasion he warned Johnson to stay away from unit work. Johnson was well aware of his special status. While he was working at J Street, unit employees senior to him in uninterrupted J Street work were laid, off, but Johnson's employment was never affected. Johnson's name, in fact, never appeared on the seniority list of J 717-6764-vol. 143-64 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Street employees, and at no time did he object to the omission. Nor did Johnson ever receive the insurance and fringe benefits accorded all J Street employees. He did not punch a timeclock as did the other J Street production workers. Moreover, the possibility always ex- isted that Johnson would return to sand plant operations. The overhead crane began to be erected at J Street in July 1961. Teamsters business agent, Smith, went to Jasien at that time and urged that the crane job be awarded to that J Street employee having the greatest unit seniority. He reiterated that Johnson was not a unit member and consequently had no right to the job. Jasien antici- pated the impending controversy, and, in March 19622, when the crane finally became operable, tried to settle the matter by offering Johnson three choices : Johnson could agree to become a unit member and Jasien would try to obtain for him a privileged position on the J Street seniority list; Johnson could become a J Street employee and accumu- late seniority in the normal manner; or the situation would be left to resolve itself. Johnson decided not to have Jasien try to work out an accommodation for him. The local Building Trades Council, a group comprised of repre- sentatives of several unions located in the city, convened in an attempt to settle the dispute. The position taken by the Respondent Union was that Johnson was not entitled to the overhead crane job because he was not a member of the J Street unit. Meanwhile, the crane was installed and Joe Shuff, who had J Street seniority dating from May 1958, and whose work was taken over in part by the new machine, was assigned to it. Shortly thereafter, Johnson was discharged, the Respondent Company having decided to dispose of the sand plant. These are the facts credited by the Trial Examiner and accepted by my colleagues and, therefore, are the critical events upon which this case must be decided. The basis for my colleagues' reversal of the Trial Examiner presumably lies in their findings that the crawler crane was excluded by oral agreement from the contract unit repre- sented by the Respondent Union, that the overhead crane was an addi- tion to that unit, and that "Having excluded the crawler crane job from the existing unit for a period of more than three years, the parties in this case were not free to include the overhead crane with the concomitant discharge of the crane operator because he was not a `member of the unit.' " I believe, however, that my colleagues have concerned themselves with a problem which is not presented by this case. As the majority opinion recognizes, in their contract Respond- ents agreed to terms covering "those employees coming within the jurisdiction" of the Respondent Union. The Respondent Company therein recognizes the Respondent Union as the bargaining agent for CEDAR RAPIDS BLOCK COMPANY, INC., ETC. 997 "all classifications of employees covered by" the agreement.' And the agreement recites that the classifications covered at the J Street plant herein involved are "working foremen" and "all other em- ployees." In the conversations between Respondents with respect to Johnson, the Respondent Union's complaint was that Johnson, al- though not a member of the unit represented by it, was engaged in unit work, and the Respondent Company sought to placate the Union by assurances that Johnson was only temporarily employed in such work. When the overhead crane was acquired, it replaced the crawler crane. Nobody in this case argues that either the crawler crane or overhead crane was not unit work. Even the General Coun- sel maintains that "The record is replete with evidence that at all times since the beginning of his employment in 1956 Johnson worked in a classification which brought him within the scope of the unit represented by the Teamsters" and that "Johnson at all times worked in a classification included within the scope of that unit." It accord- ingly follows that my colleagues' contrary finding, upon which their ultimate conclusion turns, was not urged in this proceeding nor is it supported by the record. As the General Counsel concedes, Johnson at all times worked in a classification falling within the unit represented by the Respondent Union. But I do not agree with the General Counsel that Johnson's discharge was therefore discriminatory. For, from the very begin- ning of his assignment to the crawler crane, Johnson, although there- after engaged in unit work, was not considered by Respondents as part of the contract unit, and Johnson himself enthusiastically ac- quiesced in his exclusion pursuant to this understanding, which was without any discriminatory basis. When the Respondent Union periodically questioned the retention of a nonunit employee in a unit job, the Company each time assured the Union that the arrangement was not a permanent one; it also appears that no employee in the unit represented by the Union was adversely affected by Johnson's assignment to the crawler crane. So, until the overhead crane entered the picture, the Respondent Union was willing to recognize Johnson's special status and accommodate the Respondent Company in its utili- zation of Johnson. However, the introduction of the overhead crane altered Respond- ent Union's attitude regarding Johnson's assignment to that machine, and understandably so. Now, this temporary employee who was excluded from the contract unit under the tripartite understanding of Respondents and Johnson himself was threatening the job security of Shuff, a unit member whose seniority dated back to May 1958, 'The crawler crane was, of course, in operation at the time of the execution of this contract. 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before Johnson's assignment to the crawler crane. The Respondent Union renewed its protests against Johnson, all the while asserting his nonunit status, until the Respondent Company replaced Johnson with Shuff. Plainly, all that the Respondent Union sought herein was to preserve the contract work and seniority rights of employees whom it represented under the contract with the Respondent Company. This was a legitimate function, fulfilled by lawful means. I cannot see how the Respondents can be held in violation of the Act on account thereof. I would therefore dismiss the complaint. 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 you that : WE WILL NOT cause or attempt to cause Cedar Rapids Block Company, Inc., et al., its officers, agents, successors, or assigns, to discriminate against Clarence C. Johnson with respect to his employment as a crane operator or any term or condition of his employment because he is not, or is unwilling to be, represented by Chauffeurs, Teamsters and Helpers Local Union No. 238, ex- cept as authorized 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 like or related manner restrain or coerce employees of the above-named Company, its officers, agents, suc- cessors, and assigns, in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL jointly and severally with the above-named Company make Clarence C. Johnson whole for any loss of money he may have suffered as a result of the discrimination against him. WE HAVE no objection to the employment of Clarence C. John- son as a crane operator by the above-named Company. CHAUFFEURS, TEAMSTERS AND HELPERS LOCAL UNION No. 238, Labor Organization- Dated ---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. CEDAR RAPIDS BLOCK COMPANY, INC., ETC. 999 Employees may communicate directly with the Board's Regional -Office, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota, 55401, Telephone No. 339-0112, Extension 2601, if they have any question concerning this notice or compliance with its ,provisions. APPENDIX B 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 encourage membership in Chauffeurs, Teamsters, and Helpers Local Union No. 238 by discharging Clarence C. Johnson or discriminating against him in any manner because he is not, or is unwilling to be, represented by Chauffeurs, Teamsters and Helpers Local Union No. 238 except as authorized by Section 8 (a) (3) of the Act, as modified by the Labor-Management Report- ing and Disclosure Act of 1959. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL offer Clarence C. Johnson immediate and full rein- statement and, jointly and severally with the above-named Union, will make him whole for any loss of money he may have suffered as a result of the discrimination against him. CEDAR RAPIDS BLOCK COMPANY, INC. ET AL., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NOTE.-We will notify Clarence C. Johnson if presently serving in the Armed Forces of the United States of his right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota, 55401, Telephone No. 339-0112, Extension 2601, if they have any question concerning this notice or compliance with its provisions. 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE These cases, consolidated by the Regional Director, and presenting a single issue- whether the discharge of Clarence C. Johnson was occasioned by his lack of member- ship in the Respondent Union-were heard before Trial Examiner Frederick U. Reel, at Cedar Rapids, Iowa, on September 17 and 18 and October 2, 1962.1 At the con- clusion of the hearing counsel for Respondent Employers presented oral argument, and thereafter he, as well as counsel for Respondent Union and counsel for the Gen- eral Counsel, filed briefs, which have been carefully considered. Upon such con- sideration and upon the entire record in the case, including my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT EMPLOYERS Cedar Rapids Block Company, Inc., herein sometimes called the Block Company, is an Iowa corporation maintaining its principal place of business in Cedar Rapids, Iowa, where it manufactures and sells concrete building products and masonry wall reinforcing materials. It annually receives from outside the State goods and ma- terials valued in excess of $50,000, and annually ships across State lines products valued in excess of $50,000. The Block Company is engaged in commerce within the meaning of the Act. Respondent Cedar Sand and Gravel Company, herein some- times called the Sand Company, is a wholly owned subsidiary of the Block Company The operations of the Sand Company are described more fully infra. At this point, it suffices to say that 90 percent of its production was used by the parent Block Com- pany, that for purposes of the Board's jurisdiction the two may be considered as a single employer, and that the Sand Company is engaged in commerce within the meaning of the Act. If. THE LABOR ORGANIZATIONS INVOLVED International Union of Operating Engineers, Local 234, AFL-CIO, (herein called the Operating Engineers) and Chauffeurs, Teamsters and Helpers Local Union No. 238, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America (herein called the Teamsters) are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. The sand plant operation and the employment of Johnson In 1956 the Block Company's sole local source of sand and gravel (a company known as Concrete Materials) was shut down by a prolonged strike. The president of the Block Company, Harold Spaight, decided to acquire and operate a sand plant to protect the Block Company against future difficulties in obtaining sand and against increases in the cost of sand and gravel which might be anticipated under the then existing monopoly. In the latter part of 1956 he arranged with Clarence Johnson and Ray Fox to erect and operate a sand plant. This plant started operating in the spring of 1957, extracting sand and gravel from the Cedar River. Approximately 90 percent of its production was sold to the Block Company. In November 1958 the sand plant stopped producing, but the Block Company continued to purchase sand and gravel from the stockpile there accumulated, until the stockpile was exhausted in 1959. At that time, the strike at Concrete Materials having ended, the Block Com- pany discovered it was cheaper to obtain sand from its former supplier than from the sand plant. The sand plant stood idle until the spring of 1962, when after abortive efforts to move the equipment to another community, the sand plant was offered for sale to one Ross. Ross, although he did not buy this equipment, did decide to open a local sand plant, thereby furnishing the Block Company with an alternate source of supply. The sand plant equipment was then sold in May 1962, for something over $30,000, about half its original cost. 'The charge In Case No 18-CA-1444 was filed and served June 18, 1962, and an amended charge was filed and served July 25, 1962. The charge In Case No. 18-CB-179 was filed and served July 19, 1962, and an amended charge was filed and served July 23, 1962 The consolidated complaint Issued July 30, 1962. CEDAR RAPIDS BLOCK COMPANY, INC., ETC. 1001 The stock in the sand plant company, which was incorporated in May 1957, was originally owned by Spaight , but in the spring of 1959 he sold the stock to the Block Company, and the Sand Company was thereafter operated as a wholly owned sub- sidiary. The Sand Company continues to exist, although shorn of its assets, as a subsidiary of the Block Company. When Spaight arranged with Johnson and Fox to install and operate the sand plant, they entered into an agreement , dated October 29 , 1956, providing, inter alia, that Johnson and Fox would each receive an hourly wage of $2.141/2, and $3.211/4 for overtime, with a weekly guarantee of $150.05.2 The agreement also provided for a profit-sharing agreement, and contained other provisions spelling out the rights and duties of the parties. On February 26, 1960, the agreement was terminated by a "Release and Satisfaction" which recited, inter alia, that from that point forward Johnson and Fox assumed the status of employees of the Sand Company in a relation- ship terminable at will. Fox did in fact sever his connection with the operation during 1960. In 1958, between the execution of the original employment agreement in 1956 and its formal termination in 1959, the Sand Company also entered into an agreement with the Operating Engineers affecting Johnson and Fox. This agreement was of a conventional type, except that it expressly provided that the 1956 agreement between the Sand Company, Johnson, and Fox was approved. The agreement with the Operating Engineers provided for automatic renewal in the absence of 60 days' notice, but such notice was never given , and indeed the entire agreement was ap- parently regarded as a "dead letter" and was not resorted to in any way. In the early period of his employment, Johnson spent most of his time at the sand plant, although he did spend some portion of it at the J Street plant of the Block Company.3 Beginning in January 1959, and continuing until April 6, 1962, when he was notified of his discharge, Johnson spent less than 10 percent of his time at the sand plant, where his primary task was the maintenance of the machinery for possible future use in case the sand plant should again be put in operation. The balance of his time he spent at the Block Company's J Street plant, where he was primarily engaged in operating a machine variously described as a Koehring or crawler or boom crane. Although thus employed on Block Company work, Johnson was paid by the Sand Company throughout his employment except for the early months of his employment (prior to May 1957) when he was paid by the Block Company. From January 1959 until Johnson's discharge, the Block Company paid the Sand Company for work that Johnson performed for the Block Company. On April 6, 1962, Johnson received formal notification of discharge in the form of a letter, dated March 29, 1962, which was signed "Cedar Rapids Block Company by Clyde L. Stewart, General Manager." Johnson obtained a few more weeks of work readying the sand plant for ultimate disposal, and was finally terminated May 11, 1962. The circumstances surrounding his discharge are developed more fully infra, but to understand them fully it is first necessary to consider the employ- ment situation at the J Street plant where Johnson had been steadily employed for several years. 2. Employment relations at the J Street plant For a number of years the Teamsters have been the bargaining representative of the employees of the Block Company, under collective-bargaining agreements. These agreements covered, among others, all Block Company employees at the J Street plant. The contract in effect at the time of the critical events in this case provided for a separate seniority system at the J Street plant and also provided that job va- cancies were to be posted and were to be filled by bidding on a seniority basis. Senior- ity for bidding purposes under that contract dated from employment in the particular plant, and not from employment by the Company at other locations. Although the Teamsters represented all the J Street employees of the Block Com- pany, neither they nor Johnson nor the Block Company regarded them as represent- ing Johnson. In the view of all concerned, Johnson was an employee of the Sand Company, and he was "temporarily" employed at the J Street plant until such time as the sand plant should be reactivated. Johnson's name was never included in the seniority lists posted at the J Street plant. Layoffs at that plant were effected from time to time on a seniority basis, but did not affect him. He did not punch a time- 2 The stated hourly wage rates, for a 60-hour week , would yield $150 05 The overtime rate was manifestly in error and should have been $321s/h Thus corrected, a 60-hour week would have yielded $ 15015, and Johnson's salary was later raised to that figure. Apart from that correction , his salary was unaltered throughout his employment. 'Before the J Street plant was built, some of its functions were performed at the sand plant, where Johnson participated in th" work with Block Company employees 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clock as did the other J Street employees, and he was paid a guaranteed weekly wage whereas the other J Street employees, under the Teamsters contract, received only an hourly rate. Teamsters representatives, inquiring of the Block Company as to Johnson's status, were told that he was an employee of the Sand Company temporarily assigned to operate the crawler crane at the J Street plant. Matters were permitted to ride in this matter from January 1959 until early in 1962.4 In the summer of 1961 the Block Company acquired an overhead crane for installa- tion and use at the J Street plant. This crane was not placed in operation until the latter part of April 1962, but the work of installing it had been going on for some months prior thereto. It was apparent to all that the overhead crane from the nature of its installation would be a permanent part of the J Street plant, and that it would do not only the work theretofore performed by Johnson with the crawler crane, but also work done by a lift-truck, operated by an employee who was a member of the bargaining unit. The Teamsters took the position that the job of operating the overhead crane would fall within the bargaining unit which they represented. B. The discharge of Johnson As the foregoing discussion shows, in the late winter and early spring of 1962 two independent factors were contributing to the insecurity of Johnson's future tenure of employment: the decision to dispose of and not to reopen the sand plant, and the imminent substitution of the permanent overhead crane for the crane Johnson had been operating. Although Johnson hoped to be assigned to the new crane, he was aware that the Teamsters were claiming that job as within their unit. During this period, Johnson discussed the matter with E. A. Mahannah, business representa- tive of the Operating Engineers, and also with various officials of the Respondent Companies. In mid-March the then general manager of the Block Company, Clyde Stewart, told Johnson, according to the latter's testimony, that "pressure was being put on by the Teamsters Union and he didn't want no labor trouble so he figured he would have to let me go." A week or so thereafter Johnson had a conversation with Leo Jasien, then J Street plant manager, in the course of which (according to John- son) Jasien asked if Johnson would consider joining the Teamsters Union, and added that if Johnson would do so, Jasien was "pretty sure" Johnson could have the overhead crane job and that "Joe Shuff [a senior employee in the J Street plant who operated the lift truck] would [not] event want it." As noted above, Johnson received his discharge notice on April 6, but was then given some work at the sand plant which lasted until May 11. On that date, according to Johnson, when he re- ceived his final paychecks in the office of L. F. Becker, vice president of both Respondent Companies, Becker said, "I hate to see you go . . . I heard that you didn't want to join the Teamsters Union .... I don't blame you." With respect to the above three alleged conversations, that with Stewart stands undenied, as Stewart, who has left the city for other employment, was not called as a witness. Backer denied making the statement attributed to him. Jasien's version of his conversation with Johnson is that Jasien, seeing the problem of Johnson's future coming to a head, suggested three alternatives to Johnson: to become an employee of the Block Company and have Jasien undertake to negotiate with the Teamsters to give Johnson a preferred place on the seniority roster; to become a Block Company employee in the normal manner at the foot of the seniority list; or to let matters ride. According to Jasien, he felt that if Johnson became a member of the bargaining unit at the plant, the other employees would recognize his ability and his long service on the crane, and would not press their seniority or bid for the overhead crane job. Jasien flatly denied ever telling Johnson to join the Teamsters, however. Jasien further testified that after some deliberation Johnson selected the third alterna- tive-to let matters ride. As stated above, Johnson also discussed the impending situation with Mahannah of the Operating Engineers. According to Mahannah, he then called Ernest Pappen- fus, then vice president of the Block Company, who "stated that the pressure was being applied by the Teamsters organization that a Teamster was going to be placed on the [overhead] crane." (Pappenfus, who has since left the Company and has moved to California, did not testify.) Mahannah then took the matter up with Melvin Smith, the Teamsters official who handled relations with the Block Company. According to Mahannah, Smith said, in essence, "I have been getting too much heat 4 When working at J Street but not occupied on the crane, Johnson was variously en- gaged in maintenance work on the equipment or in operating a bulldozer or in other work that he found. On occasion the plant manager had to caution Johnson not to engage in work regularly done by members of the bargaining unit. CEDAR RAPIDS BLOCK COMPANY, INC., ETC. 1003 from the membership down there. We have a contract and [Johnson] has got to go." (Smith in his testimony denied that he or any Teamsters member had ever urged the discharge of Johnson, stating that the Teamsters throughout had merely maintained that Johnson, if retained, must become a part of their bargaining unit, with seniority from the date of his transfer into the unit.) Mahannah then took the matter up with the Building Trades Council, a group of unions which included the Operating Engineers, the Teamsters, and several others. The council appointed a committee to look into the matter. Some conflict developed in the testimony as to what was said at the meeting of this committee. According to Mahannah, Smith took the position that the Team- sters "had an industrial agreement with the Cedar Rapids Block Company and that [Johnson] had had the opportunity to join the Teamsters and had not seen fit to, so he had to go." According to Glen DeWald, business manager of the International Brotherhood of Electrical Workers, who was at the meeting, Smith "mentioned that Mr. Johnson had had an opportunity to join the Teamsters Union and have his seniority established with that union and had not availed himself of the opportunity." According to Earl Edwards, assistant business representative of the Carpenters' Union, who attended the meeting, Smith said that Johnson "could continue working for Cedar Rapids Block if he joined the Teamsters." On cross-examination, however, Edwards was uncertain as to whether Smith had referred to membership in the Teamsters Union or in the Teamsters unit. On the other hand Joseph Fiala, then president of the Building Trades Council, who also attended the meeting, testified that Smith had emphasized Johnson's being outside the bargaining unit, and had not discussed Johnson's nonmembership in the Teamsters Union. Smith's testimony as to the committee meeting was in accord with Fiala's and contrary to that of Mahannah, Dewald, and Edwards. One thing all witnesses agreed on: The committee reached no solution of the problem. Shortly after Johnson told Mahannah of the impending discharge, Mahannah telephoned General Manager Stewart about the matter, but (according to Mahannah; Stewart did not testify) Stewart "said the Company couldn't afford to have no labor trouble." Mahannah told Stewart, as he had told others, that Johnson's discharge might lead to labor trouble between the Block Company and the Operating Engineers. Following Johnson's notice of discharge on April 6, 1962, he spent the next month at the sand plant and was finally terminated on May 11. Meanwhile, the overhead crane was placed in operation, and the job of operating it was assigned to Joe Shuff, whose seniority at the J Street plant dated to May 1958, and who had been doing the yardwork which, to a large extent, the new crane took over. On May 14, when Plant Manager Jasien left the Block Company, various promotions resulted, and Shuff became a foreman. The overhead crane job was then bid for by, and assigned to, one Nile Mentzer, whose seniority in the plant dated to April 1959. C. Concluding findings On the foregoing facts, I find that Johnson was discharged because the disposition of the sand plant meant that his retention as potential operator of that plant was no longer warranted. To be sure, but for the attitude of the Teamsters, Johnson would have been retained to operate the overhead crane. But the Teamsters posi- tion that the new crane job was subject to bidding under their contract was proper and lawful, and Johnson could not have been awarded that job over Shuff, whose seniority at the plant exceeded Johnson's, even if the latter be viewed as acquiring seniority in January 1959 when he started to work primarily at the J Street plant .5 Moreover, Johnson had never been considered or treated as a member of the J Street bargaining unit, and had no claim to any seniority standing there. As his exclusion from the unit was by the common consent of all concerned, I find no merit in General Counsel's contention that Johnson was as matter of law a part of that unit, but even if he be so regarded, he would have had no right to the new crane job. As his own testimony discloses that he would have accepted no other job at the time of his discharge, I find nothing unlawful in the conduct of the 5 General Counsel in the course of his unusually fine brief lays some stress on Johnson's conversation with Shuff when the overhead crane was acquired in which Shutt said ( accord- ing to Johnson) that this was Teamsters equipment and he would operate it. Shuff's version is that he said , "That is a piece of yard equipment , and it will belong to our bargaining unit." I find, first, that Shuff, who was an assistant steward , was not speaking as a union agent, and , second , that under Johnson's version , Shuff's remark was not under the circumstances violative of the Act or evidence of discrimination against Johnson for nonmembership in the Teamsters I credit Johnson's version of the conversation , however. 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer in discharging him or in the conduct of the Teamsters in opposing his employment on the overhead crane. In my view, all parties treated Johnson until his discharge as an employee of the Sand Company, and not of the Block Company, on loan to the latter until such time as the former should require his services. The record clearly establishes that the potential recall of Johnson to sand plant work was a real possibility throughout his employment. To be sure, the interlocking nature of the two companies was such that either might be liable for unfair labor practices committed by the other. The case, indeed, would be no different if the sand plant had not been separately incorporated but had been merely another division of the Block Company. So viewed, Johnson was on loan from one division to another, but he acquired no seniority in the division to which he was temporarily loaned. Even if, for example, Johnson had been a member of the Teamsters and part of the bargaining unit at another plant, his seniority rights to bid on the overhead crane job at J Street would have been inferior to those of Shuff, who preceded him at that plant, and might have been inferior to Mentzer, who followed him at J Street but was always a permanent part of that unit. I find, in short, that the Sand Company discharged Johnson, that the Block Com- pany then declined to hire him for the crane job (the only kind of job he would have considered), and that neither of those actions was connected in any way with his union membership or lack thereof. It is true that Stewart, when told by Sand Company officials to notify Johnson of his discharge, wrote Johnson a letter over the signature of the Block Company, but such inadvertent errors were not infrequent in the office which served not only these two companies but others equally interrelated with the Block Company. And, to repeat, the existence of a separate sand corporation clarifies but does not control the situation; the result is the same viewing the employer as a single entity with separate places of operation In reaching the above conclusion I have resolved the several conflicts in testimony noted in the course of this report by crediting Smith, Becker, and Jasien where their testimony is in conflict with that of Johnson and Mahannah Primarily, I find that the Teamsters were insisting that the crane job (and Johnson if he was to continue to work at J Street) would be a part of their unit, not that Johnson join their union. Iowa has a "right to work" law which precludes insistence on union membership as a condition of employment, and this fact must have been well known to Mahannah, Smith, and the other union business agents who participated in the committee meeting under the auspices of the Building Trades Council. I there- fore credit the testimony of Smith and Fiala that the former insisted at that meeting on unit, rather than on union membership for Johnson. The pressure of the Teamsters, to which Stewart and Pappenfus allegedly referred in conversations with Johnson and Mahannah, was pressure to recognize that the new crane job was subject to their contract, as it was. If the effect of this was that Johnson would not get to operate the crane, this is a concomitant of proper allocation of the job, and not an attempt to cause Johnson to lose employment because of nonmembership in the Teamsters . Similarly the threat of "labor trouble" meant no more than that the Teamsters would insist on proper application of their contract. I credit Jasien's version of his conversation with Johnson, and find that Jasien said that Johnson might get the new crane job without opposition from the Teamsters if he would join the bargaining unit. This would have entailed Johnson 's taking employment subject to the terms of the Teamsters contract and accepting the Teamsters as his bargaining representative, which he was unwilling to do. It would not have neces- sitated his joining that Union, although it is possible that he misunderstood Tasien (and on another occasion Becker) on this point. Jasien's view was that the Team- sters might not have pressed the seniority matter against the well-liked Johnson, whose presence in the plant as operator of power equipment had long been accepted. And, as noted above, had Johnson followed Jasien 's suggestion , he might have achieved the crane job at that time or a month later when Shuff was promoted. General Counsel's view of the case, briefly summarized, is that as soon as Johnson's special protection-the possibility of reopening the sand plant-disap- peared, the Teamsters enforced their claims to the crane job and challenged his right thereto, ostensibly on grounds of seniority, but that this challenge would never have been pressed had Johnson joined their union. This view depends upon resolving certain ambiguities in the testimony and certain credibility issues, discussed above, in favor of the Charging Parties and against Respondents Upon my consideration of the record and my observation of the witnesses, I am impelled to a contrary resolution. THE CROSS COiAPANY 1005 CONCLUSIONS OF LAW 1. Respondent Employers are engaged in commerce within the meaning of the Act. 2. Respondent Teamsters and the Operating Engineers are labor organizations within the meaning of the Act. 3. Respondents have not engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER The complaint herein should be, and hereby is , dismissed. The Cross Company and International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, and its Local Union No. 155, Inter- national Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO. Cases Nos. 7-CA-278-1, 7-CA-2782-2, and 7-CA-3233. July 31, 1963 DECISION AND ORDER On June 21, 1962, Trial Examiner Leo F. Lightner issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take affirmative actiot _, as set forth in the attached Intermediate Report. Thereafter, the Respondent and the Charging Party filed exceptions to the Inter- mediate Report, together with supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings, except as noted herein, are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record herein, and finds merit in the Respondent's exceptions. Accordingly, it adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent consistent herewith. Background In April 1957, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, and its Local Union No. 155, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW- AFL-CIO, herein together referred to as the Union, were jointly certified as bargaining representative of the employees at the Fraser, Michigan, plant of The Cross Company, herein referred to as Re- spondent. A collective-bargaining agreement entered into between the 143 NLRB No. 88.