International Longshoremen's Union Local 17

594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Longshoremen 's and Warehousemen's Union Local 17, International Longshoremen's and Warehousemen 's Union (Associated Metals Company of California ) and Stanley G. Kraus. Case 20-CB-1716 November 6, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On July 23, 1968, Trial Examiner Harry H. Kuskin issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged 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 a brief answering the Respondent's exceptions and brief and supporting the Trial Examiner's Decision. 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 the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner,' as modified herein. We agree with the Trial Examiner that the Respondent and Associated Metals Company of California had an exclusive hiring arrangement making union clearance or dispatch or referral a condition of employment,' and that the Respondent unlawfully refused, on July 10 and 20, 1967, to refer complain- ant Kraus for employment by Associated under the parties' exclusive hiring arrangement. In finding the Respondent's refusal to refer Kraus to have been unlawful, the Trial Examiner relied on a number of grounds, including several relating to Kraus' alleged failure to pay union dues and fees, and his alleged failure to perform his picket duty during the Respondent's strike against Associated. We agree with the Trial Examiner's ultimate conclusion, but, in doing so, we do not find it necessary to pass upon the issues relating to union dues and fees, since the Respondent's business agent conceded that one of the reasons Kraus was refused clearance was that the Respondent believed that he had failed to perform his picket duty during the strike at Associated. As found by the Trial Examiner, a union violates Section 8(b)(2) of the Act by imposing such a discriminatory condition upon referral of an employee under a hiring arrangement which makes referral a condition of employment.' Accordingly, we find that the Respondent caused, or attempted to cause, Associated to discriminate against Kraus in violation of Section 8(a)(3) of the Act, and thereby violated Section 8(b)(2) and (1)(A) of the Act. 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, and hereby orders that the Respondent, International Longshore- men's and Warehousemen's Union Local 17, Inter- national Longshoremen's and Warehousemen's Union, Sacramento, California, its officers, agents, and representatives, shall take the action set forth in the_ Trial Examiner's Recommended Order.4 'The Respondent excepts to the Trial Examiner 's credibility resolutions . It is the Board 's established policy, however, not to overrule a Trial Examiner's resolutions as to credibility unless, as is not the case here, the preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3) The Trial Examiner 's Decision, apparently inadvertently, refers, in section III, C, to the date of the events on the morning of July 20 as June 20, and in section III, E, to the date of Kraus' reemployment on May 11 , as May 12. The decision is hereby corrected in these respects. 2In addition to the grounds relied on by the Trial Examiner to find an exclusive hiring arrangement , we note that when Kraus appeared for work at Associated on July 20, without a dispatch slip, Losee, who issues the dispatch slips at the union hall, informed Cody, Associated's yard superintendent , by telephone , that Kraus had not been dispatched by the Respondent and should not be on the job. Cody then pulled Kraus off the job , and sent him to the union hall to get cleared by the Respondent before Cody could permit him to work for Associated. 3N.L R B v Local 450, International Union of Operating Engineers, AFL-CIO (Tellepsen Construction Co ), 281 F 2d 213 (C A. 5), enfg. as modified 122 NLRB 564 , 567-568. 4The Order requires , inter alia, that the Respondent notify Associated it has no objection to the employment of Kraus. This requirement is not affected by the remark made by the Respondent's agent Thompson to Sabo, vice president of Associated , about the time the charge herein was filed, that Associated could do what it pleased about Kraus, that Kraus was a lost cause . The Respondent contends that Sabo took this remark to mean that , as far as the Respondent was concerned , Associated could hire Kraus if it wanted to do so. However, Sabo's entire testimony , including his statement that , "If the union won't dispatch a man to us, we can 't put him to work," indicates that, although Sabo viewed this as a hypothetically possible construction, he did not in fact interpret the remark as having that meaning. 173 NLRB No. 95 INTERNATIONAL LONGSHOREMEN'S UNION LOCAL 17 595 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY H. KuSKIN, Trial Exarmner This case was heard at Sacramento, California, on April 30, 1968. A complaint issued herein on December 12, 1967, based on a charge filed on July 25, 1967,1 the complaint was thereafter amended on March 27, 1968. The complaint, as amended, presents the question of whether International Longshoremen's and Warehousemen's Union Local 17, International Longshoremen's and Warehouse- men's Union, herein called Respondent, violated Section 8(b)(2) and (1)(A) of the Act by refusing to dispatch Stanley G. Kraus, the Charging Party herein, on or about July 10, and again on or about July 20, to Associated Metals Company of California, herein called Associated, through the exclusive job referral or job clearance system operated by Respondent, because of Kraus' lack of membership in, and/or refusal to pay monies to, Respondent and/or because Respondent believed that Kraus had failed to engage in picketing on behalf of Respondent. In its answer, as amended, Respondent denies that it has engaged in any of the alleged unfair labor practices, it does, however, admit that it is a labor organization within the Act's meaning, that Frank Thompson has been at all material times its secretary-treasurer and also its agent within the meaning of the Act, and that it has entered into a series of agreements with Associated, one of which, together with its amendments, was effective from April 1, 1963, to May 31, 1967, and the most recent of which was executed on August 15, 1967, was made retroactive to June 1, 1967, and is to be effective until May 31, 1970. Upon the entire record, including my observation of the witnesses, including their demeanor while on the witness stand, and after due consideration of the briefs of the General Counsel and Respondent, I make the following. FINDINGS OF FACT I. THE BUSINESS OF ASSOCIATED The parties hereto stipulated that, if John J. Sabo, the vice president of Associated, were questioned while he was on the witness stand concerning the business of Associated, his testimony would sustain the allegations of the complaint, as amended, relating to commerce Accordingly, I find, as alleged, that Associated is a corporation of the State of California with offices and places of business in Sacramento and Benicia, California, where it is engaged in the processing and selling of junk and scrap metal, and that, during the past calendar year, it purchased and received goods and materials valued in excess of $50,000, which were shipped to it directly from outside the State of California. I find, upon the foregoing, as the parties also stipulated, that Associated is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Longshoremen's and Warehousemen's Union Local 17, International Longshoremen's and Warehousemen's IAll dates mentioned hereinafter are in 1967, unless otherwise indicated. Union, admits , and I find, that it is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. The bargaining relationship with Associated The bargaining relationship between Respondent and Associated dates back to the early 1960's and covered Associated's operations at its two yards, one in Sacramento, and one in Benicia, California. Of the two contracts, in evidence, the first one was entered into on April 8, 1963, it was thereafter amended in 1964 and 1965 and expired on May 31, 1967. Before the second of these contracts came into being, there was a strike at Associated which began on Monday, June 12, 1967, and ended on Monday, July 10, 1967. On the latter date, an understanding was reached as to the terms of an agreement between Associated and Respondent. However, the agreement was not reduced to final form until the first or second week in August 1967. On August 15, the second contract was executed; it was made retroactive to June 1, 1967, and is to extend until May 31, 1970. Each of these contracts sets forth in section 3 thereof a union-security clause and a hiring clause. The hiring provisions appear as section (a)(1), (a)(2), (a)(3), (a)(4) and (a)(5). Of these, section (a)(1) provides that Associated agrees to operate a nondiscriminatory hiring, promotional, transfer, and layoff policy. Section (a)(2) provides, in relevant part, that "it is recognized ... that men with previous experience in the industry who are willing to work are normally available through the Union [Respondent herein] and it is expressly agreed that when job openings occur, the Employer [Asso- ciated] shall take advantage of the opportunity available to it of obtaining men with previous experience in the industry through the Union and will, therefore, notify the Union of its intention to fill such job openings at least 24 hours prior to the filling of such openings so that the Union may arrange for men with such experience in the industry to apply for such job openings. The Employer agrees that, in hiring new employees (not on the seniority list), it will give preference to applicants having the necessary qualifications who have worked in the industry in the Sacramento area." Section (a)(3) states that, "The Employer agrees that, if in hiring a new employee (not on the seniority list) for a job, it shall fail to give the notice provided in sub-paragraph (2) above, or it shall hire one applicant for the job and shall fail or refuse to hire another applicant who was qualified for the job and who applied for the job either before the job was filled or within twenty-four (24) hours after notice was given, as provided in sub-paragraph 2 above, then the Union or an employee feeling aggrieved may assign the matter as a grievance to be taken up under the grievance and arbitration procedure for determining whether the said hiring was in violation of the Employer's Agreements in sub-paragraph 2. In such event, if it finally is determined through the operation of the grievance procedure that the said hiring was in violation of the Employer's Agreements, the Employer will discharge the man so hired and, in filling the job, will be bound by the provisions of said sub-paragraph (2)." 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section (a)(4) affords representatives of the Union access to employees on the job for the purpose of interviewing any nonunion employee either before or promptly after he has been put to work. Finally, section (a)(5) provides that "The Union agrees that, subject to the terms of the Agreement, it will not attempt in any way to interfere with or prevent the hiring by the Employer of any employee from any source whatever or under any conditions whatever which the Employer may desire." 2. The referral or clearance practice in effect between Respondent and Associated Respondent, a "several industries" union, maintains pools of available employees for each of these industries in the Sacramento area, which pools consist of laid off employees and others with experience in that industry who have reported to the union hall their availability for work. One, Jack Losee, an employee of Respondent, is the dispatcher in charge of these pools. When called upon by an employer in a particular industry for manpower, Losee refers experienced people from that industry, as required. In these pools are regular members of Respondent and nonmembers. When the former are referred, Losee apparently issues them a dispatch slip and indicates somehow that they are members in good standing with Respondent. When nonmembers are referred, Losee issues a dispatch slip and a work permit. The dispatch slip is intended for the steward on the job and he, in turn, introduces the individual, who is referred, to the representative of manage- ment who will put that individual to work. As far as Associated is concerned, the record shows that the dispatch system has been in existence during the entire period that Associated has "had dealings with" Respondent. The normal procedure of hiring has been for Associated to call Respondent's union hall when it needs employees and to obtain the necessary referrals via the dispatch slip route. In those instances where Respondent does not have qualified persons for referral, Associated, upon being so informed, advertises in newspapers for the needed help. Those who apply are then tested for the required skills and, if they meet the test and Associated is satisfied that they can do the work, Associated sends them to the union hall of Respondent for clearance. In this connection, Herb Cody, who was Asso- ciated's yard superintendent during the relevant periods herein and was Associated's manager of purchases at the time of the instant hearing, testified that Associated has followed this practice not because it wanted a dispatch slip but because it understood that this was what Respondent wanted. And John J. Sabo, the vice president of Associated, testified that, "if [Respondent] wont dispatch a man to us, we can't put him to work." The record also discloses that Associated's employees, who are within Respondent's jurisdiction, are either members or holders of work permits. Kraus, the Charging Party herein, has never been a union member and has held work permits from Respondent. Between the first and tenth of each month, union members are required by Respondent to pay at the union hall their dues for the preceding month and work permit holders are required to pay their permit fees on the basis of hours worked during that month. Respondent notifies its stewards on the various jobs covered by this hiring practice of any delinquencies and they, in turn, inform the delinquent employee. After "a certain period," Respondent reports delinquencies to the employer involved, in keeping with the section of the agreement with such employer requiring that the affected employees remain in good standing with Respondent. Sabo testified, in this respect, that Thompson, Respondent's secretary-treasurer and business agent, would call to advise that a particular employee "was behind in dues or something like that. And that we were to convey the message to them that they would get over to the union hall and pay their dues or else they would be pulled off the job, at which time [Thompson] indicated it appeared these people always had money for whiskey and such, but never time to pay their union dues " As will appear hereinafter, the manner of obtaining work permits from Respondent is of significance in appraising the issues herein. Kraus testified, in this connection, that he was given permission by Losee to go to work for Associated July 20 before obtaining a work permit, with the under- standing that he was to obtain the work permit at a later time. This is denied by Losee. According to him, the practice requires the worker to receive a dispatch slip from Respondent first, by coming to the union hall to get it. Thompson testified to the same effect,' listing only one exception, not relevant here, namely, the situation in which a worker mails his work permit card, which has been filled up, to the union hall with a check or money order to pay permit fees due. Respondent will in that circumstance issue a new work permit card to that individual and mail the card to him. 3. Kraus' employment history with Associated The following background facts as to Kraus' employment history which preceded the critical events beginning on July 10, will also help to fix the frame of reference of such events. Kraus began to work for Associated in 1962. Between 1962 and 1964, according to Kraus, he experienced some layoffs and some other work interruptions. In 1964, Kraus left for Nevada and stayed there about a year. In November 1965, he was again employed by Associated and worked until April 27, 1967. At that time, he had "family trouble and quit and left town for about two weeks." On May 10, 1967, Kraus applied for work to Sabo, the vice president of Associated. Kraus was advised that work was available for him at that time at Associated's installation in Benicia, California, which is about an hour and a half of driving distance from Sacramento, until such time as Associated could use him on the night shift at its 12th Street yard in Sacramento, and that he would have to start as a new employee, without seniority. Kraus agreed to these terms. The need for clearance was apparently mentioned by Sabo at that time. Kraus began work at the designated time of 8 a.m. on Thursday, May 11. He worked on Thursday and Friday of that payroll period, which ended on May 14, and during the following two payroll periods. Thereafter, he was assigned by Associated as a press operator to the 12th Street yard in Sacramento. His stint at the 12th Street yard lasted 1 week; i.e. through the week ending June 4. He spent the next 10 days in jail as the result of being charged with a misdeamenor 3 On the day of his release, according to Kraus, he went to the union hall of Respondent and signed up for 2Thompson was called as a witness by the General Counsel under section 43(b) of the Federal Rules of Civil Procedure. Kraus testified that he had been drinking and got into a fight with his father-in-law. INTERNATIONAL LONGSHOREMEN'S UNION LOCAL 17 597 picket duty in connection with the strike then being conducted by Respondent against Associated , and did about 3 weeks of picket duty (the strike lasted until July 10, as heretofore found). Except for an hour or so of work for Associated on July 20, to be described more fully hereinafter, Kraus has not worked for Associated since June 4. It is clear that Kraus was not dispatched through the union hall on May 11 to the Benicia yard. Kraus testified that he knew that he had to have a dispatch slip in order to work there and that, as dispatch slips were not mailed out to workers by Respondent, he would have to go to the union hall to get one. Yet, also according to Kraus, he made no effort to contact the union hall upon his being hired at about 5:30 p.m. on Wednesday, May 10, for the Benicia job, for the claimed reason that it was too late. Significantly, too, there is direct testimony by Kraus that he was aware that the union hall in Sacramento was open each working day until 6 or 7 p. m.4 Nor did Kraus seek permission from Sabo to report to the Benicia yard the following morning a bit later than the assigned time of 8 a.m. in order to allow him enough time to obtain a dispatch slip at the union hall that morning before reporting for work. And during the period that he worked at the Benicia yard, Kraus made no effort to contact the union hall either in person or by telephone or by mail about getting a dispatch slip. In answer to specific questions as to his failure to do so, Kraus testified that he did not have time because he finished work at 4 30 p.m., that he was "broke" and did not have the wherewithall to buy the necessary gasoline to drive his car to Sacramento and then back to Benicia, that he never thought of making a telephone call to the union hall either before he left for Benicia to go to work or while he was there; and that he saw Thompson at the Benicia yard within 4 days after he started to work there and conversed with him about this, and felt no need to contact the union hall thereafter from Benicia. As to the latter conversation, Kraus' testimony is that Phil Rubicatta, the union steward, was also present, that Thompson approached lain and they talked and that Thompson said that "as soon as [he, Kraus] got a chance when [he] got back to Sacramento, to get squared away with the union hall and [he] told [Thompson, he] would."5 Thompson, on the other hand, denied that he ever saw Kraus while Kraus was at the Benicia yard, and insisted that he did not know that Kraus had been working there "until after the strike was on."6 I note, also in this connection, that 1) after his transfer to the 12th Street yard of Associated at the end of May, Kraus did not go to the union hall about a dispatch slip, although he worked at the 12th Street yard that entire week,7 and 2) he offered the rather lame excuse that he did not have time to do so because he worked on the night shift until 1.30 a.m. and then would sleep each day until about 3 p.m. 4Dunng cross-examination by counsel for Respondent , Kraus' attention was called to his prehearing affidavit to a Board agent in which he swore that the conversation with Sabo occurred about 5 p.m., that the union hall was then closed and that Sabo told Kraus that he would call Thompson (the business agent and secretary -treasurer of Respondent) and explain and get a clearance for Kraus. As to this, Kraus testified that he did not think that this portion of his affidavit is correct, adding , "I don 't know, unless I just thought maybe that was what went out, because I don 't remember just all that went on between me and Sabo." 5 Kraus testified further that he understood Thompson 's remarks to mean that he was to come up and get his dispatch slip. In all these circumstances, I find unconvincing the excuses given by Kraus for his maction in regard to obtaining clearance from Respondent for the job at Associated's yard in Benicia. Rather do I infer, and find, that Kraus' failure (1) to apply to the union hall for a dispatch slip for the job at the Benicia yard before leaving from Sacramento to begin work; (2) to take steps to obtain such a slip while he was on that job, and (3) to seek to obtain a dispatch slip when he returned to Sacramento and was transferred to the 12th Street yard, was the result of a conscious refusal by Kraus to abide by the existing referral practice. 4. Kraus' record with respect to paying permit fees to Respondent In keeping with the prevailing referral and clearance practice described above, Kraus, who was not a member of Respondent and therefore worked as a permit man, had to pay at the union hall by the tenth of each month permit fees due for the prior month. Kraus admitted being delinquent in paying his permit fees in the past and that he "usually paid them about every 2 or 3 months." It was his further uncontradicted testimony that when he quit his job at Associated, at the end of April 1967, his permit fees were fully paid. He testified also that he did not pay permit fees in May because he did not work a full month. B. The Alleged Refusal by Respondent on July 10 to Refer Kraus to Associated for Employment As heretofore found, on July 10, Respondent and Associated agreed, in principle, as to the terms of an agreement and the pending strike then ended. Participating in these negotiations in behalf of Associated were Wayne Menebroker, Esq., and President Novak and Vice President Sabo; 8 and participating in behalf of Respondent were Business Agent Thompson together with a negotiating committee, among whom was Sal Garcia, an employee of Associated. When this order of business was consummated, the matter of resuming operations at Associated was discussed. Thompson testified that he asked Novak and Sabo "which of their employees they wanted back,"9 and that he believes that Sabo "said something about sending a fellow by the name of Kraus back who was not a part of the list," that he made no comment thereon,io and that he does not remember whether Garcia did or not. Sabo also testified concerning this matter. According to hun, Thompson wanted to know whom Associated wanted "to come back on the job and in what order;" that, because Associated was going "to reinitiate a night shift on [its] baling press," he asked that Kraus be dispatched to Associated to 6I have heretofore found that the strike began on June 12 BAs already found, Kraus has worked for Associated for only about an hour since that time. a Associated is a member of the Sacramento Employers' Council and Menebroker, its counsel , was acting as Associated's representative during the negotiations. 9Thompson explained that he raised this question on the assumption that Associated might not wish to resume its operations with a full complement right after the strike. At another point , Thompson answered "not that [I] can remember" to the question of whether he told Sabo that Respondent would not clear Kraus then or any other time. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work as the baler operator on the night shift, that Garcia thereupon interjected that "the union would have something to say about that", and, contrary to Thompson's testimony that he said nothing, that Thompson followed with the remark that "they wouldn't dispatch Kraus, that they were going to nd their union of drunks, of undesirable people." Sabo added that he did not recall all the descriptive terms that were used. Neither Novak nor Garcia testified in this proceeding, and, while Menebroker did testify, he had no recollection that Kraus' name was mentioned during the July 10 meeting. In the circumstances and particularly since the testimony of Thompson and Sabo is mutually corroborative on this point, I attach no weight to Menebroker's testimony, and find that the dispatching of Kraus by Respondent to Associated was discussed at that time. Insofar as the details of this conversation are concerned, Thompson was unable to recall some of them whereas Sabo testified in a straightforward manner and had no such difficulty. Furthermore, Thompson testified in a guarded manner and appeared to be withholding information. I, therefore, credit Sabo rather than Thompson in all respects, including the instance in which their testimony is in conflict. I therefore conclude, and find, that the episode occurred in the manner testified to by Sabo. Later the same day, Respondent convened a meeting at the union hall at which Thompson called out the names of those employees of Associated who were to return to work. Kraus' name was not called. When asked whether Kraus came up to hun later and asked why his name had not been called, Thompson answered, "not that I can remember." In contrast to the latter testimony, Kraus testified that he did have such a conversation. More particularly, Kraus testified that he made such an inquiry of Thompson after the union meeting in the presence of several named employees,' 1 that Thompson told him his name was not on the list to go back to work because Associated had discharged him,12 and that when he asked Thompson, "Well, what about going to work someplace else out of one of the other houses?," Thompson answered, "I ain't got time to talk about it." He testified further that he then left, not knowing that Associated wanted him to go back to work. I note that Thompson did not specifically deny that he had a conversation with Kraus on July 10, after the union meeting, in which Kraus inquired as to his nonreferral, nor did he specifically deny the remarks attributed to him by Kraus in connection therewith. Thompson would only say that he cannot remember such an episode. Although Kraus did not testify truthfully at times, his testimony in this regard impressed me as reliable when considered in the light of the inherent probabilities of the situation and the sequence of events herein. I therefore credit Kraus and find that the conversation did take place and that Thompson made the remarks attributed to him by Kraus. 11 Perez, Hernandez and Smith. None of these individuals testified and there is no showing that they were unavailable at the time of the hearing. 12In answer to a question by the undersigned as to whether Thompson indicated why Associated did not want him to work, Kraus answgred, "The only thing he said was the reason I went to jail." On cross-examination , Kraus explained that he wanted Losee to make out the slip and have it ready for him to pick up that morning in order to get to work by 8 o'clock. C. The Alleged Refusal by Respondent on July 20 to Refer Kraus to Associated for Employment On July 19, Kraus telephoned Cody, who was then Associated's yard superintendent, at his home in order to advise him that he wished to return some keys which belonged to Associated. According to Kraus, their conversation took the following course: Cody inquired as to Kraus' whereabouts, saying that Kraus was supposed to have returned to work for Associated the day after the strike ended; Kraus then explained to Cody that Thompson had told him that Associated had discharged him; Cody answered that Kraus had not been discharged but rather that Sabo had asked Thompson for Kraus before asking for any others but that Thompson had said "no;" and, lastly, Cody then told him to go to the union hall and get cleared and report to work the following morning at 8 o'clock. Cody also testified concerning this conversation. He corroborated Kraus' testimony as to what prompted Kraus to telephone him, as to his inquiring as to whether Kraus was then working, and as to his offering Kraus a job to begin the following morning subsequent to getting clearance at the union hall that morning. Cody made no mention of any reference by Kraus during this conversation to any dialogue between Kraus and Thompson after the union meeting on July 10 in which Kraus inquired as why he had not been dispatched that day for work to Associated. However, since Cody was not asked about this aspect of Kraus' testimony, since Cody corroborated Kraus on the other aspects of their conversation, and as Kraus' testimony that he mentioned the details of his abortive attempt to be refereed to Associated accords with the inherent probabilities of the situation, I find that Kraus testified credibly, and more fully than Cody, as to the telephone conversation between them on July 19. Kraus reported to work at Associated on July 20 at 8 a.m., without appearing at the union hall first and obtaining a clear- ance slip. Kraus' explanation for following this procedure was as follows He was at home at about 7 a.m. when he telephoned the union hall and spoke to Losee, the union dispatcher. He told Losee that Associated wanted him to come back to work and asked Losee whether he could get a dispatch slip. 13 Losee replied that he could but that "he thought Frank Thompson had a beef against [him, Kraus,] for something." At this, Kraus pointed to the fact that Cody wanted him to report at 8 o'clock and asked "would it be OK if [he] went ... to work, then if Frank Thompson, when he comes in, has anything to say, have him call." Losee agreed to this arrangement. At 8 a.m. he started to work at Associated and worked until 9 or 9.30 when his work was interrupted by a message from Baker, the yard foreman, that Respondent had called and wanted to see Kraus at the union hall. He then went to the union hall where he found Losee and Garcia. He did not ask Losee for a dispatch slip, trying only to find out from Losee "what the beef was about," but Losee told him to wait for Thompson to arrive. 14 When Thompson appeared, 14During cross-examination , Kraus amplified this testimony to say that Losee said that he did not know what it was all about but that Thompson had telephoned him and said that he did not want Kraus dispatched to Associated out of the union hall. Although Losee did not directly controvert this testimony , he denied having any conversation with Thompson about dispatching or clearing Kraus. INTERNATIONAL LONGSHOREMEN'S UNION LOCAL 17 599 Garcia and he went to Thompson's office He questioned Thompson as to why he "couldn't go to work," and Thomp- son answered that "[he] was irresponsible's and he didn't pull his picket duty and he didn't want guys like [him] working out of the union hall," and also that he didn't pay his dues half the time and that he, Thompson, "had to chase [him] down in order to get them." At this, Kraus left, re- turned to the 12th Street yard, and spoke to Cody, telling Cody that Thompson had refused to let him have a dispatch slip so that he could go to work.' 6 Cody thereupon indi- cated that if Kraus could get cleared, he would have a job with Associated. Cody's version of what transpired on the morning of June 20 involving Kraus begins with the time when Kraus reported to work. According to Cody, Kraus reported for work at 8 o'clock and told him that he had made arrangements for the Union to send the dispatch slip through the mail."' Within an hour, he was called on the telephone by Losee, the dispatcher, and told that Kraus did not have clearance and should not be at the yard. Cody testified further that he told Losee that he would send Kraus to the union hall, which he did, and he also told Losee that this was a matter between Respondent and Kraus. Cody did not testify as to what happened that day after Kraus left for the union hall. Losee, who testified in behalf of Respondent, acknowl- edged that he was in telephonic communication with both Cody and Kraus that morning. His testimony is, however, at odds with them in significant respects. Thus, Losee first testified that he received a telephone call from Cody about 8 o'clock in respect to Kraus and that, during the course of that conversation, Kraus was put on the line and they conversed. When called on surrebuttal, he acknowledged that he was in error concerning the single telephone call and that there were two separate telephone calls to him about 2 or 3 minutes apart, one from Cody and one from Kraus, in that order. As already noted, Cody testified that he had been called on the telephone by Losee between 8.30 and 9 a.m. after Kraus had been at work, and Kraus testified that he had called Losee around 7 a.m. As to the content of his conversation with Cody, Losee testified that Cody told him that he, Cody, wanted to employ Kraus, to which he, Losee, replied that Cody should send Kraus to the union hall and he will dispatch Kraus; whereas Cody testified, as found above, that Losee called to tell him that Kraus did not have a dispatch slip and should not be at the yard. And as to the content of his conversation with Kraus, Losee testified that Kraus spoke about getting a dispatch slip, that he told Kraus that he would have to come to the union hall to get one, and that Kraus said something about having a transportation problem and wanting to stay at work and get the dispatch slip "later on"; in the latter connection, he specifically denied that he told Kraus, as Kraus had testified, that it would be all right to work and get the dispatch slip later. Gloria Joyce Kraus, who is Kraus' wife, testified, in this connection, that her husband called Losee on the telephone from their home at about 7 o'clock that morning and that she listened to the conversation on an extension telephone. Her version of that conversation was that her husband asked Losee for a work permit to work at Associated, that Losee said that her husband could have one; that her husband then indicated that he had to be at work at 8 o'clock; and that he requested, and received, permission from Losee to pick up the work permit that evening; 18 and that, in the course of this conversation, Losee said that Thompson had a "disagreement" or "beef" with her husband and wanted to talk to him about it. I am persuaded that the above two telephone conversations occurred, contrary to the testimony of Losee, at about 7 a.m. and about 9 a.m., respectively, the first one being the conversation between Kraus and Losee and the second one being the conversation between Losee and Cody, initiated by Losee. Persuasive in reaching this conclusion are (1) Losee, on surrebuttal, retracted his initial testimony, on direct, that both conversations took place during one telephone call and testified, instead, that there were two telephone calls, (2) Losee's further testimony, on surrebuttal, that the telephone calls both occurred around 8 a.m., the first call being from Cody to him, is refuted as to origm, timing and content by the testimony of Cody, who impressed me as a credible witness, and whom I credit. Thus, Cody testified that there was a telephone conversation between him and Losee at about 8.30 or 9 a.m., which Losee initiated; and that, during that call, Losee registered the complaint that Kraus was at work without a permit from Respondent. And emphasizing the likelihood that such a call was placed by Losee to Cody is (1) Losee's own testimony that Garcia came to the union hall that morning and alerted him to the fact that Kraus was working at the 12th Street yard of Associated without being properly dispatched, (2) Losee's failure specifically to deny that Kraus' being at work without a permit was discussed with Cody in a telephone conversation that morning, and (3) the mutually corroborative testimony of Cody and Kraus that Kraus was told by management that morning of a telephone call from Respondent to the effect that he was wanted at the union hall. And with particular reference to the tinung of the first telephone call, I note that the mutually corroborative testimony of the Krauses that the call occurred at about 7 o'clock that morning is consistent with the probabilities of the case. Thus, since the call admittedly concerned a dispatch slip for a job that had been scheduled to start at 8 o'clock that morning, the call would have had to be placed considerably before 8 o'clock if it was to accomplish its objective. I have heretofore indicated that Cody rather than Losee is to be credited with respect to the content of the second telephone conversation. In regard to the first conversation, the testimony of the Krauses and Losee leave no doubt that Kraus did ask Losee on the telephone about obtaining a dispatch slip in connection with his job at Associated scheduled to begin that morning, that Kraus either assumed , or Losee told him, that, in accordance with applicable procedures, he should appear at the union hall in order to get the dispatch slip, and that there was a discussion between them as to whether an exception could be made so that Kraus could report to work isIn this connection , although Kraus testified, at first, that Thompson did not explain what he meant by the word "irresponsible," he thereafter testified that Thompson referred to his being in jail, his going to work at the Benicia yard without a permit and his not showing up for work half the time. 16 During cross-examination , Kraus added that he inquired from Thompson as to when he could be sent to work out of the union hall and Thompson replied that as far as he, Thompson, was concerned that woulI never happen. Cody was not sure whether Kraus told him that he had been to the union hall or that he had talked to Losee. 18According to Mrs. Kraus, her husband could not have con- veniently gone to the union hall and reported for work on time as he had not yet eaten breakfast and she had not yet fixed his lunch. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without going to the union hall first . However, the evidence is in sharp conflict as to whether Losee made an exception in this instance thereby permitting Kraus to report to work with the understanding that he would obtain his slip later. Thus, Kraus testified that when he called Losee from his home , he, at first, sought to have Losee prepare his dispatch slip in advance so that he could pick it up on the way to work, but, when Losee mentioned "a beef" by Thompson , he suggested , and Losee agreed , that it "would be OK if [he] went . . . to work, then if Frank Thompson , when he comes in, has anything to say, have him call." Mrs. Kraus, who claims to have listened to this conversation on the extension telephone, tells a somewhat different story. She testified , in effect, that Kraus was in no position to go to the union hall before work as he had not yet eaten his breakfast and she had not yet prepared his lunch and that Kraus' objective in making the call was to obtain permission to go to work at Associated that morning and to pick up his work permit that evening , and that such permission was obtained from Losee. Casting doubt on these two versions is Cody's credible testimony that Kraus told him when he reported for work that he had made arrangements for the Union to send the dispatch slip through the mail. In the light of all the foregoing, Losee's testimony to the effect that he made no exception on this occasion seems more plausible, I find , than the testimony of the Krauses. In so finding , I rely on (1) the fact , as I have found , that Losee called Cody about 9 o'clock that morning, after being alerted by employee Garcia that Kraus was working at Associated without a permit, to say that Kraus had not been dispatched and should not be on the job-a call which Losee would, in all probability , not have made had he, as the Krauses testified, made an exception to the referral routine in this instance; (2) the fact that Kraus told Cody that he was to receive a dispatch slip through the mail when neither he nor his wife testified to such an understanding with Losee , thereby indicating that Kraus was not forthright in his approach to Cody, and (3) my finding heretofore that Kraus consciously refused during May to abide by the above existing referral practice in connection with his job at Associated's Benicia yard . Accordingly, I conclude , and find, as Losee testified , that Losee refused Kraus' request for special permission to report for work at Associated without a dispatch slip, and to get the dispatch slip later. And I find further that, notwithstanding such refusal by Losee, Kraus reported for work without a dispatch slip and was permitted to start work only because of his misrepresentation to Cody that he had been given permission by Respondent to do so. As heretofore found, Kraus testified that, when he was told by management that morning that he was wanted at the union hall, he left his job and went to the union hall, where he spoke first to Losee and then to Thompson in the presence of Garcia and that, in the latter conversation , he inquired from Thompson as to why he "couldn't go to work" and Thompson gave him a number of reasons why. However , Losee did not recall Kraus' coming into the office that day; Garcia did not testify in this proceeding, and Thompson could recall only one meeting at the union hall at which Kraus and he were present, which meeting, I find hereinafter, took place considerably after July 20. In all these circumstances , including the noncommittal testimony of Thompson, and the probabilities and logic of the situation , I am persuaded that Kraus reported to the union hall that day , after he left the 12th Street yard, and had the conversations with Losee and Thompson testified to by him. D. The Events Subsequent to July 20 As already found, the charge herein was filed on July 25. On July 29, according to Kraus, he appeared at the union hall in order to get a dispatch slip so he could go back to work, being prompted to do this by the fact that he had received a letter from one, Twohey , the Board agent investigating the charge, to the effect that Thompson did not object to his going back to work. Kraus testified further , in substance, that the following then occurred : The executive board of Respondent was having a meeting at that time and he attended the meeting. Thompson , who was present , asked why he was there and he adverted to the letter which he had received from Twohey. Thereupon, Thompson said that he, Thompson, was not going to let him go back to work then or any other time, and that he, Thompson, had told the same to either Twohey "or someone" on the telephone. Thompson followed this by asking who had "put [him] up to going to the National Labor Relations Board" and got "kind of vulgar." This made him "mad" and he left. Thompson also testified concerning this episode. His testimony was that Kraus brought up to the committee that he had not been referred to work at Associated , that "quite an argument " ensued , accompanied by shouting on all sides and that, at one point, Kraus got up, was "in a highly emotional state and ... stalked off." Thompson denied the remark attributed to him by Kraus about never referring Kraus to Associated. When asked whether anyone from Respondent told Kraus that, "We will not dispatch you now or any other time to Associated Metals," Thompson answered, "I don't know because there was a regular shouting match going on there." Here, too, I find that Thompson did not testify in a forthright manner. Furthermore , as between Kraus and Thompson , I find Kraus to have been the more credible witness concerning this episode. I, therefore, con- clude, and find, that Kraus did talk with Thompson at the union hall on July 29 and that Thompson told Kraus that he would never be going back to work for Associated. There is record testimony that Thompson and officials of Associated had occasion after July 20 to discuss the matter of putting Kraus to work at Associated. In this connection, Sabo, vice president of Associated , testified concerning two tele- phone calls in respect to Associated's need for burners that he received from Thompson during July, i .e. about July 24 at the Benicia yard and a week later at his home . During the first telephone conversation , according to Sabo, Kraus' name came up and he requested that Kraus be referred . Thompson then said that he had washed his hands of Kraus, that "we could do what we pleased about Kraus , that Kraus was a lost cause and that was it." Sabo testified further that, although he felt that this "possibly" meant that Respondent's position was that Associated was free to go ahead and hire Kraus, he took no steps thereafter to employ Kraus. During the second telephone conversation , according to Sabo, Thompson advised him that he, Thompson, had an experienced shipyard burner and inquired whether he should send the individual to him for an interview. He agreed to the interview and asked at the same time that Thompson dispatch Kraus, who was also a burner, to him. To this, Thompson replied that "he wouldn't dispatch [Kraus] this time or any other damn time ." In respect to the foregoing , when Thompson was asked whether Sabo had, sometime after the strike ended, asked for the dispatch of Kraus in the course of a discussion about burners, Thompson answered "Not that I can remember, no." And I have INTERNATIONAL LONGSHOREMEN'S UNION LOCAL 17 heretofore found that Thompson gave the same answer to the question of whether he ever told Sabo that Respondent would not clear Kraus then or any other time. Further, when asked whether there was any time when Kraus could go back to work for Associated, Thompson said that there was such a time but that "he was not sure whether he made this outright statement to Sabo or anyone down there but [that he is] pretty sure [he] mentioned it to Twohey [the Board agent] and [he] might have made that statement to Sabo [after Twohey visited hum]." Since Thompson's testimony tended, despite its general lack of forthrightness, to corrobrate Sabo's testimony, in part, and since Sabo impressed me as a reliable witness, I credit Sabo in all respects and find that 1) about the time the charge was filed herein, Thompson communicated to Sabo the above hands-off remark, which Sabo properly viewed, in context, as being ambiguous and as not warranting Associated to proceed to hire Kraus without clearance by Respondent and 2) about a week later, Thompson told Sabo, who had asked for the referral of Kraus as a burner, that Respondent would not dispatch Kraus then or "any other damn time" to Asso- ciated.' 9 There is also uncontroverted testimony by Cody, the plant superintendent, and by Attorney Menebroker, who handled the contract negotiations for Associated, as to separate conversations with Thompson about Kraus during late July or early August. According to Cody, about a week or two after July 20, Thompson and he discussed Kraus, and Thompson said that "he didn't think he needed people like [Kraus] in his union," that Kraus "was irresponsible and he didn't pay his union dues." Menebroker placed his conversation about the latter part of July or the first part of August, after discussions had been had with Respondent over the language to appear in the final agreement. Menebroker then asked Thompson, at the instance of Associated's president, Novak, who also attended the contract discussions, why he, Thompson, did not want Kraus to work for Associated; and, to this, Thompson replied, in substance, that Kraus was delinquent in his union dues. Although Menebroker was unable to recall other details of this conversation with Thompson, and could not recall the specific words spoken by Thompson about Kraus, I am satisfied that he testified credibly in regard to Thompson's statement about Kraus' dues delinquency. I, therefore, credit the above uncontroverted testimony of Cody and Menebroker and find that Thompson made manifest to them his opposition to dispatching Kraus for work to Associated, giving as reasons therefor that Kraus was irresponsible and was delinquent in paying the work permit fees required by Respondent. E. Contentions, Analysis, and Conclusions The General Counsel contends, in effect, (1) that, at all times material herein, Respondent and Associated maintained and enforced an exclusive arrangement or practice whereby Associated sought and obtained all its yard employees through Respondent and required clearance or approval by Respondent as a necessary condition of employment; (2) that on or about July 10 and on or about July 20, Respondent refused to dispatch Kraus to Associated for employment because of his 19There is testimony by Kraus, which I have credited , that on July 29 at the executive committee meeting of Respondent, Thompson told Kraus he would never dispatch Kraus. 601 lack of membership in Respondent and/or his refusal to pay certain monies to Respondent, and/or Respondent's belief that he failed to engage in picketing in behalf of Respondent and (3) that such refusal was in violation of Section 8(b)(2) and (1)(A) of the Act. Respondent, however, contends that no such violations occurred as (1) Kraus did not undertake to obtain a dispatch slip in accordance with Respondent's lawful and reasonable procedures; and (2) in any event, as the issuance of a dispatch slip was not a condition precedent to employment by Associated, a refusal to issue in these instances was not vulnerable under the Act. As to Respondent's first contention above, it is clear that Kraus undertook to obtain a dispatch slip in substantial accordance with Respondent's claimed lawful and reasonable procedures. Thus, the situation of July 10 was an abnormal one, in that Associated's operations were then about to resume after a shutdown as the result of a strike called by Respondent, and Respondent was asked by Associated to refer Kraus and others to it for work the next day. Respondent proceeded by convening a union meeting and dispatching those employees who appeared on a list prepared by it for that purpose. Kraus' name was not on the above mentioned list and, right after the meeting, as I have found, he sought to find out from Thompson, Respondent's business agent, why his name did not appear on the list. Thompson rebuffed him and knowingly gave him the false reason that Associated had discharged him. In all these circumstances, it is clear, and I find, that Kraus undertook to obtain his dispatch slip in accordance with the procedures established by Respondent in that instance. And as to the situation on July 20, it is true, as I have heretofore found, in substance, that Kraus did disregard Respondent's claimed lawful and reasonable procedure at first, by going to work for Associated at the 12th street yard without first obtaining a dispatch slip at the union hall. However, it is further established, and I find, that this dereliction was corrected thereafter. Thus, within less than 2 hours, Kraus appeared at the union hall to obtain a dispatch slip for the job after having been told by Associated of a telephone call from the union hall saying that he was wanted there because he did not have a dispatch slip. In seeking the dispatch slip at that time, Kraus was meeting Respondent's claimed "reasonable procedure," and I so find, albeit he delayed somewhat in doing so. In its second contention, Respondent states the premise that the issuance of a dispatch slip was not a condition precedent to employment by Associated and argues therefrom that, in such a context, even if it be assumed that there was a refusal to issue Kraus a dispatch slip in these instances, no violation would result. This premise puts squarely in issue the General Counsel's contention stated above, viz, that Respond- ent and Associated maintained and enforced an exclusive arrangement or practice whereby Associated sought and obtained all its yard employees through Respondent and required clearance or approval by Respondent as a necessary condition of employment. The full relationship between Associated and Respondent consists of their collective-bargaining agreement and the practice or arrangement in effect between them. I am satisfied that, in combination, they amply support the General Counsel's contention that there was an exclusive referral or clearance system in effect. Thus, under the contract terms set forth heretofore, Respondent has undertaken to supply experienced help to Associated; and Associated, in turn, has 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreed to notify Respondent of any openings. Further, these contract terms have been implemented by a practice, also set forth above, whereby applicants must be cleared by Respond- ent before they are hired, irrespective of whether such applicants originate with Respondent or come from other sources tapped by Associated when Respondent is unable to supply experienced help. In this connection, Cody, the yard superintendent of Associated, testified, as I have found, that Associated followed this practice because it understood that this was what Respondent wanted, and Sabo, the vice president of Associated, explained that "if [Respondent] won't dispatch a man to us, we can't put him to work." It follows from all the foregoing, and I find, that clearance by Respond- ent was required as a condition of employment by Asso- ciated? 0 In any event, it is clear, and I find, that on July 10, 1967, clearance was a condition of employment with respect to Kraus and Kraus has since then been deprived of employ- ment with Associated because he failed to get such clear- ance.21 There remains for consideration the reason or motive that prompted Respondent to deny clearance to Kraus. As heretofore found, on July 10, Thompson, the business agent and secretary-treasurer of Respondent, told Associated, who wanted to hire Kraus, that Respondent would not dispatch Kraus to Associated as Respondent "was going to rid their union of drunks, of undesirable people," however, later that day, after a union meeting, Thompson gave Kraus an entirely different and untruthful reason for not dispatching him, namely, that Associated had discharged Kraus. Thereafter, on July 20, when Kraus again sought to be dispatched to Associated, having been asked by Associated to get such clearance as a condition of employment, Thompson gave different reasons to Kraus for his not being dispatched than he had given to Kraus on July 10, namely that Kraus was irresponsible, did not pull his picket duty22 and did not pay his dues half the time and he "had to chase [ Kraus] down in order to get them." Also, in subsequent conversations with officials of Associated, Thompson deviated from this critical appraisal of Kraus as a drunk and undesirable . Thus, he told Cody that Kraus was irresponsible and did not pay his dues and told Menebroker only about Kraus' not paying his dues. It is patent from all the foregoing, and I find, that, beginning on July 10 and thereafter, although Associated wanted to employ Kraus, Respondent refused to clear Kraus for such employ- ment, giving shifting, as well as inconsistent, reasons therefor. 20 See Twin City Roofing, A Div. of Harlan E. Moore & Co., 165 NLRB No. 16, enfd . sub nom. Local Union No. 230, Sheet Metal Workers International Association, AFL-CIO v. N.L.R.B, 67 LRRM 2656 (C.A. 7); Bricklayers, Masons and Plasterers International Local Unigl No. 18 of Missouri, 151 NLRB 160. The above finding is not undercut by the episode at the Benicia yard involving Kraus. Thus, while there is no indication in this record that Respondent ever protested to Associated over the fact that Kraus was working without a clearance from it , Respondent's refusal thereafter to refer Kraus to Associated on July 10 and again on July 20, on dues paying grounds , inter alia, establishes, I find, that it was not going to acquiesce in any failure to comply with the existing clearance procedure . And as to Associated , I find that it adhered to the procedure , at the outset, by requesting Kraus to get clearance for the Benicia job and, absent notification by Respondent that Kraus had not been cleared , an inference is not warranted that Associated acquiesced in Kraus' action. I note, however, that some of the above reasons reveal a pattern of preoccupation by Respondent over alleged non- compliance by Kraus with its dues requirements and over Kraus' alleged failure to do picket duty during the strike. Thus, Thompson's remark to Sabo, Novak and Menebroker on July 10 about Kraus being a drunk and an undesirable reveals, on analysis, an undercurrent of concern over dues paying. For, as Sabo credibly testified, when Thompson would call him concerning a dues delinquency of an employee, he would comment that these people always had money for whiskey and such, but never time or money to pay their union dues. This concern was further manifest on July 20 when Thompson included among the several reasons given to Kraus for not referring Kraus at that time that Kraus did not pay his dues half the time and collecting from him was a difficult process. And further, Thompson told Cody and Menebroker separately within 2 weeks thereafter that Kraus did not pay his dues. And as to Kraus' alleged failure to do picket duty, Respondent's concern was made manifest by Thompson's telling Kraus during the above conversation with him on July 20 that one of the reasons for not referring him was that he did not pull his picket duty during the recent strike at Associated, and by the question as to whether he had done his picket duty, which was posed to him during the executive committee meeting of the Union on July 29. On the matter of dues, it is not disputed that Kraus had not paid any penmt fees after returning to work at Benicia in May. However, it is also noteworthy that the refusal to dispatch Kraus on July 10, and again on July 20, occurred at a time when the 1963 union-security contract had expired and no new agreement had been executed. Thus, the union-security provisions of the 1963 contract were no longer operative on the critical dates in July and there was no justification for the imposition by Respondent of union security requirements .23 Moreover, Kraus was not delinquent in any contractual union security obligation on May 30, 1967, when the 1963 contract expired. This is so because Kraus had quit his employment with Associated on April 27, and was rehired as a new employee on May 12, with the consequence that he had been employed for less than 30 days on May 30.24 Furthermore, even assuming that Kraus was delinquent in dues or permit fees when the 1963 contract expired on May 30, 1967, Respondent would not have been privileged to refuse to dispatch him because of such delinquency. While it is true that the next contract, which was executed on August 15, was made Neither is the above finding undercut by Thompson's remark to Sabo about the time the charge was filed herein that Associated could do what it pleased about Kraus, that Kraus was a lost cause . As I have heretofore found, Sabo properly viewed this remark as being ambiguous and as not warranting Associated to proceed to employ Kraus without clearance by Respondent 22According to credible testimony of Kraus, an inquiry about whether he had done his picket duty was made during his attendance at Respondent's executive committee meeting on July 29. He could not, however , identify the union member who asked the question. 23See Bethlehem Steel Co. (Shipbuilding Division ), 136 NLRB 1500, 1502, enfd . 320 F.2d 615 (C.A. 3), cert. denied 375 U.S. 984. 24 Kraus was entitled under the Act to 30 days of grace as a new employee. INTERNATIONAL LONGSHOREMEN 'S UNION LOCAL 17 retroactive to June 1, it is also true that the union secunty provision of the new contract could not, because of the hiatus before the second union security contract was executed, be applied retroactively.25 It follows, therefore, that Respondent could not, because of a dues delinquency arising before the expiration of the first mentioned contract on May 30, 1967, lawfully preclude Kraus' employment during the hiatus period or after the new contract was executed. On the matter of Kraus' picketing in connection with the strike by Respondent at Associated during part of June and part of July, Kraus testified that he did engage in such picketing. However, assuming without deciding that he did not engage in such picketing, it is clear that a union imposes a discriminatory condition of employment in contravention of the Act when it refuses to refer an employee under an exclusive clearance arrangement because he has refused to participate in that union's picketing of an employer. 26 In sum, therefore, I find, under all the circumstances and on the entire record, that Respondent refused on July 10 and on July 20 to clear Kraus for work at Associated under their applicable exclusive hiring arrangement, at least in part because of union considerations deriving from its belief that Kraus had not paid accrued union permit fees or dues and had not engaged in picketing conducted by Respondent against Associated. And I find further that Respondent thereby caused, or attempted to cause, Associated not to employ Kraus in violation of Section 8(a)(3) of the Act, and hence violated Section 8(b)(2) and (1)(A) of the Act.' 7 Upon the basis of the above findings of fact and upon the entire record in the case, I make the following. CONCLUSIONS OF LAW 1. Respondent is a labor organization within the meaning of the Act. 2. Associated is an employer engaged in commerce within the meaning of the Act. 3. By causing, or attempting to cause, Associated, in violation of Section 8(a)(3) of the Act, to deny employment to Kraus because it had, for union considerations, not cleared Kraus for such hire, Respondent engaged in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 4. By the foregoing conduct, Respondent also restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, in violation of Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist 25See Bethlehem Steel Co, supra. This situation is to be contrasted with the one in which two successive union security contracts are executed without hiatus , see, for example, National Lead Co., Titanium Division, 106 NLRB 545, 548. 26 See N.L.R.B v. Local 450, International Union of Operating Engineers, AFL-CIO, (Tellepsen Construction Co ), 281 F.2d 313 (C.A. 5), enfg. as modified 122 NLRB 564. 27 See Twin City Roofing, a Division of Harlan E. Moore & Co., supra, Lummus Company v. NL.R.B., 339 F.2d 728 (C.A.D.C.), enfg. in relevant part 142 NLRB 517. 603 therefrom and take certain affirmative action to effectuate the policies of the Act. And having found that Respondent caused Associated not to employ Kraus because it had, for union considerations, not cleared Kraus for such employment, I shall further recommend that Respondent notify Associated and Kraus, in writing, that it has no objection to his employment by Associated. I will also recommend that Respondent make Kraus whole for any loss of earnings suffered by reason of the discrimination against him. Respondent's liability for backpay shall commence on July 11, when Kraus would otherwise have been employed by Associated, and shall terminate 5 days after it notifies Associated and Kraus as aforesaid. Loss of earnings shall be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289, with interest computed in the manner set forth in Isis Plumbing & Heating Co., Inc., 138 NLRB 716. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, Respondent, its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Causing, or attempting to cause, Associated Metals Company of California, its officers, agents, successors, or assigns, in violation of Section 8(a)(3) of the Act, to deny employment to Stanley G. Kraus, or any other employee or applicant for employment, because he has, for union consider- ations, not been cleared by it for such employment. (b) In any like or related manner restraining or coercing employees or applicants for employment at Associated Metals Company of California or any other employer over whom the Board would assert jurisdiction, in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization, as authorized in Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Make Kraus whole for any loss of earnings suffered by him by reason of the discrimination against him at Associated Metals Company of California, as set forth in the section of this Decision entitled "The Remedy." (b) Notify Associated Metals Company of California, in writing, that it has no objection to Kraus' employment, with a copy to Kraus, individually. (c) Post at its office and meeting halls copies of the attached notice marked "Appendix.s28 Copies of said notice to be furnished by the Board's Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and maintained by it for 60 consecutive 28In 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 "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to ensure that such notices are not altered; defaced, or covered by any other material. (d) Additional copies of the Appendix attached hereto shall be signed by an authorized representative of Respondent and shall be returned forthwith to the Regional Director of Region 20 for posting by Associated Metals Company of California at their plants in Sacramento and Benicia, California, where notices to employees are customarily posted. (e) Notify said Regional Director, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision, what steps Respondent has taken to comply herewrth.2 9 29In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read . "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS OF International Longshoremen's and Warehousemen's Union Local 17, International Longshoremen's and Warehousemen's Union 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 you that: WE WILL NOT cause, or attempt to cause, Associated Metals Company of California, or any other employer engaged in commerce, to deny employment to Stanley G. Kraus, or to any other employee or applicant for employment, because he has not, for union considerations, been cleared by us for such employment. WE WILL NOT in any like or related manner restrain or coerce employees, or applicants for employment, of Associated Metals Company of California, or any other employer engaged in commerce, in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization, as authorized by Section 8(a)(3) of the Act, as amended. WE WILL notify Associated Metals Company of California that we have no objection to the employment of Stanley G. Kraus. WE WILL make whole Stanley G. Kraus for any loss of earnings he may have suffered as a result of the discrimination against him. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION LOCAL 17, INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION (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, 13050 Federal Building, 450 Golden Gate Ave., Box 36047, San Francisco, California, Telephone 556-0335.