Intl. Brothd. of Teamsters, Local 222

INTL. BROTHD . OF TEAMSTERS , LOCAL 222 489 International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , Local No. 222 and Norman B. Cram and Twentieth Cen- tury-Fox Film Corporation (Party to the Agree- ment). Case 27-CB-434 October 31, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On February 21, 1968, Trial Examiner David Karasick issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief and the General Counsel filed an answering brief to the Respondent's exceptions. 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 this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner' insofar as consistent herewith. We agree with the Trial Examiner's conclusion that the Respondent Union violated Section 8(b)(2) and (1)(A) of the Act, which in effect prohibits a labor organization from causing employers to discriminate against employees in violation of Section 8(a)(3) of the Act. We base our finding on the Union's unlawful hiring agreement, arrangement, or understanding with the motion picture producers covering the Kanab area, and the Union's discriminatory operation of this agreement specifically with respect to refusing to clear or refer employee Cram for employment by motion picture producer Fox on and after April 28, 1967. It is clear that since at least 1964 the producers, when operating in the Kanab area, custom- anly asked the Union for the employees they needed. It is likewise clear that the Union fully and knowingly cooperated in filling these requests, normally by giving first preference to union members. It is also clear that the Union has been discriminatorily refus- ing Cram's efforts to secure union membership or clearance in order to work for motion picture producer Fox. We note particularly by way of background, that when Cram in 1965 started working for a producer, Union Official Johnson and a producer's representa- tive together stopped him, said that he was violating the producer's contract by working without a union card, and forced him off the job. On April 27, 1967, motion picture producer Fox advised Cram that it had work for him if he obtained the necessary clearance from the Union, and on April 28 Cram so advised the Union. Without denying Cram's assertion about the necessity of union clear- ance in order to work for Fox, Union Secretary- Treasurer Case replied that Cram had been denied membership. On or about June 9, Union representa- tive LeGrand Hamblin told Cram that he could have used Cram on a job if Cram would get straightened with the Union; but that he had been instructed by Union agent Smith to "hire anybody in Kanab but Norm Cram." Later that month Cram filed the charge on which this case is based. On these facts we are convinced that the Union was not merely a passive beneficiary of the producers' unilateral decision to secure employees through the Union, but was in fact an active participant in a mutual scheme to give union members employment preference. Most significantly, in the spring of 1967 union representatives in effect agreed with Cram's statement that union membership was necessary before Cram could perform his job with motion picture producer Fox; and somewhat later Cram was advised by a union representative that the Union was in a position to hire employees needed by producers in Kanab, but that Union agent Smith had told him not to hire Cram. The Union argues in effect that it did nothing more than passively acquiesce in the unilateral hiring practice or policy generally followed by Fox and the other producers, and that its own conduct did not violate the Act even if the producers violated the Act by such actions. In view particularly of the facts set forth above, which show clearly that the Union actively participated in effectuating a mutual agree- ment, arrangement, or understanding for preferential hiring of union members, we find no merit in this argument, and agree with the Trial Examiner's conclu- sion that the Union violated Section 8(b)(2) and (1)(A) of the Act. I The Trial Examiner , apparently inadvertently , referred to the date Cram was "quarrelsome " or a troublemaker " However, we do not of Cram's first conversation with Parry as July 1964 , the correct date is adopt his further observation that such considerations can never be a January 20 , 1964. legitimate concern of unions in the referral of applicants for jobs. We agree with the Trial Examiner that there is no credible evidence 173 NLRB No. 81 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 222, Salt Lake City, Utah, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as so modi- fied: 1. Substitute the following for paragraph 1(a) of the Trial Examiner's Recommended Order (a) Giving effect to its agreement, arrangement, or understanding with motion picture producers with respect to hiring in the Kanab area, or otherwise causing or attempting to cause Twentieth Century- Fox Film Corporation or any other employer to discriminate against employees in the Kanab area in violation of Section 8(a)(3) of the Act. 2. Substitute the following for the first indented paragraph of the notice: WE WILL NOT give effect to our agreement, arrangement, or understanding with motion picture producers with respect to hiring in the Kanab area, or otherwise cause or attempt to cause Twentieth Century-Fox Film Corporation or any other em- ployer to discriminate against employees in the Kanab area in violation of Section 8(a)(3) of the Act TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID KARASICK, Trial Examiner. This proceeding under Section 10(b) of the National Labor Relations Act, herein called the Act, was heard in Salt Lake City, Utah, on November 15, 16, and 17, 1967, pursuant to due notice. The complaint, dated August 29, 1967, was based upon a charge filed on June 23, 1967, by Norman B Cram, an individual, and alleged that the Respondent had engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and 8(b)(2) of the Act. Upon the entire record in the case,' including briefs filed by the Respondent and the General Counsel, and from my observation of the demeanor of the witnesses, I make the following I [Certain errors in the transcript have been noted and corrected 1 FINDINGS OF FACT I THE BUSINESS OPERATIONS OF THE EMPLOYER Twentieth Century-Fox Film Corporation, herein called Fox, a Delaware corporation, maintains its principal office in New York City and studios in Los Angeles, California. Fox is engaged in the production and distribution of motion pictures and annually distributes films valued in excess of $100,000 directly across state lines within the United States and to territories thereof and to foreign countries. Fox is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local No. 222, herein variously called the Respondent, the Union or the Teamsters, is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES ALLEGED A The Facts 1. The hiring practice Kanab, a community of approximately 1,250 persons, is located in a remote section of southern Utah approximately 300 miles from Salt Lake City, in an area used by Fox and other companies for the filming of motion pictures Produc- tion generally begins in the spring and ends in the fall of the year Some of the personnel and equipment required for filming is brought from the Hollywood studios of the producers and the remainder is secured in and around the vicinity of Kanab. As a result, many of the residents of Kanab seek employment from the producers as a supplement to their regular income during the production season. Fox is one of a number of motion picture companies who are parties to a multiemployer collective-bargaining agreement with Local 399 of the Teamsters, herein called Local 399, a sister local of the Respondent This contract, in effect at all material times herein, covers the operations of the parties in various western states, including Utah and Arizona The practice followed under this agreement is that motor vehicles brought by the producers from Hollywood to movie locations in Utah or Arizona are driven by members of Local 399. Some vehicles used during the filming of movies in these locations, however, are rented by the producers in the local areas where the filming occurs When this happens the motion picture producers hire local persons to drive the rented equipment. As a general practice followed since at least 1964, the producers secure drivers for motor vehicles in the Kanab area from the INTL. BROTHD . OF TEAMSTERS , LOCAL 222 steward or contact man 2 of the Respondent The contact men, by referring to a list of paid-up members of the Respondent, dispatch only those drivers whose names are included on such list unless the list has been exhausted and drivers who are paid-up members of the Respondent are no longer available or unless special equipment or vehicles are required and can be rented only if operated by the owner of the vehicle or some other person who is not a union member whose name appears on the Respondent's hiring list 3 2. Cram's efforts to secure employment From 1948 until a year or two prior to the hearing in this case, Norman B Cram was a member of a labor organization of motion picture extras. At one time, this union was associated with a labor organization in Los Angeles. Shortly after this occured, the motion picture companies stopped filming in the Kanab area. According to the Respondent, the cessation of filming was because of the activities of the labor organization of movie extras. Cram, however, advanced the opinion that the cessation instead was attributable to the fact that the motion picture business was in a decline because of the competition of television and foreign films In any event, Hollywood studios did not again engage in active production operations in the Kanab area until 1964. In July 1964, Cram spoke to Whit Parry, a motel owner in Kanab who provided the motion picture companies operating in the area with motor vehicles and drivers as well as food and lodging. Cram had shown Parry a bus which Cram had purchased some time before. Parry expressed the view that it could be used by the producers. Cram told Parry that he received only 10 days vacation from his regular job as city marshal in Kanab and that he would like to drive his bus during those 10 days. Parry agreed and directed Cram to see Calvin Johnson, the Respondent's steward, "and get cleared through the Union." Cram spoke to Johnson, told the latter what Parry had said and asked Johnson about joining the Respondent. Johnson said that the Union had a seniority list, that Cram would be the last man on the list and that he would be wasting his money. Cram insisted but Johnson remained adamant and said that Cram could not loin. When Cram continued to insist, Johnson referred him to Bill Fackrell, a representative of the Respondent in Salt Lake City. 2 In a written report to the Respondent , on September 29, 1965, A.O May, an agent and representative of the Union, recommended that the term "contact man" be used instead of "steward" because of the stigma which had been attached to the latter term in the past and the fact that the Hollywood producers had feared the Teamsters and had been reluctant to come to the Utah area to make motion pictures. 3 The foregoing findings are based upon the composite testimony of Roy C. Metzler , manager of industrial relations for Fox , Le Grand Hamblin, Calvin Johnson, Vance Pugh, contact men or stewards of the Respondent , John Richard Hamblin , operator of an agency in Kanab which rented motor vehicles to the producers , and Al May, an agent and representative of the Respondent ; together with written reports made by Al May to the Respondent on September 29, 1965, June 9, 1966, and May 11 , 1967. In making these findings, I have considered the testimony of Leo B. Smith, a business representative of the Respondent, together with a document which he prepared purporting to show a list of drivers employed by the producers during operations in the Kanab area during 1967. The document itself was not one of the hiring lists actually used by the Respondent for referring drivers to the producers but instead was prepared by Smith a week before the hearing especially for the purposes of this case . The document sets forth names of eleven men who worked for the motion picture producers in the Kanab area 491 Cram called Fackrell and during the conversation the two men became involved in an argument. When Cram referred to Utah's right-to-work law, Fackrell grew angry and responded by saying, "You're just a trouble making son-of-a-bitch." Fackrell told Cram to secure an application blank from Johnson and remit it with a money order to the Salt Lake City office of the Respondent and "we'll go from there." When Cram attempted to secure an application from Johnson he was told that the latter had none Cram, however, secured an application from another steward of the Respond- ent. He filled it out, induced Johnson to sign it and mailed it together with a money order to the Respondent's office in Salt Lake City. Cram thereupon reported to Parry what he had done and the latter told him to report for work the following Monday morning That Sunday afternoon, however, Johnson told Cram that the latter better not show up for work in the morning. Cram replied that he had the job and was going to go to work and Johnson answered "You had better not or I'll mash your head in." Despite the warning he had received from Johnson, Cram reported for work the next morning at Parry's motel. Cram had reported the matter to the sheriff's office, and a number of highway patrolmen were in the area. One of them together with the sheriff was in front of the motel and two patrolmen were sitting in a car across the street when Cram drove up with his bus. Johnson told Parry that he would have a lot of trouble and the rest of the drivers would go on strike if Cram drove his bus. Parry asked Cram if he could use the bus with another driver. Cram assented but stated that he wanted to choose the person who would drive. Johnson stated that he would do the driving. Although Cram objected, Johnson insisted that he was entitled to drive the bus because he had seniority and was the union steward. Upon Parry's urging that filming of the picture should not be delayed by reason of the dispute, Cram finally agreed and Johnson drove the bus. Before Cram had left, he had been advised by Parry to call Fullmer Latter, then secretary-treasurer of the Respondent, in Salt Lake City. Cram did call Latter that day and told him what had happened. Latter advised Cram to mail in his application and money and the Respondent would then consider him for membership. Cram had not heard further from the Respondent by early September, despite Latter's promise to inform him as to what action had been taken on his during the 1967 season and purportedly did not become members of the Respondent. However, the names of at least six and perhaps seven (depending upon whether or not Leon and "Duke" Aiken are the same person) of the individuals so listed also appear in a report from Al May to the Respondent's secretary-treasurer on May 31, 1967, which shows that these same persons were members of the Union No explanation of these apparent contradictions was offered by the Respondent. For the foregoing reasons, I do not regard as an accurate portrayal of the facts either the document in question or Smith's testimony based upon it. 4 The foregoing findings, as well as those immediately following with regard to the events which occurred in the Spring of 1965, are based upon the testimony of Cram to which the Respondent objected on the ground that Parry had died prior to the hearing. Because of that fact, I have accepted Cram's testimony as to what occurred on each of these occasions only after careful scrutiny and consideration in light of the entire record. West Texas Utilities Company, Inc , 94 NLRB 1638, enfd. 195 F.2d 519 (CA. 5), Wallick & Schwalm Company, 95 NLRB 1262, enfd 198 F.2d 477 (C A. 3). Fackrell was not called as a witness. Johnson, although he testified on behalf of the Respondent , did not deny in any particular Cram's recounting concerning either of these incidents. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD application. In September, Cram went to Salt Lake City to inquire into the matter. In the meantime, filming of the motion picture had been completed. When he arrived in Salt Lake City, Cram saw Fackrell who told him that he would be notified of the Respondent's action by September 17. On November 25, 1964, the Respondent sent Cram a letter in which it enclosed the money order he had submitted with his application and informed him that the executive board of the Respondent had denied his application for membership. No reason for its action in so doing was given. In the Spring of 1965, Cram again sought employment from Parry to drive his bus during the filming of a movie then about to begin. Parry asked Cram if he was cleared through the Respondent. Cram replied that he would go to Salt Lake City and get the matter straightened out Cram went to Salt Lake City where he spoke to Fackrell who told him that he had a petition from the members of the Respondent stating that they did not want Cram in the Union. Cram replied that he had heard that but that he wanted to be cleared and wanted to go to work with his bus. Fackrell said that they would let Cram know. Cram returned to Kanab and told Parry that he had been advised by the agents of the Respondent that he had to have a job before he could get a union card. Parry instructed Cram to report for work with his bus the following Monday morning and he would have a job. On Monday morning, Cram drove up to Parry's motel One of the assistant directors of the producer placed a number of movie personnel on the bus and Cram drove them to their location, a short distance out of town. He was then instructed by the assistant director of the producer to go to the airport and pick up additional individuals who were coming in from Hollywood by plane. As Cram was preparing to leave, Johnson and Coleman Wilson, a representative of the producer, stopped him. Wilson asked Cram if he had a card. Cram replied that he did not. Wilson thereupon stated that Cram violated the producer's contract and could not drive the bus on the job Cram responded that he would be glad to join the Union. Wilson answered that Johnson was a steward of the Union and suggested that they talk to him. They did so, but Johnson stated that Cram could not join. The three men then went back to the motel where they were followed by one of the assistant directors. Cram explained that he did not have a card because the Union would not let him join. The assistant director asked Johnson what he was going to do about it and stated that they could not have this trouble. Johnson said that he would get another bus and go to the airport and pick up the passengers. s He did so and Cram was sent home. In July 1965, Cram spoke to a Mr. Hollis, who was in charge of transportation for a motion picture upon which production was about to begin. Hollis stated that it would not be necessary for him to follow seniority in the filming of the picture and that he would hire Cram if the latter could get clearance from the Union. A day or two later, Cram met Leo Smith, Al May, and Calvin Johnson, a business representative, organizer, and steward of the Respondent, respectively, on the street in Kanab. Cram asked if he could join the Respondent S Johnson, together with five or six other members of the Union in Kanab, jointly owned two buses which were available for lease to the producers. 6 The foregoing findings are based upon the undenied testimony of Cram and Smith answered that he could not. May added that Cram was not following the craft, that he was a city policeman and that until he got a job he could not join the Union.6 In the early part of 1966, Cram was dismissed as city marshal by the newly elected mayor. In April 1966, Cram asked Johnson if the latter had anything against his joining the Union since now he no longer was city marshal Johnson replied that he now no longer objected and said that he would call Leo Smith and straighten out the matter. Several days later, Cram was advised by Johnson that Cram would have to personally speak to Smith in Provo, 280 miles from Kanab, where a branch office of the Respondent was maintained. On the following day, Cram drove to Provo and arrived at Smith's office at approximately 8 a.m. When he finally saw Smith at 11 a.m., the latter refused to talk to him. Cram asked if Johnson had called and was told that he had not. Cram stated that he wanted to get cleared because he had a job offered to him and Smith replied, "Look, as far as I am concerned, you will never get in this Union." On the following day, Cram sought the assistance of the Anti-Discrimination Division of the Utah Industrial Commis- sion. A meeting was held at which representatives of that body, Smith, May, and Latter were present, together with Cram. Latter stated that the matter appeared to be a misunderstanding and could be settled very easily. He sug- gested that Cram submit his application and a check for initiation fees and stated that the Respondent would give him a letter stating that as soon as he went to work the Union would process his membership. Immediately following the conclusion of the meeting, Cram went to the union hall. He was told that his prior application was sufficient and he gave the Respondent a check for $75 to cover his initiation fees. He was given a receipt for his check and at the same time received the following letter which was signed by L.N. Case, secretary- treasurer of the Respondent-7 June 6, 1966 TEAMSTERS LOCAL UNION NO. 222 herewith acknowl- edges receipt of personal check in the amount of $75.00 and an Application for Membership into Local Union No. 222 from Mr. NORMAN CRAM this 6th Day of JUNE, 1966. It is understood that the acceptance by Local No. 222 of the above does not constitute an agreement to furnish employment to Mr. Cram. It does constitute however, an understanding that upon the employment of Mr. Cram in work covered under the jurisdiction of Teamsters Local No. 222, that the Application for Member- ship will be processed in accordance with the Rules of Local No. 222 governing such applications. TEAMSTERS LOCAL UNION NO. 222 /s/ L N Case L.N. Case Secretary-Treasurer Cram then returned to Kanab and saw Parry who added Cram's name to the list of employees eligible to drive motor vehicles for the producers. This list had been furnished Parry 7 Latter, who had previously held that position , became Mountain States Representative of the Western Conference of Teamsters in May 1966. INTL. BROTHD . OF TEAMSTERS , LOCAL 222 by Calvin Johnson, the contact man or dispatcher for the Respondent. Cram, however, did not drive on any job in 1966. Nor did he thereafter receive any further word from the Union. The check which he had submitted for his initiation fees was never cashed. On April 27, 1967, according to the undenied testimony of Cram, Fay Hamblin, who worked with the advance party of the producers to secure personnel and materials needed for production, asked Cram about the latter's bus. Hamblin told Cram that construction for a motion picture to be produced by Fox would start shortly in Kanab and that Cram's bus might be needed to pick up construction personnel in Las Vegas, Nevada. When asked by Hamblin if he had ever received clearance from the Respondent, Cram replied that he had a letter from Case which he believed resolved the matter. Later the same day, Cram showed Hamblin and his associate, Merril McDonald, the copy of the letter of June 6, 1966 which he had received from Case and one of them advised him to notify the Respondent that the producers had work for him. Cram testified without contradiction that, on the following day, April 28, he called Case in Salt Lake City and told him that he had a job on a picture to be produced by Fox if he could get cleared by the Respondent. Case replied that Cram had been denied membership. Cram answered that this had been in 1964 and asked if he had been refused membership since he had received the letter of June 6, 1966. Case stated that he would get Cram's file and check into the matter and would call Cram back. Cram told Case that he had to hear from him so that he could get definite word on going to work. Cram heard nothing further from the Respondent until May 10. On May 10, 1967, Al May and Leo Smith, agents of the Respondent, came to see Cram. May informed Cram that he had been blackballed. Cram protested that he did not think that this was right, that he had a job; that he wanted to get cleared by the Respondent; and that, although he did not necessarily want to belong to the Union, he would do so if it was necessary in order to go to work. Smith stated that he could not find anyone in Kanab who had offered Cram a job. Cram referred to Fay Hamblin and Smith replied, "Who is Fay Hamblin? I haven't seen his name on any checks." Smith further stated that he had talked to Hamblin and that the latter had not said that he had offered Cram a job Cram referred to Case's letter of June 6, 1966. Smith denied that he had a copy. When Cram stated that he had the letter in his file and would show it to Smith, the latter replied, "Yes, you and that damn file, that's going to get you into real serious trouble."8 A day or two later, Cram testified without denial that he recounted to Hamblin the conversation which Cram had had with Smith during which Smith had said that Hamblin had denied offering Cram a job. Hamblin answered that he had told Smith that as soon as Cram was cleared through the Respond- ent that there would be plenty of work. On or about June 9, 1967, Cram testified that he was told 8 Smith did not testify as to this incident May's version is substantially the same as that set forth above, which is based upon the testimony of Cram, except that May denied having said that Cram had been blackballed . In this respect, I believe Cram 's recounting to be the more accurate . In essence , it appears that May and Smith denied Cram's statement that Hamblin was authorized to hire on behalf of the producers and that the discussion ended in an angry exchange between Smith and Cram. 493 by LeGrand Hamblin, contact man or dispatcher for the Respondent in Kanab, that he wished the latter would get straightened out with the Respondent because he could have used Cram for work on the prior weekend during a race meet. Cram answered that he did not know what he could do about it since he had to have a card before he could get a job and he had to get a job before he could get a card. Hamblin answered that he had talked to Leo Smith about the matter and Smith had told him, "You hire anybody in Kanab but Norm Cram." Neither Hamblin nor Smith, both of whom testified on behalf of the Respondent, denied the foregoing testimony of Cram. Cram was unsuccessful in his efforts to secure clearance from the Respondent or to obtain employment as a driver by the motion picture producers in Kanab in 1967. 3. Summary and Concluding Findings The Respondent correctly contends that there is no evidence that it or the producers are parties to any written agreement governing the hiring of employees. The record does show, however, that Local 399 of the Teamsters, a sister local of the Respondent, is party to a collective-bargaining agree- ment with Fox and other motion picture producers in Hollywood which covers the employment of drivers of motor vehicles in various western states, including Utah. The record further shows that, despite the fact that no written agreement between the producers and the Respondent exists, the Re- spondent, Local 399 and the producers follow a practice of securing drivers for motor vehicles in the Kanab area from the Respondent; that in clearing or referring applicants for employment to the producers, the Respondent employs hiring lists which contain only the names of paid-up members of Local 222, and that individuals who are not members of the Respondent are not referred to jobs except where no qualified member of the Respondent is available after all available paid-up members of the Union are employed. Such a practice is discriminatory and the fact that it may not invariably have been applied, and there may have been exceptions, does not alter its unlawful character.' It is true that the producers may themselves hire drivers without regard to whether or not the latter are members of the Union. But according to the arrangement followed, they do so only after they have first given the Respondent an opportunity to supply the drivers so needed. The practice or arrangement thus followed recognizes the exclusive right of the Respondent to refer or clear applicants for employment, whether or not it exercises such right. The Respondent's control over job opportunities of drivers for the producers in the Kanab area is such as to enable it to cause the producers to discriminate in hiring. Possessed of such power, the Respondent is under a duty to clear or refer applicants on an undiscriminatory basis. 10 Instead, by listing for referral only the names of paid-up members of the Respondent and referring other individuals only after all paid-up members of the Union who were 9 Local 369, International Hod Carriers ' Building & Common Laborers' Union of America, A.F.L (Frommeyer & Company), 114 NLRB 872, 879. 10 Hargett Construction Company, 147 NLRB 210, 213, N.L R B v. George D Auchter Company, 209 F 2d 273 (C.A. 5). 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD qualified and available had been employed, the Respondent operated an exclusive hiring system discriminatorily and thereby violated Section 8(b)(1)(A) and (2) of the Act.11 The question remains whether the Respondent caused Fox to discriminate against Cram. The Respondent denies that Fay Hamblin had any authority to hire on behalf of Fox and denies that Cram otherwise sought employment from any other representative of Fox or any other producer. Cram testified without denial that, on April 27, 1967, either Fay Hamblin or his associate, Merril McDonald, who acted as advance men for the producers to secure personnel and equipment, told Cram to inform the Respondent they had work for Cram to do either on the Fox picture then expected to be produced in Kanab or a Columbia picture on which production was also expected. From this, it reasonably may be inferred that Hamblin and McDonald did have the authority on behalf of the producers to hire Cram on condition that the Respondent clear him for employment. But even if they had no such authority, the record shows that any attempt by Cram to secure employment by applying to Fox or any other producer would have been useless. What happened previously when Cram sought employment as a driver would undoubtedly be repeated in 1967. The undis- puted evidence shows that Cram persisted in his efforts to obtain work during the movie seasons in 1964, 1965 and 1966 and that the Respondent consistently blocked his attempts to secure such employment. On the occasions when he did succeed, the Respondent immediately had him removed from the job, as occured in July 1964 and again in the Spring of 1965.12 This evidence, plus the undenied testimony of Cram that in June 1967, he was told by LeGrand Hamblin, contact man of the Respondent in Kanab, that Hamblin had been instructed by Leo Smith, business representative of the Respondent, to "hire anybody in Kanab but Norm Cram", plus Cram's further undenied testimony that on April 28, 1967, Case, secretary-treasurer of the Respondent, promised to inform Cram whether or not the Respondent would clear him for a job with Fox but thereafter failed to fulfill his promise except for the visit to Cram by Al May and Smith on May 10, demonstrates beyond question that it would have been a futile gesture for Cram to apply to Fox or any other producer in the area for employment since the Respondent would not clear or refer him for such employment and neither Fox nor any other producer would hire him without such clearance. Under these circumstances, it is immaterial whether or not Cram applied for work to one or more of the producers.' 3 The Respondent argues that it had a right under the Act to refuse to admit Cram as a member of the Union. Undoubtedly it had such a right for whatever reason it felt was justified. It did not, however, have the right to refuse to clear or refer Cram for employment The Respondent's conduct is not justified on the ground that it refused to clear or refer Cram because he was quarrelsome and a troublemaker both because there is no credible evidence that these characterizations were justified and because acceptance or rejection of employees is the basic prerogative of the employer and not of the Union in the nondiscriminatory referral of applicants for a job. Nor in like manner may the Respondent find comfort in its conten- tion that Cram was denied referral because he had engaged in dual unionsim by virtue of his support over the years of a labor organization composed of movie extras. A refusal to place Cram's name on the referral list for such reason was in itself a violation of Section 8(b)(1)(A) and (2) of the Act.14 Accordingly, I find that, in addition to the unlawful hiring arrangement administered by the Respondent, Local 399 and the producers, as found above, the Respondent discrimina- tonly refused to register or dispatch Norman Cram for employment as a driver on and after April 28, 1967, thereby violating Section 8(b)(2) and (1)(A) of the Act. IV THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent violated Section 8(b)(1)(A) and (2) of the Act in operating an exclusive hiring arrangement for the preferential benefit of members of the Respondent by placing only such members' names on the register for referral and by clearing nonmembers and nonunion employees for employment only after members are employed, I shall recommend that the Respondent cease and desist from operating said exclusive hiring system in such manner. Having further found that, on and after April 28, 1967, the Respondent refused to register or refer Norman Cram for employment, it will be recommended that the Respondent make Cram whole for any loss of pay he may have suffered by reason of the discriminatory action against hum. Backpay shall be computed on a quarterly basis in a manner consistent with the policy established by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the Respondent's consistent and prolonged conduct in discriminating against Cram and in refusing to place his name upon its dispatch list or refer him for employment, as set forth above, it will also be recommended that the Respondent notify Fox and the other motion picture pro- ducers operating during the coming season in the Kanab area, in writing, with copies to Cram, that, upon his request, it will register him promptly, that it will interpose no barriers to his registration for work, his dispatch for available work, or his lure, and that he, together with all other workers or applicants for work, will henceforth be considered eligible for registration and will be dispatched for available work without discrimina- tion. 15 In addition, it will be recommended that the Respondent maintain permanent written records of its hiring and referral operations which will be adequate to disclose fully 11 International Association of Heat and Frost Insulators and Asbestos Workers, Local #84, AFL-CIO (The Edward R. Hart Com- pany), 146 NLRB 660 12 No contention has been advanced and no finding herein is made that events which occurred more than 6 months prior to the filing of the charge in this case on June 23, 1967, may be regarded as unfair labor practices . Instead, such evidence has been relied upon solely for the purpose of background to the extent that it tends to illuminate or explain the Respondent 's motivation or conduct which occurred within the 6 months' period prior to the time in which the charge in this case was filed. N L R B. v Bryan Manufacturing Co, 362 U.S. 411. 13 International Longshoremen's and Warehousemen 's Union, 94 NLRB 1091. 14 Considine Distributing Co , 166 NLRB No. 97 15 Golden State Runway and Engineering Company, 162 NLRB No. 92 INTL. BROTHD . OF TEAMSTERS , LOCAL 222 the basis on which each referral is made and, upon request of the Regional Director of the Board, or his agents, make available for inspection, at all reasonable times, any records relating in any way to the hiring and referral system.' 6 On the basis of the foregoing findings of fact and upon the entire record in the case, I make the following. CONCLUSIONS OF LAW 1. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. Fox is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3 By operating an exclusive hiring system for the preferen- tial benefit of members of the Respondent by placing only such members' names on the register for referral and by clearing nonmembers and nonunion employees for employ- ment only after members are employed and by refusing to refer Norman B. Cram to work for Fox on and after April 28, 1967, because Cram was not a member of the Respondent or because he had supported another labor organization, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, it is recommended that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 222, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Operating an exclusive hiring system for the preferential benefit of members of the Respondent by placing only such members' names on the register for referral and by clearing nonmembers and nonunion employees for employment only after members are employed. (b) Refusing to refer Norman B. Cram to Fox, or any other employer, when requested to do so, because said Cram is not a member of the Respondent or because he has supported another labor organization. (c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Make whole Norman B. Cram for any loss of pay he may have suffered as a result of the Respondent's discrimina- tion against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Send written notices to Twentieth Century-Fox Film Corporation and any and all other motion picture producers operating during the coming season in the Kanab area, with copies to Norman B. Cram, stating that it will, upon said Cram's request, register him promptly, that it will interpose no barriers to his registration, to his dispatch for available work, or to his hire for such work, and that he, together with all other workers or applicants for work, will, henceforth, be considered eligible for registration and will be dispatched for available work without discrimination. (c) Maintain permanent written records of its hiring and 495 referral operations which will be adequate to disclose fully the basis upon which each referral is made and, upon request of the Regional Director of the Board, or his agents, make available for inspection, at all reasonable times, any records relating in any way to the hiring and referral system. (d) Post at its business offices in Salt Lake City, Utah, and Provo, Utah, and all places where notices to its members and to employees are customarily posted, copies of the attached notice' 7 marked "Appendix."' 8 Copies of said notice, to be furnished by the Regional Director for Region 27, shall, after being duly signed by an official of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 27, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.' 9 16 N L R B. v Nassau and Suffolk Contractors Association, 321 F.2d 130 (C A 2) 17 Since notices are customarily framed in the language of the statute and because of their technical nature are often difficult for employees to understand , I am recommending that the notice in this 'ase embody the simplified form which appears in the Appendix 18 In the event that this Recommended Order be adopted by the Board , the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examinar " in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a decree of the United States Court of Appeals enforcing an Order " shall be substituted for the words "a Decision and Order." 19 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director in writing within 10 days from the date of this Order what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act as amended, we hereby notify our employees that WE WILL NOT operate an exclusive hiring system to provide drivers of motor vehicles for Twentieth Century- Fox Film Corporation, or any other motion picture producer, which grants preference to members of Teamsters Local 222 by placing only such members' names on the register for referral and by clearing nonmembers and nonunion employees or applicants for employment only after members are employed. WE WILL NOT cause or attempt to cause Twentieth Century-Fox Film Corporation, or any other motion picture producer, to discriminate against any employee or applicant for employment in violation of the National Labor Relations Act. WE WILL make whole Norman B. Cram for any loss of pay he suffered because of the discrimination practiced against him. WE WILL notify, in writing, Twentieth Century-Fox 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Film Corporation, and any and all other motion picture producers operating in the Kanab area during the coming season, with copies to Norman B. Cram, that we will, upon Cram's request, register him promptly, that we will inter- pose no barriers to his registration, to his dispatch for available work, or to his hire for such work, and that he, together with all other workers or applicants for work, will be considered eligible for registration and will be dispatched for available work without discrimination. WE WILL maintain permanent written records of our hiring and referral operations which will be adequate to disclose fully the basis upon which each referral is made and, upon request of the Regional Director of the National Labor Relations Board, or his agents, make available for inspection, at all reasonable times, any records relating in any way to the hiring and referral system. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA, LOCAL NO 222 (Labor Organization) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced , or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 2240 New Custom House, 721 19th Street, Denver, Colorado 80202, Telephone 297-3551.