Everett Construction Co., Inc.

240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Everett Construction Company, Inc. and Bobby Nick Ward Gilco Construction Company and Bobby Nick Ward Local Union No. 198, United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO j (Everett Construction Company, Inc.; Gilco Construction Company) and Bobby Nick Ward. Cases l5-CA-3700, 15-CA-3700-2, and 15-CB-1041 October 31, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 24, 1970, Trial Examiner Wellington A. Gillis issued his Decision in the above-entitled proceeding, finding that the Respondents had en- gaged in and were engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Employer Respondents and the Union Respondent filed exceptions to the Trial Examiner's Decision and briefs and the General Counsel filed a brief in support of the Trial Examin- er's Decision. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegat- ed 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 this case. As we find merit in the exceptions, we hereby adopt the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent herewith. The Trial Examiner concluded that the Union engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act by attempting to cause and by causing the Employers to discrimi- nate against Ward because of his nonmembership in the Union, and the Employers engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by discharging Ward because of his nonmembership in the Union. The record shows that the Union, a Louisiana labor organization, sought to relieve a local unemployment 186 NLRB No. 40 problem by causing employers to fill local jobs with local residents on a nondiscriminatory basis; and that Ward, who was not a local resident, was terminated so that his job could be filled by a local resident. In order to obtain its objective of preserving local jobs for local residents, the Union's agreements with the local Industrial Contractors' Association (Everett, an out- of-State contractor, was not a member), in evidence as Union's Exhibits 1 and 2, provided in part that the Employer agreed to use the Union in hiring employ- ees; and the Union agreed to refer applicants on a nondiscriminatory basis, in no way affected by union membership or nonmembership, but based only on qualifications, seniority (including the chronological order in which the applicants applied), and residence, under rules adopted by a Joint Referral Committee. Contrary to the Trial Examiner, we do not believe that the evidence preponderates in favor of a finding that Respondent Union and Respondent Employers violated the Act in the discharge of Ward. An exclusive hiring hall is not per se unlawful and it may be implemented lawfully by a requirement that local employees be given preference in employment oppor- tunities. While the testimony relating to the Union's objective in seeking to replace Ward with a local welder makes reference to "Union men" or "local Union men" as well as "local men," such testimony is insufficient to rebut the substantial evidence that the Union was very much concerned with the unemploy- ment status of local residents. The fact that such employees were union members does not derogate from the Union's lawful interest in securing employ- ment for them. The Union's objection to the employ- ment of Ward, a nonresident, on the ground that local welders were out of work, cannot be ignored solely because Ward, unlike his competitors, was not a member of the Union. This circumstance creates no more than a suspicion that the Union would not have sought his discharge, despite his out-of-town status, if he had been a union member. Since we find no record support for the Trial Examiner's conclusion that the Respondents discrimi- nated against Ward because of his nonmembership in the Union, we shall dismiss the complaint in its entirety. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Trial Examiner : This case was heard by me at New Orleans , Louisiana, on April 14, 1970, and is based on three separate charges filed on December 2, EVERETT CONSTRUCTION CO. 241 1969, and February 2,. 1970, by Bobby Nick Ward, an individual; and upon a consolidated complaint, issued on February 17, 1970, by the General Counsel for the National Labor Relations Board, hereinafter referred to as the Board, against Everett Construction Company, Inc., and Gilco Construction Company, hereinafter referred to respectively as Everett Construction and Gilco or as Respondent Companies, and Local Union No. 198, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, hereinafter referred to as Local 198 or the Respondent Union, alleging violations of Section 8(a)(1) and (3), Section 8(b)(1)(A) and (2), and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136); and upon answers timely filed by each of the Respondents denying the commission of any unfair labor practices. At the hearing, all parties were represented by counsel, and were afforded full opportunity to examine and cross- examine witnesses, to introduce evidence pertinent to the issues and to engage in oral argument. Subsequent to the close of hearing, timely briefs were filed by counsel for the General Counsel, the Respondent Union, and the Respon- dent Companies. Upon the entire record in this case, and from my observation of the witnesses, and their demeanor on the witness stand, and upon substantial reliable evidence "considered along with the consistency and inherent probability of testimony" (Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT COMPANIES Respondent Everett Construction is a Texas corporation with its principal office and place of business located in Houston, Texas, and is engaged in the building and construction business. During the 12 months immediately preceding the issuance of the complaint, Respondent Everett Construction received in excess of $50,000 for work performed in the State of Louisiana for United Gas Pipeline Company. Respondent Gilco is a Louisiana corporation with its principal office and place of business located in Opelousas, Louisiana, and is engaged in the business of pipeline construction and equipment rental. During the 12 months immediately preceding the issuance of complaint, Respon- dent Gilco performed services valued in excess of $50,000 for Humble Oil and Refining Company in the State of Louisiana. Humble Oil and Refining Company, in turn, is a Delaware corporation maintaining places of business, terminals, and facilities in many states including Louisiana, Texas, and New Jersey, and is engaged in the manufacture, sale, transportation, and distribution of petroleum and related products. Humble Oil annually sells, distributes, and transports in interstate commerce products having a value in excess of $50,000. The parties admit, and I find, that Everett Construction, Gilco, and Humble Oil are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties admit, and I find, that Local Union No. 198, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Issue Whether the termination of employment of Bobby Nick Ward on November 19, 1969,1 was based upon his lack of membership in the Union. Facts During the last week in October, Everett Construction, an out-of-state company, commenced preparations for the construction of a compressor station and meter station for United Gas Pipeline Company at a jobsite located some 5 or 6 miles north of Opelousas, Louisiana. Initially, under the supervision of Everett Construction's job superintend- ent, Thomas Haynie, Everett Construction was engaged in the clearing, grubbing, and grading of access roads, working with equipment rented from and operated by employees of Gilco on an hourly basis. Along about the first week of November, a small number of Everett's employees also started on the job, including some laborers digging structural excavations, a few carpenters doing form work, some rig welders welding pipeline for the lines, a couple of pipe fitters, and a few helper craft. A number of these were considered by Everett Construction to be its key employees and had come up from Houston, Texas, to work on the job. Among these was Bobby Nick Ward, the alleged discriminatee herein, who was hired as a pipe welder on November 3 by Haynie and who continued as an employee on Everett Construction's payroll until November 19 when he, and the other welders, were terminated. At some point during this week, according to Ward's undisputed testimony, he overheard a conversation on the job involving Haynie, Bill West, business manager for Iron Workers Local 623, and John Trotti, assistant business agent for the Pipe Fitters Local 198. After introducing themselves, the Union officials asked Haynie if the job had been bid in on a union job. When Haynie replied that it had not, the union men said they would like to talk to him and suggested they go to Haynie's office, which they did. Later, after Trotti and West had left the jobsite, Ward asked Haynie if the men were union representatives, to which Haynie replied in the affirmative and asked Ward if he had a union book. Ward answered that he did not, and Haynie asked if any of the other welders had a book. Ward said he did not know for sure, that Haynie would have to ask them. Toward the end of that first week, Sheriff Ledoux of Opelousas asked Haynie to attend a meeting in his private office. Present at this meeting, in addition to Ledoux and 1 Unless otherwise noted, all dates hereinafter refer to the year 1969. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Haynie, were Albert Durbin, business manager for 198, and Lee Fuller, assistant business agent for Local 623, both locals headquartered in Baton Rouge, Louisiana. Sheriff Ledoux opened the meeting by recognizing that the men were all acquainted with each other, and stating that he was not a construction man nor a union man, but that he was a law enforcement officer and did not want nor anticipate any trouble. When Ledoux continued by asking the men to attempt to get together and to work out some agreement to preclude any problems on the job, Haynie stated that he was willing to hire any of the local people that were qualified to do the work, that all Durbin had to do was to send welders out and he would give them a test, and would hire them if they were qualified. Durbin told Haynie he could not send anybody out there "unless there was an agreement signed." Haynie replied that he did not have the authority to sign any kind of an agreement and that he would have to contact Mr. Claude Everett, president of Everett Construction. On Friday, November 14, after Gilco's and Everett Construction's employees were on the job, some 10 to 15 pickets, including Local 198's Trotti, appeared and established a picket line at the gate to the plant entrance. The picketing ceased prior to quitting time and no incidents occurred. The following Monday, November 17, some 50 to 60 pickets appeared, this time blocking the gate. Haynie met Trotti at the picket line early that morning, and was told that the Union was picketing Everett Construction Company, and that, as job superintendent for Everett Construction, he could not go in. Haynie went back to Opelousas to talk to the sheriff, intercepting his employees who were headed for the job.2 Haynie told his men to wait there, that he would talk with the sheriff and come back and tell them what to do. Haynie went on to Opelousas, talked with Sheriff Ledoux who told him he would send some deputies out, and that he would have to talk with the district attorney. Haynie, apparently after a short delay, returned to the picket line, meeting the deputies as they were leaving. Haynie was told that the sheriff's message, whatever it might have been, had been delivered to the pickets. When Haynie approached Trotti, however, the latter told him that "things hadn't changed any." Haynie said he would like to go on in because he had some gas scheduled to arrive. Trotti told Haynie that the gas truck had come, and had left after refusing to pass the picket line. Haynie left and returned to Opelousas where he again talked to Sheriff Ledoux. Pursuant to his promise, Ledoux went out to the picket line about 11 a.m., followed by Haynie. After talking separately with Trotti and several pickets for a few minutes, Ledoux went over to Haynie's truck and told him that "they were not going to try and keep me from doing my work." Once Ledoux left, however, Trotti turned to Haynie and said "that hadn't changed anything." Haynie returned to his men and told them to give their motel telephone numbers to his timekeeper, and for them to stay in the area, that they would not lose any time, and that he would be in touch with them later. Haynie, back at Opelousas, called Claude Everett in Houston, Texas, apprised him of the picket line and the fact that his employees "were unable to enter the job to work. " Haynie asked Everett what course of action he should take, to which Everett replied that he would come to Opelousas. Upon arriving early that night, Everett immedi- ately contacted Haynie, learning that his employees were not able to get on to the job and that Haynie had received no cooperation from the local law enforcement authority as to clearing the road of pickets in order that the vehicles could enter. Everett, aware that Gil Cortez, president of Gilco, was a lifelong friend of Sheriff Ledoux and highly thought of in the Opelousas community, telephoned Cortez and asked him to intercede for him with Ledoux to see if he could get access to the job. Cortez agreed to do so, but, as Ledoux was out of town for the evening, nothing was accomplished until the next day. Later Monday night, Haynie went to Paul Ray's motel room where Everett Construction's welders and helpers were assembled, and told them that he wanted them to go to work the following morning and to meet him at the Pure Oil truckstop. At 5:30 a.m., Tuesday, November 18, the six employees met Haynie at the designated spot. In reply to Ward's question as to whether the Company was going to reimburse the welders for any damage that might be done to their trucks or equipment, Haynie answered that the Company would not. Ward then asked Haynie if the sheriff or any of his deputies were going to be there, and was told that they would not. Haynie then told the employees that if they wanted to go down they could all get together and try to go through. When Haynie told Ward, who appeared to be the employee spokesman, however, that he could not assure them protection, Ward replied that his truck and his equipment were his living, that he could not afford to have it turned over or torn up, and that he did not care to cross the picket line.3 Haynie's reply was that he understood and did not blame the employees for their feelings, and that he had rather not take them down to the job. Haynie told them that it would be best for him to go and for them to stay, that he would return shortly and tell them what to do. Haynie told them that he would pay them for standing by, apparently at the rate of $5 per hour for a 9-hour day. The employees were paid $9 per hour straight time for Monday, with the standby pay starting on Tuesday. According to the undisputed, but uncorroborated testimony of Ward, Haynie returned shortly, telling the men it was a good thing they did not go down to the plant because there were about 200 men there and that they had grabbed hold of his truck and shook it. Haynie also told them that he had been asked where his crew was and that he had replied that they had better sense than to go down to the picket line. Tuesday afternoon, around 2 o'clock, Haynie dropped by Ward's Port Barre motel room where the employees again were congregated, and told them that Mr. Everett was in 2 These employees included the three rig welders, Ward, Paul Ray, and as he so testified, that he was ready to cross the picket line, that he was A. J. Dupre, three helpers, and two additional welders who had just come armed and would attempt to defend himself if there were any attempt to from Houston to be tested. destroy his equipment or to do him harm, I find Haynie's testimony, above, 3 While at some point in the conversation Ward may have told Haynie, to reflect the ultimate decision on the matter. EVERETT CONSTRUCTION CO. town, that they had not reached any agreement yet but that they were discussing a settlement for an agreement with the Union. When Ward stated that he did not feel that he could remain there too long at $5 per hour standby pay, Haynie told the employees he would pay them in addition $7 per day subsistence. Haynie stated that it would probably be only one more day before they knew one way or the other what was going to happen.4 At some point of time on Tuesday, November 18, Everett and Cortez got together and entered into a verbal agreement, later reduced to writing, whereby, inter aka, Gilco agreed to serve as management and personnel consultant for Everett Construction until the completion of the job at Opelousas. Everett's reason for entering into this agreement with Gilco was "in order that Everett Construc- tion Company would have a local representative of substance to represent them in the relations or negotiations or other contracts we would have with the local business interests ; with the local interests, not just business interests, all local interests," and "because I felt like that we had, before the agreement was entered into, information had been given to Mr. Cortez to the effect that we were an out- of-state contractor, that we were in some peoples' opinion not qualified to complete thejob." With this arrangement agreed upon, that night a meeting was held in Sheriff Ledoux's office in the St. Landry County Courthouse in Opelousas. In attendance, in addition to the sheriff and his deputy, were Everett, Cortez, Trotti, and Fuller. Based upon the testimony of Everett and Cortez, the owners of the two Respondent Companies and the only two present at the meeting who testified in this proceeding, there is no question but that the real problem discussed at this meeting, and the meeting to follow the next morning, concerned the employment on the job of two crafts, welders and pipefitters. Beyond that, however, because, with few exceptions, neither testified as to who said what to whom during the course of the 1-hour meeting, the crux of what exactly took place is not too clear. At one point, however, when asked by counsel what was said by Trotti as to the Union's picketing at the jobsite, Everett testified that Trotti stated that "We were employing people from out-of-State, and that they had local people who were out of work, and that they were insisting that the pickets remain out there until we agreed to employ these people whom they referred to us." With reference to welders, Cortez testified that "they wanted local people. They had Union people, but local people, riding beside this job that had to pass here to go home, really there was one in Melville, one in Krotz Springs, and one in Eunice, as I recall." When Cortez registered concern about damage to his equipment were he to leave it on thejobsite, Trotti told him he did not have to worry, that the Union would protect his equipment and guarantee him and his operators safe access to and from the job. Because his operators were nonunion Cortez asked what would prevent other picketing if they agreed to work these men if they were qualified. He was told that the Union was not concerned with the 4 Haynie was operating under instructions from Everett to pay his men and have them stand by to see what comes out of the meetings, to see "what we can do about keeping the people on 5 Apart from the agreement as to the Union's referral system , at some point, Trotti also submitted to Cortez a written contract for execution by 243 operators or the laborers, but only with the welders and pipefitters. When Cortez asked for some guarantee that there would be no further work stoppages and no violence, it was suggested that they should contact Durbin and West, business managers of the two local craft unions, and set up a meeting for 10 a.m. the next morning. On Wednesday morning, November 19, at the scheduled hour, with Shenff Ledoux, Everett, Cortez, Fuller, Trotti and Durbin present, the parties met at the Opelousas Inn. The Shenff opened the meeting, according to Everett, by stating its purpose; namely, "to work out an agreement whereby we would use local people referred to us by these two unions, and to also further agree that there would be no work stoppages or slow downs or pickets, or any other labor trouble for the next 6 or 8 odd weeks that it would take to complete that job." After further discussion on the matter, an agreement was reached between the Union, on one hand, and Everett Construction and Gilco on the other, whereby the employers would hire qualified local welders and pipefitters through the Union, using the Union's referral system, and to pay union wages and granting union benefits to those referred.5 Pursuant to this agreement, according to the testimony of Everett, the Union asked Everett Construction to terminate any welders who were not from the immediate locality. According to the testimony of Cortez, in reply to his question of whether the welders who had been working on the job could "buy a book," Cortez was told that "they could not sell books because they had too many local men out of work." Cortez followed this with the additional question as to working permits for the welders currently employed by Everett Construction, and was given the same answer, "too many local men that were out of work." When lead by counsel on cross-examination, Cortez' testimony was that he was told that the Union had too many "local Union men out of work." Subsequently, Cortez volunteered the testimony that Trotti told him that "they didn't see where they could issue permits books (sic), because they had too many men out of work at this time, especially local men." Thereafter, Cortez asked the Union people if they had any local welders who were certified by United Gas. When told that they had, Cortez told them to send them outs Early Wednesday afternoon following the meeting, Everett apprised Haynie of the agreement with the Union whereby they "would hire people referred to us by the two local craft unions . .." and asked him to convey the information to the men. Everett also instructed Haynie that he was to do this through Cortez, that his need for men should be made known to Cortez and Cortez would call the Union hall for men. Around 2 p.m., Haynie met Ward and Dupre in a local cafe having lunch, and, according to the credited testimony of Ward, told them "well, the Company has gone Union and they agreed to hire union personnel." When Ward queued as to where that left them, Haynie said he had to let them go. Ward then voiced his understanding that when a the employers Such contract, however, was never signed. 6 Contrary to the testimony of Cortez that he did not give the Union an order for men, Durbin testified that Cortez gave him an order for six welders for the following morning 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company signs a contract with a union the employees are afforded the opportunity to join the union and to continue working. Haynie answered that the Union would not let them do that. Ward then asked Haynie about the possibility of buying a book or securing a work permit, and Haynie replied that the Union would not permit either. Haynie then stated that he was sorry to have to let them go, but that "we are going to hire Union personnel, and they won't let us let you stay on the job, so we got to fire you." Haynie further told Ward and Dupre that he would pay them for the rest of the day, plus 8 hours travel time back to Houston.? ANALYSIS AND CONCLUSIONS The General Counsel contends that Bobby Nick Ward was unlawfully terminated because of his lack of member- ship in the Union, and that the Union caused his discriminatory termination. The Respondent Employers assert that they did not violate Section 8(a)(1) and (3) of the Act in terminating Ward because first, Ward was an independent contractor rather than an employee subject to the protection of the Act; and second, in any event, they yielded to lawful union pressure to hire local residents through the Union hall. Respondent Gilco argues, addi- tionally, that it was not a joint employer with Everett Construction and therefore cannot be held responsible for Ward's termination. Further, both Respondent Employers take the position that, assuming, arguendo, an unlawful purpose by the Union, the Union and not the Employers should be held liable for remedying the unfair labor practices. The Respondent Union alleges that it did not cause or attempt to cause Ward's discharge, and asserts in effect that Ward's termination was the result of the Union's lawful attempt to secure an agreement where by Everett Construction would employ local labor on the job. With respect to the first contention raised by the Respondent Employers, the record reveals that Ward was employed by Everett Construction's superintendent Haynie as a pipe welder or rig welder, that, apart from the first few days when he performed routine unloading of trucks, Ward performed welding functions under Haynie or the welding foreman from whom he received his instructions. Ward owned his own I-ton truck and his tools and welding equipment, the latter valued at approximately $5,000. He carried his own standard liability and collision insurance policy on his truck but none on his equipment. Ward was hourly paid at the rate of $9, with neither social security nor withholding tax deducted from his paycheck. He worked irregular hours as directed by Haynie, and was supplied a helper hired by Everett Construction. The latter, which carried workman's compensation insurance for him, supplied the materials with which Ward worked, including all of the pipe and fittings. The amount of time Ward and the other welders worked was entirely regulated by the Company. While Ward's employee status differed somewhat from that of the normal employee working for an employer, the fact remains that Everett Construction had the right to control, and in fact, through Haynie, did control, Ward in the performance of his daily duties. In a recent case where the employer raised the precise argument under a similar fact situation, the Board found contract welders to be employees rather than independent subcontractors.8 Ac- cordingly, I find without merit the assertion of the Respondents that Ward was not an employee entitled to the protection of the Act. Skipping for the moment the crucial issue raised by the pleadings, and treating with the assertion of Gilco that it was not a joint employer with Everett Construction, we must first look to the agreement verbally entered into by Everett and Cortez on November 18, and executed in writing on November 25. In addition to naming Gilco as management and personnel consultant on the job for Everett Construction, the agreement provides that Gilco shall: (1) Publicly represent Gilco Construction Company to be the general labor subcontractor to Everett Construc- tion for the term of the agreement. (2) Handle all negotiations and contracts with the Pipefitters Local and Ironworkers Local which will be necessary to obtain competent personnel of these crafts to man the job: advise the Locals of the reasons that incompetent craftsmen must be terminated and/or replaced; and in general perform other duties which may be necessary to maintain good relations with the Union Locals. (3) Aid and assist the Job Superintendent to obtain other personnel and/or equipment which may be required to properly prosecute the work. (4) Perform public relation and coordination functions that may be required to insure that the local law enforcement authorities carry out the agreements which were made to the end that there will be no more picketing or other forms of work interruptions prior to the completion of the project, and (5) Perform other duties as may be subsequently mutually agreed upon. The agreement further provides that Everett Construction Company shall: (1) Provide full supervision necessary for the execution of the work, other than that specifically assigned to the consultant. (2) Pay all bills and be responsible for all claims or other costs arising out of the performance of the work. (3) Pay Gilco a fee of $5,000 for the performance of its duties. While there is no question but that Everett Construction, through its superintendent, Haynie, retained responsibility for all financial obligations under its contract with United Gas Pipeline Company and remained responsible for the supervision of its employees on the job, the record reveals that, in carrying out its responsibilities under the agree- ment, Gilco's president, Cortez, handled the negotiations with the Unions during the meetings here involved, and represented Gilco to be the contractor on the jobsite. Thus, Cortez was the one who, once the referral agreement with 7 Haynie testified that he merely told them that they were going to have books and stuff." to hire local people, that permits and cards were out because he had been 8 Local Union 224 and Local Union 830, United Association of told that "they had people that was [sic] unemployed that already had the Journeymen et al., 152 NLRB 902, 904. EVERETT CONSTRUCTION CO. the Union was made, told the Union to send out welders, and who, subsequently was responsible for calling the union hall for employees as needed by Haynie on the job. Cortez, acting for Gilco, as a separate entity, signed the Union's trust fund agreement along with Everett. The Eighth Circuit in its decision in the New Madrid case, held that an important test of employership under the Act, is whether the contract either expressly or by implication gives the nonoperating employer "any voice whatsoever in the selecting or discharging of employees, in the fixing of wages for such employees, or in any other element of labor relations, conditions and policies in the plant."9 Primarily because of Gilco's role under the agreement with Everett Construction as to the employment of competent person- nel, I am of the opinion, and so find, that, for the purposes of the Act, Gilco meets the test of employership as set forth by the Court in the New Madrid decision. Accordingly I find without ment Gilco's argument that it is not a joint employer with Everett Construction and responsible for Ward's termination. Turning now to the real issue in this proceeding. Overly simplified, the facts reveal that, on November 3, at the outset of the job, and prior to any known union activity, Ward, an out-of-State, nonunion welder, was hired on the job by Haynie. Two weeks later, after union picketing, a couple of union-management meetings, and the execution of a union referral agreement, Ward, and the other nonunion welders, were terminated. The question first arises, why the picketing? There was little testimony on this, nor is that surprising. For with one unimportant exception, Ward was the only witness to testify in this proceeding who was not an official of one of the three Respondents.iO However, the hidden answer partially may well lie in the testimony of Cortez. At one point, when asked by counsel if the Union, through its business manager, Durbin, stated why it was concerned only about welders and pipefitters, Cortez testified, "well .. . they had ones that was not working, the one in Melville, there was one in Eunice not working, and one in Krotz Spnngs not working. The one in Melville, the way they found out . . . he was on his way home . . . and he passed the job and he seen it, and he reported it to them." "They," coming from Durbin, would have to refer to union people, not merely local people.ii At a later point, Cortez testified that these three welders who were union members contacted the union business agent about the job. This, coupled with the fact that during the first week that Everett's men were on the job, Local 198's Trotti had inquired of Haynie as to whether the job was a union job, warrants an inference that the Union found the job to be staffed with nonunion, albeit nonlocal, welders, and that, with several out-of-work union members 9 N L R B v New Madrid Manufacturing Company and Harold Jones, et a!, 215 F 2d 908, 913 (C A 8) 10 Assistant Business Agent Trotti, who was among those on the picket line, was not called upon to testify notwithstanding that he was present at the hearing Business Agent Durbin did testify briefly, but was not questioned concerning the picketing nor in fact concerning any demands made upon the Respondent Companies 11 The record establishes Eunice to be about 20 miles west of Opelousas Official notice taken of a Rand-McNally map discloses that Krotz Springs is located approximately 20 miles east of Opelousas and that Melville is perhaps 12 miles north of Krotz Springs. These towns are all within the confines of St Landry Parish and also within the large territorial 245 pressing for the jobs, the Union initiated the picketing. While it may be, as asserted by all Respondents, that the Union was interested in Everett hiring local people, one would have to be unduly naive to believe, under these circumstances, that the Union would have engaged in such picketing conduct and subsequent contract demands had these three out-of-work welders been nonunion men. Further substantiation of the validity of this inference is found in the ironic fact that, while most of Everett's men were from out of State, one of the welders who was subsequently terminated along with Ward was from Eunice. Thus, one of the results of the picketing and the Union-Company agreement was the replacement of a nonunion welder with a Union welder from the same town. When questioned on the witness stand concerning why the discharge of this Eunice employee who was qualified and was local , Haynie testified that he was told to terminate him, that he "was under the impression that we was going to use people referred through the Local." 12 All too frequently during the testimony concerning this issue, attributed to Trotti or to Durbin or to the Union by Everett, Cortez, and Haynie, was the word "they." Thus, "we were employing people from out of State, and that they had local people who were out of work .. -they had Union people, but local people, riding beside this job . . -the Union had too many "local Union men out of work;"-". . . because they had too many men out of work at this time, especially local men." When, during discus- sions such as here, union officials are pressing company officials for jobs, in using the word "they" in the context above quoted, again, one would have to be pretty naive to believe that the union officials were not talking about their union members. Under all of the circumstances, I find that the Union's purpose in picketing Respondents' Opelousas project was to pressure Everett Construction into replacing his nonunion welders with out-of-work Union men from within Local 198's territorial jurisdiction. I further find, contrary to the assertion of the Respondent Companies that, at some point prior to their capitulation, Everett and Cortez were well aware of what the Union was attempting to accomplish. Nor am I inclined, under these circum- stances, to believe that the Union was truthfully interested in "local" people, apart from local Union people. The only specific reference on the record to men who were out of work and wanting jobs was to the three union people from Eunice, Krotz Spnngs, and Melville. There was no indication at any time that any person from the immediate Opelousas area was interested in the project. In fact, Durbin testified that under their referral system people would be referred out of Local 198's hiring hall in Baton jurisdiction of Local 198 which extends from Baton Rouge, where it operates its hiring hall, some 60 miles to Opelousas , southeast to Morgan City, northeast to Gramercy, and then northwest to Baton Rouge 12 Earlier the cross-examination of Haynie went as follows Q Was he terminated along at the same time with Mr Ward? A Yes, he was Q But not because he wasn't local? A No Q Why was he terminated? A Well, I was under the impression we terminated them all Q Why, because they didn't have Union cards? A Well, I don't know 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rouge, 60 miles away, to jobs in St. Landry Parish, which, of necessity, would include the Opelousas project. There- fore, I find that the Union was interested in jobs for local people only to the extent that such local people were members of the Union within its territorial jurisdiction, and thus, that the alleged premise upon which the Respondent Union, as well as Respondent Companies, have attempted to justify the propriety of the conduct herein charged must fall. Further, that the understanding between Local 198 and the Respondent Companies entailed the employment of union welders is apparent from Haynie's parting words to Ward and his nonunion welders on November 19 to the effect that "the Company has gone Union and they agreed to hire Union personnel," followed with "we are going to hire Union personnel, and they won't let you stay on the job, so we got.to fire you." Accordingly, I find, as alleged, that the Union unlawfully attempted to cause and did cause Respondent Everett Construction and Gilco to discriminatorily terminate the employment of Bobby Nick Ward in violation of Section 8(a)(3), thereby violating Section 8(b)(1)(A) and (2) of the Act. I further find, as alleged, that in succumbing to the Union's pressures by agreeing to discharge all their nonunion welders, including Bobby Nick Ward, and Respondents Everett Construction and Gilco, did so with knowledge of the Respondent Union's unlawful purpose in making its demands, and, therefore, in discriminatorily discharging Ward on November 19, 1969, and thereafter refusing to reemploy him, Respondents Everett Construc- tion and Gilco violated Section 8(a)(1) and (3) of the Act.13 Finally, counsel for the Respondent Companies asserts in his brief that assuming, arguendo, that the Union's purpose in picketing and its motive in requesting the discharge of Everett Construction's nonunion welders was unlawful, the Union and not the Companies should be held liable for remedying the unfair labor practices. In this regard, Respondent Companies rely on Bulletin Company, et al., 14 and its principle that the primary burden for restoring loss of wages resulting from employer discrimination properly falls on the union whose unlawful pressures caused the employer to discriminate in those instances where the employer "took all reasonable measures required to overcome" the union's pressures, with the employer only secondarily liable. Contrary to the assertion of Respondent Companies, there is no evidence here that the Respondent Companies took any measures to resist the unlawful pressures of Local 198,15 much less measures of the type reflected in the Bulletin Company and Zoe Chemical cases. Therefore, finding without merit the Respondent Compa- nies' assertion in this regard, I shall recommend that the Respondent Companies be held jointly and severally liable with Respondent Union for making Ward whole for any loss of earnings he may have suffered as a result of the discrimination against him. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Companies and the Respondent Union set forth in section III, above, occurring in connection with the operations of the Respondent Companies described in section I, 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 It having been found that Everett Construction Compa- ny, Inc. and Gilco Construction Company on the one hand, and Local Union No. 198, United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, on the other, have engaged in certain unfair labor practices, it is recommended that each cease and desist therefrom and that each take certain affirmative action which is necessary to effectuate the policies of the Act. It having been found that Everett Construction and Gilco Construction, on November 19, 1969, at the request of Local Union No. 198, discriminatorily discharged Bobby Nick Ward, it is recommended that Everett Construction and Gilco offer Ward an equivalent position at any project either Respondent Company has or may have in the immediate future which falls within the geographical jurisdiction of Local 198.16 It is further recommended that Everett Construction and Gilco, jointly and severally with Local Union No. 198, make Bobby Nick Ward whole for any loss of earnings he may have suffered as a result of the discrimination against him from November 19, 1969, to the date when his employment with Everett Construction and Gilco would have terminated absent the discrimination caused by Local 198, the computation to be made in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, together with interest at a rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. It is also recommended that Local Union No. 198 notify Everett Construction and Gilco, and Bobby Nick Ward, in writing, that it has no objection to the employment of Bobby Nick Ward on any project of the Respondent Companies within its territorial area and that Local 198's liability for further accrual of backpay shall cease 5 days after the giving of such notification. It is further recommended that Everett Construction and Gilco post appropriate notices at their offices and at any project on which they may be engaged in the southern Louisiana area, and that Local Union No. 198 post appropriate notices at its business office in Baton Rouge, Louisiana, and at any other office or membership meeting places in the Opelou- sas, Louisiana, area. 13 I must assume that the Respondent Companies have abandoned their initial position, articulated by counsel at the opening of the hearing, to the effect that Ward was not fired, but that he "quit his employment by refusing to cross a picket line." Throughout the hearing, and in their brief, Respondent Companies admittedly discharged Ward after succumbing to the Respondent Union's demands that Everett's welders be discharged. 14 Bulletin Company et a!., 181 NLRB No. 95. See also Zoe Chemical Co., Inc., 160 NLRB 1001. 15 The effective picketing commenced Monday, November 17, and the Respondents capitulated with their agreement on Wednesday, November 19. 16 As the Respondents' United Gas Pipeline project at Opelousas, Louisiana, was completed on March 3, 1970, the usual recommended offer of reinstatement to that project cannot be made. EVERETT CONSTRUCTION CO. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Everett Construction Company, Inc., Gilco Con- struction Company, and Humble Oil and Refining Company are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 198, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 247 3. By discharging Bobby Nick Ward because of his nonmembership in the Union, the Respondent Companies engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By attempting to cause and by causing the Respon- dent Companies to discriminate against Bobby Nick Ward because of his nonmembership in the Union, the Respon- dent Union engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]