Hoisting & Portable Engineers No. 701

HOISTING & PORTABLE ENGINEERS NO. 701 49 Clericals : The record reveals that the work of the clericals in the service, installation, shipping, and receiving departments brings them in frequent contact with the other employees of the warehouse build- ing and that the duties are a part of the functional operation of the warehouse. Under the circumstances, we believe that the clerical em- ployees are plant clericals whose interests are closely related to those of other warehouse building employees, and we include them in the unit. Accordingly, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All employees employed by the Employer at its warehouse service center located at Second and Clark Avenue building in Evansville, Indiana, including plant clericals and tire salesmen, but excluding guards, professional employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Hoisting and Portable Engineers Local No. 701, International Union of Operating Engineers, AFL-CIO and Darwin T. Chapek and Peter Kiewit Sons' Co., Party to the Contract . Case No. 36-CB-326. April 22,1965 DECISION AND ORDER On October 12, 1964, Trial Examiner Howard Myers issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in his attached Decision. Thereafter the Charging Party filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 De- cision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner with the following modifications : I As no exceptions were filed with respect to the Trial Examiner 's findings that the Respondent violated Section 8 ( b)(1)(A) and ( 2) of the Act, we adopt these findings pro forma. 152 NLRB No. 6. 789-730-66-vol. 152-5 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Charging Party excepted, in part, to the Trial Examiner's remedy that would only make Chapek whole for any loss of pay from May 14 to May 19, 1964, the date that Chapek was referred to The Dalles project as an oiler. We find merit in this exception. The Trial Examiner properly concluded that the discrimination caused by Respondent commenced at the end of the May 13 shift when Chapek was taken off the scraper-operator job because he did not possess an operator's card. Since Chapek's replacement continued to work dur- ing the strike, it appears that Chapek would also have continued his employment as scraper operator at least during the entire period of the employment of his replacement but for the discrimination caused by the Respondent. Accordingly, we will modify the remedy recom- mended by the Trial Examiner and order the Respondent to make Chapek whole for any loss of pay from the time he was laid off on May 13, 1964, and continuing for such period as he would have worked as scraper operator but for the discrimination against him caused by Respondent, by payment to him of a sum of money equal to what he would have earned, less net earnings, to be computed on a quarterly basis as in F. W. Woolworth Company, 90 NLRB 289, with interest computed as set forth in Isis Plumbing d Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner and orders that Respondent, Hoisting and Portable Engineers, Local No. 701, Inter- national Union of Operating Engineers, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, with the following addition : Substitute the following paragraph for paragraph 2(a) in the Trial Examiner's Recommended Order : "2(a) Make whole Darwin T. Chapek for any loss of pay he may have suffered by reason of his layoff in the manner and according to the method set forth above in the Board's Decision." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge duly filed on May 14, 1964, by Darwin T. Chapek, the General Counsel of the National Labor Relations Board, herein called respectively, the Gen- eral Counsel 1 and the Board , through the Regional Director for Region 19 (Seattle, Washington), issued a complaint, dated June 18, 1964, against Hoisting and Portable Engineers Local No. 701, International Union of Operating Engineers, AFL-CIO, herein sometimes called Respondent or the Union , alleging that Respondent has en- gaged in, and is engaging in, unfair labor practices affecting commerce, within the meaning of Section 8 (b)(1)(A) and (2) and Section 2(6) and (7) of the National Labor Relations Act, as amended, 61 Stat . 136, herein called the Act. 1 This term specifically includes counsel for the General Counsel appearing at the hearing. HOISTING & PORTABLE ENGINEERS NO. 701 51 Copies of the charge and the complaint, together with notice of hearing thereon, were duly served upon Respondent and upon Peter Kiewit Sons' Co., herein called Kiewit, a party to a certain written collective-bargaining agreement. Copies of the complaint and notice of hearing were duly served upon Chapek. Specifically, with respect to the unfair labor practices, the complaint alleged that on May 14, 1964, Respondent caused Kiewit to discharge or lay off Chapek, in viola- tion of Section 8 (a) (3) of the Act in that Respondent refused to grant Kiewit per- mission to transfer Chapek from one job within the contractual bargaining unit 2 to another job within said unit and when Kiewit did so transfer Chapek, Respondent caused Chapek's removal thereupon for reasons other than his failure to tender the customary union dues and initiation fees. On June 24, 1964, Respondent duly filed an answer denying the commission of the unfair labor practices alleged .3 Pursuant to due notice, a hearing was held before Trial Examiner Howard Myers at Portland, Oregon, on July 8 and 9, 1964. The General Counsel and Respondent were represented by counsel who participated in the hearing. Full and complete opportunity was afforded the parties to call, examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally on the record at the con- clusion of the taking of the evidence, and to file briefs on or before August 7, 1964.4 A brief has been received from the General Counsel which has been carefully considered. At the conclusion of the General Counsel's case-in-chief, Respondent's counsel moved to dismiss the complaint. Decision thereon was reserved. The motion is hereby disposed of in accordance with the findings, conclusions, and recommenda- tions hereinafter set forth. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OPERATIONS OF THE EMPLOYER INVOLVED Peter Kiewit Sons' Co., a Nebraska corporation, has its principal offices and place of business at Omaha, Nebraska, and is engaged in the business of a general construc- tion contractor. Kiewit is engaged in, and during all times material was engaged in, construction projects in various States of the United States and in foreign countries. The employees of the specific project involved herein is located near The Dalles, Oregon, herein called The Dalles project. This project calls for the grading of the Big Eddy-Celilo section of the Columbia River Highway. Said project resulted from a contract with Oregon Highway Commission amounting to approximately $4 million. Kiewit is also a member of the A G.C. and has delegated to that organization the authority to bargain collectively for its employees and, as an A.G.C. member, is a party to a certain collective-bargaining agreement between A.G.C. and Respondent covering Kiewit's operations in the States of Oregon and part of Washington. During the year immediately preceding the issuance of the complaint herein, Kiewit, in the course and conduct of its business operations, performed services valued in excess of $1 million, of which services, valued in excess of $1 million, were performed in States other than the State of Nebraska. Upon the basis of the foregoing undisputed facts and upon the entire record in the case, it is found, in line with established Board authority, that Kiewit is engaged in, and during all times material was engaged in, a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction over these proceedings. IT. THE LABOR ORGANIZATION INVOLVED The Union is, and at all times material was, a labor organization admitting to membership employees of Kiewit. 2 Said unit was set up in the collective-bargaining agreement, In full force and effect during all times material herein, between Respondent and the Portland Chapter, Heavy and Highway Associated General Contractors of America, Inc, herein called A.G.C., the latter organization being an employer association of which Kiewit is, and at all times material was, a member, and to which organization Kiewit had delegated its collective- bargaining authority. s Before the taking of any evidence, Respondent's counsel moved to amend Respond- ent's answer to set up an affirmative defense. The motion was granted without objec- tion and the answer was deemed amended in accordance with said motion. 4 At request of Respondent's counsel the time to file briefs was extended to August 14. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The pertinent facts In July 1951, Chapek became an operator member of Respondent . Later that year, he relinquished such membership . In May 1959, Chapek again became an operator member of the Union. In September 1961 , Chapek started his employment with Kiewit as an operator at Kiewit's Gold Beach, Oregon , project. In June 1962, Chapek requested and received from Respondent its permission to change his union operator membership to an oiler membership. From the latter part of June or the forepart of July 1962, until the following December 28, Chapek worked for Kiewit as an oiler at The Dalles project of Kiewit. Upon a referral from Respondent , Chapek worked as an oiler for Kiewit from February 4, 1963, until the end of the following May. On June 2, 1963, Chapek was hired by Kiewit as an operator through Respondent's dispatch office. In about July 1963 , Chapek talked to Claude Smith , Respondent's field representa- tive for The Dalles and various other neighborhood areas and a member of its execu- tive board, about changing his oiler membership to an operator 's.5 Smith informed Chapek that he could not retransfer to an operator's membership until he had worked as an oiler for 18 months. Chapek, notwithstanding Smith's statement that he had not fulfilled the aforementioned (necessary ) 18-month requirement period , filled out and signed the transfer application card which Smith had given him and returned the card to Smith. On the occasion referred to immediately above, there was some discussion between Chapek and Smith regarding the necessity of Chapek paying a $60 fee to the Union in order to obtain an operator's membership , Chapek maintaining that he did not believe that he had to pay the $60 because he had paid $60 when he first obtained his operator's card and Smith contending to the contrary.6 In the forepart of December 1963, Chapek went to the Portland offices of Respond- ent and asked Wages whether he could regain his operator 's card. Wages replied that Chapek would have to wait until after the first of the year. Wages added, that before Chapek could obtain an operator's card his application for one had to be approved by Respondent's executive board. In the latter part of January 1964 , Chapek mailed to Respondent a check for $61.50.7 In the ordinary course of the mails, Chapek received from Respondent two receipts , each bearing the date of January 29 , 1964 ; one receipt being for $1.50 and the other for $60. The latter receipt bears the handwritten notation: "Your application for transfer will be presented [in February] to the Executive Board. I.D. cards will be forwarded after acceptance." 8 During the first week in February , after receiving the aforementioned receipts, Chapek went to Smith's home in The Dalles and asked him why he had not received his operator's card. Smith stated that he did not know and then suggested that Chapek go to Portland and ask Wages. Within a few days after his above-referred to conversation with Smith, Chapek went to Portland and saw Wages. Regarding his conversation with Wages on that occasion, Chapek credibly testified as follows: Q. All right. Will you relate as near as you can recall now the conversation that took place between you and Mr. Wages at that time? A. Yes, I went in and asked him why my card didn't get taken up in the meeting on January 29th, or the last day of the month when the Executive Board met and he said the reason they hadn't taken it up is because I had failed to send an additional 75¢ for the difference between oiler's and operator's dues for the month of January ; and I told him at that time, I didn't think that it s At the time of this conversation , Smith was aware that Chapek was working as an operator on The Dalles project 6 At some undisclosed later date, after Smith had spoken to P. R Wages, Respondent's financial secretary and business manager and a member of its executive board, Smith reaffirmed his statement to Chapek that it was necessary for the latter to pay another $60 to complete his application for an operator's card. 7 This check represented payment of the above-referred $60 fee and the difference be- tween oilers' and operators' dues for the months of February and March of 1964. The monthly oilers' dues are $5 25 and the monthly operators' dues are $6. 8 The aforementioned $61 50 check was paid by Chapek's bank and his account charged accordingly. HOISTING & PORTABLE ENGINEERS NO. 701 53 would have been necessary, due to the fact that the Executive Board met the last day of the month and I would have been an oiler all through the month of January and I wouldn't have received notification of being an operator until in February, at which time my card would come through and my dues would be current for an operator. Q. All right; and what did he tell you? A. Well, he said it didn't work that way and then I asked him if it was possi- ble to have my card set up anyhow and he said, "No." He said he was only one man on the Executive Board and that the Executive Board didn't meet until the last of February again and it would be taken up at that time .9 Under date of March 3, Wages wrote Chapek as follows: Your application to transfer from Local 701A to 701 10 was denied by the Executive Board at the meeting February 29, 1964. The enclosed check in the amount of $61.50 is a refund of the amount deposited towards your transfer application. Upon receiving, on or about March 5, the above-mentioned Wages' letter, Chapek went to Smith's home and asked him if he knew why the executive board had re- fused to grant his application for an operator's card. Smith replied, to quote from Chapek's credible testimony, "The only thing that he thought might have any bear- ing on the case was the fact that I was still working as an oiler; and he said had I been on the out of work list, that he thought possibly they might have given me my card as an operator." On or about March 7, Chapek talked to Wages about the rejection of his applica- tion. According to Chapek's credible testimony the following ensued: I asked him as to why I hadn't gotten my card and be said, "Well," he says, "there's too many men on the out of work list at this time to grant you your card right now," and he said, "you'd just better stay on as an oiler until later on in the season when the work opens up and there's not quite so many men on the out of work list. And later on in the season," he said, "we'll dis- patch you out as an operator, and at that time," he says, "you can come in and pay the difference between the cards and so on," and I says, "Well, just a min- ute now," I says, "I don't want to just go out on any job that comes along, because," I says, "I've been with the company now for some time and they've got quite a little work. I'm well satisfied there and that if there came a job open there, that's where I wanted to be." On May 4, the Laborers Union struck The Dalles Kiewit project Since Respond- ent did not honor the Laborers picket line, Chapek continued working on his oiler job. Because the Teamsters Union did honor the Laborers picket line, the work its members had been performing prior to said strike came to a halt, Kiewit was obliged "to shut down the shovel" which Chapek was then oiling, Kiewit then assigned Chapek to an oiler's job on the dragline. When Chapek reported for work on the evening of May 11,11 Dwaine Schubert, the project night superintendent, asked Chapek if he wanted to work as an opera- tor on a scraper since there was not sufficient work to maintain two shifts on the dragline. When Chapek replied in the affirmative, Schubert assigned him to the scraper-operating job. Chapek worked on this job on May 11 and 12. Olt is obvious, and I find, that Wages' statement that the executive board did not approve Chapek's request for an operator's card at its January meeting was because Chapek had not tendered the correct amount of dues is not according to the facts. In the first place, Chapek's application was not presented to the executive board at that meeting. Secondly, the receipt Chapek received for the $60 fee stated that his applica- tion would not be considered until the February meeting of the executive board. Thirdly, whatever knowledge Wages had about Chapek's pending application when Chapek visited with him during the first week in February, was obtained by him from Chapek's mem- bership card and from "checking with the office force." 10 Local 701A "is an apprentice charter. It's a lower initiation fee ; it's lower dues. The apprentices work, such as oiling, mechanic's helpers, welder's helpers, service oilers and stuff like that." However, Local 701 and 701A hold joint membership meetings ; the members of each local have the same voting rights ; and each local is governed by the same constitution. 21 Chapek normally worked at The Dalles project on the second shift. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chester C. Vohs credibly testified that: About 3 p.m. on May 13, Smith told him that some Respondent's operators were complaining that Chapek, an oiler, was operating a scraper and that Kiewit should get Chapek off that job as soon as pos- sible; he "told Smith that due to the time of the day and the likes, that I would have to run [Chapek] on the scraper that evening, because we couldn't get anyone dispatched out that quick"; Smith replied, "Well, that is perfectly all right, but just get him off after the end of the shift"; Chapek was taken off the scraper-operating job at the end of the May 13 second shift; he called Respondent's hall for an opera- tor who replaced Chapek; and Chapek's replacement worked for Kiewit for about 2 weeks. When Chapek reported for work on May 13, his foreman, Fred Nieman, told him that Respondent had notified Kiewit that it would have to lay him off because he was working as an operator on "an oiler's card." Chapek was laid off at the end of his May 13 shift. On May 25, the Laborers' strike ended. On that day, through a referral from Respondent on May 19, Chapek returned to The Dalles project as an oiler. B. Concluding findings The credible evidence, as epitomized above, establishes that: Prior to June 1962, Chapek had an operator's membership in Respondent; in that month he transferred his membership from that of an operator to that of an oiler; after working more than 18 months as an oiler he formally applied to Respondent, late in January 1964, to change his oiler membership to that of an operator, and, at the same time, he tendered the customary $60 initiation fee and the difference between an operator's dues and an oiler's dues for the months of February and March 1964; his applica- tion was rejected solely because, "There's [sic] too many men on the out of work list"; because of Respondent's action, Kiewit was forced to lay off Chapek thereby causing Kiewit to discriminate against Chapek; and Kiewit would not have laid off Chapek had it not been "caused" to do so because of Respondent's demand and Smith's threat to strike the project. It is thus clear, and I find, that by such con- duct Respondent caused Kiewit to discriminate against Chapek to encourage mem- bership in the Union in violation of Section 8(b)(1)(A) and (2) of the Act.12 I further find that Respondent's conduct, as found above, tended to restrain and coerce Chapek in the exercise of the rights guaranteed by Section 7 of the Act. Re- spondent thereby violated Section 8(b) (1) (A) of the Act.13 Respondent's contention that this complaint should be dismissed for, among other reasons, neither Chapek nor Kiewit availed himself or itself of the settlement of dis- puts provisions of article XVI of the then existing agreement between Respondent and A.G.C. when Chapek was laid off by Kiewit at the end of his May 13 shift, is entirely without merit or substance.14 Respondent's reliance upon article VI, section 8, of the aforementioned agreement is likewise misplaced. Even if procedure outlined in said section was available to Chapek, it is administered by a board composed of equal representation from Kiewit and from Respondent. The board has never required a discriminatee to forgo his rights under the Act to be judged by those accused of its violation.15 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section III, above, occurring in con- nection with the business operations of Kiewit as described in section I, above, have 12 See The Radio Officers' Union of the Commercial Telegraphers Union (A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17; Local 357, International Brotherhood of Teamsters, etc. (Los Angeles-Seattle Motor Express) v. N.L R B., 365 U S. 667; N.L.R.B. v. Miami Valley Carpenters' District Council, etc. (B. G. Davis Co ), 297 F. 2d 920 (C.A. 6) ; N L.R.B. v. Oklahoma City General Drivers, Warehousemen and Help- ers, Local Union No. 886, etc. (Chief Freight Lines Co.), 235 F. 2d 105 (CA 10) ; N.L.R.B. v Jarka Corporation of Philadelphia, 198 F. 2d 618; Local 271, International Brotherhood of Electrical Workers (The Philco Corporation, et al ), 146 NLRB 397; Avon Sheet Metal Co., 140 NLRB 384; United Brotherhood of Carpenters, etc, Local 743 (C. R. Tumblin, et al, d/b/a Tumblin Company), 147 NLRB 422. 23 It is, of course, settled law that the Act proscribes discrimination in employment aimed at encouraging union membership even of union members. See, for example, The Radio Officers' Union v N.L.R.B , supra 14 See Hekman Furniture Company, 101 NLRB 631. 15Denver-Chicago Trucking Company, Inc, 132 NLRB 1416; Gateway Transportation Co., 137 NLRB 1763. HOISTING & PORTABLE ENGINEERS NO. 7 01 55 a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that Respondent from May 14 16 until May 19,17 1964, had engaged in certain unfair labor practices violative of Section 8(b)(1)(A) and (2), it will be recommended that Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily restrained Chapek from being em- ployed from May 14 until May 19, 1964, I recommend that Respondent make him whole for any loss of pay suffered by him as a result of its unlawful conduct, by pay- ment to him of a sum of money equal to the amount he would normally have earned as wages during said period. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Kiewit is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By causing or attempting to cause Kiewit to discriminate against Chapek in violation of Section 8(a)(3) of the Act, Respondent has engaged in, and is engag- ing in, unfair labor practices within the meaning of Section 8(b)(2) of the Act. 4. By restraining and coercing Chapek in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing Findings of Fact and Conclusions of Law and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Respondent, Hoisting and Portable Engineers Local No. 701, Inter- national Union of Operating Engineers, AFL-CIO, its agents, officers, and representa- tives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Kiewit to lay off Chapek or any other of its employees or otherwise cause the said Employer to discriminate against any employee in violation of Section 8(a)(3) of the Act. (b) In any other manner, restraining or coercing employees in the exercise of rights guaranteed in Section 7 of the Act except in a manner permitted by Section 8(a)(3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act. (a) Make whole Darwin T. Chapek for any loss of pay he may have suffered by reason of his layoff by Kiewit as provided for in the section herein entitled, "The Remedy." (b) Notify Darwin T. Chapek and Kiewit, in writing, that it has no objection to the employment of Chapek in any capacity satisfactory to Kiewit. (c) Post at its offices, in Omaha, Nebraska, copies of the attached notice marked "Appendix." 18 Copies of said notice, to be furnished by the Regional Director for Region 19 (Seattle, Washington), shall, after being duly signed by a representative m The date when Chapek ended his May 13 shift. 17 The date when Chapek was dispatched by Respondent to the Kiewit job but could not work because the Laborers Union was still on strike and Kiewit notified him not to report for work because of the strike. Chapek, however, was put to work by Kiewit on May 25. >e In 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." 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Promptly mail or deliver to said Regional Director signed copies of the at- tached Appendix for posting, Kiewit willing, at all jobsites of Kiewit within the States of Oregon and Washington. (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.19 29 If this Recommended Order is 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 Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS 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, we hereby notify you that: WE WILL NOT cause or attempt to cause Peter Kiewit Sons' Co., to lay off Darwin T. Chapek or any other employee of the said Employer or otherwise cause or attempt to cause the said Employer to discriminate against any employee in violation of Section 8(a)(3) of the Act. WE WILL NOT in any other manner restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the Act except in a manner permitted by Sec- tion 8 (a)(3) of the Act. WE WILL make whole Darwin T. Chapek for any loss of pay he may have suffered by reason of his discharge by Peter Kiewit Sons' Co. WE WILL notify Darwin T. Chapek and the aforementioned Employer, in writ- ing, that we have no objection to the employment of Chapek in any capacity satisfactory to the said Employer. HOISTING AND PORTABLE ENGINEERS LOCAL No. 701, INTERNA- TIONAL 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 with the Board's Subregional Office, 612 Lincoln Building, 208 Southwest Fifth Avenue, Portland, Oregon, Telephone No. 226-3361, if they have any question concerning this notice or compliance with its provisions. American Oil Company and Independent Oil Workers Union Local No. 117, affiliated with Independent Oil Workers Union Na- tional. Case No. 17-CA-2264. April 2J, 1965 DECISION AND ORDER On May 11, 1964, Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in any unfair labor practices alleged in the com- plaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. 152 NLRB No. 7.