Consolidated Constructors & Builders, Inc.

656 DECISIONS OF NATIONAL Consolidated Constructors & Builders, Inc. and Fred L. Sprague and Owen L. Clark. Cases 1-CA-5714-1 and 1-CA-5714-2. June 20,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On April 5, 1967, Trial Examiner John G. Gregg issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision, and a supporting brief. The Respondent filed a brief in answer to the General Counsel's brief and exceptions. I 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. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, only to the extent consistent with this Decision and Order. The Trial Examiner found that the Respondent's collective-bargaining agreement with Local 621 of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (hereinafter called Local 621), was intended to cover millwrights, and that employees Owen Clark and Fred Sprague were lawfully discharged by the Respondent on September 22, 1966, pursuant to the agreement's lawful union-security provision. We do not agree. Clark and Sprague were past members of Local 621. On June 27, 1966, they obtained clearance cards from that Local for the purpose of becoming charter members of Local 1219, a new millwright local chartered by the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, on June 15, 1966. Clark was hired by the Respondent on August 2, 1966, as a millwright foreman, and Sprague, on August 8, as a millwright. Both employees worked on the Madawaska project, and the record shows that neither employee performed traditional carpentry work while in the Respondent's employ. Other millwrights were employed on the project, but only Clark and Sprague were members ' The General Counsel's motion to strike Respondent 's brief submitted as an "answering" brief in accordance with Sec 102.46(d) of the Board Rules and Regulations , Series 8, as LABOR RELATIONS BOARD of Local 1219. On September 21, 1966, Local 621's shop steward, Allen, told the Respondent's superintendent, Guy Sleeper, that there would be a work stoppage if, in view of their current contract's union-security provision, Clark and Sprague continued on the job without becoming members of Local 621. According to Sleeper's credited testimony, he discharged both Clark and Sprague on September 22, 1966, after they refused to comply with a request that they join Local 621. Although the issue herein was formed, in part, on a theory that the Respondent was motivated in discharging Clark and Sprague because of their membership in Local 1219, and in order to avoid bargaining with Local 1219, a theory on which, in view of our determination herein, we need not pass, it is also alleged by the General Counsel in support of that theory, that the 1966 agreement was not applicable to millwrights. It is evident, therefore, that if in fact the terms of the agreement did not apply to millwrights, their discharge under the agreement's union-security clause would establish a violation of the Act irrespective of any other unlawful motivation of the Respondent.'' Sometime in July 1966, the Respondent and Local 621 began negotiations for a new collective- bargaining contract. The old contract was to terminate in July but was extended to August 15 by oral agreement of the parties. It is clear that the contract in effect at the commencement of these negotiations was entered into by Local 621 when its jurisdiction included both carpenters and millwrights. The old agreement specifically applied to millwrights as evidenced by the fact that it provided for a millwright rate which was 25 cents an hour more than the journeyman-carpenter rate. However, as mentioned supra, the United Brotherhood chartered Local 1219 on June 15, 1966, granting to that Local jurisdiction over all millwrights in the State of Maine. The record clearly shows that the parties were aware of this fact during the negotiations. Agreement on a new contract was reached on August 15, 1966, but was not reduced to writing and signed until October 11, 1966. It is the Respondent's contention that the new agreement was intended to preserve for Local 621 its jurisdiction over the work of erecting and dismantling machinery, and therefore to bring within its coverage all employees performing such work. Whether it was Respondent's belief, at the time the oral understanding was reached on terms of the new contract, that it had specifically accomplished the purpose of bringing millwrights within the agreement's coverage is not clear from the record. What is clear, according to the credited testimony of Local 621's negotiator, Harold W. Sargent, is that upon instructions from the United Brotherhood's amended, is denied 2 Cf The Item Company, 113 NLRB 67,68 165 NLRB No. 79 CONSOLIDATED CONSTRUCTORS & BUILDERS, INC. 657 International representative, Harry Hogan, not to bargain on behalf of the millwrights, he, Sargent, did not negotiate with the Respondent for millwrights. The contract resulting from these negotiations in article I thereof recognizes Local 621 ". . as the sole and exclusive representative of all employees in the classifications of work covered by this Agreement for collective-bargaining purposes with respect to wages, hours, and other terms and conditions of employment on any and all work covered by this Agreement." Although the contract in article IV, section 1(A) thereof, recites that the trade autonomy of the "United Brotherhood of Carpenters and Joiners" consists of, among other things, ". . . erecting and dismantling of machinery," the contract does not list the trade classification of millwrights as one of the classifications covered by the contract. As indicated, unlike the earlier contract, it provides no "millwright" wage rate, and asserts no claim on behalf of Local621 to trade autonomy over the "erecting and dismantling of machinery." Indeed, the only section of the contract which defines for Local 621 the "work covered by this agreement" is found in section 1(B) of article IV. That section, while listing in great detail the work over which Local 621 does claim jurisdiction, contains no mention of the work of erecting or dismantling of machinery, and concludes with the following express proviso: Provided, however, that nothing herein shall be intended or interpreted as a claim by the Union of any of the trade autonomy or trade jurisdiction of millwrights. Any divisions or subdivisions not specified above, shall be governed by the Trade Autonomy as outlined in the constitution and laws of the United Brotherhood of Carpenters and Joiners of America. In view of the foregoing, we are of the opinion, contrary to the Trial Examiner, that the new contract is not ambiguous as to coverage, and the scope of its coverage may not be expanded by resort to parol evidence. We find that the contract by its terms excludes millwrights and that the requirements of the union-security clause for membership in Local 621 as a condition of employment is therefore not applicable to millwrights. Even if we entertained any doubt as to the meaning of the contract's provisions , we would find on the evidence before us that, whatever else the parties intended, it was not their mutual intent to include millwrights within its coverage. Certainly, had both Local621 and the Respondent desired to subject millwrights to the contract's coverage, it would have presented no formidable obstacle for them to have expressed such intent in clear unambiguous language, as apparently they did when no strictures from the parent organization existed against carpenter locals asserting jurisdiction over the work of millwrights. Since it is clear that Clark and Sprague were members of Millwright Local-1219, and it does not appear that their work embraced anything but millwright work, it follows that neither Clark nor Sprague was under a contractual obligation to become members of Local 621 as a condition of employment, and in discharging them for their refusal to join Local 621 in accordance with the terms of the contract's union- security provision, the Respondent violated Section 8(a)(1) and (3) of the Act, since it thereby encouraged membership in Local 621 and discouraged membership in Local 1219. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Clark and Sprague on September 22, 1966, we shall order that the Respondent make these employees whole for any loss of pay suffered by reason of the discrimination against them. Since the record shows that the Madawaska project was completed on January 24, 1967, and that Clark' s and Sprague's employment therefore would have ended on that date for nondiscriminatory reasons, reinstatement will not be ordered. Said loss of pay will be based upon earnings which Clark and Sprague would normally have earned from the date of the discrimination against them , September 22, 1966, to January 24, 1967, the date upon which their employment would have otherwise terminated, less net earnings of each during such period. Backpay and interest thereon shall be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. The Respondent, Consolidated Constructors & Builders, Inc., is an employer engaged in commerce or in an industry affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 2. Local 621, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Local 1219, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. Owen Clark, millwright foreman , and Fred Sprague, millwright, are employees within the meaning of Section 2(3) of the Act. 4. By the discharge of Clark and Sprague, upon demand of Local 621, the Respondent engaged in unfair labor practices violative of Section 8(a)(3) of the Act. 5. By the discharge of Clark and Sprague, upon demand of Local Union 621, the Respondent 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, and thereby violated Section 8(a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Consolidated Constructors & Builders, Inc., Portland, Maine, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in Local 621, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, by discharging Owen Clark and Fred Sprague, or any other millwright, or discriminating against them in any other manner because they are not or are unwilling to become members of Local 621. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management and Disclosure Act of 1959. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act. (a) Make Owen Clark and Fred Sprague whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner and in accordance with the methods referred to in the section above in this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Portland, Maine, copies of the attached notice marked "Appendix."3 Copies of said notice, to be furnished by the Regional Director for Region 1, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 9 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." APPENDIX 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 Local 621, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, by discharging Owen Clark or Fred Sprague, or any other millwright, or discriminate against them in regard to their hire, tenure of employment, or any term or condition of employment because they are not, or are unwilling to become members of said union. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL make Owen Clark and Fred Sprague whole for any loss they may have suffered by reason of the discrimination against them. CONSOLIDATED CONSTRUCTORS & BUILDERS, INC. (Employer) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Cambridge and New Sudbury Streets, Boston , Massachusetts 02203, Telephone 223-3300. TRIAL EXAMINER'S DECISION JOHN G. GREGG, Trial Examiner: This case was heard before me at Portland, Maine, on February 20, 1%7, on the CONSOLIDATED CONSTRUCTORS & BUILDERS, INC. complaint of the General Counsel and the answer of Consolidated Constructors & Builders, Inc., herein called the Respondent . The complaint alleges violations by the Respondent of Sections 8(a)(1) and (3) and 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, 61 Stat . 136, herein called the Act. Subsequent to the close of the hearing under date of March 20, 1967, the General Counsel moved to reopen the record solely for the purpose of introducing a letter signed by the attorney for Local 621 setting forth among other things the position of the attorney relative to matters in issue. Counsel for the Respondent objected to the admission of this document on the grounds that the General Counsel had every opportunity during the hearing to call the attorney as a witness but chose not to do so. I find no newly discovered evidence involved in this motion and for the reasons advanced by the Respondent hereby deny the motion to reopen. Briefs were filed by the General Counsel and Respondent and have been carefully considered. Upon the entire record, and from my observation of the witnesses as they testified, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is a corporation duly organized under and existing by virtue of the laws of the State of Maine, maintaining its principal office and place of business at 616 Congress Street , Portland, Maine, where it is engaged in the construction business Annually, the Respondent purchases raw materials valued in excess of $50,000 which raw materials are shipped from points outside the State of Maine directly to the Respondent within the State of Maine. The Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 621 , United Brotherhood of Carpenters and Joiners of America and Local 1219, United Brotherhood of Carpenters and Joiners of America, are each labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that the Respondent on or about September 22, 1966, discharged Fred Sprague and Owen Clark because they joined or assisted Local 1219 and/or because they were not members of Local 621 , thereby discriminating in regard to the hire or tenure or terms or conditions of employment of the aforesaid individuals in violation of Section 8(a)(3) of the Act, and thereby interfering with , restraining, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. The Respondent denies the commission of any unfair labor practices , alleging that it discharged Sprague and Clark at the request of the Union and in accordance with the terms of the Respondent's collective -bargaining agreement with the Union. A. The Collective-Bargaining Agreement Harold W . Sargent, business agent and president of Local 621 , testified that Local 621 and the Respondent 659 were never without a contract , that in July 1966, the then existing contract was extended by agreement of the parties until August 15, 1966, and that on August 15, 1966, the parties reached complete agreement , later reduced to writing and now embodied in the current executed contract. Sargent testified that immediately after reaching agreement on August 15, 1966, the Company put the terms of the agreement into effect. The record clearly indicates that when the Respondent and Local 621 met in July 1966, to negotiate a new contract , by agreement the contract which was then in effect was extended until August 15, 1966. The record also indicates that in accordance with the practice of the parties in prior negotiations , immediately after agreement was reached at the bargaining table on August 15, 1966, the Respondent placed into effect retroactively to July 15, 1966, the provisions of the new agreement . Also according to their prior practice, the parties took about 4 weeks to draw up and execute the written contract , which was executed in October 1966, and effective by its terms on August 15, 1966. The General Counsel contends that on September 22, 1966, the date of the discharge of Sprague and Clark, there was no valid collective -bargaining agreement in effect between Local 621 and the Respondent, citing Union Fish Company, 156 NLRB 187. In that case the contract was signed February 1, 1964, effective February 3, 1964, and was the result of a settlement agreement following a period of time within which the employer had refused to bargain with the Union by refusing to execute the agreement which had previously been orally and finally agreed on by the parties. In the case at hand , there is no indication other than that the parties were in full and final agreement from August 15, 1966, until the date the contract was actually executed , in fact the effective date of the agreement is included in the executed document as August 15, 1966. A collective-bargaining agreement may be validly entered into even though the written instrument evidencing the terms of said contract has not been executed by the parties. If the parties agreed and intended to be bound by the agreement prior to the formal signing of a written document, they will be bound by the contract. There is ample credible testimony of record herein establishing the intention of both Local 621 and the Respondent to place into effect and to be bound by the oral agreement consummated on August 15, 1966 , leaving the administrative formality of executing the written agreement to a point later in time as had been their prior practice. I find, therefore , that on September 22, 1966, at the time of the discharges herein , there was in effect between Local 621 and the Respondent a valid and existing collective -bargaining agreement. The General Counsel urges further that even though an oral agreement was in effect on the date of discharge, such agreement excludes millwrights, or is so ambiguous as to exclude millwrights from the unit contained therein. The record indicates the existence of prior collective- bargaining agreements between the Respondent and Local 621 pursuant to which over the years Local 621 furnished the Respondent with carpenters and millwrights. It is also clear from ample credible testimony of record that pursuant to this prior practice , carpenters furnished by Local 621 who proved to have the necessary skills would be used as millwrights and paid the higher millwright scale provided for in the earlier agreements. The agreement, in its executed form, provides in pertinent part as follows: 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section IA. The trade autonomy of the United Brotherhood of Carpenters and Joiners of America consists of ... the erecting and dismantling of machinery .... On the other hand, the agreement also contains this language: Section 1B. ... nothing herein shall be intended or interpreted as a claim by the Union of any of the trade autonomy or trade jurisdiction of millwrights .... Undisputed credible testimony of record indicates that the erection and dismantling of machinery is work performed by millwrights. According to the testimony of Guy Sleeper, at the time of the discharge of Sprague and Clark there were approximately 125 employees working on the Madawaska project. Of these, all who were doing the work of carpenters and millwrights were from Local 621, with the exception of Sprague and Clark. He stated that for 11 years while he was superintendent of the Respondent, and a company representative on the job with Local 621, Local 621 always represented those workers who erected and dismantled machinery. Sargent, business agent for Local 621, testified as follows:Q. I show you the trade autonomy clause in the present agreement and ask you if that refreshed your recollection? A. That is correct. Q. Does that refresh your recollection and that was work claimed by Local 621? A. Right. Q. Was it also stated at the table-strike that. Do you have any recollection about a half a day that was spent on the trade autonomy clause? A. There was considerable time spent on it, yes. I wouldn't say exactly how long it was, but there was some little time spent on it. Q. When I say ... was it Local 621's contention at the bargaining table that we are going to spell out just what work we claim, if anybody goes on to a job.of ours and performs that work, regardless of what you call them, they are going to join our local. Do you recall that? A. That is correct. Q. And did the company agree with that? A. Yes. Sargent testified that during the negotiations Local 621 took the position that the erection and dismantling of machinery was to be their work and it was immaterial what other union these men might belong to, that if they were to perform this work they were going to belong to and pay dues to Local 621. Sargent testified that the erection and dismantling of machinery was within the scope of the agreement. Sargent testified that he had been instructed by the International by telegram which he received around August 22, 1966, not to deal with millwrights and that he passed these instructions on to Allen a week later, all of which occurred subsequent to the agreement of August 15,1966. Murray Allen, Jr., the shop steward on the project for Local 621, testified that his duties on the Madawaska project included the enforcement of the labor agreement between the Respondent and Local 621, that anyone on the job doing work within the trade autonomy of Local 621 had to be a member of Local 621. There is undisputed credible testimony of record indicating that at the time of the discharges there were also 30 millwrights on the job out of Local 621 working as millwrights. While the agreement as finally executed would appear to be ambiguous on the question, I am convinced and I find from ample credible testimony of record that in the oral agreement reached on August 15, 1966, later reduced to writing in October 1966, the parties agreed and intended that the work of erecting and dismantling machinery, theretofore performed by carpenter-millwrights members of Local 621, would continue to remain within the scope of the agreement and would continue to be performed by members of Local 621, and that this agreement was in effect on September 22, 1966, the date of the discharges herein. B. The Discharge of Sprague and Owen Owen Clark was hired by the Respondent on August 2, 1966, as a millwright-foreman; Fred Sprague was hired by the Respondent on August 8, 1966, as a millwright. Both were discharged by the Respondent on September 22, 1966. While Clark was employed as a millwright-foreman on the Madawaska project, the General Counsel contends he was not a supervisor, hence an employee within the meaning of the Act. Testimony of record establishes the fact that the machine erection work on which Clark was engaged was performed under the direction of a machine erector supplied by the Company from which the machine was procured, that the machine erector supervised the erection , that Clark had not hired or fired employees on the job, that if Clark were to make a recommendation on hiring or firing it would be subject to independent investigation by the Respondent's superintendent before approval, and that foremen had been traditionally included in the bargaining unit under the Respondent's contract with Local 621. Under these circumstances, I find that Clark was an employee within the meaning of the Act. Sprague had been a carpenter, had become a member of Local 621 in September 1953. For the past 6 years or so he had been a millwright. When in June 1966, a new and separate Millwright Local 1219 was chartered by the United Brotherhood of Carpenters and Joiners of America, Sprague cleared out of Local 621 on June 27, 1966, and became a charter member of Local 1219. Clark was a millwright for 7 years, was hired as a millwright foreman on the Madawaska project, was requested to recruit more millwrights , and recruited Sprague for the job. Clark had been a member of Local 621 for about 6 years, and, like Sprague, had cleared out of Local 621 to become a member of Local 1219. Sargent, business agent for Local 621, testified that both had been members of Local 621; that when Local 1219 was established, they cleared out of Local 621 and joined millwrights Local 1219. At the time of their employment on the Madawaska project, both Sprague and Clark were members of Local 1219. There was testimony by Sargent, business agent for Local 621, that occasions arise when members of other locals, not members of Local 621 but from another jurisdiction or local, might be employed on a job within the area of Local 621. According to Sargent, when Local 621 did not have enough men to fill any order from any company, Local621 called on another local to assist Local 621 in filling the requirement. The usual procedure when these men came on a job, according to Sargent, was to report to the steward and to produce a work permit from their business agent who in the meantime would have contacted Sargent and received permission to send the men to work. Sargent testified that he was the only CONSOLIDATED CONSTRUCTORS & BUILDERS, INC. individual authorized to give permission for the issuance of work permits and that neither Sprague nor Clark had applied for such permits. According to the testimony of Guy Sleeper, superintendent of the Madawaska job for the Respondent, on September 21, 1966, he was approached by Allen, the steward for Local 621, who told him that there would be a work stoppage if Sleeper did not have Sprague and Clark either join Local 621 or discharge them. Sleeper then telephoned the Respondent's Portland office for advice, was later that day advised by Sullivan, vice president of the Respondent, that Allen was correct and that Sleeper had no alternative.I There are considerable differences in the versions of what actually was said prior to and at the time of the discharges on September 22. Sleeper testified essentially that he made it clear before discharging Sprague and Clark, that if they did not join Local 621, they could not continue to work on the project, that they had no alternative. Sprague's version was that on September 21, 1966, he was asked by the assistant superintendent, Gauvin, whether he belonged to Local 1219 and he responded that yes he was a charter member. In response to a further query, Sprague indicated that Clark also belonged to Local 1219. Sprague testified that at no time did he have any conversation with any management representative or supervisor about joining Local 621, that no one requested that he join Local 621, or that he obtain a work permit through Local 621. Sprague testified that the reason advanced by Sleeper for his discharge on September 22 was that work was slacking off, although as far as Sprague knew the work was not slacking off, and the Respondent, around the time of the discharge and since, had hired new employees. Clark's testimony was essentially the same, that Allen had never had a conversation with him about joining Local 621, that he had never been informed while on the job that he had to become a member of Local 621, nor requested to become a member of Local 621. Clark testified that during the time of his employment on the project he did discuss Local 1219 with the men while on the job, that the men had inquired as to his membership in Local 1219, that he was not aware of any discord or disharmony among the members of the unit because of the fact that he and Sprague were on the job working while not members of Local 621. Clark testified that he had had three conversations with Allen about his being a member of Local 1219; one the first week of his employment, one the third week, and the last the fifth or sixth week. Clark could not recall the substance of these conversations. He did recall, however, that they were not about his failure to join Local 621 indicating that as far as he was concerned he would not discuss Local 621. According to the testimony of Allen, shop steward for Local 621 on the project, the men had become concerned and alarmed about the situation of having Sprague and Clark working on the job without being members of Local 621 and on several occasions had come to Allen and questioned him about Sprague and Clark, wanting to know why they were working on the job. As a result of this, according to Allen, Allen talked with Clark and Sprague indicating that he said to Clark among other things that "621 covers this job and it will 'til it is finished. It is signed lawfully for 621. 621 covers this job and you men are ' See Montgomery Ward and Co., Inc., 162 NLRB 369. 661 scabbing." Allen stated that he talked to both Clark and Sprague about the necessity for belonging to Local 621 in order to continue on the job, that he did this within several days of their hiring, but had had no reaction from Clark and Sprague, they just "shrugged their shoulders." Allen testified further that before seeking the discharge of Sprague and Clark he had discussed the situation with Sargent, business agent for Local 621, that Sargent had indicated that as the shop steward, Allen was "in the right." According to Allen, after contacting Sargent several times concerning this matter, he finally went to Superintendent Sleeper and demanded that Sleeper discharge Sprague and Clark unless they joined Local 621, or there would be a work stoppage. There is ample credible testimony of record establishing the fact that Sprague and Clark were told and advised and were aware that the work they were performing was claimed by Local 621 and that if they wanted to continue to perform that work, they would have to join Local 621. Considerable testimony to this effect was offered by Allen, shop steward for Local 621. I credit his testimony. Similar testimony was offered by Sleeper, superintendent for the Respondent. I credit his testimony. I do not credit the testimony of Sprague and Clark to the contrary. While admitting that there had been many, many conversations concerning Local 1219 on the job and while testifying to conversations with both Allen and Sleeper, Sprague and Clark meticulously drew a strained line by insisting in essence that in these latter conversations Local 1219 was mentioned, but there was no discussion relative of Local 621. I simply do not credit this testimony, and I found the demeanor of the witnesses in testifying in this regard to be strained and lacking in conviction. I am convinced and I find from the record as a whole that the Respondent hired Sprague and Clark in August, did not concern itself with the matter of their union affiliation or activity, and acted to discharge them only when the shop steward demanded that the Respondent discharge them unless they joined Local 621 as required by the agreement, or there would be a work stoppage on the project. I find that the Respondent, through Superintendent Sleeper, did in fact advise Sprague and Clark of the requirement that they join Local 621 and requested that they join Local 621 or be discharged. In so finding, I find further that on this record it has not been established by a preponderance of evidence that the Respondent discharged Sprague and Clark for the reason that they joined or assisted Local 1219. Upon the basis of the record as a whole and the findings herein, I make the following: CONCLUSIONS OF LAW 1. Consolidated Constructors & Builders, Inc., the Respondent herein, is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. Local 621, United Brotherhood of Carpenters and Joiners of America and Local 1219, United Brotherhood of Carpenters and Joiners of America, are labor organizations within the meaning of Section 2(5) of the Act. 3. Fred L. Sprague, millwright, and Owen L. Clark, millwright-foreman, are employees within the meaning of Section 2(3) of the Act. 299-352 0-70-43 662 DECISIONS OF NATIONAL 4. On September 22, 1966 , there was in existence between Consolidated Constructors & Builders, Inc. and Local621 a collective -bargaining agreement including a lawful union-shop provision. 5. It was not established herein by a fair preponderance of substantial credible evidence that the Respondent discharged Sprague and Clark because they joined or assisted Local 1219. 6. By the discharge of Sprague and Clark, upon demand of Local 621, and pursuant to a valid existing collective -bargaining agreement including a union-security provision as provided for in Section 8(f) of the Act, the Respondent did not discriminate in regard to hire or tenure of employment or any term or condition of employment for the purpose of encouraging or discouraging membership in any labor organization and the Respondent did not thereby engage in unfair labor practices violative of Section 8(a)(3) of the Act. LABOR RELATIONS BOARD 7. By the discharge of Sprague and Clark upon demand of Local 621 and pursuant to the provisions of a valid existing collective-bargaining agreement, the Respondent did not interfere with, restrain , or coerce its employees in the exercise of their rights guaranteed in Section 7 of the Act and did not thereby violate Section 8(a)(1) of the Act. Accordingly , it is recommended that the complaint herein be, and it is, hereby dismissed. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that the complaint herein be, and it is, hereby dismissed.