Wismer and Becker

WISMER AND BECKER 779 Wismer and Becker, Contracting Engineers and Jess Aaron Jameson International Brotherhood of Electrical Workers Local Union 497 and Jess Aaron Jameson, John Neal, and Decevigne Kilpatrick. Cases 19-CA-7271, 19- CB-2290, 19-CB-2266, and 19-CB-2267 March 16, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On April 8, 1976, Administrative Law Judge George H. O'Brien issued the attached Decision in this proceeding. Thereafter, Respondent Employer filed exceptions, a supporting brief, and a request for oral argument;1 Respondent Union filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief, a brief in support of portions of the Administrative Law Judge's Decision, and a brief in reply to Respon- dents' exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge to the extent consistent herewith. 1. The Administrative Law Judge found that Respondent Union's demand that Respondent Em- ployer replace 26 direct hires with union referrals and Respondent Employer's acquiescence in that de- mand violated Section 8(b)(2) and 8(b)(1)(A) and Section 8(a)(3) and (1) of the Act, respectively. While we agree with these conclusions, we do so to the extent consistent with the following findings. The pertinent facts are as follows: Respondent Wismer and Becker is an electrical contractor and a member of the National Electrical Contractors Association. On January 11, 1974, before it hired any employee for its job at Grand Coulee Dam, Wismer and Becker entered into a "Visiting Employer Compliance Agreement" with Respondent Union by which it agreed to be bound by the collective- bargaining agreement between the National Electri- cal Contractors Association and Respondent Union. i Respondent Employer has requested oral argument . This request is hereby denied as the record, the exceptions , and the briefs adequately present the issues and the positions of the parties. 2 The General Counsel and Respondent Union have excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions 228 NLRB No.96 The agreement provided for exclusive referral of employees by Respondent Union. At the beginning of March 1974, Union Represen- tative Richardson informed Wismer and Becker's project manager, Anderson, that the "change shack" which Wismer and Becker had installed in the powerhouse was inadequate under the contract because it did not provide running water for washing and drinking and it had no washing facility or flush toilet. On March 5, Anderson directed five electri- cians then working for Wismer and Becker to cease reporting to the trailer designated as Wismer and Becker's office and instead to report to the change shack. On March 6, Richardson advised the electri- cians to disobey this order and report to the trailer. Thereafter, when the five electricians refused to report to the shack, Wismer and Becker discharged them. On March 18, Respondent Union filed a grievance with the Joint Conference Committee under section 1.6 of the contract alleging that the five men were fired unjustly and that Wismer and Becker's shop facilities were inadequate. After the Joint Conference Committee deadlocked, the matter was referred to the Council on Industrial Relations for binding arbitration under section 1.9 of the contract. On May 28, the Council on Industrial Relations ordered Wismer and Becker to reinstate the five electricians without backpay. Between March 6 and June 23, 1974, Respondent Union refused to dispatch any workmen to Wismer and Becker from its exclusive hiring hall. As a result, from March 12 through June 17, 1974, Wismer and Becker hired 30 workmen outside the Union's exclusive hiring hall, pursuant to the 1973-74 collective-bargaining agreement which provided, in pertinent part: 5.4(a) The Union shall maintain a register of applicants for employment established on the basis of the groups listed below. Each applicant for employment shall be registered in the highest priority group for which he qualifies ... . 5.5 The Union shall notify the employer when he places his call if there are no applicants .. . who will apply to the employer within 48 hours after the Union receives the employ- er's request, and the employer shall be free to secure applicants from other sources .... Employees not eligible for classifica- with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion in one of the above [referral] groups shall have the status of "temporary employ- ees" and shall be replaced by qualified individuals as soon as registered applicants for employment are available under the referral procedure. On June 24, 1974, Respondent Union dispatched 25 men, including the 5 dischargees, to Wismer and Becker. Wismer and Becker reinstated the 5 discharg- ees but refused to comply with the Union's request that it discharge the direct hires and replace them with the other 20 union referrals. It informed the Union that, contrary to the latter's position, the direct hires were "eligible for classification" under section 5.5 of the contract and therefore not "temporary employees" subject to replacement by dispatches from the hiring hall. The Union subsequently filed a grievance with the Joint Conference Committee. According to the testimony of Union Representative Richardson, he advised the Joint Conference Committee that the direct hires "didn't go through the referral procedure. They hadn't registered on the books, so according to the agreement they couldn't be anything but tempo- rary employees, as specified in the agreement." Minutes taken of the meeting reveal that Project Manager Anderson told the Committee that the direct hires qualified under section 5.5 of the contract and would not be replaced. Thereafter, on July 1, 1974, the Committee ruled in favor of the Union.3 As a result of the Committee's decision, between July 3 and 15, 1974, Respondent discharged 26 direct hires and hired 19 employees referred to it by Respondent. The Administrative Law Judge, inter alia, found that when the Union refused to refer workmen to Wismer and Becker it abrogated section 5 of the collective-bargaining agreement, that during the period when section 5 was inoperative Section 8(f) of the Act was without application to either Respon- dent, and that the Employer was thus free to obtain workmen from any source without reference to section 5. He therefore concluded that the Union's demand that the Employer's direct hires be dis- charged and replaced with union referrals was without contractual or legal justification, and that 3 The Committee decided- We find Wismer and Becker in violation of Article 5.5 and it is the decision of this Joint Conference Committee that all employees of the Wismer and Becker Co employed at the Grand Coulee Dam third powerhouse project under this collective-bargaining agreement who are not duly registered as being in group 1 , 2, 3 or by Article 5, Section 5.4 of the referral procedure shall as of the date of this conference, July 1, 1974 be considered temporary employees a The General Counsel subsequently discovered that the 1975-77 contract did not contain the "eligibility for classification" language which supported his argument that the direct hires were eligible for classification on the Union's referral register and, consequently, were not subject to replacement by union dispatches, and therefore that he had inadvertently the Union thereby restrained employees in violation of Section 8(b)(1)(A) and attempted to cause the Employer to discriminate against employees; i.e., to encourage membership in the Union in violation of Section 8(b)(2) of the Act. The Administrative Law Judge further found that the Employer' s acquies- cence in the Union's unlawful demand violated Section 8(a)(3) and (1) of the Act. In so doing, the Administrative Law Judge specifically found no basis in the record for determining the eligibility for registration of 19 of the direct hires. Contrary to the Administrative Law Judge, we conclude that 24 direct hires were, in fact, eligible for referral under the applicable 1974-75 contract in effect at the time the Union demanded their replacement. Thus, at the hearing the parties stipulat- ed: [W]ith the exception of two individuals as to whom the testimony will be received, those being Bud Jameson and an employee named Phil Mielcarek, the other 22 persons listed on the amendment to paragraph 13, which was received in evidence as General Counsel's [Exhibit] 2, would have qualified in at least the group IV referral status under the contract introduced or its immediate predecessor to it. [Emphasis supplied.] The "contract introduced" referred to the 1975-77 contract between the Union and the National Electrical Contractors Association and "its immedi- ate predecessor" referred to the previous contract which was in effect July 1, 1974, through June 30, 1975. Thus, the parties stipulated that under either contract 22 direct hires were "eligible for classifica- tion" in referral group IV which granted eligibility for placement on the Union's referral register to "all applicants for employment who have worked at the trade for more than 1 year." 4 The Administrative Law Judge, however, conclud- ed that the parties' stipulation with regard to the eligibility for registration of the direct hires was "specifically tied to the 1975-1977 contract and lost all probative value when that contract was removed from the record." The parties' stipulation referred to two contracts, one relating to eligibility for registra- introduced the wrong contract into evidence. As a result, he filed a motion with the Administrative Law Judge to substitute the 1974-75 contract, which contained the "eligibility for classification" language and which was in effect at the time the direct hires were discharged, for the one introduced. The Administrative Law Judge denied the motion. Thereafter, the General Counsel appealed this ruling to the Board . By telegraphic order dated November 21, 1975, the Board, Chairman Murphy dissenting, granted the appeal and reversed the Administrative Law Judge 's ruling. Pursuant to the Board's Order, the Administrative Law Judge received the 1974-75 contract in evidence and directed that the 1975-77 contract be placed in the rejected exhibit file. Chairman Murphy has reconsidered her position taken at the time of the appeal , and now joins in the Board's reversal of the Administrative Law Judge's ruling. WISMER AND BECKER 781 tion under the 1975-77 contract and one relating to eligibility for registration under the "immediate predecessor" to it, i.e., the 1974-75 contract which was later introduced into evidence. In the absence of any subsequent stipulation or motion to the contrary, we find that removal of the 1975-77 contract from the record did not disturb in any way the parties' stipulation that 22 direct hires were eligible for classification in referral group IV under the 1974-75 contract. We therefore find, based on that stipula- tion, that the 22 direct hires were eligible for registration in referral group IV under the 1974-75 contract. Additionally, the record discloses that employees Bud Jameson and Philip Mielcarek each had 1 year's experience in the trade. We therefore find that these employees were also eligible for referral under the applicable 1974-75 contract. Thus, as the Employer was entitled under section 5.5 of the contract to hire men directly outside the Union's exclusive hiring hall and as 24 direct hires were eligible for classification in at least referral group IV of the 1974-75 contract, the 24 were not "temporary" employees subject to replacement by union dispatches under that contract. Therefore, inasmuch as Respondent Union's demand that these employees be replaced by union dispatches and Respondent Employer's compliance in that demand had no legal or contractual justifications and clearly had the effect of encouraging membership in Respondent Union, we find that Respondents violated Section 8(b)(2) and 8(b)(1)(A) and Section 8(a)(3) and (1), respectively.6 See The Radio Officers' Union of the Commercial Telegraphers Union, AFL [A. H. Bell Steamship Company] v. N.L.R.B. 347 U.S. 17 (1954).7 2. The General Counsel has excepted to the Administrative Law Judge's failure to find that Respondent Union violated Section 8(b)(2) and 8(b)(1)(A) by its refusal to refer Jess Jameson, Richard Nelson, and Decevigne Kilpatrick for employment with Wismer and Becker. We find merit in these exceptions. 5 We find without merit Respondent Employer's asserted defense that it discharged its direct hires in reliance on the Joint Conference Committee's ruling that the direct hires were "temporary" employees. It is clear that the Joint Conference Committee erroneously premised "temporary" status upon actual registration with the Union rather than upon eligibility for registration as expressly provided in sec. 5.5 of the contract. Accordingly, as the Joint Conference Committee's award was in contradiction of the express language of sec. 5.5 of the contract, such award was without legal or contractual justification and, therefore, was repugnant to the Act. 6 The Administrative Law Judge included in his recommended Order the names of G. B. Fatland and G . M. Thunstrom, finding that they were "members of the class described in the original charges and in the original complaint, but omitted from the amendment to the complaint." Respondent Employer has excepted to the Administrative Law Judge's finding and recommended Order in this regard, contending that these two employees were not named in the complaint or the amendment to the complaint, that The record discloses that on March 12, 1974, Jameson was directly hired by Wismer and Becker. On the following day, March 13, he went to Respondent Union's office to inquire whether he could be dispatched to Wismer and Becker. He was informed that he could not work for Wismer and Becker because the Union and Wismer and Becker were having a "dispute." Between March 18 and 22, Richard Nelson went to Respondent Union's office, asked to be dispatched to Wismer and Becker, and was told that the Union was not dispatching anyone to it because of a "dispute." Thereafter, he went to work for Wismer and Becker as a direct hire on March 27, 1974. On April 8, 1974, Decevigne Kilpatrick spoke to Union Business Manager Rich- ardson and told him that he was going to work for Wismer and Becker, but that he wanted to follow the bylaws of the International Brotherhood of Electrical Workers. However, Richardson refused to refer him to Wismer and Becker because of the existing "dispute" and told him that if he worked there without a referral he would be a "scab." Later that day, Wismer and Becker directly hired Kilpatrick for its Grand Coulee Dam job. In International Union of Operating Engineers, Local 18 (Ohio Contractors Association), 204 NLRB 681 (1973), the Board stated in part: When a union prevents an employee from being hired or causes an employee's discharge, it has demonstrated its influence over the employee and its power to affect his livelihood in so dramatic a way that we will infer-or, if you please, adopt a presumption that-the effect of its action is to encourage union membership on the part of all employees who have perceived that exercise of power (citing Radio Officers' Union). But the inference may be overcome, or the presumption rebutted, not only when the interfer- ence with employment was pursuant to a valid union-security clause, but also in instances where the facts show that the union action was neces- sary to the effective performance of its function of representing its constituency. the parties' stipulation was inapplicable as to them, and furthermore that there was no evidence that these employees were eligible for referral. We find ment in these exceptions. Accordingly, we will not include Fatland or Thunstrom within the remedial provisions of our Order. r We find, inasmuch as the Respondent Employer initially refused to comply with the Union's demand for the discharge of the direct hires, argued against taking such action before the Joint Conference Committee, and finally complied with the Respondent Union's demand only because pursuant to the collective-bargaining agreement between the parties the decision of the Joint Conference Committee was final and binding on it, that the Employer made a good-faith attempt to avert the discharges of the direct hires. In these circumstances, contrary to the Administrative Law Judge, we shall hold Respondent Employer liable, but secondarily liable, for any backpay owing the discriminatees. J. Willis & Son Masonry, 191 NLRB 872 (1971). Cf. Alberici-Fnun-Colnon, 226 NLRB 1315 (1976) 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the instant case Respondent Union, vested with an exclusive right of referral, had a concomitant obligation to refer applicants without regard to union considerations. Respondent Union's refusal to refer Jameson, Nelson, and Kilpatrick was neither con- tractually justified nor "necessary to the effective performance of its function of representing its constituency." Rather, in light of its subsequent unlawful demand that Respondent Employer replace its direct hires with union referrals, its refusal to refer Jameson, Nelson, and Kilpatrick was an integral part of its plan to apply pressure on Wismer and Becker and to insure that only loyal union members who had cooperated in refusing to seek jobs with the Employer during the "dispute" would ultimately be hired for the Grand Coulee Dam project. According- ly, we find that Respondent Union's refusal to refer Jameson, Nelson, and Kilpatrick to Wismer and Becker was in derogation of these employees' Section 7 right to refrain from supporting the Union and thereby encouraged support for the Union in violation of Section 8(b)(2) and 8(b)(1)(A) of the Act.8 ORDERS Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Respondent Wismer and Becker, Contracting Engineers, Grand Coulee, Washington, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in International Brotherhood of Electrical Workers Local Union 497, or any other labor organization, by discharging employees or otherwise discriminating against them in regard to their hire or tenure of employment or any other term or condition of employment, except as authorized by Section 8(a)(3) and 8(f) of the National Labor Relations Act. (b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: s The General Counsel has excepted to the Administrative Law Judge's failure to find that Respondent Union refused to permit Jameson , Nelson, and Kilpatrick to sign its out-of-work books in violation of Sec. 8(b)(IXA). However, as found by the Administrative Law Judge, the record reveals that the three men were not precluded from signing the out-of-work books and, accordingly, we find no ment in the General Counsel's exceptions in this regard In addition, the General Counsel has excepted to the Administrative Law Judge's failure to find that Respondent Union expelled from membership Jameson, Nelson, and Kilpatrick in violation of Sec. 8(bxl)(A). We find, in agreement with the Administrative Law Judge, that the Union's action is permitted by the proviso to Sec. 8(bxlXA). In so doing, we note particularly (a) In conjunction with Respondent Union, with Respondent Union primarily liable, make whole the following named employees for any loss of earnings suffered as a result of the discrimination against them. The backpay period shall begin on the date set forth opposite each respective name and shall end for each employee on the date when he was reemployed, or on the date of the offer of reemployment if such offer was not accepted or was refused. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962): C. Armstrong 7-3-74 Don Carpenter 7-3-74 Sid Colby 7-8-74 Don Dasautel 7-3-74 Dan Dubois 7-5-74 Jerry Fleshman 7-10-74 Edmund Flugham 7-3-74 Larry Goit 7-3-74 Clifford Grothe 7-3-74 Jim Hubbard 7-5-74 Jess Jameson 7-12-74 Bud Jameson 7-12-74 Darrell Kelly 7-3-74 Decevinge Kilpatrick 7-3-74 Fred Markley 7-8-74 Phil Mielcarek 7-5-74 David Mitchell 7-3-74 John Neal 7-12-74 Richard Nelson 7-10-74 Jim Nutting 7-11-74 Jim Pryor 7-12-74 Jim Robinson 7-8-74 Jack Simmons 7-5-74 Larry Ware 7-3-74 (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. the absence of any evidence that as a result of their expulsion from membership these employees were deprived of the opportunity to obtain job referrals or suffered the loss of employment-related benefits. Accordingly, we shall sustain the Administrative Law Judge's dismissal of this allegation. See, e.g., Tawas Tube Products, Inc., 151 NLRB 46 ( 1965). 9 In his recommended Order the Administrative Law Judge uses the narrow cease-and-desist language, "in any like or related manner." Respondents here have committed violations which go to the very heart of the Act. We shall therefore require Respondents to cease and desist from in any other manner infringing upon the rights guaranteed to employees by Sec. 7 of the Act. N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). H. C. Macaulay Foundry Company, 223 NLRB 815 (1976). WISMER AND BECKER 783 (c) Post at its office and electrical shack at Grand Coulee, Washington, copies of the attached notice marked "Appendix A."10 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by an authorized agent of Respondent Employer, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. (d) Transmit to the Regional Director for Region 19 signed copies of said notice in sufficient numbers to be posted by International Union of Electrical Workers Local Union 497, in all places where notices to its members are customarily posted. (e) Post at the same places and under the same conditions as set forth in paragraph A, 2(c), above, as soon as forwarded by said Regional Director, copies of the attached notice marked "Appendix B." (f) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent Employer has taken to comply herewith. B. Respondent International Brotherhood of Electrical Workers Local Union 497, Wenatchee, Washington, its officer, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Wismer and Becker, Contracting Engineers, or any other employ- er, to discharge or otherwise discriminate against employees in violation of Section 8(a)(3) of the Act. (b) Discriminatorily refusing to refer applicants in order to encourage or discourage support of the Union. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) In conjunction with Respondent Employer, with Respondent Union primarily liable, make whole the above-named employees for any loss of earnings suffered as a result of the discrimination against them. The backpay period shall begin on the date set forth opposite each respective name and shall end on the date when Respondent Union notified Respon- dent Employer that it had no objection to the reemployment and the continued employment by Respondent Employer of the employees herein named. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (b) Post at its office and meeting hall in Wenat- chee, Washington, copies of the attached notice marked "Appendix B."11 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by the business manager of Respondent Union, shall be posted by it immedi- ately 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. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Transmit to the Regional Director for Region 19 signed copies of said notice in sufficient numbers to be posted by Wismer and Becker, Contracting Engineers, in all places where notices to its employ- ees are customarily posted. (d) Post at the same places and under the same conditions as set forth in paragraph B, 2(b), above, as soon as forwarded by said Regional Director, copies of the attached notice marked "Appendix A." (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. 10 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 11 See fn. 10, supra. APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discrimi- nate against employees in order to encourage membership in International Brotherhood of Electrical Workers Local Union 497, or any other labor organization, except as permitted by Sec- tion 8(a)(3) or Section 8(f) of the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL, in conjunction with the Union, with the Union primarily liable, make the employees named below whole for any loss of earnings they 784 DECISIONS OF NATIONAL may have suffered as a result of the discrimina- tion against them: C. Armstrong Darrell Kelly Don Carpenter Decevigne Kilpatrick Sid Colby Fred Markley Don Desautel Phil Mielcarek Dan Dubois David Mitchell Jerry Fleshman John Neal Edmund Flugham Richard Nelson Larry Goit Jim Nutting Clifford Grothe Jim Pryor Jim Hubbard Jim Robinson Jess Jameson Jack Simmons Bud Jameson Larry Ware WISMER AND BECKER, CONTRACTING ENGINEERS APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Wismer and Becker, Contracting Engineers, or any other employer, to discharge or otherwise discriminate against any employee in order to encourage membership in this Union, except as permitted by Section 8(a)(3) or Section 8(f) of the National Labor Relations Act. WE WILL NOT discriminatorily refuse to refer applicants for employment in order to encourage or discourage support for the Union. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL, in conjunction with Wismer and Becker, with ourselves primarily liable, make the employees named below whole for any loss of earnings they may have suffered as a result of the discrimination against them: C. Armstrong Don Carpenter Sid Colby Don Desautel Dan Dubois Jerry Fleshman Edmund Flugham Larry Goit Clifford Grothe Jim Hubbard Jess Jameson Darrell Kelly Decevigne Kilpatrick Fred Markley Phil Mielcarek David Mitchell John Neal Richard Nelson Jim Nutting Jim Pryor Jim Robinson Jack Simmons LABOR RELATIONS BOARD Bud Jameson Larry Ware INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION 497 DECISION STATEMENT OF THE CASE GEORGE H. O'BRIEN, Administrative Law Judge: This consolidated proceeding was heard before me in Seattle, Washington, on September 16 and 17, 1975, and on February 3, 1976. The consolidated complaint, issued on May 2, 1975, is based on charges filed by individuals on July 5 and August 15, 1974. The complaint, as amended and particularized September 16, 1975, alleges in substance that Wismer and Becker, herein called Respondent Employer, discharged 24 named employees on and be- tween July 3 and 12, 1974, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, and that International Brotherhood of Electrical Workers Local Union 497, herein called Respondent Union, by causing the Respondent Employer to discharge these 24 employees, violated Section 8(b)(1XA) and (2) of the Act. The complaint further alleges that Respondent Union violated Section 8(bx1)(A) and (2) of the Act by: (1) between March 7, 1974, and June 18, 1974, refusing to dispatch employees from its exclusive dispatch hall to Respondent Employer at Grand Coulee Dam; (2) refusing in March and April 1974 to permit Richard Nelson, Jess Aaron Jameson, and Decevigne Kilpatrick to register on its dispatch list for employment; and (3) instituting on June 5, 1974, and prosecuting intraunion charges against Jameson, Kilpatrick, and Nelson designed to bring about their expulsion from International Brotherhood of Electrical Workers. Respondent Employer, in its answer , denies that it discriminated against employees and asserts that "all acts taken by it were proper and appropriate under the circumstances and were not contrary to nor violative of the National Labor Relations Act." As affirmative defenses to the September 16, 1975, amendment to the complaint (naming, for the first time, employees discharged between July 5 and 12, 1974), counsel for Respondent Employer answers : (1) "insofar as any violation of the collective bargaining agreement is an element of any allegation [of the complaint ] that is a matter solely within the province of the contract adjustment procedures , and is not an appro- priate matter for litigation in front of the Board.... I am still not aware of to what extent the General Counsel is relying here on a contract violation, I want my defense to be entered that that matter is beyond the competence of this forum"; (2) "The allegations of the amendment to the complaint are unsupported by a timely charge with respect to the Respondent Employer"; and (3) "the conduct of the Employer was perfectly lawful as a legitimate resolution of the labor dispute under its right to make an arrangement with the Union to rehire the people who had been displaced during the existence of that labor dispute." WISMER AND BECKER 785 Respondent Union in its answer denies the commission of any unfair labor practice and affirmatively alleges: "any cessation in performance of work constituted protected concerted activity." Upon the entire record in this proceeding, including my observation of the witnesses and after due consideration of the posthearing briefs, I make the following: 1.4. There shall be no stoppage of work either by strike or lockout because of any proposed changes in this Agreement or disputes over matters related to this Agreement. All such matters must be handled as stated herein ... . FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT EMPLOYER Wismer and Becker is a California corporation engaged as a mechanical and electrical contractor in the commer- cial construction industry with its principal business office located in Sacramento, California, and Idaho. Within the 3 years last past, Respondent Employer has been engaged in projects in Alaska, Oregon, Idaho, and Washington. For its project at Grand Coulee Dam in the State of Washington it has, within the 12-month period ending May 2, 1975, caused to be shipped from points outside the State of Washington, directly to the project, goods and materials valued in excess of $50,000. II. THE LABOR ORGANIZATION INVOLVED Respondent Union is a labor organization within the meaning of Section 2(5) of the National Labor Relations Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting In late 1973 or early January 1974, the Bureau of Reclamation of the United States Department of the Interior awarded to Respondent Employer a contract for completion of electrical and mechanical facilities in powerhouse 3 at Grand Coulee, Washington. When complete, the Grand Coulee complex will be the largest in the world and will produce power to serve approximately 4-1/2 million people. Respondent Employer is a member of National Electrical Contractors Association. All of its employees on every project are represented by Internation- al Brotherhood of Electrical Workers and labor relations are governed by contracts between IBEW locals and NECA regional chapters. Grand Coulee is located in the Central Division of the Inland Empire Chapter of the National Electrical Contractors Association and within the territorial jurisdiction of Respondent Union, the office of which is located in Wenatchee, Washington. Before bidding on the Grand Coulee job, Robert Glenn Albrecht, president and general manager of Respondent Employer, made an investigation of the labor situation on the job. On January 11, 1974, before any employee was hired, Respon- dent Employer entered into a "Visiting Employer Compli- ance Agreement" with Respondent Union, by which Respondent Employer agreed to be bound by all the terms and conditions of a contract between The Inland Empire Chapter of NECA and Respondent Union effective from July 1, 1973, to June 30, 1974. This NECA-IBEW contract contains, inter alia, the following provisions: 1.6. All questions or disputes which are not adjusted between the Union and the Employer shall be referred to the Joint Conference Committee. 1.7. There shall be a Joint Conference Committee consisting of three members representing the Union and three members representing the Employer ... . The Committee shall meet within seventy-two hours when a meeting is requested by either party. The party requesting the meeting shall state the purpose of the meeting or the nature of the grievance to be adjusted. s s 1.9. Should the Joint Conference Committee be unable to agree or adjust any matter within 48 hours, such shall then be referred to the Council on Industrial Relations for a decision which shall be final and binding on both parties. 1.10. When any matter in dispute has been referred to conciliation or arbitration for adjustment, the provisions and conditions prevailing prior to the time such matter arose shall not be changed or abrogated until a decision has been rendered in such conciliation or arbitration. * s s 2.3. The Union agrees that if, during the life of this Agreement it grants to any other employer any better terms or conditions for work covered by this Agree- ment than those set forth in this Agreement, such better terms or conditions shall be made available to the Employer under this Agreement and the Union will immediately notify the Employer of any such conces- sions. s s s 2.4.(a) Employers shall provide a place for employees to change clothes, washup and store toolboxes. All employers shall see that sanitary drinking facilities and toilet facilities are available in shop and accessible to jobs. 2.6. The Employer recognizes the Union as the exclusive representative of its employees performing work within the jurisdiction of the Union for the purposes of collective bargaining ... . The Employer shall have the right to determine the competency and qualifications of its employees and the right to discharge employees for any just and sufficient cause. The Union may institute a grievance procedure under the terms of this Agreement if it feels that any employee has been unjustly discharged ... . 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All workmen employed by the Employer shall, as a condition of employment, tender the full and uniform admission fees in effect in the Local Union within thirty-one days following the beginning of employment under this Agreement. All workmen who may be accepted into membership shall thereafter maintain their continuous good standing in the Union as a condition of employment .... s s • s s 3.21. Workmen employed under the terms of this Agreement shall do all electrical construction, installa- tion or erection work .... Such work shall also include the welding, burning, brasing, bending, drilling and shaping of all copper, silver, aluminum, angle iron, and brackets to be used in connection with the installation and erection of electrical wiring and equipment .... However, the above shall not apply to items which cannot be fabricated under this Agreement because of the nature of the fabrication or to items which are not customarily fabricated under this Agreement under trade practice in this jurisdiction. Prior to arranging for the fabrication of such items by employees or subcon- tractors not under this Agreement, the contractor will discuss the work involved with the Business Manager of the Local Union. • s s • s 5.1. The Union shall be the sole and exclusive source of referrals of applicants for employment ... . 5.2. The employer shall have the right to reject any applicant for employment and the union shall not attempt to frustrate this right through delays in referral of other applicants, withholding of accurate informa- tion on the availability of workmen or other means. 5.3. The Union shall select, classify and refer applicants for employment without discrimination against such applicants by reason of membership or non-membership in the Union or by reason of such applicants' race, color, religion, sex or national origin. Such selection and referral shall not be affected in any way by rules, regulations, by-laws, constitutional provisions or any other aspect or obligation of Union membership policies or requirements. All such selection and referral shall be in accordance with the following procedure: 5.4.(a) The Union shall maintain a register of applicants for employment established on the basis of the groups listed below. Each applicant for employ- ment shall be registered in the highest priority Group for which he qualifies. GROUP I - All applicants for employment who have four or more years' experience in the trade, are residents of the geographical area constituting the normal construction labor market, have passed a journeyman's examinati on given by a duly constituted Local Union of the IBEW and who have been employed for a period of at least one year in the last four years under a collective bargaining agreement between the parties to this addendum. GROUP II - All applicants for employment who have four or more years' experience in the trade, who have passed a journeyman's examination given by a duly constituted Local Union of the IBEW, and who are residents of Washington. GROUP III - All applicants for employment who have four or more years' experience in the trade and who have passed a journeyman's examination given by a duly constituted Local Union of the IBEW. GROUP rv - All applicants for employment who have had two or more years' experience in the inside electrical trade. s s r a s 5.5 The Union shall notify the employer when he places his call if there are no applicants in the above groups who will apply to the employer within 48 hours after the Union receives the employer's request, and the employer shall be free to secure applicants from other sources, provided the Union has notice of at least six working hours before a holiday or a weekend to call applicants whom the employer wishes to report at 8:00 a.m. the next work day. Employees not eligible for classification in one of the above groups shall have the status of "temporary employees" and shall be replaced by qualified individuals as soon as registered applicants for employment are available under the referral procedure. The employer shall notify the Business Manager promptly of the names and Social Security numbers of any employees hired who were not referred by the Union referral office. s s • s s 5.7.(a) The Union shall maintain an "Out-of-Work List" which shall list the applicants within each Group in chronological order of the dates they register their availability for employment . . . . No applicant may register on the Out-of Work List or remain registered while he is employed at the trade . An applicant's name will not be removed from its place on the list if he is referred to a job of five days' or less duration .... : s • • s 5.7.(d) An applicant who is temporarily unable to re- register or is unable for two weeks or longer to accept employment due to sickness, injury or absence from the area on emergency personal business but who is not employed anywhere at the trade may sign a certificate to this effect, which shall be placed on file at the referral office, with a copy to the NECA office. Such applicant's name shall continue to remain in the same position on the Out-of-Work List until the applicant personally files at the referral office a certificate that he is again able to accept referrals... . 5.8.(a) Employers shall advise the Business Manager of the Local Union of the number of applicants needed. The Business Manager shall refer applicants to the employer by first referring applicants in Group I in the order of their places on the Out-of-Work List and then referring applicants in the same manner successively WISMER AND BECKER from the Out-of-Work List in Group II, then Group III, and then from Group IV as prescribed .... B. Sequence of Events Before signing the visiting employer agreement, the Union and the Employer met on January 8, 1974, "in an attempt to unravel some of the spaghetti (Employer] felt we might get into." Employer was represented by Division Manager Holland, Vice President Pester and Project Manager Anderson. Union was represented by Secretary- Business Manager Richardson and by another officer. Employer representatives stated that they intended to send electricians referred to it by the Union to Employer's Sacramento shop to fabricate cable tray supports. Richard- son objected and there was no agreement.) Employer representatives stated that they intended to provide chemical toilets and cool can drinking water facilities in a "change shack" to be located inside the powerhouse. Richardson replied that the Union would require flush toilets and running water and that these should be located in a shop outside of the powerhouse. There was no agreement.2 Between January 21 and February 18, 1974, 13 electri- cians referred by the Union were hired by Employer. Of these, one worked for 4 weeks, three worked for 3 weeks, one worked for 2 days, and three worked for only 1 day. As of March 4, 1974, 5 of the 13 were still employed. Throughout this period electricians reported to and ate lunch in a trailer designed to be Employer's office. On March 4, 1975, Anderson instructed his foreman, Meredith Williams, to have carpenters erect scaffolding on which electricians were to work. On March 5, Richardson inspected the facilities in the electrical "shack" which Employer had installed in the powerhouse. True to its promise, there was no running water for washing or drinking, no washing facility and no flush toilet, nor was there any flush toilet at the powerhouse level on which the new "shack" was situated. Richardson told Anderson that the facilities were totally inadequate and offered to show him the shop of another contractor on the project, Drucker's, which had all that the Union required. Then, accompanied by a pipefitter representative, Junior Rodg- ers, Richardson called on Anderson. Richardson and Rodgers asserted that the scaffolds should be erected by electricians and pipefitters. Anderson replied that the award to the Carpenters would stand. Richardson also told Anderson that the facilities in the new "shack" were not satisfactory. Following this meeting, Williams was instruct- ed by Anderson to order the five electricians, then working, to report to the new "shack" at 8 a.m. the following morning. On the morning of March 6, one of the electricians telephoned Richardson and informed him that "they had been invited to report to the shop." Richardson advised the electricians to disobey this order and to report, as they had been doing, to the trailer. The electricians took Richard- son's advice and, finding no one at the trailer, resumed work where they had left off the previous day. Contract, sec. 3 21. z Contract, sec. 2.4(a). Contract, secs. 5.2 and 5.8(a). 787 At or about 8:45 a.m. on March 6, Anderson, accompa- nied by Williams, went to the electricians' work station. AAnderson] made it clear ... that we had established a reporting place and that they were to report there each morning to receive their orders of the day from their foreman ... that at twelve o'clock noon was the time when they took their half hour for lunch, and twelve- thirty was the designated lunch period end ... . When some of the electricians objected to eating lunch in the new "shack," Anderson granted permission to eat in any nondesignated area, provided they did not litter. Anderson specifically warned all five that repeated tardi- ness would subject them to being discharged. At 12 noon, Anderson observed that the electricians had already left for lunch. At 12:30 he observed them returning on foot to their work area. At 1:30 p.m. he telephoned the Union and asked that two journeymen electricians be dispatched at 8 a.m. on March 7. At 4:30 p.m. on March 6, Employer discharged all five electricians. No electrician reported on either Thursday, March 7, or Friday, March 8. When Anderson telephoned the Union on March 8, he was informed by Richardson's secretary that Richardson was in Hanford, was having difficulty in obtaining men, and was working on Anderson's request. On Monday, March 11, 1974, Anderson, after receiving permission from his superior, Lee Holland, and after notifying the National Electrical Contractors Association, advertised for electricians in the Spokane and Wenatchee newspapers. The ads stated that the project would last for 2-1/2 years and that applicants should communicate with Anderson by letter or by telephone. From March 6 through June 23, 1974, Respondent Union, in clear violation of its contract,3 refused to dispatch any workmen to Employer. Between and includ- ing March 12 and June 17, 1974, Anderson hired 30 workmen. Each was informed that Employer was party to a labor agreement and that a copy of the agreement was available for the inspection of the applicant. Anderson called specific attention to the union-security clause,4 to the clause relating to sanitary facilities,5 and to the clause permitting him to hire workmen directly when Respondent Union was unable to supply workmen requested by Employer.6 Each applicant was told that the Union would be notified of his hire and advised of his name and social security number. Anderson testified that he told each applicant: that it appeared to me that if they had one year or more experience in the trade that they would presumably be classified in at least Group IV and therefore could not be replaced. But I did make it a point to tell them that this may not be the Union's position and that, at some point in the future, I might be proven to be wrong. With reference only to the union-security clause, Ander- son told each direct hire "that they should weigh this and let their conscience be judge." 4 Contract, sec. 2.6. S Contract, sec. 2.4(a). 6 Contract, sec. 5.5. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD True to his promise, Anderson notified the Union by telegram of the name, social security number, and date of hire of each man hired directly by him. Some of these did tender to the Union, by mail, initiation fees and dues. These tenders were promptly returned by the Union. Only 3 of the 30 men hired directly by Anderson were members of IBEW. These were Jess Jameson, Decevigne Kilpatrick, and Richard C. Nelson. On March 14, 1974, the Union and the Employer met at the Coulee House. On this date the only employees on Respondent Employer's payroll were the foreman, Wil- liams, and Jess Jameson, who had been hired on March 12. The Employer was represented by Project Manager Anderson and Mechanical Construction Division Manager Lee Holland. The Union was represented by its officers, Richardson and Cokeley. The National Electrical Contrac- tors Association was represented by George Seaman, manager of Central Division, Inland Empire Chapter. Richardson stated that he had instructed the electricians not to report to the inadequate "change shack." Anderson insisted that the shack complied fully with the require- ments of the contract. Richardson replied that, if Anderson continued to discharge workmen for refusal to use the change shack, he would have to go through the entire union rolls and it would "cost" the Employer. There was no discussion of the Union's failure to refer replacements for the five men discharged, nor of Respondent Employer's advertisement, nor of the direct hire of Jameson. On March 18, 1974, Richardson wrote to Seaman: Be advised that we have a dispute with Wismer and Becker, Electrical Division, over the firing of five workmen. These five workmen's termination slips state the reason for discharge was refusal to report to assigned work area and repeated tardiness. We disagree that this was the reason for firing these workmen. These men did not refuse to work and they were not tardy in reporting to their work assignments. Project Superintendent for Wismer and Becker, Gary Anderson, insisted that these men report to a shop that didn't meet the requirements of Article 2.4 of the Collective Bargaining Agreement. At its meeting on March 20, the Joint Conference Committee failed to agree, three members voting for the Union and three members voting for the Employer. The dispute was then referred to the Council on Industrial Relations. Following the committee deadlock Anderson, on March 21, 1974, telephoned Richardson, reminded him that Employer had a standing order for workmen, and asked if the Union would be sending him any people. Richardson acknowledged the existence of the standing order and replied that the Union would not refer any workmen to Wismer and Becker unless it was ordered to do so by the International office. As of March 21, 1974, the only electricians on the payroll of Respondent Employer were the foreman, Meredith Williams, and Jess Jameson. On June 20, 1974, Anderson received a copy of the decision of the Council on Industrial Relations (dated May 28) ordering Respondent Employer to reinstate the five electricians without backpay. On the previous day, June 19, Richardson had told Anderson that all electricians then working were "temporary" and must be replaced by referrals from the Union. On Thursday, June 20, Anderson telephoned Richardson and asked him to send the five discharged electricians to Grand Coulee. Richardson said he was having difficulty in locating the men. On Monday, June 24, the Union dispatched 25 men, including the five dischargees, to Respondent Employer. The five were "signed up." The other 20 were refused employment. The 5 then refused to work unless the other 20 were hired. That afternoon Richardson telephoned Employer's Division Manager Holland,7 who agreed to discharge all the electricians then working and replace them with workmen referred by the Union. The Union agreed to dispatch four men every second working day until all of Anderson's direct hires had been replaced. On June 25, four of the March 6 dischargees returned to work. On June 26, the fifth dischargee and four other workmen referred by the Union were hired and went to work. On the same day, June 26, 1974, the agreement between Richardson and Holland was repudiated by Holland's superior, Respondent Employer Vice President R. E. Pester, in the following letter: International Brotherhood of Electrical Workers Local Union 497 We are in dispute as follows: # I Firing of five men unjustly #2 Qualifications of shop facilities Article 2.4 Therefore, I wish to request that Wismer and Becker, Electrical Division, be cited to appear at the Joint Conference Committee, Wednesday evening, March 20, 1974, at 7:30 p.m., Local Union 497 office, 27 N. Chelan, Labor Temple, Wenatchee, Washington, 98801, in answer to these alleged violations according to Articles 1.6, 1.7, 1.8, 1.9, 1.10, 2.3, and 2.6 sub paragraph 5. Attention: Mr. C. L. Richardson , Business Manager Under any fair and lawful reading of the contract we can not agree with your position that our present electrical employees are not eligible for classification and therefore do not have the status of "temporary employees." On March 7, 1974, we placed a call for workers and were informed none were available. Pursuant to Article V of the agreement we then recruited workers from other sources. However, Inter- national Brotherhood of Electrical Workers, Local Union 497, breached its obligation under the contract 7 Monday, June 24, was Anderson's first day of vacation. He returned to work on Monday, July 1. WISMER AND BECKER 789 and failed to refer applicants as soon as they were available. As you are aware, our present employees have been working in excess of two and three months and have tendered initiation fees to IBEW, Local Union 497, in a good faith effort to become members in good standing. Earlier this week we agreed to accept referrals on a limited basis. We are now advised by counsel we should not accept referrals which would require us to replace present employees. Accepting any referrals at this time would necessitate displacing a present employee, and we do not believe this is proper under the contract or lawful under the National Labor Relations Act. If this matter has not been resolved to your satisfaction please consider this letter as our referral of our dispute to the Joint Conference Committee. Upon receipt of Pester's letter, Richardson, on June 27, 1974, wrote to George Seaman, NECA chapter manager: We wish to request an immediate Joint Conference Committee Meeting according to Article I, specifically Article I Section 1.6 and Section 1.7, of the Collective Bargaining Agreement. Local Union 497 IBEW alleges Wismer & Becker, Contracting Engineers is in violation of Article 1.9 and 5.5 of the Collective Bargaining Agreement. We wish for the earliest possible meeting to resolve this dispute. The Joint Conference Committee met on July 1, 1974. The employer representatives were: James Mack, Bob Fries, and Dan Swartz. Union representatives were Jack Acord, Bill Beuhler, and Gradon Hemingway. Wayne Folder, NECA representative, was present as a nonvoting observer. Mack was elected chairman and Acord was elected secretary. The letters of June 26 and 27 were read. Richardson, speaking for Respondent Union, advised the committee that . . . these people were temporary employees, and Wismer and Becker agreed to this originally, and then they came back and objected to this procedure outlined in the agreement I presented the letter from Mr. Pester and made that part of my presentation . . . . [These employees] were picked up off the bank, as we would call it. They didn't go through the referral procedure. They hadn't registered on the books, so according to the agreement they couldn't be anything but temporary employees, as specified in the agreement . . . . I probably advised them that Kilpatrick had come to the office, but anyone else, to my knowledge, had never appeared at the office .... I advised them we hadn't made any referrals to Wismer and Becker [because ] we had a dispute and they had fired five of our people. The minutes taken by Jack Acord accurately describe the position of Respondent Employer at the July 1 hearing as follows: Mr. Gary Anderson called into the meeting at 1:45 p.m. Mr. Anderson gave a statement as follows: On Monday, June 24, 5 men that had been laid off previously, reported to the job site plus approximately 20 other men. At that time the 5 men were accepted and the other men were told there was no call for more men. After a discussion with Mr. Holland an agreement was made to have 4 more men plus 4 men every other day until all temporary employees were replaced. The following day Mr. Holland called and said there was a change of plans and that the people employed are not temporary employees. There is now the five men which were laid off plus the first group of 4 men are employed. The five men were called to comply with the C.I.R. decision. The original intent of the call for the 4 men every other day was to replace the men already employed, but after more discussion with the head office the call was cancelled and a letter sent to the local Union. Question (by one of the committee) Mr. Anderson what was the interpretation of your legal people of Article 5.5 of the agreement between NECA and Local Union 497? Answer: I am not certain, I have been on vacation. I contacted Mr. Holland and he was vague. The following day I received word they had changed their mind and that the men employed are not temporary employees. Question: Mr. Anderson, what proof of competence do you have on these men? Answer: Some men have a state license. I inter- viewed others as to their qualifications. Question: Mr. Anderson, are there any men em- ployed from a labor union? Answer: Not to my knowledge. Question: Mr. Anderson, do you feel these men are qualified under Article 5.5? Answer: Yes, that is right, and we do not intend to replace these men we have employed. Question: Mr. Anderson, have these men went to the Local Union hall to sign the out of work book? Answer: Not to my knowledge. Mr. Anderson excused from the meeting at 2:15 p.m. After the employer-members of the committee held a separate caucus, a vote was taken and the Joint Conference Committee unanimously agreed on the following decision: After careful consideration of the evidence submitted the Joint Conference Committee rules as follows: We find Wismer and Becker in violation of Article 5.5 and it is the decision of this Joint Conference Committee that all employees of the Wismer and Becker Co. employed at the Grand Coulee Dam third power house project under this collective bargaining agreement who are not duly registered as being in group 1, 2, 3 or 4 by Article 5 section 5.4 of the referral procedure shall as of the date of this conference, July 1, 1974 be considered temporary employees. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meeting adjourned at 3:45 p.m. Between July 3 and 12, 1974, Respondent Employer discharged the 24 men named in the amendment to the complaint and also discharged G. B. Fatland and G. M. Thunstrom, who had been hired by Anderson on April 1, 1974. Between July 5 and 15, 1974, Respondent Employer hired 19 men referred to it by Respondent Union. Twenty- three of the men hired between June 26 and July 15 had never before worked for Respondent Employer on its Grand Coulee project. All were registered in Book I in the office of Respondent Union. Many of these in violation of sections 5.7(a) and 5.7(d) of the contract had retained their places on the out-of-work list while employed outside of the territorial jurisdiction of Respondent Union and quit these jobs to go to work for Respondent Employer. C. Jameson, Nelson, and Kilpatrick On Monday, March 11, 1974, Jess Jameson telephoned Anderson in answer to Employer's advertisement and was invited to the project for an interview. On Tuesday, March 12, Jameson was hired. Anderson told Jameson "that there had been several things brought up about the facilities not being adequate, and the Union would probably have a picket line up." When advised that Jameson held an honorable withdrawal card from IBEW Local 73 in Spokane, Anderson advised him to apply for reinstate- ment. Anderson handed him a copy of the contract, told him that Respondent Union would be advised of his social security number and telephone number, and that he would have to pay dues to Respondent Union. On either March 13 or 14 Jameson drove to Wenatchee, entered the office of Respondent Union, and spoke to a young man who, on this record, was neither an agent nor an employee of the Union. Jameson testified: I asked this young man if Claude Richardson was there and he said "No," that he was not available, and I asked him if I could get a dispatch to go out to Wismer and Becker, and he said "No" and I said "Why?" and so he said that they were having a dispute. s I asked him for a reason why, and he said "Well, I'm not going to give you a reason . We're just not sending any help out." And I asked him if I could sign the out of work book and he said "no." And I said, "Well, Is Mr. Richardson here?" and he said "No" and I turned around and left. Richard C. Nelson entered the IBEW apprenticeship program at age 18. He completed the 4-year apprenticeship and passed the journeyman wireman's examination of IBEW Local 46 in Seattle in 1970. His classification in the Seattle area was Group I. He first learned that there might be a job opening with Respondent from the state "unemployment office" in Everett, Washington, read Anderson's ad, and telephoned Anderson. Nelson then telephoned Respondent Union. Nelson testified: A woman answered the phone. I asked if there were any men on the out of work list, or what the situation was as far as signing the books. She replied that they did have several men on the out of work list; however, most of them were working out of the jurisdiction, and there were not very many people readily available to take a dispatch. I replied I'd like to come over there and sign the book and see if I couldn't get dispatched. She said it wouldn't be any problem. Nelson drove to Wenatchee on some date between March 18 and 22 and went to the dispatch window of Respondent Union. He presented his paid-up dues receipt to the man at the window and said that he was interested in going to work at the third powerhouse for Wismer and Becker and wanted to sign the book. The man replied that the Union was not dispatching anybody to that job because of a dispute. Nelson testified: So he said he didn't have anything for me in that area, but he'd let me sign the book. So I just replied that I was going to go to work for Wismer and Becker and I left the hall. Nelson returned to Seattle, telephoned Anderson on Monday, March 25, was promised a job, and went to work for Respondent Employer on Wednesday, March 27, 1974. Decevigne Kilpatrick became a member of IBEW Local 46 in Seattle in 1968 while working at Todd Shipyards. He was classified as a marine electrician. When IBEW lost its contract with Todd in 1970 or 1971, Kilpatrick was placed on "inactive" status. After speaking to Anderson in response to Respondent Employer's ad, and being offered employment, Kilpatrick drove to Wenatchee and called on Richardson at the office of Respondent Union on Monday, April 8, 1974. Kilpatrick presented a letter from an officer of Local 46, recommending him for employment as a construction electrician. He told Richardson that he was going to work for Wismer and Becker and he was trying to follow the bylaws of the International Union. Richardson replied that the Union had a dispute with Respondent Employer and was not referring anyone to its Grand Coulee project. Kilpatrick remonstrated that, since he was unemployed, and since the job was being offered through the State of Washington Department of Employment Security, and since the Union was not on strike, he would lose his unemployment benefits if he did not take the job. Richardson was not persuaded. He told Kilpatrick that he would not give him a referral to Wismer and Becker and if he worked there without a referral he would be a "scab." When Kilpatrick asked if he could sign the book, Richardson replied that there were 40 or 50 men out of work and his chances of getting a referral were very slim. Kilpatrick took this as a refusal, went to Grand Coulee, and was hired by Anderson on the same day. On June 5, 1974, Richardson preferred charges with the recording secretary of Respondent Union against Jameson, Nelson, and Kilpatrick for violation of the constitution and bylaws of the International Brotherhood of Electrical Workers. On the same date the recording secretary mailed separate registered letters to their home addresses, request- WISMER AND BECKER 791 ing each to appear before the trial board of Respondent Union on June 27, 1974, to answer the following charges: Inasmuch as you are a member of International Brotherhood of Electrical Workers, Local Union 46 [73 in Jameson's letter] and are employed by Wismer and Becker, Contracting Engineers at the Third Power- house, Coulee Dam, Washington , and have solicited your work, and are working with nonunion people, we allege that you are in violation of the following: International Brotherhood of Electrical Workers Constitution, Article XXVII, Sections 3, 10 and 21-(3) violation of any provision of this Constitution, and the rules herein, or the bylaws, working agreements, or rules of L.U. (10) Working in the interest of any organization or cause which is detrimental to, or opposed to, the I.B.E.W. (21) Working for any individual or company declared in difficulty with a L.U. or the I.B.E.W., in accordance with this constitu- tion. IBEW Local 497 By-Laws, Article XIII Section 9- No member shall solicit employment at any shop or job, or shift from one shop or employer to another without the consent of the Business Manager ... . All three appeared before the trial board on June 27. Jameson testified: They asked me how I got my experience. I explained to them how I did. They asked me why I was not a member of 73 no longer and I explained to them why. And, they said, "Well, we don't feel you're qualified, so we're not going to accept your explanations" and then they told me to get out of the room .... They asked me where all this working ability had come from, so I told them from several different contractors , and that I was a contractor myself for three years, and they said, "Well, why did you get out of the union?" so I said, "Well, I had worked at other places, and I went into a different craft." And that was it . . . . They asked me how I acquired the job at the project, and I told them, and they said, "Well, that's not legal ...." Nelson described his experience before the Executive Board as follows: My name was called after some of the other fellows and I went into the room . . . . The only person I recognized is Mr. Richardson . . . . I was asked various questions about myself, my background, where I'd worked, how long I'd worked for Wismer and Becker . . . . The first question I received was how long I had worked at Wismer and Becker. I replied, sometime in March up until the time I sat on that Trial Board. I was asked what I thought of Meredith Williams, and I replied I thought he was one of the most knowledgeable men I'd ever worked with in the business, and that I felt fortunate to get a chance to work with him. I think I replied, as far as Gary Anderson, that I thought he was a real nice fellow, and seemed to be extremely fair in all aspects of construc- tion, as far as myself was concerned . He really had been very nice to me. I was asked if I was aware I was working with nonunion labor, and I said, "Yes", that I was; but I also replied those men had applied for union membership, and had been denied .... I was asked why I went to work for Wismer and Becker without a union dispatch. I replied that I was refused a union dispatch, and that I didn't feel that there was justifica- tion for being refused ; that I was aware there was a dispute going on, but there was no grounds for that dispute to ever have come about. And Mr. Richardson, at that time, replied that it was none of my business to interpret the Union agreement. He asked me if I had ever come into the Hall to discuss the matter with him, and I said, "Yes" I had, but he was not there and he called me a liar . . . . They asked me how I got Union membership . . . . I told them I went through apprenticeship in school through Local 46, took the journeyman wireman's exam . . . . I got one of the highest grades ever recorded for an apprentice on the exam . . . . I passed that exam and was awarded a journeyman wireman's card, and became a Book One member, or a Class "A" member in the International Kilpatrick testified: Q. (by Mr. Sanders) What questions were asked of you by the Executive Board? A. Well, were they aware that I had violated their bylaws by finding my own job. These were some of the questions; that they had a dispute with Wismer and Becker, of which I was aware of - and I think I was asked my opinion on it, which I gave my opinion rather quickly, which was an adverse opinion of their opinion. Primarily this was about the line of questioning. It lasted about 14 or 15 minutes. Under date of July 2, 1974, Jameson, Nelson, and Kilpatrick were notified by registered mail that each had been found guilty on all charges by the trial board of Respondent Union, and the recommendation of the trial board that each "be expelled from membership in the IBEW." This action of the trial board was appealed by all three to W. L. Vinson, International vice president, International Brotherhood of Electrical Workers, who ruled on August 23, 1974, in each case: By communication received in this office [date] you appealed from an action of the Trial Board of Local Union 497. As you were advised I have obtained the record of the proceedings from Local Union 497. I am also advised that you have filed a complaint with the National Labor Relations Board over matters connected with your employment which brought on the charges. Please be advised that I decline to issue a decision on your appeal until the matter is either withdrawn from or concluded by the Board. In the meanwhile your appeal will be held in my files until I am advised of the proceedings before the Board. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Evidence Relating to Prior Experience in the Electrical Trade of Employees Discharged July 3 to 12, 1974 On the first day of the hearing before me, I received the following stipulation: NELSON: I would offer General Counsel's Exhibit 3 as a contract, which by its terms covers the period from July 1, 1975, through June 30, 1977. Now, as it happens, July 1, 1975, fell almost in the middle of many of the events that will be the subject of this case; so I would propose the following stipulation with my offer: that a predecessor collective bargaining agreement was in effect at all times material and which did not contain any significant variations from the document which I am offering. There is one aspect of the predecessor agreement which differed from the contract which I am offering, and I will note as part of my stipulation, that being in Article V which describes the Union Referral system. The document I am offering sets forth the requirements for registration on the Union's Group IV book as being one year of experience in the inside electrical trade, whereas the predecessor agreement set forth two years of experience in the inside electrical trade as being the criteria for registration in Group IV. HAFER: I accept the authenticity of the document and the stipulation. MORGAN: The employer would enter into that stipulation and has no objection to the exhibit. HUTCHISON: We enter the same stipulation. JUDGE O'BRIEN: General Counsel's Exhibit 3 is received and the stipulation is received. A second material stipulation was received on the afternoon of September 16, 1975: NELSON: I think it would be appropriate to pose a stipulation that, with the exception of two individuals as to whom testimony will be received, those being Bud Jameson and Phil Mielcarek, the other 22 persons listed on the amendment to paragraph 13, which was received in evidence as General Counsel's 2, would have qualified in at least the Group IV referral status under the contract introduced or its immediate predecessor to it. HAFER: We will accept and agree to the stipulation so long as no inference is to be drawn that any of them would have qualified for a higher group status, first of all, and secondly, with the specific understanding that, in fact, at no time material did any of them apply for registration on a Group IV except as may otherwise be established by evidence here in this hearing. NELSON: That understanding was part of a pre-trial understanding, and I accept the qualification. There will be evidence that certain individuals came to the hall for that purpose; and, as to any persons for whom we don't bring in that kind of specific testimony, the inference may be drawn that they did not in fact, affirmatively seek to register in Group IV. JUDGE O'BRIEN : Do you have an agreement, Mr. Hafer? HAFER: Yes. JUDGE O'BRIEN: Mr. Morgan? MORGAN: Yes, I would so stipulate. JUDGE O'BRIEN: Mr. Hutchison? HUTCHISON: Yes, Your Honor. JUDGE O'BRIEN : The stipulation as amended and explained is received. At the request of counsel for the Respondent Employer, and with the concurrence of counsel for Respondent Union, counsel for the General Counsel and counsel for Jess Jameson (counsel for Kilpatrick being absent), I ruled: "Insofar as it is within my power, I rule that this stipulation may not be used as evidence in any other case." Bud R. Jameson, a brother of Jess Jameson, was hired by Anderson on March 27, 1974, and discharged on July 12, 1974. While in the military service in 1955, he was assigned for a period of 8 months to wiring tents in France. Between 1956 and 1964, he wired residences for between 25 and 30 private parties, each job lasting from 4 days to I week. In 1973 he worked about 15 days for his brother, Jess, doing general house wiring. At undetermined periods he wired four barns, each job requiring at least 1 week's work. This was the total extent of his experience at the inside electrical trade when he was hired by Anderson as a journeyman electrician. Philip J. Mielcarek was hired by Anderson on April 23, 1974, and discharged on July 5, 1974. In 1964 he worked steadily for 8 months connecting (service hookups) and repairing driers and small appliances. Between 1965 and 1970 he worked for his father-in-law, a journeyman electrician. The work was steady for 2 or 3 months during each of the first three winters of this employment. For the entire 5-year period he also worked on about 125 separate days, mostly Saturdays. The work was mainly trailer hookups, installing extra outlets and heaters. During this period Mielcarek wired two residences. This was the extent of his experience in the inside electrical trade when he was hired as a journeyman electrician by Respondent Employ- er, and was granted a temporary license to wire by the State of Washington. One week after his discharge he filled out a resume of his electrical experience for Respondent Union and was permitted to register for employment in Book IV.8 The hearing closed on September 17, 1975. Briefs were due on October 22, 1975. On October 7, 1975, the General Counsel filed with me a "Motion to Substitute Exhibit and to Correct Record." By order dated October 16, 1975, I denied his motion. On November 21, 1975, the Board granted his motion for leave to appeal and entered the following telegraphic order: RE WISMER AND BECKER 19 cB 2266 ET AL GENERAL COUNSEL'S REQUEST FOR SPECIAL PERMISSION TO APPEAL THE ADMINISTRATIVE LAW JUDGE'S ORDER DENYING GENERAL COUNSEL'S MOTION TO SUBSTITUTE 1974-75 CONTRACT FOR CONTRACT PREVIOUSLY RECEIVED IN s The contract which became effective July 1, 1974, required only I year of expenence for registration in Group IV. WISMER AND BECKER 793 EVIDENCE IS HEREBY GRANTED . THE APPEAL IS GRANTED AND THE ADMINISTRATIVE LAW JUDGE'S RULING IS REVERSED. (CHAIRMAN MURPHY DISSENTS). BY DIRECTION OF THE BOARD. On November 24, 1975, I issued the following: NOTICE AND ORDER PLEASE TAKE NOTICE that I shall on Tuesday, February 3, 1976, at 10:00 a.m. in Room 3064, Federal Building, 915 Second Avenue, Seattle, Washington, reopen the hearing in the above entitled matter. I shall at the opening of the hearing receive in evidence as Administrative Law Judge's exhibits the following documents: ALT 1: The Board's telegraphic order of November 21, 1975. ALT 2: My order of October 16, 1975. I shall direct the official reporter to physically remove from the exhibit file the document entitled 1975-1977 Agreement received in evidence as General Counsel's Exhibit No. 3 and to place said document in the rejected exhibit file. I shall receive in evidence as General Counsel's Exhibit No. 3 the 1974-75 contract which I am directed by the Board's order of November 21, 1975, to substitute for the contract previously received in evidence. The action of the Board having effected a substantial alteration of the record to the prejudice of Respondents herein, it is: ORDERED that my order of October 16, 1975, be and hereby is vacated and declared null and void, and it is further ORDERED that counsel for all parties be prepared on the date, time and place above noted to present and to argue any and all motions relating to further proceed- ings, if any, to ensure that all parties receive a full and fair hearing and to aid me to make a just determination of the issues posed by the complaint and by the answers herein. At the opening of the hearing on February 3, 1976, I took the action described in the above notice and order and also received in evidence as ALJ exhibits, without objection, the "Visiting Employer Compliance Agreement" dated Janu- ary 11, 1974, and the agreement between Local 497 IBEW and Central Division, Inland Empire Chapter, NECA, effective from July 1, 1973, through June 30, 1974. I then called on counsel and received the following replies: NELSON: Your honor, General Counsel has nothing further at this time. MORGAN: (for Respondent Employer) I have noth- ing at this time. HAFER: (For Respondent Union) Yes, Your Honor. We at this time have some testimony we wish to present, in view of the significant changes in the record. Three witnesses called by counsel for Respondent Employer were examined and cross-examined and the hearing was again closed. On this record I fmd: 1. Jess Jameson, as of March 12, 1974, had more than 2 years' experience in the inside electrical trade and was eligible for registration in Group IV. 2. Richard C. Nelson, as of March 27, 1974, had 4 years' experience in the inside electrical trade, had passed a journeyman's examination given by a duly constituted local union of the International Brotherhood of Electrical Workers and was a resident of the State of Washington. He was therefore eligible for registration in Group II. 3. Decevigne Kilpatrick, as of April 8, 1974, had more than 2 years' experience in the inside electrical trade and was eligible for registration in Group IV. 4. Bud R. Jameson, as of March 27, 1974, had less than 2 years' experience in the inside electrical trade and was not eligible for registration in Group IV. 5. Philip J. Mielcarek, as of April 23, 1974, had less than 2 years' experience in the inside electrical trade and was not eligible for registration in Group IV. 6. The action of the Board and the subsequent inaction of the General Counsel preclude any finding on this record as to the eligibility for registration of the remaining 19 alleged discriminatees . The stipulations of September 16, 1975, were specifically tied to the 1975-77 contract and lost all probative value when that contract was removed from the record. The General Counsel had ample opportunity on February 3, 1975, to invite stipulations based on the 1973-74 contract in effect when the alleged discriminatees were hired and the 1974-75 contract which was in effect when they were discharged, but failed to do so. Neither did he tender any other evidence of their eligibility for registration. E. Arguments of Counsel 1. Argument of the General Counsel (a) When the five electricians refused to report to the new shack, they were engaged in a strike prohibited by the "no strike" clause of the contract,9 and it was therefore an "unprotected strike." (b) The Union's refusal to refer workmen from its exclusive hiring hall was an "unprotected strike." (c) Each of the "outside hires" had 2 or more years' experience in the trade and was therefore, by the express terms of the contract, immune from displacement by later referrals from the hiring hall. (d) The Union's demand that the "outside hires" be discharged is presumed to "encourage union membership" and to violate Section 8(b)(2) of the Act. (e) This presumption can only be overcome by evidence that the Union's action was necessary to the effective performance of its representative function. (f) The Union was not motivated by any good-faith interpretation of the contract. (g) (1) The contract language is clear and unambiguous on its face and cannot be varied by parole. 9 Contract, sec 1 4. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) The Administrative Law Judge improperly received parole evidence that "direct hires" to secure immunity from replacement by registered workmen must , after being hired, register at the union hall. (3) This parole evidence is incredible and should be disregarded. (4) The requirement that "direct hires" register in the Union's books was never communicated either to the Employer or to the "direct hires," and this failure of notice violated the Union's duty of fair representation owed to the "direct hires." (h) "The Union's action against the outside hires was specifically designed to punish persons who failed to make common cause with the Union by participating in its unprotected withholding of services to the Company ... the Union's primary interest was in enforcing union loyalty by making object lessons of any persons who chose to work for a disfavored employer." (i) The Union's "intensely hostile feelings towards the outside hires because of their failure to maintain solidarity with the unprotected refusal to work for the company" is evidenced by: (1) Richardson called Kilpatrick a "scab" when he announced that he was going to work for Employer. (2) Kilpatrick, Jameson, and Nelson were subjected to union discipline for "working in the interest of any organization or cause which is detrimental to or opposed to the IBEW." (3) Jameson in the disciplinary hearing was questioned concerning his dropping of membership in a sister local and was "scolded" for his "not legal" action in working for the Company. (4) Nelson in the disciplinary hearing was questioned in a hostile manner about his having worked with "nonunion labor." (5) Many of the men sent to the jobsite by the Union to displace the outside hires had been working at other jobs up to that point, only to abandon them (as we view it, to make sure that no "scabs" stayed on the job). (j) This evidence showing that the Union was primarily activated by disciplinary considerations and a desire to enforce union loyalty by supplanting the outside hires with union loyalists makes out a clear violation of Section 8(bX2). (k) No evidence was presented by either Respondent that the Union's actions were necessary to its role as representa- tive of employees working on Employer's project. The Union was not forced to take action against the outside hires because they (1) failed to tender dues or initiation fees, or (2) because they were working for substandard wages, or (3) because they were hired in violation of any contract term, or (4) because they contravened some other contractually established arrangement, or (5) because they had engaged in "felonious and egregious conduct which could seriously threaten the Union's very financial surviv- al." (1) The discharge of direct hires was not justified as part of a strike settlement. Quoting the General Counsel's brief: No contention is made nor to be implied that a labor organization has no right, in the context of a lawful economic strike, to attempt to negotiate the reinstate- ment of striking employees as part of an overall strike settlement, even when an incidental effect of such agreement might be to cause the displacement of some or all persons hired as striker replacements.... Substantially different considerations obtain, how- ever, where, as here, the Union initiates an unprotected work stoppage, later implements an unprotected with- holding of referral services , and then seeks to displace persons hired who possess immunity from displacement by virtue of a contract provision to which the Union is already committed. Thus, from the standpoint of Federal labor policy, there is no overriding union interest in, nor right to call a strike where, as here, the right to strike has been contractually waived, as has the right to withhold labor furnished through the hiring hall, and as has the right to displace outside hires otherwise qualified to register in Groups I through IV. Reduced to its simplest elements, what the Union did here was to engage in economic self-help to win its way in a series of disputes with the company, even though it had contractually waived the resort to such self-help. It then sought to displace persons lawfully hired in accordance with clear contractual mandate on the theory that if the Union never had withheld its hiring hall services in the first instance, the outside hires never would have taken place. Viewed in this light, it is apparent that the Federal labor policy which would justify the right of a union to seek to return lawful economic strikers to their jobs simply has no application to the instant facts. (m) There was no condonation by the Employer of the Union's unprotected strike. There is no evidence that Employer knowingly and willingly condoned the Union's demands when, under the compulsion of the decision of the Joint Conference Committee decision, it discharged the outside hires. (n) This is not a case where the Board should defer to arbitration because: (1) The outside hires were not parties to, nor participants in, the Joint Conference Committee hearing. (2) The outside hires were not grievants themselves and had no personal standing to prevent the matter from being decided. (3) The outside hires never agreed to be bound by the Joint Conference Committee decision. (4) None of the parties to the Joint Conference Committee proceeding had any institutional interest in seeing to it that the interests of the outside hires were "adequately protected in the arbitral process." (5) The Union's interests were in absolute conflict with those of the outside hires. (6) While the Employer superficially assumed the role of advocate for outside hires, it was most interested in completing its project. Whether the work was done by outside hires or by union referrals was a matter of little consequence to it. WISMER AND BECKER 795 (7) The Employer was concerned about its own statutory liability were it to acquiesce in the Union's demands without at least a token fight. (8) There was little or no evidence that the Joint Conference Committee was informed that some of the outside hires had been refused in their efforts to register with and be referred by the Union to the job. (9) There is no evidence that the Joint Conference Committee was informed that the outside hires were in fact eligible for classification in one of the referral groups, which was the only contractual requirement for achieving permanent status. (10) If the Joint Conference Committee had been aware that outside hires were eligible for registration and had reached its decision in spite of that evidence, the result would have been repugnant to the policies of the Act. (o) Quoting the General Counsel's brief: In summary, therefore, whether the Union's action be construed as a punitive attempt to impair the job rights of the outside hires because they failed to make common cause with the Union's declared policy of refusing to furnish workers to the Company during the pendency of the dispute, or merely action against the job rights of the outside hires under circumstances where the Union could not satisfy its burden of demonstrating that its actions were necessary to the fulfillment of its representative function, Section 8(b)(2) was violated. (p) The Employer's discharge of the outside hires in response to union pressures which themselves violated Section 8(b)(2) is itself a violation of Section 8(a)(3) of the Act. (q) It is no excuse for the Employer that the pressure on the Employer was severe or irresistible. (r) While the proviso to Section 8(b)(1)(A) of the Act permits a labor organization to prescribe its own rules with respect to the acquisition or retention of membership, and to discipline members for conduct inimical to its interests, union discipline to encourage accomplishment of an unlawful object or contravention of a collective-bargaining agreement is not protected. Where the Union's disciplinary action is intended to punish members for refusing to participate in an unprotected strike or withholding of services, such discipline violates Section 8(b)(1)(A) as an impermissible restraint on the right of employees under Section 7 to refrain from union activities. Therefore, the Union's disciplinary action against Nelson, Jameson, and Kilpatrick because they worked for the Employer during a time when the Union was engaged in an unprotected strike or withholding of services, violated Section 8(b)(1XA) of the Act. 2. Argument of counsel for Respondent Employer (a) There is no evidence or reasonable inference that Wismer and Becker acted with discriminatory intent, or with knowledge that the union's demands were unlawful. (b) Wismer and Becker had a lawful and recognized right to terminate the replacements as part of the strike settlement. (c) The decision of the Joint Conference Committee under the contract that the replacements were indeed "temporary" and should be replaced was binding upon Wismer and Becker and should be deferred to by the Board. In support of the foregoing propositions Employer argues, with pertinent citations to Board and court decisions: (d) The General Counsel must prove, to establish a derivative employer liability, that the Employer knew about and acquiesced in illegal action on the part of the Union. (e) Employer had no knowledge of the disciplinary proceedings aganist Jameson , Nelson, and Kilpatrick until after the decision of the Joint Conference Committee had been handed down and complied with. (f) The Union had the legal right to insist on strict compliance with the referral provisions (art. 5) of the contract. (g) Employer has an absolute right to terminate replace- ments as part of a strike settlement. (h) Where there has been a strike settlement, the Board must accept the Employer's classification of strike replace- ments as "temporary" or "permanent" and temporary replacements must be discharged upon demand by the Union. (i) An arbitration award is the preferred remedy for both contractual and statutory violations. (j) The Charging Parties need not be parties to the grievance and arbitration proceeding. (k) Deferral to arbitration is appropriate where the interests of the employer and the interests of the charging parties coincide even where the union's interests are contrary to those of the charging party. (1) The Board will defer to arbitration where the interests of the employees have been adequately represented. (m) Contract interpretation is for the arbitrator and not for the Board. (n) A decision of the Joint Conference Committee based on misinterpretation of contract or inaccurate assessment of employee experience is not prohibited. (o) Quoting the brief of counsel for Respondent Employ- er: The decision to terminate the replacements was made by Robert G. Albrecht, the President and General Manager of Wismer and Becker Contracting Engineers. He made the decision after being informed by legal counsel that the company had no alternative except to abide by the Joint Conference Committee's decision. The decision to terminate the outside hires was based solely on the decision of the Joint Confer- ence Committee. Mr. Albrecht had no knowledge of the hiring practices of Local 497 and had never received information that Local 497's hiring hall practices were unlawful in any way. He had no knowledge that the union was seeking to have the employees terminated because they refused to join an unlawful work stoppage . . . . The company had never operated non-union, and had several projects at that time using IBEW, including three power plants on the Snake River, an airport in 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Portland, and the Trojan Nuclear Power Plant. It simply was not feasible to breach its contract and operate nonunion. No legal recourse appeared available. The Joint Conference Committee decision was binding on Wis- mer and Becker. No appeal was possible under the contract, because the decision was unanimous. Declar- ative relief was precluded because a court would defer to the contract remedies on one hand, and to the NLRB on the other, respecting any defense the company had based on the Act. Nor was any appeal to the Board itself a realistic answer to a construction shut down. 3. Argument of counsel for Respondent Union (a) The General Counsel's case rests on the following theories: (1) the refusal to dispatch men violated the labor contract, as interpreted by the General Counsel; (2) the direct hires were therefore permanent employees under the contract as interpreted by the General Counsel; and (3) replacement of the permanent employees constituted an "inherent" (i.e., per se) encouragement of union member- ship. (b) A union which strikes in violation of a "no strike" clause does not thereby commit an unfair labor practice. (c) The Union's refusal to dispatch men between March 6, 1974, and late June of that year was not an unfair labor practice. (d) The Employer accepted both the C.I.R. decision reinstating the discharged men and the Joint Conference Committee decision directing replacement of the direct hires. The strike, if in breach of contract, was condoned. The condonation wiped the slate clean. (e) This case involves the interpretation of a hiring hall article. Such clauses, unlike the prohibited arrangements involved in the Radio Officers case, are not prohibited by the Act. (f) Where, as here, the case relates to a lawful hiring hall, it "is the `true purpose' or `real motive' in hiring or firing that constitutes the test." Local 357, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Los Angeles-Seattle Motor Express] v. N.LR.B., 365 U.S. 667, 675 (1961). (g) The General Counsel conceded that, if the language of the contract required the conclusion that the direct hires were "temporary," his case would fail. In his motion dated October 6, 1975, the General Counsel states: "The General Counsel would not knowingly have placed into evidence the '75-'77 contract, since the '75-'77 contract would not have permitted the General Counsel to argue that `under the contract, they were entitled to remain' whereas the language in Article V, Sec. 5.5 of the '74-'75 contract would permit such an argument." (h) The Board does not substitute its views of a contract for those of the parties. Under the Union's interpretation of the contract, which was adopted by the Joint Conference Committee and accepted by the Employer, the direct hires were "temporary" employees. (i) The General Counsel seeks to impose his view of the contract upon the Administrative Law Judge. Given his view of the contract, the direct hires attained some sort of protected status. This is a bootstrap argument. (j) Removal of direct hires from a construction job under an exclusive hiring hall contract is not a per se violation. (k) The record, Board and court decisions , and the facts of life in the construction industry require dismissal of the complaint. A finding of unlawful conduct requires the Judge to ignore the history, purpose, and interpretation of the contract placed by the parties to the agreement . Having rewritten the contract , the Judge would be required to impose an impermissible per se test of liability. Arguable contract interpretations do not support an unfair labor practice complaint. (1) The second leg of the General Counsel's case rests upon the recommended expulsion of three union members. Given the testimony of the concerned members, one must conclude that their expulsion resulted from the direct solicitation of work in violation of the Union's bylaws. However, the Union's motivation need not be decided since no fine was levied. Expulsion, for good reasons or bad reasons, does not violate the Act. Pattern Maker's Association of Los Angeles and Vicinity, 199 NLRB 96 (1972); NLRB. v. Machinists, 489 F.2d 769 (C.A. 1, 1974). F. Concluding Findings 1. The discrimination This case arises from the stubborn refusal of Respondent Employer to comply with local custom and its failure to employ available contractual procedures to resolve what Employer's counsel calls "a minor dispute." The dispute over the placing and facilities of the electrical shack could have been settled by the Joint Conference Committee within 72 hours after the visiting employers compliance agreement was signed January 11, 1974, and 10 days before the first electrician was hired. Anderson elected to stand fast and to show Richardson who was going to boss the job. Richardson, who had for more than 24 years been primarily responsible for protect- ing the rights of electricians working at Grand Coulee, was equally determined to maintain existing working condi- tions at the dam. Richardson's concern was underlined by the most favored employer clause of the contract, section 2.3, supra. When work began in January, electricians changed their clothes and ate their lunches in a trailer which, because it had been designed to be Employer's office, presumably met the requirements stated by Richardson. So long as that condition obtained, the Union had no reason to invoke the contractual grievance procedures. Issue was joined when Anderson ordered the electricians to report, to change, and to eat lunch in a shack in the powerhouse which contained chemical toilets, had no running water for washing or drinking, and had only cool can drinking water. Richardson, when he instructed the electricians to disobey this direct order, was relying on the contract provision (1.10, supra), "conditions prevailing prior to the time such matter arose shall not be changed ff The first overt act in the conflict between Anderson and Richardson was Anderson's order to report to the new WISMER AND BECKER 797 shack. The second overt act was Richardson's instruction to the electricians. Anderson committed the third overt act when he ordered the discharge of electricians on March 6, 1974. The fourth overt act was Richardson's refusal to dispatch workmen on Thursday, March 7, or Friday, March 8. As of Monday, March 11 , little harm had been done. The adequacy of the new shack , the legitimacy of Anderson's orders, the merits of the discharge, and the Union's failure to refer workmen, all could and should have been settled by reference to the contract's grievance procedure. The advertisements for workmen in the Spokane and Wenatchee newspapers, and the direct hire of Jess Jameson, were a declaration of war which was accepted with alacrity by Richardson. At the meeting on Thursday, March 14, Richardson expressed an intent to continue sending men to Employer, as requested, with standing instructions to refuse to use the new change shack, and if Employer continued to discharge them for this act of insubordination, the Employer could go through the entire union roll, to the "cost" of Employer. Direct negotiations between the parties ended on March 21, with Richardson's acknowledgment that the Union had a standing order from the Employer, but would send no men to the Employer unless ordered to do so by the International Union. From and after March 21, 1974, the Employer knew, if it did not know before, that there were workmen registered in the union hall eligible for employment who were not being referred and that the Union had , since at least March 8, 1974, deliberately violated the contract and was deter- mined to persist in its contract violation. The failure of Employer to invoke the grievance procedure in this situation is unexplained. This violation by the Union was so open and flagrant that it might well have warranted the issuance of a mandatory injunction by a United States district court under the principle enunciated by the Supreme Court of the United States in Boys Markets, Inc. v . Retail Clerks Union, Local 770, 398 U.S. 235 (1970). The intransigence of the Employer and its failure and refusal to avail itself of the grievance and arbitration procedures of the contract encouraged the Union to persist in its open and flagrant violation of the contract. The Union did, however, attempt to secure a peaceful resolution of the underlying dispute when it filed a grievance on March 18 over the discharge of the five electricians and the "qualifications of shop facilities." When the Union achieved a partial victory on its grievance on June 20, 1974, the Employer capitulated to all of the Union's demands. The 26 men who had supported the Employer and who had made it possible for the Employer to carry out its contract with the U. S. Government were abandoned. There is not the slightest indication on this record that Anderson, when he appeared before the committee, told the committee that any of these 26 had, at the time of hire, 2 years' experience in the trade, or that Anderson called attention to the contract provision making them permanent employees. The only witness in this case to the proceedings before the committee was Richardson. Anderson sat at the counsel table and heard this testimony , yet he was not called to deny, qualify, explain, or amplify the testimony of Richardson, or any statement in the minutes. When Richardson was asked by Employer's counsel, Q. Now, when Mr. Anderson came in there, is it a fact that he made a strong presentation, he argued vigorously that these people were qualified? A. No sir, he didn't. * s s Q. Didn't he tell the committee, Mr. Richardson, that they worked out there on the job for several months, and in his opinion, they could do that work? A. For the work that he had assigned them, they had been able to perform that work. They were doing bolt and nut work ... . Q. Do you have any memory of Mr. Anderson making any statement about whether or not he intended to replace these people at this meeting in July first, 1974? A. That was the purpose . That was his position with the committee, that he didn't intend to replace them. Q. When you say that was his purpose, did he argue that strongly, that he wanted to keep those people and he didn't want to replace them? A. I don't think he made a strong argument, but I think that was his intent, to keep them. Q. Did Mr. Anderson at any time ever state that these people were not qualified under the contract? A. I don't recall. Q. Did he at any time ever admit that there was any reason why they were not entitled to work on the project? A. As temporary employees, that's what he hired them for and interviewed them for. I assume they were the best he could get. This "minor dispute over working conditions," as it is characterized by counsel for Respondent Employer, has occupied the time of Board personnel for almost 2 years, and will probably continue to occupy their time for more than 2 years in the future . The intransigence of 2 men, Anderson and Richardson, has resulted in substantial injury to: (1) the 5 men discharged on March 6, 1974, (2) 30 men registered on the out-of-work list who were denied employment between March 7, and June 25, 1974, and (3) the 26 men who were discharged between July 3 and 12, 1974. No one has been benefited by this dispute, which could have been so easily resolved by prompt resort to the grievance procedures of the collective-bargaining agree- ment. When the General Counsel finally decided, more than 9 months after the initial charge was filed, that issuance of complaint was warranted, both Respondents very commendably took immediate steps to mitigate damages. The Respondent Union agreed to register any of the 26 who applied, and the Employer offered to reemploy all 26. It remains for me to suggest, and for the Board to decide, whether 26 men shall be made whole and whether 3 men may be expelled from the Union. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties to this proceeding, in their exhaustive exposition of some 80 Board and court cases, have lost sight of the text of the National Labor Relations Act. By way of reminder: Section 7: Employees shall have the right to . . . assist labor organizations . . . and to engage in other concerted activities . . . and shall also have the right to refrain from any or all of such activities ... . Section 8(a): It shall be an unfair labor practice for an employer -(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; . . . (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ... . Section 8(b) It shall be an unfair labor practice for a labor organization or its agents - (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein ... . Section 8(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 . . . will be engaged) in the building and construction industry with a labor organization of which building and construction em- ployees are members . . . because . . . (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 employment, 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 ... . Article 5 of the NECA-IBEW contract contains provi- sions repugnant to Section 8(a) and 8 (b) of the Act. Section 8(f) qualifies rights guaranteed in Section 7 and protected by Section 8. It must therefore be strictly construed, and no contract interpretation which exceeds the precise limits of Section 8(1) can protect either employer or union from the prohibitions of Section 8(a) and 8(b) of the Act. In 1959, in anticipation of the effective date of Section 8(f) (September 14, 1959), the Inland Empire Chapter of NECA and several IBEW locals, including Respondent Union, executed an addendum to the then current basic agreement which, with minor changes, became article 5 of the 1973-74 contract. This addendum contained the following clause: If the registration list is exhausted and the Union is unable to refer applicants . . . the Employer shall be to Although 1 was directed by the Board to remove the 1975-77 contract from the record, I am not precluded from taking official notice of its content. i i In my order of October 16, 1975, denying his motion to substitute one free to secure applicants without using the referral procedure, but such applicants, if hired and not eligible for classification in one of the above groups, shall have the status of temporary employees. The Employer .. . shall replace such temporary employees as soon as registered applicants for employment are available under the referral procedure. The above clause, defining and restricting the rights of "temporary" employees, remained in succeeding contracts until June 30, 1975. The current contract, effective from July 1, 1975, to June 30, 1977, contains the following provision: 10 5.6. If the registration list is exhausted and the Local Union is unable to refer applicants ... the Employer shall be free to secure applicants without using the referral procedure, but such applicants, if hired, shall have the status of "temporary employees." 5.7. The Employer ... shall replace such "temporary employees" as soon as registered applicants for employ- ment are available under the Referral Procedure. Since the basic thrust of the General Counsel's argument is that the outside hires, because eligible for registration, had a contractual right to be immune from replacement by union referrals, he was understandably upset when he discovered, 2 weeks after the hearing closed, that he had offered the wrong contracta1 At the reopened hearing, February 3, 1976, Eugene D. Cokeley, IBEW International representative, testified that as business manager of Local 112, Pasco, Washington, he participated in the negotiations which resulted in the 1959 addendum. With specific reference to the "temporary employee" clause, Cokeley testified: Mr. Wilkerson [the NECA spokesman] said the reason he wanted that language in the referral was that in the event an employer had to go to great lengths to recruit employees, that after those people had an opportunity to work for that employer, and if he felt that they were better mechanics, more qualified to do the type of work he had to do, he wanted the opportunity to send them to the local union office and get registered in whatever book they qualified for ... . Q. (by union counsel) Was there any other reason stated by the employer negotiators for the inclusion of the language we are talking about? A. No. Q. Do you have a present recollection with respect to the question of whether or not Mr. Wilkinson indicated in these negotiations that registration would be a part of changing a person who had been hired directly from a temporary to a regular employee? A. Yes, definitely they would be registered and then they would cease to, if they were registerable, then they would cease to be a temporary employee and inapplicable contract for another inapplicable contract, I suggested that the General Counsel offer the contract which was in effect when the alleged discnminatees were hired. As above noted, I received the 1973-74 contract on February 3, 1976. WISMER AND BECKER 799 would not be subject to discharge when registered applicants became available. The gravamen of the argument of both Respondents, insofar as it relates to contract interpretation, is that the Joint Conference Committee correctly interpreted and applied the contract when it found that the direct hires were "temporary employees" on the sole ground that they had not been "duly registered." There are several things wrong with that position : ( 1) The requirement for registra- tion, as described by Cokeley, does not appear in the contract. (2) This requirement was never communicated to Respondent Employer nor to the direct hires. (3) The Union, as the exclusive statutory representative of the direct hires,12 was duty bound to advise them of the requirement that they be registered before demanding their discharge for failure to register. I specifically find that the decision of the Joint Confer- ence Committee, based as it was solely upon the failure of the outside hires to register with the Union , is wholly repugnant to the purposes and policies of the National Labor Relations Act. This finding, however, does not relieve the General Counsel of the burden of proving by a preponderance of the evidence that the Union caused the Employer to discharge the direct hires to "encourage membership in" the Union. The entire addendum to the 1959 contract and the entire article 5 in the 1973-74 contract create a business relationship whereby the Union, as an employment agency, becomes the sole source of employees for the Employer. When the Union ceased, on March 6, 1974, to refer workmen to the Employer, that business relationship was suspended. The Employer tacitly consented to the suspen- sion of that business relationship until June 24, 1974, when Holland, with Anderson on vacation, agreed with Richard- son to discharge all of Anderson's direct hires and to replace them with men referred from the Union . For the entire period that the Union was refusing to refer workmen, Anderson went through the senseless act of pretending to comply with article 5. The Union's refusal to perform its obligations as an employment agent relieved Employer of all obligations under article 5 of the contract. During the entire period when article 5 was inoperative, with the tacit consent of Employer, Section 8(f) of the Act, on which article 5 depended for its legality, was without application to either Employer or Union. Each and every one of the 30 men hired by Anderson, without union referral, obtained on the day he was hired all of the rights guaranteed by Section 7 and all of the protections afforded by Section 8(a)(1) and (3) and 8(b)(2) of the National Labor Relations Act. The acquiescence of the Employer in the demand of the Union, without contractual or other legal justification, necessarily encouraged membership in the Union under the broad principles enunciated by the Supreme Court in The Radio Officers Union of the Commercial Telegraphers Union, AFL, [A. H. Bull Steamship Company] v. N.LRB., 347 U.S. 17 (1954). The refinement of these principles by the Supreme Court in Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Los Angeles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667 (1961), have no application to the facts of this case. The proceedings before the Joint Conference Committee have all of the surface appearances of collusion : i.e., "a secret understanding between two parties who proceed fraudulently against each other in order to defraud a third person." Holland and Richardson had agreed that the direct hires would be replaced with referrals from the Union. The agreement had been partially implemented by the hire of four union referrals. The Employer did not present to the committee any evidence that any of the direct hires had 2 years' or more experience in the trade, and did not argue to the committee that any of the direct hires was eligible for referral. Employer presented no evidence of any kind or nature to support the assertion in its letter repudiating the Holland-Richardson agreement that the direct hires were not "temporary employees." In no way can such a proceeding deprive employees of rights guaranteed by statute. There was no strike and consequently the acquiescence of the Employer in the demand of the Union that outside hires be discharged was not a strike settlement . To strike is "to quit work in order to obtain or resist a change in conditions of employment." Before there can be a strike, there must be a direct employer-employee relationship. Workmen registered in the Union's hiring hall who were being refused dispatch to Wismer and Becker were not strikers. They were victims of the Union's primary boycott while the Union, in its capacity as an employment agent, was refusing to send workmen to Employer. By way of summary : When the Union, by its refusal to refer any workmen to Employer, abrogated article 5 of its contract (a readily severable provision), Employer was free to obtain workmen from any source without reference to article 5. Employees so hired acquired all the rights guaranteed in Section 7 and protected by Section 8(a)(1) and (3) and 8(b)(l)(A) and (2) of the Act, without any of the limitations of Section 8(f) of the Act or article 5 of the contract. When the Union demanded that these employees be replaced by strangers to the employment relationship, for the sole reason that the replacements would carry valid union referrals, the Union attempted to cause the Employ- er to discriminate against employees to encourage union membership within the meaning of the Radio Officers case, and thereby violated Section 8(b)(2) of the Act . When the Employer acquiesced in this demand it violated Section 8(a)(3) of the Act. By these acts Employer and Union restrained and coerced employees in the exercise of their Section 7 right to refrain from assisting the Union. Employer thereby violated Section 8(aXl) and Union violated Section 8(b)(1)(A) of the Act. Since there was no strike, cases relating to strike settlements have no application. The decision of the Joint Conference Committee is wholly repugnant to the purposes and policies of the Act and should be disregarded by the Board. 12 Contract, sec 2.6. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer's plea that it was forced to either comply with the Joint Conference Committee decision or go out of business does not excuse its violation of the National Labor Relations Act. 2. The refusal of the Union to dispatch workmen The complaint alleges that Respondent Union violated Section 8(bX 1)(A) of the Act by: Commencing on or about March 7, 1974, and continu- ing until on or about June 18, 1974, Respondent Union refused, although requested, to dispatch employees for employment by Respondent Employer at the Coulee Dam job. How this action restrained or coerced what employees is not explained by the General Counsel. Inferentially, the employees restrained were job applicants listed in the Union's out-of-work books. If so, since they are the Union, they restrained and coerced themselves, which is not an unfair labor practice. I have found that the refusal to refer was not a strike . If it were a strike in violation of the Union's no-strike commitment, the strike would not be an unfair labor practice. The refusal to refer was a breach of contract, a suspension of the operation of a portion of the contract, and an abrogation of a severable portion of the contract. This, on its face, is a violation of Section 8(b)(3) of the Act by the Union, but the complaint does not allege any violation of Section 8(bX3). The Union did not, by its refusal to refer workmen, violate Section 8(b)(l)(A) of the National Labor Relations Act. 3. The alleged refusal of the Union to permit applicants to register in its out-of-work book The complaint alleges that on specific dates the Union refused to permit Jess Jameson, Nelson, and Kilpatrick to register in its out-of-work book and thereby violated Section 8(bx1)(A) of the Act. Nelson testified that, when he called at the union office and asked for a dispatch to Wismer and Becker, he declined an invitation to sign the out-of-work book. Kilpatrick testified that, when he was denied a referral to Wismer and Becker by Richardson, he asked if he could sign the book. When Richardson's reply indicated to Kilpatrick that signing the book would put him behind 40 or 50 other men for referral to some job other than Wismer and Becker's, he decided to go to work for Employer without a referral. Clearly Kilpatrick could have been registered in Book IV had he so desired. Jess Jameson testified that the young man to whom he spoke said that Jameson could not sign the out-of-work book. I do not credit this testimony. The request to sign the book is not included in Jameson's initial recitation of his conversation with the young man. His recollection of the date of his call at the union office and of his observations on that occasion were quite vague . He had already been hired by Anderson and knew, before he went to the union office, that he would not be referred to Employer. Respondent Union did not violate Section 8(b)(1)(A) of the Act by refusing to permit any person to sign its out-of- work book. 4. Discipline of union members The rights guaranteed in Section 7 of the Act are rights guaranteed to individuals as employees. The proviso to Section 8(b)(1)(A) of the Act deprives the Board of any implied power to protect the rights of individuals in their capacity as union members. In the cases cited by counsel for the General Counsel, the Board was required, as part of its duty to protect Section 7 rights, to enter orders affecting union membership . In this case there is no such necessity. After his expulsion from the Union, if that shall be the determination of the International vice president , Nelson will remain eligible for registration in Group II and will enjoy the right of referral to available jobs without discrimination because of his lack of union membership. Similarly, Jess Jameson and Kilpatrick will remain eligible for registration in and dispatch from Book IV. On this record Respondent Union did not, by its disciplinary proceedings against Jess Jameson, Nelson, and Kilpatrick, violate Section 8(b)(l)(A) of the Act. 5. A timely charge supports the paragraph of the complaint as amended, naming 24 alleged discriminatees The charge filed by Jess Jameson on August 15, 1974, received by Wismer and Becker on August 19, 1974, alleges that Respondent Employer violated Section 8(a)(1) and (3) by: In or about July 1974, the Employer discharged Jess Aaron Jameson and approximately 25 other employees because they refused to engage in an unlawful work stoppage conducted by International Brotherhood of Electrical Workers Local Union 497 when such Union refused to dispatch workers from its hiring hall in violation of a pending collective bargaining agreement. The consolidated complaint, issued May 2, 1975, con- tains the following allegations: 8. On or about March 22, 1974, Respondent Employer, pursuant to the terms of the NECA Agreement, commenced hiring employees in lieu of the dispatch procedures referred to above in Paragraph 5. s s s s 13. a. Commencing on or about July 5, 1974, and through on or about July 11, 1974, Respondent Union dispatched individuals for employment to Respondent Employer at the Coulee Dam job to replace those individuals employed by Respondent Employer de- scribed in Paragraph 8, above. b. Commencing on or about July 5, 1974, and through on or about July 12, 1974, Respondent Employer hired those individuals dispatched to it by Respondent Union described in Paragraph a. above WISMER AND BECKER 801 and terminated those individuals who it had hired described in Paragraph 8 above. I find that the charge filed less than 6 months after the discharges described in the charge and in the complaint and merely particularized in the amendment to the complaint was sufficient to support the amendment. The complaint against Respondent Employer is not barred by Section 10(b) of the National Labor Relations Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers Local 497, Respondent herein, is a labor organization within the meaning of Section 2(5) of the Act, the membership of which comprises employees in the building and construction industry within the meaning of Section 8(f) of the Act. 3. By discharging each of its following named employ- ees on the date set forth opposite each respective name, Respondent Employer has encouraged membership in Respondent Union in violation of Section 8(a)(3) of the Act. The activities of both Respondents as set forth above, occurring in connection with the operation of Respondent Employer described above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that both Respondents have engaged in certain unfair labor practices . It will therefore be recommended that they cease and desist therefrom and take certain affirmative action , as set forth in the recom- mended Order below, designed to effectuate the policies of the Act. The General Counsel has suggested that the remedial order should require Respondent Employer to offer reinstatement to the 24 direct hires named in the amend- ment to the complaint, and that primary backpay liability be assessed against Respondent Union. I disagree. The responsibility of both Respondents for the discrimination against the direct hires is inextricably intertwined, and their backpay liability is and should be joint and several. This backpay liability ceased when the Respondent Union, in the summer of 1975, withdrew all objection to the reemployment of the discriminatorily discharged direct hires, and permitted them to register for employment at its hiring hall, and Respondent offered reemployment to all of the direct hires. My remedial order includes the names of G. B. Fatland and G. M. Thunstrom, members of the class described in the original charges and in the original complaint, but omitted from the amendment to the complaint. I further find that in the precise circumstances of this case a broad cease and desist order is not warranted. CONCLUSIONS OF LAW 1. Wismer and Becker, Contracting Engineers, Respon- dent herein, is an employer within the meaning of Section 2(2) of the Act engaged primarily in the building and construction industry within the meaning of Section 8(f) of the Act and engaged in commerce and in a business C. Armstrong 7-3-74 Don Carpenter 7-3-74 Sid Colby 7-8-74 Don Desautel 7-3-74 Dan Dubois 7-5-74 G. B. Fatland 7-10-74 Jerry Fleshman 7-10-74 Edmund Flugham 7-3-74 Larry Goit 7-3-74 Clifford Grothe 7-3-74 Jim Hubbard 7-5-74 Jess Jameson 7-12-74 Bud Jameson 7-12-74 Darrell Kelly 7-3-74 Decevigne Kilpatrick 7-3-74 Fred Markley 7-8-74 Phil Mielcarek 7-5-74 David Mitchell 7-3-74 John Neal 7-12-74 Richard Nelson 7-10-74 Jim Nutting 7-11-74 Jim Pryor 7-12-74 Jim Robinson 7-8-74 Jack Simmons 7-5-74 G. M. Thunstrom 7-10-74 Larry Ware 7-3-74 4. By interfering with, restraining, and coercing its employees in the exercise of the right to refrain from union activities guaranteed in Section 7 of the Act, Respondent Employer has violated Section 8(a)(1) of the Act. 5. By attempting to cause and causing Respondent Employer to discriminate against its employees in violation of Section 8(a)(3) of the Act, Respondent Union has violated Section 8(b)(2) of the Act. 6. By restraining and coercing employees of Respon- dent Employer in the exercise of rights guaranteed in Section 7 of the Act, Respondent Union has violated Section 8(b)(1)(A) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]