John Armer Air Conditioning Co.

JOHN ARMER AIR CONDITIONING CO. 295 John Armer Air Conditioning Company and Kenneth Nay United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 469, AFL-CIO (John Armer Air Conditioning Company ) and Kenneth Nay. Cases 28-CA-2143 and 28-CB-571 September 22, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On May 6, 1971, Trial Examiner Irving Rogosin issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent Employer, the Respondent Union, and the General Counsel filed exceptions to the Trial Examiner's Decision, and supporting briefs; the Charging Party then filed an answering brief to exceptions of Respondent Employer and Respondent Union. 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 proceeding 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 proceeding, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent John Armer Air Conditioning Company of Phoenix, Arizona, its officers, agents, successors, and assigns, and Respondent United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 469, AFL-CIO, its officers, representatives, and agents, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE IRVING ROGOSIN, Trial Examiner: The consolidated complaint, hereinafter referred to as the complaint, issued October 29, 1970, alleges that on about March 5, 1970, Respondent Union engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A), and Section 2(6) and (7), and Respondent Employer, in unfair labor practices within the meaning of Section 8(a)(3) and (1), and Section 2(6) and (7) of the Act.' Specifically, the complaint alleges that, on about March 5, 1970, Respondent Union requested Respondent Employ- er to terminate the employment of Kenneth Nay because he was not a member of Respondent Union, because he failed to assist and support Respondent Union in a dispute with Respondent Employer, and "for related arbitrary, invidious and unfair reasons"; that on said date, Respondent Employer, yielding to Respondent Union's request, termi- nated said Nay's employment, and thereafter failed and refused to reinstate him, and on about March 6, Respondent Union threatened to refuse to permit said Nay to work in the jurisdiction of Respondent Union.2 Respondent Union's answer admits the procedural allegations, and the agency of named union representatives, but denies generally the remaining allegations of the complaint, and alleges affirmatively that it caused Respon- dent Employer to terminate said employee pursuant to the lawful terms of an existing collective-bargaining agreement with Respondent Employer, "governing priority and seniority in employment." Respondent Employer's answer admits the procedural allegations with respect to it, and denies, for lack of information, or generally, the remaining allegations of the complaint. Hearing was held on February 9, 1971, at Phoenix, Arizona, before the duly designated Trial Examiner. All parties, including the Charging Party, were represented by i The charge in each of said cases was filed on July 14, and served on each of the respective parties, on July 17, 1970 Designations are as follows the General Counsel, unless otherwise stated, his representative at the hearing, Respondent Union or the Union, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 469, AFL-CIO; Respondent Employer, John Armer Air Conditioning Company, the Charging Party, Kenneth Nay, an Individual, the Act, the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat 519, 29 U.S.C. Sec 151, et seq., the Board, the National Labor Relations Board Unless otherwise stated, all events occurred in 1970 2 In response to a ruling on Respondent Union's pretrial motion, the General Counsel furnished the Union with a bill of particulars, alleging that Respondent Union requested Respondent Employer to terminate Nay's employment because he was a "traveler," i.e., a member of another local union of the international Union with which Respondent Union was affiliated, and that such request was for an "arbitrary, invidious and unfair reason" The General Counsel further alleged that under Respondent Union's prevailing policy, when members of its local are terminated, in this instance because of alleged dissatisfaction with their work, "travelers" are required to cease their work. When Nay failed to comply with this policy, Respondent Union requested Respondent Employer to terminate him, in part, because he failed to assist and support Respondent Union in its dispute with Respondent Employer concerning the termination of union members 193 NLRB No. 43 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD counsel, were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, to introduce evidence relevant and material to the issues, to argue orally and to file briefs and proposed findings of fact and conclusions of law. At the conclusion of opening statements by counsel, both Respondents moved to dismiss the complaint. The motions were denied without prejudice to their right to renew before the close of the hearing. Respondent Employer rested at the close of the General Counsel's case, and renewed the motion to dismiss. The motion was denied. At the close of the evidence, the Charging Party moved, in effect, for summary judgment on the ground that Section 8(f),3 and the applicable collective-bargaining provisions, are unconstitutional. The motion was denied. Respondent Employer renewed its motion to dismiss. Ruling having been reserved, the motion is disposed of by the findings and conclusions hereinafter made. The parties declined to argue orally, reserving the right to file briefs. The Charging Party filed a brief on March 11; the General Counsel, Respon- dent Employer, and Respondent Union, on March 15, 1971. On March 18, the Charging Party filed "Recommended Findings of Fact and Conclusions of Law." Although filed late, they have been considered, and have been treated as proposed findings of fact and conclusions of law. To the extent they are consistent with the findings and conclusions hereinafter made, they have been adopted. Upon the entire record in the case,4 the resolution or reconciliation of conflicting testimony, the appearance and demeanor of the witnesses, and the briefs, which have been carefully considered, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The complaint alleges, Respondents' answers admit, and it is hereby found that, at all times material herein, John Armer Air Conditioning Company, a corporation duly organized under the laws of the State of Arizona, has been engaged as an air-conditioning contractor in the building and construction industry. During the year preceding issuance of the complaint, a representative period, Respondent Employer purchased and caused to be transported and delivered to its place of business in Phoenix, Arizona, goods and matenals valued in excess of $50,000, of which in excess of $50,000 was transported and delivered to its place of business in interstate commerce directly from States of the United States other than the State of Arizona. It is therefore found that at all times material herein, John Armer Air Conditioning Company has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act, and the Board's jurisdictional standards. II. THE LABOR ORGANIZATION INVOLVED United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 469, AFL-CIO, herein called Respon- dent Union or the Union, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Discrimination in Regard to Hire and Tenure of Employment; the Causing or Attempting to Cause Such Discrimination by the Union 1. Introduction Respondent Employer and Respondent Union are parties to a multi-employer , statewide, collective-bargain- ing agreement between Plumbing and Air Conditioning Contractors of Arizona , collectively referred to as the Contractors, and Local Union 469, the Union here, and Local Union 741 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, in behalf of their members, dated June 1, 1969, to and including May 31, 1972, automatically renewable annually thereafter in the absence of specified notice of termination or modification.5 The agreement covers all employees of the Contractors performing the work of plumbing, heating , refrigeration service, and piping work, as defined in a schedule attached to the agreement, in the State of Arizona. Kenneth Nay was a welder, a job classification covered by the agreement, and a resident of the State of Utah since November 1952. The collective-bargaining agreement provides, among other things, for the conventional exclusive nondiscrimina- tory hiring hall, with preferential hiring, with job referrals based upon priorities established according to an "A", "B" and "C" list system . Persons on the "A" list are comprised of "workers being dispatched from within the jurisdiction of Local 469, who are qualified for the job, who are available for work , who are then duly registered as out-of- work at the dispatching office, and who have worked for signatory contractors of U. A. National Contractors in the area and craft jurisdiction of Local Union 469 for at least eight hundred (800) hours in each of the last three (3) consecutive years preceding the date of their current registration." Persons on the "B" list are "workmen who are duly registered on the "A" list of the Local Union (Local 469 or 741 , as the case may be) other than the one from which the referral is being requested . By this provision it is intended that all workmen demonstrating a record of employment in the State of Arizona , sufficient to qualify them for registration on the "A" list of either Local Union, will be conclusively deemed to be on the "B " list of the other Local Union; and each Union's "A" list therefore will be treated as the other Union's "B" list in the order of priority of referrals . The "C" list consists of "any other workmen who have not qualified under the other two 3 See Appendix A of the proceedings is corrected accordingly I The General Counsel's unopposed motion to correct the record in S The agreement is designated as the Arizona Pipe Trades Agreement. stated respects, dated March 8, 1971, is hereby granted, and the transcript JOHN ARMER AIR CONDITIONING CO. 297 classifications, who have duly registered as out of work at the dispatching office, and who are qualified for the job and are available for work. (II, B. IV. a., b., c.) Generally, persons on the "C" list are dispatched only after the persons on the "A" and "B" list have all been dispatched. The collective-bargaining agreement further provides: 11. Unemployed workmen, duly registered on the "A" list, shall have the right to replace any workman dispatched from the "C" list or who have the status of a temporary employee, provided the employee to be replaced has not yet worked enough to obtain a right to be registered as an "A" or "B" list worker, and further provided the "A" list workman in each case has the ability to perform the work being performed by the workman being replaced. To effect a replacement, referral shall be issued in the same manner and order of priority as if the job involved were vacant; and the replaced employee shall be given a termination slip showing the cause of termination. 12. Workmen referred from the "C" list and temporary employees subject to replacement shall not be kept employed to the extent or under circumstances where such employment is preventing, or eliminating the need for, full forty (40) hour per week employment of fellow employees who have been referred from the "A" or "B" lists. (Article II, B., 11, 12) Kenneth Nay, the Charging Party, a welder, a job classification covered by the contract, and a member of Local 57, Salt Lake City, affiliated with the parent labor organization of the Union involved here, obtained a travel card from his Local in the latter part of December 1969, and went to Phoenix, where he signed the out-of-work list at the Local 469 hiring hall. On December 30, Nay was dispatched as a welder to a contractor known as Arizona York Refrigeration Company, as a "C" list employee, with instructions to report to work on January 5, 1970. On January 30, Nay was laid off that job in a reduction in force. On February 6, 1970, the Union again dispatched Nay as a welder from the "C" list, this time to Respondent Employer. The text of article II, subsections I 1 and 12, were printed, without any indication as to their source, at the bottom of the dispatch slip, and was followed by the statement, "I have read the above and accept such referral." Nay signed the referral slip on the line marked "applicant." Nay was referred to a jobsite known as the Financial Center in Phoenix, as part of a six-man crew, which included Foreman Gary Kidney, Donald Case, and Gilbert Zieke, both pipefitters, Donald Mann, a welder, and another welder who left after working only a few days. The welder who left the job was replaced by Jack Tucker. Nay was the only man on the crew at that jobsite who had been dispatched from the "C" list. On March 4, 1970, Fred D. Huminik, jobsite superintend- ent for Respondent Employer, discharged three members of the crew, Kidney, Mann, and Zieke, because of dissatisfaction with their work. On their termination notices, however, the reason stated for the termination was "reduction in force." Huminik testified that he gave that as the reason because he was new in the area, had only recently been appointed piping superintendent for Respon- dent Employer, and because of his unfamiliarity with the labor situation and his desire not to prejudice the work record of these men, who he believed could possibly perform well under different circumstances. It is undisput- ed, however, that the actual reason, as stated to these employees, and as subsequently reported by them to the union representative, was their unsatisfactory work. Case, the other pipefitter on the job, voluntarily quit his job the same day in protest at what he believed to be the unfair treatment of his three fellow-employees. Only Nay and Tucker remained on the job. Later that afternoon, the three discharged employees went to the union hall and demanded that they be permitted to "bump" Nay, pursuant to the union contract, because, according to their termination slips, they had been removed in a "reduction in force," while Nay was a "C" list employee. That afternoon, Roy Eugene Brooks, Respondent Union's assistant business agent,6 telephoned Huminik and notified him that since he had terminated three "A" list journeymen in a reduction in force, as shown by their termination notices, he should have terminated Nay. Huminik explained that he had not terminated the men because of a reduction in force, but for unsatisfactory work. Brooks directed him to the pertinent sections of the collective-bargaining agreement, relating to the hiring procedures with particular reference to the "A", "B", and "C" lists, and insisted that since the termination slips stated as the reason a reduction in force, Huminik was required to terminate Nay. Brooks told Huminik that if he failed to do so, the Union would send out one of the "A" list men, who had been terminated, to "bump" Nay. Huminik declined to accept such a referral, stating that Nay had been performing satisfactorily and that he preferred to retain him on the job. He told Brooks, however, that he wanted to think about it. The following morning, March 5, Brooks again called Huminik and, after reiterating that Huminik had violated the contract, and stating that if he did not terminate Nay, Brooks would send an employee to "bump" him, asked Huminik whether he should dispatch a man to take Nay's place. Huminik replied that he should not, and added that after considering the matter, he would simply have Nay work the remainder of the day, if that met with Brooks' approval, and that he would then terminate him. Brooks agreed, and there the matter was left. Later that day, however, in a conversation at the jobsite, Huminik told Nay that he would have to let him go because of the manner in which he had discharged the "A" list men. Huminik thereupon notified him that he was being terminated "per union request," and this reason was inserted on his termination slip. The Union sent no replacements to the jobsite, and work on the job was suspended for 3 or 4 days. The job was then reopened and completed with four employees who had been employed by Respondent Employer on another project in the same vicinity. 6 At the time of the hearing, Brooks was no longer employed by the since about June 20, 1970. Union, but had been in the employ of the Pipe Trades Industry Program 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After reporting to the union hall on the evening of March 5, and registering on the "C" list, Nay returned the following morning and went to the union hiring hall where men were being dispatched. He was not dispatched at that time, and asked to see Jack Kienstra, Respondent Union's business manager. At about 10:30 that morning, Nay was admitted to Kienstra's office, where Assistant Business Agent Brooks was also present. Nay inquired of Kienstra about two jobs in Tucson that had been posted on the bulletin board, and asked whether there was any possible chance of his going out there. Kienstra told Nay that he thought the jobs had been filled. Then, according to Nay, Kienstra told him that "[i It might be a good idea if I went back up into my own . . . local territory." Nay attempted to explain that he remained on the job at the Financial Center after the "A" men had been discharged, because he had not been on the discharge list, but Brooks kept interrupting to say that he had been trying to tell Nay that under union policy, when a man was discharged for cause, the "C" list man automatically "walk[s] off the job." According to Nay, after stating that "[i]t would be a good idea for [him] to take [his] card and go back into the Salt Lake territory," Brooks stated that if he had anything to say about it, Nay would never work in the Arizona territory again. Nay told Kienstra that he would be traveling by way of Las Vegas, and asked him if he would call the business agent there to see whether there was any possibility of his going to work in Las Vegas. Kienstra told him that he did not think there was any point in his calling. 2. The issues; contentions of the parties Baldly stated, the issues are whether Respondent Union caused or attempted to cause Respondent Employer to terminate Nay's employment, and whether Respondent Employer acceded to the Union's demand, thereby encouraging membership in a labor organization. The General Counsel contends broadly that Nay was actually discharged because of his lack of membership in Respondent Union. Additionally, the General Counsel contends that Respondent Union demanded that Nay's employment be terminated because he failed to comply with alleged union policy under which "C" registrants were required to leave the job whenever an "A" registrant was discharged. Respondents both contend that Nay's discharge was dictated by the provisions of article II, B., 11. and 12., previously quoted. The General Counsel maintains that these provisions of the collective-bargaining agreement have no application to the circumstances of this case because subparagraph II purportedly deals merely with the right of an "A" registrant who has been terminated in a reduction in force to replace any workman dispatched from the "C" registration list, and does not apply where the "A" workman becomes unemployed because he has been Respondent Employer suggests that any ambiguity in the language of section 11. of the collective -bargaining agreement should be resolved by arbitration . Although the collective -bargaining agreement contains grievance and arbitration procedures including provision for a joint conference and arbitration board, involving , among other matters, interpretation of performance of any of the terms or conditions of the agreement, neither of the parties to the collective -bargaining agreement has terminated for cause. Thus, the General Counsel argues, in effect, that the provisions of subparagraph II would be applicable only where the employer resorts to a reduction in force, in which case he might be required to dismiss the "C" man in order to make a place for the "A" workman. Subparagraph 11 makes no distinction between workers who are unemployed as a result of reduction in force and those who have been discharged for cause, the distinction which the General Counsel seeks to make. While the language of subparagraph 11 is not altogether free from ambiguity,7 the reasonable construction of this provision is that, in the case of a vacancy resulting from a reduction in force, workmen dispatched from the "C" list may be replaced by unemployed registrants on the "A" list, as long as the workmen on the "C" list have not acquired status as an "A" or "B" registrant, and the "A" man is capable of performing the work then being performed by the "C" list workmen. Respondent Union maintains that, since the reason given on the termination slips of the three "A" list employees was a reduction in force, the Employer was required under the applicable provisions of the collective-bargaining agree- ment to permit the Union to dispatch replacements in the prescribed "manner and order of priority" as if the job involved had been vacated. There is no dispute that the three "A" class workmen were discharged because of their employer's dissatisfaction with their work performance. The fact that Respondent Employer saw fit to indicate on their termination notices that they were discharged in a reduction in force rather than for cause, is not conclusive as to the actual reasons for their discharge. Superintendent Huminik has satisfactorily explained why he used the euphemism "reduction in force" for discharge for cause, namely, because he was new to his position and because he did not wish to jeopardize the future employment opportunities of the three men. Moreover, it is undisputed that when the three discharged "A" class workmen reported to the Union, they acknowl- edged that they had been discharged because of dissatisfac- tion with their work, the reason also given by the jobsite superintendent to Assistant Business Agent Brooks. Assuming, for the sake of argument, that subparagraphs I I and 12 apply whenever there is a vacancy, whether resulting from a reduction in force or a termination for cause, it is reasonable to suppose that the Union would have sought to replace the three "A" class workmen with other registrants from the "A" list. Obviously, the three class "A" workmen, who had been discharged because of unsatisfactory work, would not have been entitled to be redispatched to the job because in the employer's view, they had not demonstrated "the ability to perform the work" required of them. Moreover, under existing policy, the Union would not dispatch the same employees to the employer who had only just discharged them. It would, therefore, be specious to argue that under the applicable hiring provisions, the sought to obtain an interpretation of the provisions in question or has indicated any intention of doing so. It should be noted that the Act expressly provides that the Board's power to prevent the commission of unfair labor practices "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise . .." (Sec. 10.(a)) JOHN ARMER AIR CONDITIONING CO. 299 employer was required to discharge the "C" list man because his continued employment was "preventing or eliminating the need for, full forty (40) hours per week employment of fellow employees who had been referred from the "A" or "B" list." (Emphasis supplied.) Respon- dent Union has not contended, nor is there any evidence, that there were unemployed "A" list men, other than the three who had been terminated, on the register when Nay was terminated, nor has Respondent Union contended that Nay was terminated to provide employment for other class "A" or "B" list men who had been unemployed for "full forty (40) hours per week employment." If, then, it be assumed that there were no such class "A" or "B" list men who were so unemployed, there would obviously have been no occasion to terminate Nay, a class "C" registrant. This gives rise to the inference that Respondent Union was not so much concerned with obtaining employment for unemployed workmen on the "A" or "B" list, as in denying employment to Nay, a "C" list workman who had been retained while "A" list employees had been discharged, albeit for unsatisfactory work. In attempting to determine Respondent Union's motive for demanding Nay's termination, it may be noted that when Respondent Employer discharged the three class "A" employees, Donald Case, pipefitter on the same job, left the jobsite in protest at the discharge of his three fellow- employees. This lends credence to Nay's testimony that Assistant Business Agent Brooks told him, when he reported to the union hall on the morning of March 6, that he should have left the jobsite when the three "A" list men were discharged under a local union rule which required "travelers" (out-of-state union card carriers) to walk off the job in protest when local union men are discharged. The fact that Respondent Union denies the existence of any such rule, and that neither Business Agent Kienstra nor Assistant Business Agent Brooks could recall what they said to Nay on this occasion regarding such a rule, does not negate the likelihood of their having made such a statement. Nor, does the blanket assertion by Kienstra and Brooks, that there were other instances, between 6 and 10, according to Brooks, in which "C" men had been "bumped" by "A" men, under the provisions of the contract, and that such instances had not been confined to "C" men who were on a "travel card," establish the absence of discrimination in Nay's case.8 It thus appears that Respondent Union's real motivation for demanding Nay's termination was not that it was acting pursuant to the hiring provisions of the agreement, but that Respondent Union resented the prospect that a class "C" list man, who was a "traveler" and member of another local, who had refused to walk out in protest at the discharge of "A" list men, was permitted to remain on the 8 According to Respondent Union, some 30 members of the Local Union , as well as 80 or 90 nonmembers , were registered on the "C" list The Board said. An exclusive hiring hall is not per se unlawful and it may be implemented lawfully by a requirement that local employees be given preference in employment opportunities While the testimony relating to the Union's objective in seeking to replace Ward with a local welder makes reference to "union men" or "local union men" as well as "local men," such testimony is insufficient to rebut the substantial evidence that the Union was very much concerned with the unemployment status of local residents The fact that such employees job. It follows that if Respondent Union demanded and caused Nay's discharge because he did not comply with purported union policy, Respondent violated Section 8(b)(2) of the Act, by causing the employer to discriminate in regard to Nay's hire or tenure of employment to encourage membership in the Union. Even in the absence of such policy, Brooks' statement to Nay, to the effect that he was being disciplined for violating local union policies, constituted restraint or coercion in the exercise of employee rights guaranteed in Section 7 of the Act. Under these circumstances, Everett Construction Compa- ny, Inc., 186 NLRB No. 40, is distinguishable on the facts. There, the Board held that neither the union nor the employers violated the Act when, pursuant to a valid, nondiscriminatory, exclusive hiring hall agreement, the Union caused the discharge of an employee who was not a local resident so that his job could be filled by a resident in the area.9 The preponderance of the credible and reliable testimony here establishes that Respondent Union's actual reason for demanding Nay's termination was that he had failed to support the Union by leaving his job in protest at the discharge of the three class "A" workmen, thereby interfering with his right to refrain from engaging in union activity. The fact that Respondent Union had previously dis- patched Nay from the "C" list to another employer on December 30, 1969, and had permitted him to register on March 5, 1970, is insufficient to establish the absence of discriminatory motivation in this instance. It may be noted that Brooks conceded that in his conversation at the union hall, Nay, who had withdrawn his travel card from the Union, inquired about job openings in Tucson and was advised by Kienstra that the jobs would probably have been filled by the time he reached Tucson. When Nay told Kienstra that he was returning to Utah by way of Las Vegas, and asked him to call the business agent with regard to possible employment there, Kienstra told him that there would be no use in his calling. While this evidence, standing alone, may be insufficient to establish animosity or hostility toward Nay because of his failure to abide by purported union policy, the evidence furnishes some corroboration for Nay's credited testimony that Brooks told him that "if he had anything to say about it [Nay] would never work in the Arizona territory again." Insofar as Respondent Employer is concerned, the fact that it acceded to the Union's demand for Nay's discharge in the belief that it was required to do so by the hiring provisions of the collective-bargaining agreement, is no defense to its unlawful conduct. As the Board has early held, ... in the ultimate analysis, it is the employer, and only the employer, who controls the hiring and were union members does not derogate from the Union's lawful interest in securing employment for them . The Union's objection to the employment of Ward, a nonresident on the ground that local welders were out of work , cannot be ignored solely because Ward, unlike his competitors, was not a member of the Union. This circumstance creates no more than a suspicion that the Union would not have sought his discharge, despite his out-of-town status, if he had been a union member See also International Union of Operating Engineers, Local 302, affiliated with AFL-CIO, 186 NLRB No 4, and cases cited. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge of his employees. Recognizing this, this Board and the courts have frequently held that it is the duty of an employer to resist the usurpation of his control over employment by any group that seeks to utilize such control for or against any labor organization, and that the Act affords no immunity because the employer believes that the exigencies of the moment require that he capitulate to the pressures and violate the statute." io Upon the basis of the foregoing findings of fact, and upon the entire record, it is hereby found that, by causing Respondent Employer to terminate the employment of Kenneth Nay on March 5, 1970, because he did not assist and support Respondent Union with regard to the termination of the three class "A" employees and union members, Respondent Union has caused Respondent Employer to discriminate in regard to the hire and tenure of employment of an employee, thereby engaging in unfair labor practices within the meaning of Section 8(b)(2), and restraining and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act; and by terminating the employment of said Kenneth Nay on said date, thereby discriminating in regard to his hire and tenure of employment to encourage membership in a labor organization, Respondent Employer has engaged in unfair labor practices within the meaning of Section 8(a)(3), and has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. I' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Union, set forth in section III, above, occurring in connection with Respondent Employer's operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A), and that Respondent Employer has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, it will be recommended that Respondent Employer be ordered to offer said Nay reinstatement to his former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. It will also be recommended that Respondent Union notify Respondent Employer, in io Acme Mattress Company, Inc, etc., 91 NLRB 1010, 1015 See also H Milton Newman, an Individual d/b/a H M Newman, etc, 85 NLRB 725, 729, and cases cited at in 15 ii In view of these findings, it is unnecessary to consider the Charging Party's challenge to the constitutionality of Section 8(f) of the Act, and the residence requirements imposed by section 11, B II of the collective- bargaining agreement, on the authority of Shapiro v Thompson, 394 U S 618 (1969) and Keenan v. Board of Law Examiners of the State of North Carolina, 317 F Supp 1350 (1970). Moreover, "The Board has often held that, as an administrative agency created by Congress, it cannot question the constitutionality of any part of the Act that created it but must leave writing, with a copy to Nay, that Respondent Union will not discriminate against Nay or any other job applicant in selecting or referring them for employment through its hiring hall procedures because of his nonmembership or affiliation with said Respondent Union. It will, however, further be recommended that Respondent Union and Respondent Employer jointly and severally 12 be ordered to make said Nay whole for any loss of earnings he may have sustained by reason of the discrimination against him by paying him a sum of money equal to that which he normally would have earned as wages from the date of the discrimination against him on March 5, 1970, to the date of the offer of reinstatement, less his net earnings during such period. With regard to Respondent Union, its liability for backpay shall terminate 5 days after its notification to Respondent Employer, as provided above. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. The discriminatory conduct in which Respondents have engaged regarding the hire and tenure of employment of an employee, strikes at the very essence of the Act, and it will, therefore, be recommended that the Board enter a broad cease and desist order.13 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. John Armer Air Conditioning Company, an Arizona corporation, with its place of business in Phoenix, Arizona, Respondent Employer herein, is, and at all times material herein has been, an employer engaged in commerce and a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act, and the jurisdictional standards of the Board. 2. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 469, AFL-CIO, Respondent Union herein, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Kenneth Nay on March 5, 1970, and thereafter failing and refusing to reinstate him because he refrained from engaging in union or other concerted activities, Respondent Employer has discriminated in regard to the hire and tenure of an employee to encourage membership in a labor organization, thereby engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. such questions to the courts Unless and until the courts determined otherwise, the Board will assume that all parts of the Act are constitutional." Bluefield Produce & Provision Company, 117 NLRB 1660, 1663, Truck Drivers Union Local No 413, etc, 140 NLRB 1474, 1491; Amalgamated Lithographers of America (Ind), etc, 130 NLRB 985, 991; Laurence Typographical Union 570, 158 NLRB 1332, 1340, Drivers, Salesmen, Warehousemen, Local 695. 152 NLRB 577, 580; Ets-Hokin, etc, 154 NLRB 839, 844; Big Town Super Mart, 148 NLRB 595, 605. 12 See Acme Mattress Company, 91 NLRB 1010, and cases cited. 13 N.L.R.B v Entwistle Manufacturing Co., 120 F.2d 532 (C.A. 4); May Department Stores v. N L.R.B., 326 U S. 376 JOHN ARMER AIR CONDITIONING CO. 301 4. By demanding or requesting that Respondent Employer terminate or discharge said Kenneth Nay for refraining from engaging in union or concerted activities, Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby issues the following recommended: 14 ORDER A. John Armer Air Conditioning Company, of Phoenix, Arizona, its officers, agents, successors and assigns shall: 1. Cease and desist from: (a) Encouraging membership in United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 469, AFL-CIO, or in any other labor organization of its employees, by terminating or laying off any of its employees or discriminating in any other manner in regard to their hire or tenure of employment or any terms or conditions of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the right to refrain from exercising the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action, which it is found is necessary to effectuate the policies of the Act: (a) Offer Kenneth Nay immediate and full reinstatement to his former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Post at its plant and office in Phoenix, Arizona, copies of the notice attached hereto and marked "Appendix B." 15 Copies of said notice to be furnished by the Regional Director for Region 28 shall, after being signed by a duly authorized representative of Respondent Employer, be posted immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to ensure that such notices are not altered, defaced, or covered by other material. (c) Notify the Regional Director for Region 28, in writing, within 20 days from the date of receipt of this decision and recommended Order what steps Respondent Employer has taken to comply herewith.16 B. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 469, AFL-CIO, its officers, representatives, and assigns, shall: 1. Cease and desist from: (a) Requiring, instructing, or inducing Respondent Employer, its agents, successors, or assigns, to terminate or lay off employees because they have refrained from engaging in union or concerted activities on behalf of the Union. (b) In any other manner causing or attempting to cause Respondent Employer, its agents, successors or assigns to discriminate against its employees in violation of Section 8(a)(3) of the Act. (c) Restraining or coercing employees of Respondent Employer, its successors or assigns, in the exercise of their right to refrain from any or all of the concerted activities guaranteed by Section 7 of the Act. 2. Take the following affirmative action, which, it is found, is necessary to effectuate the policies of the Act: (a) Notify Respondent Employer, in writing, with a copy to Nay, that Respondent Union has no objection to his employment, and will not discriminate against him or any other job applicant in selection for employment, because he is not a member of Respondent Union or because he refrains from engaging in union or other concerted activities. (b) Post in conspicuous places in its business office, hiring hall, and meeting places copies of the attached notice marked "Appendix C." 17 Copies of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by Respondent Union's authorized representative, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reason- able steps shall be taken by Respondent Union to ensure that said notices are not altered, defaced or covered by any other material. (c) Sign and mail sufficient copies of said notices to the Regional Director for Region 28, for posting by Respon- dent Employer at all locations where notices to employees are customarily posted, if said Respondent Employer is willing to do so. (d) Notify the Regional Director for Region 28, in writing, within 20 days from the receipt of this decision, what steps Respondent Union has taken to comply herewith.18 C. John Armer Air Conditioning Company, its succes- sors and assigns, of Phoenix, Arizona, Respondent Employer, and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 469, AFL-CIO, Respondent Union, its officers, representatives and agents, shall: 14 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order and all objections thereto shall be deemed waived for all purposes 11 In the event that the Board 's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 16 In the event that this recommended Order be adopted by the Board, paragraph (b)(3) thereof shall be modified to read. "Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent Employer has taken to comply therewith " 17 See fn 15 18 See In 16. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Jointly and severally make Kenneth Nay whole for any loss of pay he may have suffered because of the discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned as wages from March 5, 1970, the date he was discriminato- rily terminated, to the date of Respondent Employer's offer of reinstatement, and Respondent Union's notification to Respondent Employer, as provided above, less his net earnings during said period, loss of earnings to be computed in the manner set forth in the section entitled "The Remedy." 2. Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records, social security records, timecards, personnel records and reports, and all other records necessary or useful to determine or compute the amounts of backpay due if any. 3. Notify said Kenneth Nay, if he is presently serving in the Armed Forces of the United States, of his right to reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. IT IS FURTHER RECOMMENDED that, unless on or before 20 days from the date of receipt of this Decision, Respondent Employer and Respondent Union notify said Regional Director in writing that they will comply with the recommended Order, the National Labor Relations Board issue an order requiring said Respondents to take the aforesaid action. Sec. 8 APPENDIX A (f) It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organiza- tion of which building and construction employees are members (not established, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of section 9 of this Act prior to the making of such agreement, or (2) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the beginning of such employ- ment or the effective date of the agreement, whichever is later, or (3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer, or gives such labor organization an opportunity to refer qualified applicants for such employ- ment, or (4) such agreement specifies minimum training or experience qualifications for employment or provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area: Provided, That nothing in this subsection shall set aside the final proviso to section 8(a)(3) of this Act: Provided further, That any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 9(c) or 9(e) 'Section 8(f) is inserted to the Act by subsection (a) of Section 705 of Public Law 86-257 Section 705(b) provides' Nothing contained in the amendment made by subsection (a) shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law (It is noted that Arizona is a right-to-work State.) APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT encourage membership in United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 469, AFL-CIO, or in any other labor organization of our employees, by terminat- ing or laying off any of our employees or discriminating in any other manner in regard to their hire or tenure of employment or any terms or conditions of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the right to refrain from any or all of the concerted activities guaranteed them by Section 7 of the Act. WE WILL offer Kenneth Nay immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges. WE WILL, jointly and severally, with the aforesaid Union, make said Kenneth Nay whole for any loss of earnings he may have sustained by reason of our discrimination against him, in the manner set forth in the section of the Decision and recommended Order of the Trial Examiner entitled, "The Remedy." All our employees are free to engage in or refrain from engaging in union or concerted activities on behalf of the above-named Union or any other labor organization. JOHN ARMER AIR CONDITIONING COMPANY (Employer) Dated By (Representative) (Title) Notify said Kenneth Nay, if he is presently serving in the Armed Forces of the United States, of his right to reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended, after discharge from the Armed Forces. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with JOHN ARMER AIR CONDITIONING CO. its provisions, may be directed to the Board's Office, Room 207, Camelback Building, 110 W. Camelback Road, Phoenix, Arizona 85013 , Telephone 261-3717. APPENDIX C NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To all: members, officers, representatives and agents To all: employees of John Armer Air Conditioning Company or applicants or registrants for employ- ment and persons using our hiring hall, whether or not members of United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 469, AFL-CIO WE WILL NOT require , instruct, or induce John Armer Air Conditioning Company to terminate or lay off employees because they refrain from engaging in union or concerted activities on behalf of our Union. WE WILL NOT in any other manner cause or attempt to cause John Armer Air Conditioning Company, its officers, agents, successors or assigns to discriminate against its employees in violation of Section 8(a)(3) of the Act. WE WILL NOT restrain or coerce employees of John Armer Air Conditioning Company its officers , agents, successors , or assigns, in the exercise of the right to refrain from any or all of the concerted activities guaranteed them by Section 7 of the Act. WE WILL, jointly and severally with the aforesaid Employer, make Kenneth Nay whole for any loss of earnings which he may have sustained by reason of our discrimination against him, in the manner set forth in 303 the section of the Decision and recommended Order of the Trial Examiner entitled , "The Remedy." WE WILL notify John Armer Air Conditioning Company, in writing, with a copy to Kenneth Nay, that we have no objection to his employment, subject to any valid provisions of our collective-bargaining agreement with said John Armer Air Conditioning Company. Dated By UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LocAL 469, AFL-CIO (Labor Organization) (Representative ) (Title) Notify said Kenneth Nay, if he is presently serving in the Armed Forces of the United States , of his right to reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended, after discharge from the Armed Forces. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board 's Office, Room 207, Camelback Building, 110 W. Camelback Road, Phoenix, Arizona 85013, Telephone 261-3717.