Local 106, Int'l Union of Operating Engineers

LOCAL 106, INT'L UNION OF OPERATING ENGINEERS 573 Local 106, International Union of Operating Engineers, AFL- CIO [Machnick Construction Co., Inc.] and Raymond J. Dahoda. Case No. 3-CB-680. April 1, 1964 DECISION AND ORDER On January 2, 1964, Trial Examiner Joseph I. Nachman issued his Decision 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 cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Trial Examiner's Decision and the Re- spondent's exceptions and brief, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner with the follow- ing additions and modifications. The Trial Examiner found that the Respondent Union caused and attempted to cause Machnick Construction Co., Inc., the Employer herein, to discriminate against Dahoda, the Charging Party, in viola- tion of Section 8(b) (2) and (1) (A) of the Act. We agree with the Trial Examiner's conclusions. We do not, however, adopt all his findings, but rely only on the facts set forth below. During the spring of 1963, the Employer, who had no collective- bargaining contract with the Respondent Union, was engaged in sev- ,eral construction jobs in New York State, including an office building in Troy and a school in Voorheesville. Dahoda, who was not a mem- ber of the Respondent Union, had worked for the Employer as a la- borer, but, when he showed proficiency, in operating machines, was per- mitted to perform some work as an engineer. He continued, however, to be classified and paid as a laborer. In late May or early June, Dahoda was the only employee working on the Troy job as an operating engineer when the Employer's president, Machnick, received a tele- phone call from the Respondent's business manager, McGraw.' who told Machnick that there was a man on the Troy job who did not belong to the Respondent Union. Machnick admitted this was so and re- As Machnick had frequently talked with McGraw on the telephone, he was able to identify McGraw's voice. We therefore find without merit the Respondent's objection to this evidence. 146 NLRB No. 72. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quested that the man be made a member. When McGraw refused, and said he would picket if the man continued to work at the project, Machnick replied that he would take him off the job at the end of the day. Machnick transferred Dahoda to another job location. About June 10, Dahoda was assigned to the Employer's Voorhees- ville school job as an engineer operating mechanical equipment, at the rate of pay provided in the Respondent's area contracts for such work. He was the only operating engineer working on the school job. On June 20, McGraw and the Respondent's business agent, Moran, visited the school job, and (1) asked Dahoda, who was operating a Traxcava- tor at the time, if he had a book to operate the machine, to which Dahoda replied that he did not; (2) told Wolfstich, the plumber fore- man, that Dahoda was nonunion, was operating a payloader, and the job would probably be picketed; and (3) told Superintendent Conde that a nonunion man was operating the Traxcavator 2 The following morning, Friday, June 21, the Respondent picketed the school job with signs reading: "On Strike. No members of Engi- neer Local 106 employed on job. Machnick." None of the Employer's other jobsites was picketed. On the same day, Machnick transferred Dahoda to another job location as a laborer. On June 22, General Manager Comeau left a message at McGraw's office that Dahoda had been taken off the school job, and that the Employer wanted an engineer to report to that job on Monday, June 24. No engineer reported on Monday, and McGraw told Comeau over the telephone that he had received Corneau's message, but would not send a man because he regarded Machnick as a nonunion con- tractor in view of the fact that Machnick had no collective-bargaining contract with the Respondent Union. On June 28, Machnick signed a contract with the Respondent, and the picket line was removed that same 'day.3 2 We do not adopt the Trial Examiner's findings as to a conversation between Dahoda and an unnamed visitor on the Troy job, or as to a telephone conversation between Machnick and a person alleged to be McGraw 's secretary, as the individuals with whom Dahoda and Machnick had these conversations were, in our opinion, not adequately identi- fled. Moreover, we do not adopt the Trial Examiner's findings that Dahoda was emphatic, in his testimony, that the compressor was not running during the time McGraw and Moran were at the school jobsite, and that McGraw testified he saw the compressor run- ning, as these findings are not supported by the record . Our disagreement with the Trial Examiner in these respects does not affect the Trial Examiner's ultimate conclusions nor our agreement therewith. 3 Machnick subsequently assigned Dahoda to an operating engineer 's duties at other job- sites, but paid him at the laborer 's rate because, Machnick told him, he was not a member of the Respondent Union. The Respondent contends, in its exceptions , that it is not in any event liable for any discrimination against Dahoda after June 28, when Machnick signed its contract, because ( 1) the Respondent Informed Machnick"at that time that the signing of the contract did not concern Dahoda in any way ; and (2 ) Machnick's failure to pay Dahoda the operating engineer 's rate for such work was contrary to the provisions of the Respondent's contract. As the Respondent failed, however , to notify both Machnick and Dahoda, in writing, that it had no objection to the employment of Dahoda as an engineer, we find no merit in this contention : Local Union 595, International Association of Bridge, Structural and Ornamental Iron Workers, AFL (R. Clinton Construction Com- pany), 109 NLRB 73. 1 LOCAL 106, INT'L UNION OF OPERATING ENGINEERS 575 The Trial Examiner found, and on the basis of the foregoing facts we agree, that: McGraw's claim that he caused the picketing only to get a contract from the Employer was an afterthought; McGraw in fact threatened to picket the Troy job and picketed the school job -because Dahoda, who was not a member of the Respondent Union, was operating equipment which McGraw felt should be operated only by members of the Respondent; the Respondent thereby attempted to cause, and caused, the Employer to discriminate against Dahoda in violation of Section 8(a) (3) ; and the Respondent thus violated Sec- tion 8(b) (2) and 8(b) (1) (A) of the Act. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, with the following modifications 4 1. Substitute the following for the first paragraph : Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, its officers, agents, representatives, successors, and assigns, shall: 2. Delete the words "or any other employer" from paragraph 1(a) . 4 The notice shall be amended by deleting the words "or any other employer" from the first indented paragraph. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This matter, heard before Trial Examiner Joseph I. Nachman at Albany, New York, on September 17,1 involves allegations that Local 106, International Union of Operating Engineers, AFL-CIO (herein called the Union or Respondent), violated Section 8(b)(2) and (1)(A) of the National Labor Relations Act, as amended (herein called the Act), by causing or attempting to cause Machnick Construction Co., Inc. (herein called Machnick Construction, the Company, or the Employer), to discriminate against Raymond J. Dahoda (herein called Dahoda ), in violation of Sec- tion 8 (a) (3) of the Act 2 At the hearing, the parties were afforded full opportunity to present evidence , to examine and cross-examine witnesses, and to argue orally on the record. Upon conclusion of the testimony, Respondent moved to dismiss the charge and the complaint for lack of evidence to establish a violation of the Act as alleged. The motion was taken under advisement , and is disposed of in ac- cordance with the findings and conclusions hereafter set forth. The General Counsel and Respondent then argued orally on the record, and Respondent thereafter sub- mitted a brief, all of which has been duly considered. Upon the entire record in the case and from my. observation of the witnesses, in- cluding their demeanor while testifying , I make the following: FINDINGS OF FACTS 1. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Employer is engaged as a general contractor in the building and construction industry in the Albany, Troy, and Schenectady, New York, area. During the late 1 Unless otherwise noted, all dates mentioned herein are In 1963. 2 The charge was filed and served June 27 ; complaint issued August 5. 8 The complaint alleges, and the answer admits. facts which establish that the Company is engaged in commerce, and that Respondent is a labor organization within the meaning of the Act. I so find. 744-670-65-vol. 146-38 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spring and early summer (the period involved in this proceeding), the Company was engaged in the performance of some seven or eight jobs, including the erection of an office building in Troy (herein called Troy job), and building an addition to, and remodeling, a school building at Voorheesville, New York (herein called school job). Each job is under the supervision of a superintendent. For some years in the past the Company had been under contract with the Union. The practice was for the Union to negotiate a contract with an employer associa- tion,4 and then send copies of the contract to the various employers who would then sign it and thus become bound by its provisions. Although the Union sent Machnick Construction copies of the 1960 and 1962 contracts after they were sever- ally negotiated, Machnick Construction did not sign those documents. However, Machnick Construction's supervisory personnel testified that they abided by the pro- visions of the effective contract, including the rates of pay therein provided. There is no contention by the General Counsel that the several contracts contain any union- security clause invalid on its face, or that the Union's hiring hall was operated in a discriminatory manner.5 In April, Alex Machnick, president of Machnick Construction, hired Dahoda, the Charging Party, as a laborer, but soon discovered that Dahoda showed some profi- ciency in the operation of mechanical equipment. Dahoda was permitted to operate some machinery while classified and paid as a laborer, ,and at a latter date, as here- after set forth, was classified and paid as an engineer. B. Current facts Because the issue in this case is in the main factual rather than legal, and requires some credibility resolutions on conflicting testimony, I regard it appropriate to set forth separately the versions of testimony introduced by the respective parties. 1. The General Counsel's case In the latter part of May or early June, Dahoda worked for a period on the Troy job as a laborer. While so employed, he did, from time to time, operate equipment. During this period Dahoda reported to Alex Machnick that he (Dahoda) had been approached on the job by an unidentified man who asked if Dahoda was a member of Respondent Union, and that he had replied that he was not. The following day Machnick received a telephone call from Daniel J. McGraw, Respondent's business manager, who stated that there was a man on the Troy job who did not belong to the Union. Machnick admitted this was so, but stated that he wanted to have that man put in the Union. McGraw replied that he could not or would not do that, and that if the man continued to work at the project, he (McGraw) would have to picket. Machnick told McGraw that he would take the man off the job at the end of that day. At the time of this conversation, Dahoda was the only nonunion man on the job operating mechanical equipments At the end of that day Dahoda was transferred to another job, where he worked for a few days as a laborer, and on or about June 10 (the exact date being unimportant), he was assigned to the school • The evidence does not show whether the Company was a member of this association. 5 With respect to the hiring of personnel the current contract, to the extent here mate- rial, provides: If an engineer is required on the job and if the employer shall request the Union to furnish the same, the employer shall give the Business Representative twenty- four (24) hours' notice in advance. In the meantime, no employer shall operate any machinery with other than an engineer. In case any machinery is operated by anyone not an engineer before the twenty-four (24) hours has expired , the contractor shall pay double time to the engineer furnished , if any. EXCEPTION: For extreme emergency, machine can be operated until engineer arrives. [Emphasis supplied ] Although the "Work Jurisdiction" article of the contract provides that all machinery "shall be operated by an engineer," the word "engineer" is not defined in the agreement, nor is there any evidence in the record as to how the parties applied that word in practice. McGraw denied that he had' any such conversation with Machnick, claiming that he had not spoken to Machnick at any time within the 6 months prior to June 28, `when Machnick signed the current contract with the Union as hereafter set forth. This conflict in the evidence will hereafter be resolved. LOCAL 106,-INT'L UNION OF OPERATING ENGINEERS 577 job as an operating engineer, for which work he was paid the rate provided in the Union's then current contract? On or about June 19, Machnick received a message that McGraw had telephoned his office. Machnick returned the call but McGraw was not available and Machnick was referred to a lady who identified herself as McGraw's secretary. Machnick asked the secretary if she knew why McGraw had called him. Her reply was that she thought it was about the nonunion man on the school job. Machnick explained that this was the same man who had been on the Troy job and that he had asked McGraw to put him into the Union, and requested that she have McGraw call him (Machnick) back. Machnick received no further call from McGraw.8 On June 20, McGraw, accompanied by Respondent's business agent, Paul Moran, went to the school job. They talked first with Dahoda who was at the time operating a Trax- cavator. McGraw asked Dahoda if the.latter had a book to operate the machine. Dahoda said he did not. According to Dahoda, he had not operated the forklift that day, but did not remember whether he had operated the compressor that morning or not. He was emphatic, however, that the compressor was not running during the time he saw McGraw and Moran on the job, and that he never operated either the Traxcavator or the forklift and the compressor at the same time. After talking with Dahoda, McGraw and Moran talked with Wolfstich, the plumber foreman on the school job. Wolfstich and McGraw had known each other for some years, and according to Wolfstich, after some pleasantries, McGraw pointed to Dahodda and stated, in substance, that boy is nonunion, he has been operating a payloader, and that the job would probably be picketed. Wolfstich further testified that he had no recollection of McGraw saying anything about not having a contract with Machnick Construction. Lloyd Conde, superintendent for Machnick Construction at the school job, testi- fied that he did not see McGraw and Moran come onto the job on June 20, but did observe them from his trailer office window located just across from the only entrance to the project, talking to Dahoda near the Traxcavator which the latter had been operating. Shortly thereafter McGraw and Moran came by Conde's office and McGraw told the latter that the job was being run nonunion, that a nonunion man was operating the Traxcavator. Conde made no statement. McGraw asked Conde to tell Machnick that he and Moran had been there. According to Conde, the compressor was not in operation on the day McGraw and Moran were on the job, and that when he, talked to them neither said anything about a contract, rates of pay, or welfare benefits. The following morning (Friday, June 21), Respondent picketed the school job with signs reading "On Strike, No members of Engineers Local 106 employed on job. Machnick." All employees, including Dahoda, honored the picket line. The following day (June 22), Raymond Comeau, general manager of Machnick Construction, telephoned the office of Local 106 and asked for McGraw. Told by the girl who answered the telephone that McGraw was not available, Comeau asked that McGraw be informed that Dahoda was off the school job as of that day, and that they wanted an engineer to report to the job the following Monday, June 24. On Monday, no engineer having reported for duty, Comeau again called Respond- ent's office and on this occasion finding McGraw, asked the latter if he (McGraw) had received the message Comeau had left and why a man had not reported to the school job. McGraw admitted that he had received Corneau's message, but that he regarded Machnick as a nonunion contractor and would not send him a man. 7 7 However, the Company made no payments to the pension or welfare funds on account of Dahoda's employment. As the Company interprets the contract such payments are re- quired only for union members. Respondent disagrees with that interpretation, but reso- lution of that issue is unnecessary to a disposition of the case. 8 Machnick was permitted to testify as above set forth over objection by Respondent that the statement attributed to the secretary was hearsay and not binding on Respondent The evidence shows that Jane Kositzka, the daughter of Business Manager McGraw, is an office secretary for Respondent. She performs the usual duties of an office secretary: dictation. typing , taking registration of workers desiring placement on the Union's hiring register, answering the telephone, including calls from, employers requesting the referral of men ; and dispatching men to the various jobs as requested by the employers . There is another woman clerical in Respondent's office who performs substantially the same duties as Jane Kositzka . Neither of these clericals testified . The objection to the testimony of Machnick regarding his conversation with "McGraw's secretary," is renewed in Respond- ent's brief. I conclude that this evidence was properly ,received as an admission made by Jane Kositzka in the line of her duties and hence binding on Respondent. 578 DECISIONS ;OF, NATIONAL LABOR RELATIONS BOARD McGraw and Corneau did not discuss other Machnick Construction jobs, and the record is silent as to whether or not members of Local 106 were employed at such other jobs. On June 28, Alex Machnick and General Manager Corneau went to the office of Local 106 to discuss signing a contract. They met with McGraw and Respond- ent's counsel, Sol Rubenstein. On that occasion Machnick signed a contract and upon such signing the pickets that had been placed at the school job on June 21 were removed. All parties concede that during the discussion on June 28, Ruben- stein stated that the signing of the contract did not concern Dahoda in any way. On June 24, Dahoda was told by Alex Machnick that he (Dahoda ) was being transferred from the school job to another project , and that he would thereafter work and be paid as a laborer, because he was not a member of Respondent Union .9 2. Respondent's case McGraw denied that he had any conversation with Alex Machnick concerning the Troy job; claiming that he had not spoken with the latter for about 6 to 8 months prior to June 28, when they met in the Union's office to sign the current contract. With respect to the school job, McGraw testified that he received some telephone calls, beginning in the "early part of June," that machinery was being operated without being "manned by operators," 10 but did not "get around" to doing any thing about the matter . McGraw further testified that : such a call came to him from one of his members on June 20 ; he went to get the then current contract which he assumed Machnick had- signed , but found that Machnick has not returned a signed copy of that contract, -or of the two preceding ones; accompanied by Moran, he went to the school job where he found Dahoda operating the Traxcavator, heard a compressor running at the rear of the building, and sawn forklift which was not being operated sitting in front of the building. McGraw admits that while on the school job he talked with Dahoda, asked the latter whether he was an engineer, and, upon receiving a negative response , asked if Dahoda worked for Machnick, and that Dahoda replied that he did. According to McGraw, this was, in substance, his entire conversation with Dahoda. McGraw admitted that while on the school job he talked with Wolfstich, but he gave a different version of what was said than did Wolfstich . According to McGraw, he and Moran were approached by Wolfstich who commented , "What's going on; they are running wild up here," and that he (McGraw) replied, "That's why we are here; we are going to put a picket on to get a contract." McGraw also admits that as he and Moran were leaving the jobsite , he had a conversation with Superintendent Conde, but as in the case of Wolfstich , his version of the conversation differs from that of Conde . According to McGraw, as he and Moran were preparing to leave the jobsite , Conde approached asking what the trouble was, and that he told Conde that he was going to picket -to get a contract; that Conde asked why he did not wait and talk to Machnick, and that he (McGraw) replied in substance that the time for talking had passed , that he was going to picket. McGraw denied that he told Conde, Comeau, Alex Machnick, or anyone else that he picketed the school job because Machnick had a nonunion operator on that job. Moran, the only other witness called by Respondent, generally cor- roborates McGraw, although in some minor details, hereafter referred to, his testi- mony varies somewhat from that of McGraw. 3. Credibility resolutions and concluding findings - - I do not credit McGraw's claim that he caused the school job to be picketed only to get a contract from Machnick Construction , or his denial that he threatened Machnick with picketing of the Troy job if Dahoda worked there as an operating engineer. On the contrary, considering the evidence as whole , I am convinced and so find, that McGraw's claim that he caused the picketing only to get a contract was a mere afterthought, and that he in fact threatened to picket the Troy job, and subsequently picketed the school job, because Dahoda, who was not a member of the Union, was operating equipment which McGraw felt should be operated only by members of Respondent. Several factors lead me to that conclusion. 9 This evidence was received over Respondent's objection for the limited purpose of showing that Machnick had in fact discriminated against Dahoda because of his nonunion status. It was not received as binding on Respondent, and I shall make no finding against Respondent based on that particular evidence '10 McGraw first testified that he did not understand this to mean that no human was in attendance on the machine ; being in the business he "understood it the right way." At a later point he stated he understood that the machinery was operating itself. LOCAL 106, INT'L UNION OF OPERATING ENGINEERS 579 Neither McGraw nor Moran impressed me as a credible witness. McGraw's testimony that he was unaware for some 3 years, during which period several con- tracts were in effect, that Machnick Construction had not signed the contracts, and that he discovered this fact only when he received complaints that machinery was being operated at the school job without being "manned by operators," I find diffi- culty in believing. However, I assume this to be a fact. McGraw testified that his reason for going to the school job on June 20 was to find out if the aforemen- tioned complaints were in fact true. He admittedly was aware before he went to the school job on June 20 that Machnick Construction had not signed a contract. Obviously, an inspection of the job was unnecessary if McGraw's only purpose was to get a contract. The visit was meaningful, however, if the purpose was to ascer- tain whether a nonunion operator was on the job. The latter purpose is indicated by McGraw's admitted question to Dahoda whether the latter was an "engineer." Dahoda, who impressed me as an honest and credible witness, however, testified that the question McGraw put to him was whether he (Dahoda) had a "book" to operate the Traxcavator. When asked by the Trial Examiner what made one an "engineer," McGraw would only say "practice." It is also worthy of note that McGraw's claim that he saw,the compressor in operation and that it was unattended is not only denied by the testimony of Conde and Dahoda, but is to an extent in- consistent with the testimony of Business Agent Moran, the only other witness called by Respondent. The evidence shows that McGraw and Moran were together at all times while on the job yet Moran testified only that he heard the compressor running; he did not claim that he actually saw the compressor running unattended. Also, Conde, whom I credit, testified that when McGraw and Moran talked with him at the jobsite on June 20, McGraw's sole complaint was that the job was being run nonunion because a nonunion man was operating the Traxcavator; that McGraw made no reference to the compressor, to the absence of -a contract, or a failure to comply with contract provisions. Wolfstich, a wholly disinterested witness, also testified that McGraw's only complaint was that Dahoda was nonunion and was operating equipment. Finally, I deem it highly significant that while Machnick Construction had seven or eight jobs going in the area, the school job was the only one picketed. McGraw's stated reason for so confining the picketing was that this was the job which gave rise to the complaint. I am convinced, and so conclude, that his real reason was that this was the only job on which Dahoda worked on as an engineer. My finding that Respondent's real motive in threatening to picket the Troy job and picketing the school job was that Dahoda, a nonmember of Respondent Union, was operating mechanical equipment, and thus to bring about the termination of the latter's employment as an operating engineer, necessarily results in a finding that Respondent attempted to cause, and caused, Machnick Construction to dis- criminate against Dahoda in violation of Section 8(a) (3) of the Act, and that Respondent thereby violated Section 8(b) (2) and (1) (A) of the Act. Local Union No. 18, International Union of Operating Engineers et al. (Earl D. Creager, Inc.), 141 NLRB 512; Local Union No. 369 of the International Brotherhood of Elec- trical Workers, et al. (Charles A. Bentley d/b/a Bentley Electric Company), 143 NLRB No. 116.11 H. THE REMEDY Having found that Respondent • has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Specifically, it will be recommended that Respondent be ordered to notify Machnick Construction, in writing, and Dahoda, that it withdraws its objection to the employment by Machnick Construction of Dahoda in the capacity of an operating engineer, should Machnick Construction so desire. It will also be recommended that Respondent be required to make Dahoda whole for any loss of pay be may have suffered by reason of the discrimination practiced against him, as above set forth, by paying to him a sum of money equal to the difference between what he would have earned if compensated at the rate of pay for an engineer, and the amount he was in fact paid at laborer's u Although unnecessary to a decision, it may be noted that even if it should be found that Machnick Construction had by custom and practice bound itself to Respondent's con- tract, that contract would not constitute a defense to Respondent's conduct found herein because the contract does not contain an exclusive hiring provision. See footnote 5, supra. The contract only provides that the Union shall have the opportunity to supply men if the employer makes such a request. The employer is free to obtain men from any source, if it so elects. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rates for services performed for Machnick Construction , during the period beginning June 24, 1963, and ending when Dahoda is or was terminated by Machnick Con- struction for lawful reasons , or until 5 days after Respondent has notified Machnick Construction, as above set forth, that it has no objection to the employment of Dahoda as an operating engineer, whichever event should first occur. Loss of pay, as aforesaid, shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and shall bear interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Machnick Construction is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening to picket the Troy job if Dahoda, who was not a member of Respondent Union, continued to work there, and by picketing the school job because Dahoda worked there, all as found in section I above, Respondent attempted to cause and caused Machnick Construction to discriminate against Dahoda in violation of Section 8(a)(3) of the Act, and restrained and coerced employees in the exercise of rights guaranteed to them by Section 7 of the Act, thereby engaging, in unfair labor practices within the meaning of Section 8(b) (2) and 8(b) (1) (A) of,the'Act. 4. The aforesaid unfair labor practices are unfair labor practices 'affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Respondent Local 106, International Union of Operating Engineers, AFL-CIO, its officers, agents, repre-- sentatives, successors, and assigns, shall: 1. Cease and desist from: (a) Causing or attempting to cause Machnick Construction Co., Inc., or any other employer, to discharge, demote, deny employment to, or otherwise' discrimi- nate against Raymond J. Dahoda in violation of Section 8(a)(3) of the National Labor Relations Act, as amended, because of his nonmembership in Local 106, International Union of Operating Engineers, AFL-CIO. (b) In any like or related manner restraining or coercing Raymond J. Dahoda, or any other employee, in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Make whole Raymond J. Dahoda for any loss of earnings he may have suffered by reason of the discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Machnick Construction Co., Inc., and Raymond J. Dahoda, in writ- ing, that it has no objection to, and will not interfere with, the employment by Machnick Construction Co., Inc., of Raymond J. Dahoda in the capacity of and as an operating engineer, should they so desire; and also notify Raymond J. Dahoda, in writing, that henceforth it will not unlawfully infringe upon any rights guaranteed to him by Section 7 of the National Labor Relations Act, as amended. (c) Post at its offices, meeting halls, and hiring halls, copies of the attached notice marked "Appendix." 12 Copies of said notice, to be furnished by the Regional Director for the Third Region of the aforesaid Board (Buffalo, New York), shall, after being duly signed by Respondent's representative, be posted by it immediately upon receipt -thereof, and maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 12In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." LOCAL 1, INT'L BROTHERHOOD ELECTRICAL WORKERS 581 (d) Additional copies of the attached notice shall be signed by Respondent's authorized representative, and forthwith returned to the aforesaid Regional Director for posting by Machnick Construction Co., Inc., said employer being willing, at its business offices and construction projects, where notices to its employees are customarily posted. (e) Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps Respondent has taken to comply herewith.13 131n the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 106, INTERNATIONAL UNION OF OPERAT- ING ENGINEERS, AFL-CIO, AND TO ALL EMPLOYEES OF MACHNICK CON - STRUCTION CO., INC. Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause Machnick Construction Co., Inc., or any other employer, to discharge, demote, deny employment to, or otherwise discriminate against Raymond J. Dahoda because he is not a member of this. union. WE WILL NOT in any like or related manner restrain or coerce Raymond J. Dahoda, or any other employee, in the exercise of his rights guaranteed by Sec- tion 7 of the National Labor Relations Act, as amended. WE WILL notify Machnick Construction Co., Inc., in writing, that we have no objection to, and we will not interfere with, its employment of Raymond J. Dahoda in the capacity of and as an operating engineer, whether he is a mem- ber of this union or not. WE WILL notify Raymond J. Dahoda that we have no objection to his em- ployment by Machnick Construction Co., Inc., in the capacity of and as an operating engineer, whether he is a member of this union or not, and that here- after we will not unlawfully infringe upon any right guaranteed to him by Sec- tion 7 of the National Labor Relations Act, as amended. WE WILL make whole Raymond J. Dahoda for any loss of earnings he may have suffered as a result of the discrimination against him. LOCAL 106, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, 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. Employees may communicate directly with the Board's Regional Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No. TL 6-1782, if they have any question concerning this notice or compliance with its provisions. Local Union No. 1, International Brotherhood of Electrical Workers, AFL-CIO and McDonnell Aircraft Corporation and District No. 9, International Association of Machinists, AFL- CIO. Case No. 141-CD-157. April 1, 1964 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10 (k) of the Act follow- ing charges filed by McDonnell Aircraft Corporation, herein called the 146 NLRB No. 73.