Warrior Constructors, Inc.

WARRIOR CONSTRUCTORS, INC. 19 Warrior Constructors, Inc. and Lewis E. Carroll testimony to the effect that Parker demanded that International Union of Operating Engineers, AFL-CIO, Local No. 450 and Lewis E. Carroll. Case 23-CA-2528 and 23-CB-721 October 31, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On June 20, 1967, Trial Examiner James F. Foley issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor prac- tices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that Respondent Union had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, Respondent Employer filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed cross-exceptions and a sup- porting brief, and an answering brief to Respondent Employer's exceptions. The Respondent Union filed a brief in reply to the General Counsel's cross- exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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, cross- exceptions, briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner,' as modified below: We agree with the Trial Examiner's finding that Respondent Union had nothing to do with Carroll's discharge as a dragline operator, and did not violate Section 8(b)(2) and (1)(A) in this respect. Ac- cordingly, we shall dismiss this allegation of the complaint. However, the Trial Examiner found that the Respondent Employer violated Section 8(a)(3) and (1) by discharging Carroll because he had less seniority than Parker as a member of the Union. This finding apparently was inferred from ' In the absence of exceptions thereto, we adopt pro forma the Trial Ex- aminer's conclusions and recommendations based upon the demotion of Carroll from the position of master mechanic ' This latter finding appears necessary to support the Trial Examiner's theory of a discriminatory discharge, in view of his refusal to find that the Respondent Union caused Carroll's discharge ' Add the following to the Section of the Trial Examiner's Decision enti- tled "The Remedy" immediately after the last paragraph therein. 168 NLRB No. 5 Carroll be discharged as the price for Parker's stay- ing on the job and from the further inference that Turner made an unsuccessful attempt to change Parker's attitude. We do not agree. Assuming, arguendo, that Carroll was discharged at Parker's request, there is no evidence in the record to support the Trial Examiner's finding that Carroll was discharged because he had less seniori- ty in the Union than Parker.2 In the light of uncon- troverted evidence that Carroll's discharge resulted from a reduction in force, and the absence of proba- tive evidence as to the factors considered, we can only speculate whether Respondent Company con- sidered seniority in the Union as a factor in effect- ing the discharge. Thus, in this state of the record, we find no warrant for inferring, as did the Trial Ex- aminer, that Carroll was discharged for discrimina- tory reasons. Accordingly, as the General Counsel failed to establish by a preponderance of the evidence that Respondent Employer was dis- criminatorily motivated in discharging Carroll from his job as dragline operator, we shall also dismiss this allegation of the complaint.3 Amended Conclusions of Law Delete the Trial Examiner's Conclusion of Law 6, renumber Conclusion of Law 7 as 6, and add the following: "7. Respondent Union has not violated Section 8(b)(2) and (1)(A) by causing Respondent Em- ployer to discharge Carroll from the job of dragline operator." "8. Respondent Employer has not violated Sec- tion 8(a)(3) and (1) by discharging Carroll from the rank-and-file job of dragline operator." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its order the Recom-• mended Order of the Trial Examiner as modified below, and hereby orders that the Respondent, Warrior Constructors, Inc., Houston, Texas, its of- ficers, agents, successors, and assigns , and the Respondent, International Union of Operating En- gineers, AFL-CIO, Local No. 450, Houston, Tex- as, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete from the "A" portion of the Trial Ex- "Respondent, International Union of Operating Engineers, AFL-CIO, Local No . 450's liability shall terminate 5 days after it furnishes Warrior Constructors , Inc., with a written statement notify- ing said Employer that it has no objection to reinstatement of Carroll as a master mechanic. "It is noted that the obligation of respondent Employer to reinstate Carroll to the position of master mechanic shall continue until such date as that job is eliminated for legitimate reasons." 336-845 0 - 70 - 3 20 DECISIONS OF NATIONAL aminer's Recommended Order the present para- graph 2(d) and reletter the succeeding paragraphs consecutively. 2. Delete from Appendix A attached to the Trial Examiner's Decision the last indented paragraph. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges viola- tions not found herein. TRIAL EXAMINER'S DECISION JAMES F. FOLEY, Trial Examiner: These cases, 23-CA-2528 and 23-CB-721, were brought before the National Labor Relations Board (herein called the Board) under Section 10(b) of the National Labor Relations Act, as amended (herein called the Act), 61 Stat. 136, 73 Stat. 519, against Warrior Constructors, Inc. (herein called Employer), and International Union of Operating En- gineers, AFL-CIO, Local No. 450 (herein called Union), on a consolidated complaint issued November 25, 1966, by the General Counsel of the Board (through the Re- gional Director for the Board's Region 23 at Houston, Texas), and answers filed by Respondent Employer and Respondent Union filed December 5 and December 2, 1966, respectively. The allegations of the complaint against Respondent Employer are premised on a charge filed by Lewis E. Carroll on October 7, 1966, and the al- legations of the complaint against Respondent Union are premised on a charge also filed by Carroll on October 7, 1966. It is alleged in the complaint that since on or about October 3, 1966, Respondent Union has violated Sec- tions 8(b)(I)(A) and 8(b)(2) of the Act by causing and at- tempting to cause Respondent Employer to demote Charging Party Carroll from his position of master mechanic to that of a dragline operator and then to discharge him, and to refuse to reinstate him as an em- ployee, and as master mechanic, because he was not a member of Respondent Union for 3 years or more. It is also alleged in the complaint that since on or about Oc- tober 3, 1966, Respondent Employer has violated Sec- tion 8(a)(1) and (3) of the Act by complying with the Respondent Union's request that it demote and then discharge Carroll, and refuse to reinstate him as a dragline operator, and to return him to the position of master mechanic, because he was not a member of the Union for 3 years or more. In their answers, Respondent Union and Respondent Employer denied the allegations of the complaint against them. A hearing on the complaint and answers was held be- fore me on February 15, 1967, in Houston, Texas. General Counsel, Respondents, and Charging Party were afforded an opportunity to offer evidence, make oral ar- gument, and file briefs. General Counsel and Respond- ents filed briefs after the close of the hearing. FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT EMPLOYER Respondent Employer, a Texas corporation, with its principal office and place of business in Houston, Texas, is engaged in the business of a general contractor in the construction industry. During the year 1966, it performed services with a value in excess of $50,000. Pursuant to a contract with the National Aeronautics and Space Ad- ministration of the United States for the construction and LABOR RELATIONS BOARD installation of certain facilities at the Manned Spacecraft Center in Houston, Texas. II. THE LABOR ORGANIZATION INVOLVED The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES 'A. The Evidence The only oral testimony is the testimony of Charging Party Carroll. He testified for the General Counsel. The only documentary evidence is the contract (herein called the Contract) between the Respondent Union, on the one hand, and Associated General Contractors, Houston Chapter, and Construction Employer's Association of Texas, on the other hand, executed April 1, 1964, and ef- fective until March 31, 1967, and renewable from year to year absent 60 days' notice. The Contract was in effect in October 1966, the period in which the alleged unfair labor practices occurred. Respondent Employer is a party to the Contract. Carroll's Unrebutted Testimony Carroll has been a member of the Respondent Union since December 1965, and an employee of the Respond- ent Employer since January 1966. He has had some 15 years' experience at the trade of operating engineer. Dur- ing this time, he operated all types of heavy equipment, and became skilled in the operation and maintenance of this equipment. Carroll began his employment with Respondent Employer at its construction project at the University of Houston. About the middle of September 1966, Respondent Employer reassigned him to its con- struction project at the Manned Spacecraft Center, Houston, Texas. At this project, he operated a dragline for about 3 days and was then promoted to master mechanic. On reporting to work on October 3, 1966, after working as master mechanic for about 2 weeks, Car- roll was informed by Roy Turner, the Respondent Em- ployer's field superintendent, that there was a "beef' on the job among the operators. Turner asked Carroll to find out what he could about it, and to see if he could straighten it out. Carroll talked to some of the operators under his super- vision,' and learned that Sims, the master mechanic he succeeded, wanted his job back. Sims, it appears, had given the job up voluntarily in order to avail himself of certain overtime work on the night shift. In talking to the operators, Carroll approached an operator by the name of Parker, who, like Sims, had just returned to the day shift from the night shift where overtime work had been availa- ble. Carroll got up on Parker's rig and asked him what the difficulty was. Parker replied that Carroll was the "god- damn beef." He said that according to the Union, Carroll I Under the Contract, an employer must employ a master mechanic if there are four or more operating engineers employed The master mechanic is in charge of the engineers He distributes the paychecks and is under the supervision of only the field superintendent and the project superintendent He may work with his hands if less than six engineers are employed The General Counsel conceded that Carroll was a supervisor within the meaning of Section 2(1 1) of the Act, while performing the du- ties of master mechanic It is undisputed that master mechanics are super- visors under the Contract WARRIOR CONSTRUCTORS, INC. 21 did not have the right to be master mechanic. When Car- roll asked him to explain this remark , Parker said, "Well, it's in your union book . You ought to read it once in a while." They both looked at section 15(g) of the Contract. It provides that "All master mechanics and assistant master mechanics must be practical mechanics of the craft they represent and have three years or more of ex- perience at their trade." Parker then said, "That is not all . you have been running around here scabbing on peo- ple and knocking other people out of work, starting light plants and power plants ." Carroll interrupted Parker, called him a "damn liar," and said that he had not started any equipment he was not assigned to stop before he became master mechanic . Parker retorted, "Don't call me a damn liar," and pushed Carroll with his open hand. Car- roll hit Parker with his fist, and the two exchanged body blows until Carroll subdued Parker. Carroll told Turner what happened , and said to him that he intended to telephone the Respondent Union's business agent. When he went to the telephone , he found Steward DeBorde using it, and reporting the incident to the Union. At approximately I 1 a.m., on October 3, Respondent Union's Business Agents W. O. Bloodworth and Gordon Hyatt arrived on the jobsite . Bloodworth and Hyatt talked to other operators, and then to Carroll. Carroll re- lated to Bloodworth and Hyatt what had occurred. De- Borde was with them. Bloodworth asked Carroll if he was aware that Parker could file charges against him. Carroll asked if he had the same right , inasmuch as Parker had hit him first, and Bloodworth replied that he could file charges against Parker. Bloodworth , Hyatt, and DeBorde told Carroll that he had not been in the Union long enough to be master mechanic. The four of them ex- amined Section 15(g) of the Contract. They then proceeded to the office of Superintendent Henry Hill, where they had a conversation with him. Bloodworth first told Hill that Carroll could not be master mechanic because he had not been a member of the Respondent Union long enough . Carroll showed Hill section 15(g) of the Contract . Hill asked Bloodworth for an explanation. Bloodworth said that Hill would "have to get another master mechanic ." Hill asked Bloodworth if he could leave Carroll on the job for the rest of the day, and Blood- worth said that he could. Bloodworth also said to Hill that he "could do what he wanted to about the fight," that he had the authority to fire either Parker or Carroll or both. Carroll said to Bloodworth that he was not trying to mislead the Company into making it think that he was a qualified master mechanic , but, that if Bloodworth's in- terpretation of section 15(g) of the Contract was correct, he had simply misinterpreted it. Bloodworth replied, "That's just the way it is, that is one of our practices." After Carroll left Hill's office, Turner approached him and asked how things came out. Carroll replied that Bloodworth had told Hill that Carroll "hadn't been in the Union long enough to be master mechanic ." Hill joined the two, and Turner suggested that the three "try to straighten this thing out with Mr. Parker." The three went over to where Parker was working, and Turner called for Parker to join them . Turner told Carroll and Parker that the two were both good men , and that he would hate to lose either one of them. Turner also said he hoped that the two could "straighten this out," and requested them "to shake hands and just forget this thing ever happened." Carroll offered to shake hands, but Parker refused. Parker said that if Carroll was not fired , he would quit. Carroll talked to Turner later that day, at which time Turner said that he would get a chance to talk to Parker again , and would straighten the matter out, that he should go over to the other part of the job, and start working. Carroll said that Turner could give him his check if he thought that he was the guilty party. Turner said that he was "not to worry about any checks ." Before quitting time, Turner informed Carroll that he would be reas- signed to a dragline the next morning . Turner also stated that Parker would be master mechanic the next morning, but that Carroll would be under his supervision, and not Parker's. Carroll replied that he had reported on the job as a crane operator, and that it was agreeable with him to continue in that capacity. Carroll added, however, that he still thought that the Union was misleading them by hold- ing that he was not eligible for the job of master mechanic, and not in the Union long enough to hold it. Carroll worked as a dragline operator on October 4 and 5. Nothing happened until the workday ended on October 5. Then he was discharged by Turner. Turner got up on Carroll's rig, and said to Carroll that he was being discharged because there was "distinction" on the job. Carroll testified that he understood Turner to mean dis- sension. Ed Price , who was appointed master mechanic on October 5, handed Carroll his final paycheck. Shortly after his discharge, Carroll went to Hill's office and asked Hill the reason for his discharge . Hill replied , "Well, reduction in force, reducing forces." Carroll said there were men on the job who had been there less time than he had, and with less qualifications , and that he had been sent to the job from another construction job of the Respondent Employer's with the recommendation of the superintendent of the other job. Hill replied , "Well, that's just the way it's got to be. That is the way it is." Carroll had another conversation about the matter. It was with Hill and Turner. In this final conversation, Turner told Carroll not to cause any disturbance, acknowledged that Carroll was well qualified in his field , and stated that he would recommend Carroll to any company in town. Hill also told Carroll that he would give him a recommenda- tion. Hill even asked Turner if Carroll could go back to the "University job," but Turner replied that he had called the superintendent of the University of Houston job, and he had said that no operators were needed. B. Analysis and Concluding Findings On October 3, 1966, Respondent Employer's Field Su- perintendent Turner demoted Charging Party Carroll from his supervisory job of master mechanic, to which he had been appointed 2 weeks before, to the rank-and-file job of a dragline operator. The demotion was at the request of Respondent Union. The latter's Business Representative Bloodworth told Respondent Employer's Project Superintendent Hill that the request was made because Carroll had not been a member of Respondent Union for the required 3 years. He also said that the 3- year requirement was one of its practices . Earlier on Oc- tober 3, union representatives had informed Carroll he could not be a master mechanic because he did not have the required 3 years of membership. At the time of Car- roll's demotion, employee Parker was promoted to Car- roll's position. Parker's altercation with Carroll because of Carroll's appointment as master mechanic had trig- gered the request of Respondent Union. It had occurred prior to all of the October 3 activity. Parker strongly protested to Carroll his appointment because of the lack of 3 years ' membership. After Carroll worked for 2 days at the job to which he had been demoted, Turner discharged him. Turner told 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him there was dissension on the job. Employee Ed Price, who had replaced Parker as master mechanic, gave him the check for the money Respondent Employer owed him Project Superintendent Hill told Carroll that the reason was a reduction in force He did not answer Car- roll's statement that there were men on the job with less time and qualifications, except to say that the termination had to be. Turner acknowledged that Carroll was well qualified, and he and Hill said they would provide him with a recommendation to any company in town. Turner asked him not to make any trouble. Respondent Employer's Turner had attempted to settle the differences between Carroll and Parker, but although Carroll was willing, Parker was not, and said he would quit if Carroll was not discharged. This occurred on the evening of October 3, 2 days before the discharge. Turner said to Carroll at that time that he would work things out with Parker, and refused Carroll's offer to ter- minate his employment. However, Turner did not suc- ceed in placating Parker, and Carroll's discharge fol- lowed. Respondent Union has violated Section 8(b)(1)(A) of the Act by enforcement of its policy of denying the posi- tion of master mechanic to employees who have not been its members for 3 years. This conduct restrains and coerces employees with respect to rights they have under Section 7 of the Act.2 I also find and conclude that the conduct of Respondent Union violates Section 8(b)(2) and (1)(A) of the Act as it caused Respondent Employer's conduct which discriminates against employee Carroll and encourages membership in the Respondent Union in violation of Section 8(a)(3) and (1) of the Act. The Respondent Union's conduct is on all fours with its con- duct in Local 450, Operating Engineers (Tellepsen Con- struction Company),3 which the Board found violated Section 8(b)(2). There, employee Rittenberry was denied a promotion to master mechanic because he was not a member in its organization for 3 years. It can be argued that the facts are different because in the Tellepsen case employee Rittenberry was only a rank-and-file employee while in the case here employee Carroll was a supervisor when the status of master mechanic was first denied to him. In Tellepsen, the com- pany notified respondent union that it intended to promote Rittenberry and respondent union prevented it. In the case here, Respondent Employer appointed Car- roll to the position of master mechanic, a supervisory position, without notifying Respondent Union, and Car- roll held the position about 2 weeks before Respondent Union learned of his promotion. But he held the rank- and-file job of dragline operator when demoted at the request of the Union, and was denied his right to the master mechanic position during this time as well as dur- ing the time he has been discharged as a rank-and-file em- ployee to placate employee Parker. So the violation is the same, and calls for the same remedy the Board provided in Tellepsen Respondent Employer has violated Section 8(a)(1) of the Act by its denial to Carroll of the position of master mechanic as this conduct interferes with, restrains, and coerces employees with respect to rights they have under Section 7 of the Act, particularly the right to their em- ployment free of any requirement that they be members of the Union, or members for any prescribed period of time.4 Respondent's denial to Carroll of the position of master mechanic at the request of Respondent Union also violates Section 8(a)(3) and (1) of the Act. This denial was in effect for the 2 days Carroll worked at the rank- and-file job of dragline operator before he was discharged, and has been in effect during his discriminato- ry discharge.5 The evidence does not disclose that Respondent Union had anything to do with Carroll's discharge. Business Representative Bloodworth told Project Superintendent Hill he could determine what action to take against Car- roll and Parker, if any, because of the "fight" they had on the morning of October 3. He said he could fire Carroll, Parker, or both of them. The Union was interested in hav- ing its practice enforced This did not require Carroll's discharge. He had been one of its members for 10 months. As stated above, Respondent Employer sought to retain both Carroll and Parker as employees, but Parker demanded Carroll's discharge as the price for his staying on. Although Respondent Employer's Turner sought to change Parker's attitude, apparently he did not succeed. He then discharged Carroll, a competent em- ployee whom he and Project Superintendent Hill were willing to recommend to other employers, because he had less seniority than Parker as a member of the Union. This was a discriminatory discharge in violation of Section 8(a)(3) and (I) of the Act.e IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section I 11, above, occurring in connection with Respondent Em- ployer's operations described in section 1, above, have a close, intimate, and substantial 'relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents engaged in conduct violative of the Act, I shall recommend that Respondents be ordered to cease and desist from engaging in such con- duct, and take such affirmative action as appears necessa- ry to effectuate the purposes of the Act. I shall recom- mend that Respondent Employer be required to offer Carroll without prejudice to his seniority and other rights and privileges, immediate and full reinstatement to his former position of master mechanic, or a substantially equivalent position. I shall also recommend that Respond- ents, jointly and severally, be required to make Carroll whole for any loss of earnings he suffered by reason of the discrimination against him by reason of the denial to him ' Local Union No 156, Sheet Metal Workers' I nternational Associa- tion , AFL-CIO (Air Flow Slieet Mtal, Inc ), 160 N LRB 1653 ' 122 NLRB 564, enfd 281 F 2d 313 (C A. 5), cert denied 366 U S 901 a Talladega Cotton Factory, Inc , 106 N LRB 295, enfd 213 F 2d 208, 215-217 (C A 5), Better Monkey Grip Company, 115 NLRB 1170, enfd 243 F 2d 836 (C A 5),cert denied 353 U S 864,355 U S 900, Jackson Tile Manufacturing Company, 122 NLRB 764,'enfd 272 F 2d 181 (C A 5), Dal-Ter Optical Company , Inc, 131 NLRB 715, enfd 310 F 2d 58 (C A 5), Oil City Brass Works , 147 NLRB 627, enfd 357 F 2d 466 (C A 5) See Local 450 , Engineer , supra, Local Union No 156 , Sheet Metal Workers , supra, A Nabakowski Co, 148 NLRB 876, enfd 359 F 2d 46 (C A 6), and Union Starch & Refining Company , 87 NLRB 779, enfd 186 2d 1008 (C A 7), cert denied 324 U S 815. 1 Radio Officers' Union v N L R B, 347 U S 17 WARRIOR CONSTRUCTORS, INC 23 of the position of master mechanic. I shall also recom- mend that Respondent Employer make Carroll whole for his loss of earnings caused by his discriminatory discharge. These compensations shall be determined in the manner provided in F. W Woolworth Company, 90 N LRB 289, with interest at 6 percent per annum as pro- vided in Isis Plumbing & Heating Co., 138 N LRB 716 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent Employer violated Section 8(a)(1) of the Act, and Respondent Union violated Section 8(b)(1)(A) of the Act by enforcing Respondent Union's policy of denying employees their right to be free to en- gage or not engage in union activity guaranteed them in Section 7 of the Act by denying them the right to hold the position of master mechanic when they have not been members of Respondent Union for 3 years, and per- mitting employees to hold this position when they have been members of the Union for 3 years. 3. Respondent Employer violated Section 8(a)(1) of the Act, and Respondent Union violated Section 8(b)(1)(A) of the Act by Respondent Employer's demo- tion, at the request of Respondent Union, of Carroll from the supervisory position of master mechanic to the rank- and-file job of dragline operator, and Respondent Em- ployer's promotion of employee Parker to replace Car- roll, because Carroll had not been a member of Respond- ent Union for 3 years, and Parker had been a member for 3 years. 4. Respondent Union violated Section 8(b)(2) and (1)(A) of the Act by causing Respondent Employer to deny to Carroll when he held the rank-and-file job of dragline operator the position of master mechanic because he had not been a member of the Respondent Union for 3 years. 5. Respondent Employer violated Section 8(a)(3) and (1) of the Act by denying to Carroll, while he held the rank-and-file job of dragline operator, the position of master mechanic, at the request of Respondent Union, because he had not been a member of Respondent Union for 3 years. 6. Respondent Employer violated Section 8(a)(3) and (1) of the Act by discharging Carroll from the rank-and- file job of dragline operator in order to retain Parker as an employee, because of Parker's longer tenure as a member of Respondent Union. 7. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of facts and conclusions of law and pursuant to Section 10(c) of the Act, the Trial Examiner hereby issues the following: RECOMMENDED ORDER A. Respondent Warrior Constructors, Inc., its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining , and coercing em- ployees with respect to their right to become, or not become, union members , or engage in, or not engage in, union activity, guaranteed them in Section 7 of the Act, by denying them the opportunity to become master mechanics until they have been members of International Union of Operating Engineers , AFL-CIO, Local No. 450, for 3 years , or any other period of time specified by this Respondent Union. (b)' Encouraging membership in Respondent Union by denying employee Lewis E. Carroll, or any other em- ployee, the position of master mechanic because he has not been a member of Respondent Union for 3 years, or any other period of time, or in any other manner dis- criminating against Carroll with respect to his wages, hours , and other terms and conditions of employment because of lack of union membership or union activity. (c) Engaging in like or related conduct that interferes with, coerces , and restrains employees with respect to their right to refrain from engaging in union or other con- certed activity for mutual aid or protection guaranteed them in Section 7 of the Act. 2. Take the following action which will effectuate the policies of the Act: (a) Reinstate Lewis E. Carroll to the position of master mechanic , or substantially equivalent position, without prejudice to his seniority or other rights and privileges (b) Notify Lewis E. Carroll if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. (c) Make Lewis E. Carroll whole,jointly and severally with Respondent Union, for any loss of earnings , includ- ing interest , he suffered by reason of the denial to him of the position of master mechanic, in the manner set forth in the section of this Decision entitled "The Remedy." (d) Make Lewis E. Carroll whole for any loss of earnings, including interest, he suffered by reason of his discriminatory discharge from the job of dragline opera- tor, in the manner set forth in the section of this Decision entitled "The Remedy " (e) 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 relevant and material to Respondent Employer's compliance with the provisions of this Order. (f) Post at its plant in Houston, Texas, copies of the at- tached notice marked " Appendix A."7 Copies of said notice, to be furnished by the Regional Director for Re- gion 23, after being duly signed by an authorized Respond- ent Employer's representative , shall be posted by the Respondent Employer upon receipt thereof , and be main- tained by it for 60 consecutive days thereafter , in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent Employer to insure that said notices are not altered , defaced , or covered by any other material ' In the event that this Recommended Order is 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (g) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Recom- mended Order , what steps the Respondent Employer has taken to comply herewith.8 B. International Union of Operating Engineers, AFL-CIO, Local No. 450, its officers , agents, and representatives , shall: 1. Cease and desist from: (a) Restraining or coercing employees with respect to their rights under Section 7 of the Act by denying them the opportunity to become master mechanics untihthey have been its members for 3 years , or any other period of time (b) Causing or attempting to cause Respondent Warrior Constructors, Inc., to deny to Lewis E. Carroll, or any other employee , the position of master mechanic until he has been its member 3 years , or for any period of time, or in any other manner engaging in discrimination against employees in regard to their wages , hours, and other terms and conditions of employment. (c) By like or related acts, restraining or coercing em- ployees in regard to their right to refrain from engaging in union or other concerted activity for mutual aid or protec- tion guaranteed them in Section 7 of the Act. 2 Take the following affirmative action which will ef- fectuate the policies of the Act- (a) Notify Respondent Warrior Constructors, Inc., that it has no objection to the employment of Lewis E. Carroll as master mechanic, and mail a copy of the nofice to Carroll. (b) Make Lewis E. Carroll whole,jointly and severally with Respondent Employer, for any loss of pay, including interest , he may have suffered by reason of the denial to him of the position of master mechanic, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Post in conspicuous places at its business office in Houston , Texas, where nofices to members are customarily posted , copies of the attached notice marked "Appendix B." 9 Copies of said notice , to be furnished by the Regional Director for Region 23, after being duly signed by an official representative of Respondent Union, shall be posted by Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter , in conspicuous places, including all places where notices to members are customarily posted Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for Region 23 signed copies of the notice attached hereto as Appendix B for posting by the Respondent Employer, if willing, at the of- fice and places of business of Respondent Employer where Appendix A is placed (e) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Recom- mended Order, what steps the Respondent Union has taken to comply herewith.1° " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 23, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith See fn 7, supra See fn 8, supra APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT interfere with, restrain, or coerce them with respect to their right to become, or not become, union members, or engage in, or not engage in, union activity, guaranteed them in Section 7 of the Act, by denying them the opportunity to become master mechanics until they have been members of International Union of Operating Engineers, AFL-CIO, Local No. 450, for 3 years, or any other period of time specified by this Union. WE WILL NOT encourage membership in this Union by denying employee Lewis E. Carroll, or any other employee, the position of master mechanic because he has not been a member of the Union for 3 ye4rs, or any other period of time, or in any other manner discriminate against Carroll, or any other employee, with respect to wages, hours, and other terms and conditions of employment, because of lack of union membership or union activity. WE WILL NOT engage in like or related conduct that interferes with, coerces, or restrains employees with respect to their right to refrain from engaging in union or other concerted activity for mutual aid or protection guaranteed them in Section 7 of the Act. WE WILL reinstate Lewis E. Carroll to the position of master mechanic, or substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges. WE WILL make Lewis E. Carroll whole,jointly and severally with the Union, for any loss of earnings, in- cluding interest, he suffered by reason of the denial to him of the position of master mechanic. WE WILL make Lewis E. Carroll whole for any loss of earnings, including interest, he suffered by reason of his discriminatory discharge from the job of dragline operator. WARRIOR CONSTRUCTORS, INC. (Employer) Dated By (Representative) (Title) Note: We will notify Lewis E. Carroll if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced , or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, 6617 Federal Office Building , 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-0611. APPENDIX B NOTICE WARRIOR CONSTRUCTORS, INC. 25 NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING ENGINEERS , AFL-CIO, LOCAL No. 450 Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order tc effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: engaging in union or other concerted activity for mu- tual aid or protection guaranteed them in Section 7 of the Act. WE WILL make Lewis E. Carroll whole, jointly and severally with Warrior Constructors , Inc., for any loss of pay, including interest , he may have suffered by reason of the denial to him of the position of master mechanic. WE WILL notify Warrior Constructors , Inc., that we have no objection to the employment of Lewis E. Carroll as master mechanic. INTERNATIONAL UNION OF WE WILL NOT restrain or coerce employees with OPERATING ENGINEERS, respect to their right under Section 7 of the Act to AFL-CIO, LOCAL No. 450 refrain from engaging in union or other concerted ac- (Labor Organization) tivlty by denying them the opportunity to become master mechanics until they have been our members for 3 years , or any other period of time. WE WILL NOT cause or attempt to cause Warrior Constructors, Inc., to deny to Lewis E. Carroll, or any other employee , the position of master mechanic until he has been our member for 3 years or any other period of time , or in any other manner to engage in discrimination against employees in regard to their wages, hours, and other terms and conditions of em- ployment. WE WILL NOT restrain or coerce employees by like or related acts in regard to their right to refrain from 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 members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-0611.