Int'l Union of Operating Engineers, Local 12, Etc.

National Labor Relations Board - Board Decisions

Feb 26, 1962

135 N.L.R.B. 1252 (N.L.R.B. 1962)

1252 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD
As to the alleged "attempt" to induce employees of Young & Metzner to cease
work, General Counsel offered testimony from two such employees : Linares and
Vargas. The substance of their testimony is to the effect that as they came out
of the plant-apparently on the same day and after the Shore -Oritz incident de-
scribed above-Ortiz gave them organizing literature of the Charging Union, told
them they were on strike at Rachman 's, and asked for their help. According to
Linares, he asked Ortiz what help he wanted, and the latter suggested that they stop
work "for a couple of hours ." He replied that they belonged to another union,
worked for another employer, and could not follow the suggestion.
On the other hand, both Ortiz and Castro flatly denied asking for help from these
employees , but contended that they merely gave them union literature and suggested
that if they were dissatisfied with their own bargaining agent they turn to District 65.
In urging that the Trial Examiner believe his witnesses Linares and Vargas, and
to disbelieve Ortiz and Castro, General Counsel was in an unenviable position. In
the morning of the same day the same counsel had produced Castro as one of his
chief witnesses in Case No . 2-CA-8175, in which the charging and respondent
parties were reversed . While it is of course possible that an individual may tell the
truth about one incident in the morning and an untruth about another incident in
the afternoon , the Trial Examiner is not persuaded that Castro did so on this
occasion.
In short , the Trial Examiner is not convinced that either Ortiz or Casto asked,
as a means of help to the striking employees of Rachman that they stop work, for
any length of time. Even if the Board does not adopt his resolution of this cred-
ibility issue , the Trial Examiner points out that even if the incident occurred as
Linares described it, it was isolated , and that Ortiz ' response was in reply to his own
question as to how he could help . There is not the slightest evidence that Ortiz or
any other union representative approached employees of any other of the 10 em-
ployers for "help" of any kind , or that it was for this purpose that Ortiz and Castro
came to the plant of Young & Metzner that day. They came there for the lawful
purpose of asking officers of that corporation for help.
C. Conclusions
The Trial Examiner concludes and finds that the preponderance of credible
evidence fails to support General Counsel 's allegations that the Respondent Union
has engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and
(ii) (B) of the Act.'
[Recommendations omitted from publication.]
'In view of these conclusions , the Trial Examiner considers it unnecessary to deter-
mine the question , raised in the answer and by certain evidence , as to whether or not
Young & Metzner in effect is an employer allied with Rachman in working upon struck
goods.
International Union of Operating Engineers , Local No. 12, AFL-
CIO [Engineers, Limited and Pacific Pipeline Construction
Company, as a joint venture ] and Lloyd D . Sands. Cases Nos.
21-CB-1495-2 and 21-CB-1495-5. February 26, 1962
DECISION AND ORDER
On August 4, 1960, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding , finding that
the Respondent had engaged in certain unfair labor practices, and
recommending that it cease and- desist therefrom and take certain af-
firmative action as set forth in the Intermediate Report attached
hereto. Thereafter the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
135 NLRB No. 119.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 12, ETC. 1253
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed: 'The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the cases ahd- hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.' . .
ORDER
Upon the basis of the entire record in these cases, and pursuant to
Section 10(c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent,
International Union of Operating Engineers , Local No. 12, AFL-
CIO, its officers, agents, representatives, successors, and assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause Pacific Pipeline Construction
Company and Engineers, Limited, individually or as a joint venture,
or any other member of Pipeline Contractors Association to dis-
criminate against their employees in violation of Section 8(a) (3)
of the Act as amended by the Labor-Management Reporting and Dis-
closure Act of 1959.
(b) In any like or related manner restraining and coercing em=
ployees of Pacific Pipeline Construction Company and Engineers,
Limited, or any other member of Pipeline Contractors Association,
in the exercise of rights guaranteed them in Section 7 of the Act as
amended by the Labor-Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Notify Pacific Pipeline Construction Company and Engineers,
Limited, in writing, and send copies thereof to Lloyd D. Sands, that
it has no objection to the employment of the said Lloyd D. Sands by
Pacific Pipeline Construction Company and Engineers , Limited, in-
dividually or as a joint venture.
(b) Make whole Lloyd D. Sands for any loss of pay he may have
suffered as a result of the discrimination against him, in the manner
'Although the Trial Examiner recommended a broad cease -and-desist order directing
the Respondent "to cease causing or attempting to cause any other member of the
Association ," in addition to the Employers herein, "to discriminate against their em-
ployees in violation of Section 8(a) (3) of the Act," Member Fanning would limit the
scope of the Order herein as there is no substantial evidence in the record showing that
the Respondent's unlawful activity was directed to employees of other employers in the
Association. See Cwyahoga Wrecking Company, 129 NLRB 922
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to the extent set forth in the section of the Intermediate Report
entitled "The Remedy."
(c) Post at its office in conspicuous places, including all places
where notices to members and applicants for referral are customarily
posted, copies of the notice attached hereto marked "Appendix." 2
Copies of said notice, to be furnished by the Regional Director for
the Twenty-first Region, shall, after being duly signed by the Re-
spondent's representative or agent, be posted immediately upon re-
ceipt thereof and be maintained for 60 consecutive days thereafter.
Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Mail to the Regional Director for the Twenty-first Region
signed copies of the notice attached hereto marked "Appendix" for
posting at the offices of said Engineers, Limited, and Pacific Pipe-
line Construction Company,. other members of Pipeline Contractors
Association, and at project sites where the said Employers herein are
engaged in business within the jurisdiction of Respondent Local 12 in
places where notices to employees are customarily posted, if said
Employers are willing to do so.
(e) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Decision, what steps it
has taken to comply herewith.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING
ENGINEERS , LOCAL No. 12, AFL-CIO, AND APPLICANTS FOR, RE-
FERRAL THROUGH OUR HIRING HALLS • . . 1
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our members and applicants for re-
ferral that :
WE WILL NOT cause or attempt to cause Pacific Pipeline Con-
struction Company and Engineers, Limited, individually or as a
joint venture, or any other.member of Pipeline Contractors Asso-
ciation to discriminate against their employees in violation of
Section 8(a) (3) of the Act as amended by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL NOT in any like or related manner restrain or coerce
employees of Pacific Pipeline Construction Company and En-
gineers, Limited, or any other member of Pipeline Contractors
INT'L UNION OF OPERATING ENGINEERS, LOCAL 12, ETC. 1255
Association in the exercise of rights guaranteed them in Sec-
tion 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organi-
zation as a condition, of employment as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Re-,
porting and Disclosure Act of 1959.
WE WILL notify Pacific Pipeline Construction Company and
Engineers, Limited, that we have no objection to the employment
of Lloyd D. Sands, and will serve a copy of said notice on Lloyd
D. Sands.
WE WILL make, Lloyd D. Sands whole for any loss of pay he
may have suffered because of -bur action in causing Pacific Pipe-
line Construction Company and Engineers, Limited, to discrimi-
nate against him. '
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL No.' 12, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate, directly with the Board's Regional
Office, Eastern Columbia Building, 849 South_ Broadway, Los An-
geles, California, Tel. No. RIchmond 9-4711, Ext. 1031, if they have
any question concerning this notice or compliance; with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case was heard before Trial Examiner William E . Spencer of the National
Labor Relations Board , herein called the Board, in Los Angeles, - California, on
June ,15, 1960.
The issue litigated was whether the Respondent , in violation of Section 8(b) (1) (A)
and (2 ) of the Act, caused the Employer herein twice to discharge its employee,
Lloyd D. Sands , because of the latter's nonmembership in the Respondent.
Briefs were filed by the General Counsel and the Respondent.
Upon the entire record in the case, and upon my observation of the witnesses, I,
the duly designated Trial Examiner , make the following:
FINmNos AND, CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Pacific Pipeline Construction Company, herein called - Pacific, - and Engineers,
Limited , herein called Engineers , is each a California corporation engaged primarily
in the installation of pipelines . Together they formed a joint venture ,. herein called
the Employer, for the installation of a pipeline between points in the State of.Cali
forma. During the 12 months ending May 1 , 1960, each purchased goods and
supplies in excess of $50,000, which were transported to their operations from out-
side California . During the same period, each transported in excess of $50,000 in
value of its goods and products to points outside California . Each is a member of
Pipeline Contractors Association.
Pipeline Contractors Association, herein called the Association , is composed of
various employers , including Pacific and Engineers, who are engaged in the in-
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stallation of pipelines , and exists for and does engage in collective bargaining for,
and negotiates collective-bargaining agreements on behalf of, its members, ,includ-
ing Pacific and Engineers , with various labor organizations.
II. THE LABOR ORGANIZATION INVOLVED
-The Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
On about January 1, 1960 , Pacific and Engineers formed a joint venture , herein
called the Employer , with Engineers the sponsor , to engage in the construction of
a pipeline extending some 116 miles from the vicinity of Newberry, California, to a
point north of Needles, California. This construction is referred to herein as the
Pisgah job or project. The superintendent of the job was Lee Erlewine; R. V. Wilson,
Engineer 's vice president , was in charge of the Employer 's labor relations.
On about January 8, a prejob conference "for settling some of the terms and con-
ditions of employment" (Respondent 's brief ) on the Pisgah job was held and
attended by representatives of various interested labor organizations, including the
Respondent herein , and representatives of the Employer, including Erlewine and
Wilson.
As of January 8, some 12 employees were already at work setting up the Pisgah
job. The labor organizations represented at the prejob conference had not been
consulted in the hiring or transfer of these employees.
At the January 8 conference , following a general meeting between representatives
of the Employer and the several labor organizations interested in the Pisgah job, a
separate meeting occurred between representatives of the Employer and the Respond-
ent. At this latter meeting, the Employer informed the Respondent that the job
would begin on January 11 and that approximately 65 persons in the Respondent's
jurisdiction would be employed, including a number of persons the Employer wished
to transfer from other jobs as they became available. A memorandum of agreement
between the Respondent and the Employer was drawn up and executed at this meet-
ing. This agreement provided that certain wage rates of the Associated General
Contractors' Master Labor Agreement would be applied to the Pisgah project, as
well as certain other features of the AGC contract. The memorandum also pro-
vided that the employer would notify the Respondent's San Bernardino dispatch office
of its manpower needs.
Among those employed by the joint venture on January 8, prior to the prejob con-
ference, was Lloyd Sands. Admittedly, he was not hired through the Respondent's
hiring hall. At the request of Respondent's agent, Lasswell, he was discharged by the
Employer on January 12. On February 25, subsequent to his filing of a charge of
unfair labor practices, he was reemployed only to be discharged again, on demand
of the Respondent. This second'discharge occurred on March 1. The allegation is
that the discharges were unlawfully discriminatory. .
-The complaint alleges that the discharge -was' caused by Sands' nonmembership
in the Respondent but the litigation encompassed also the theory that there was no
bargaining agreement between the Employer and the Respondent which would make'
permissible the demand'for and effectuation of Sands' discharges, and it is to this
latter, phase of the issue, which accounted for the major portion of the litigation, that
attention is first directed: -
The Respondent contends that the Master Agreement of the AGC providing, inter
alia, for an exclusive hiring hall, applied to the Pisgah job, and Sands admittedly not
having been hired pursuant to the terms of said contract, the demand for his dis-
charge was lawful. In support of its position, the Respondent contends principally
that (1) both Pacific and Engineers were bound by the terms of the AGC contract
during the period in question ; (2) at the prejob conference it was agreed between the
Respondent and the Employer that hiring-hall and dispatch procedures of the AGC
contract.would-be applied on the Pisgah job; and (3) the said procedures were actu-
ally followed, demonstrating that the hiring procedures of the AGC contract were
agreed upon with respect to the Pisgah project.
It was specifically stated by the General Counsel that the validity of the, hiring
hall-dispatch procedures of the AGC contract was not in issue in this proceeding, it
being the General Counsel's contention that the Employer's contract with the Re-
spondent's International Union, known as the National Pipeline Agreement, herein
called 'National agreement, which did not provide for an exclusive hiring hall,
applied to the Pisgah job.
Leaving aside for,'the moment the ,allegation that a motivating cause of the dis-
charge demand was Sands' nonmembership in the Respondent, it may ;be observed
INT'L UNION OF OPERATING ENGINEERS, LOCAL 12, ETC. 1257
that if the AGC agreement was applicable to -the Pisgah job, the demand for Sands'
discharge was in accord with that agreement, whereas if the National agreement con-
trolled the operation , there was no contract justification for the discharge demand.
Bothpartners of the joint venture were signatories to the National agreement which
was dated May 1, 1957, and remained in effect until April 30, 19'60. Pacific and
Engineers signed this agreement about July 22 , 1957 . Pacific at all times material
herein was also a signatory to the AGC Master Labor Agreement, and Engineers
was a member of AGC until December 7, 1959, at which time it resigned its mem-
bership. The AGC contract in question is dated January 1, 1959, and by its terms
remains in effect until January 1, 1962 . It provides for its continuing application
to employers who resign from the AGC during its term.. Therefore during all times
material herein Engineers as well as Pacific was bound by the terms of the AGC
contract. In short, both the National and the local AGC agreements were applicable
to the Employers herein and a question arises as to which contract took precedence
over the other with respect to the Pisgah * job.
Article I (F) of the National agreement provides:
This agreement shall supersede all other agreements between the parties, or be-
tween employer and any local of the Union, for any work covered herein and
,.described in (b) above.
Section (b) is descriptive of the work on the Pisgah project.
Article XL(A) of the AGC Master Labor Agreement provides:
QUALIFICATIONS-Each of the parties hereto warrants and agrees it is
under no disability of any kind, whether arising out of the provisions of its
Articles of Incorporation, Constitution, By-Laws, or otherwise, that will pre-
vent it from fully and completely carrying out and performing each and all the
terms of this Agreement, and further, that it will not, by the adoption or
amendment of any provision of its Article of Incorporation, Constitution, or
By-Laws, or by contract or by any means whatsoever, take any action that will
prevent or impede it in the full and complete performance of each and every
term and condition hereof. . .
Article XL(B) of the same Master Agreement provides:
Nothing contained in any other agreement will change the conditions as set
forth in this Agreement pertaining to the use of equipment or the working
rules and classifications of employees when said equipment is owned by the
contractor and operated or used on any work on which he is the prime or sub-
contractor.
I agree with the General Counsel that article XL(B) of the AGC agreement does
not pertain to hiring procedures and is irrelevant to issues herein . It is at least
arguable, however, that article XL(A) was meant to supersede the National agree-
ment with respect to hiring procedures on local projects, and the AGC contract was
executed subsequently to the National agreement There is this distinction. Whereas
the National agreement specifically states that it supersedes agreements between em-
ployer' signatories and "any local of the Union," the AGC contract has no such
specific language which gives it precedence over the National agreement and it is
questionable whether it was intended automatically to supersede basic provisions of
the National agreement. There also appears to, have been a sharp difference of
opinion between the Respondent and the Employer as to which agreement applied
to the Pisgah operation. E
At the general meeting of the prejob conference on January 8, according to the
testimony of Respondent's sole witness, Anthony Sanders, Wilson , labor relations
director for the joint venture, stated that he would like for the wage rates of the
National agreement to apply to the Pisgah job, but that in hiring personnel for the
job the Employer would follow the hiring procedures of the AGC contract. Wilson
admitted that when he was asked by a union representative how he intended to do
his hiring, he answered, "Through your local hiring halls," but in explication of that
answer testified:
We are extremely vulnerable in the [National] pipeline agreement in that we
have no hiring system . So, it is a practice where there are hiring halls in
existence that we call the hiring hall for men reserving 50 percent from the
bank and 50 percent from the hall.'
Q. You say "from the bank," you mean off the street?
A. Anywhere we can get them.
1 This would be permissible under the National but not under the AGC agreement
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Erlewine, a witness for -the General Counsel, Wilson stated at the
general meeting of the prejob conference that the job would be operated under the
National agreement, except for. some , wage changes embodying AGC wage rates .2
Following the general meeting of the prejob conference, there was a brief meeting
between representatives of the Employer and the Respondent and this meeting
resulted in a memorandum agreement that certain wage rates and holiday provisions
of the AGC contract would apply to the Pisgah job, and that the Employer would
notify Respondent's San Bernardino office of its manpower needs. It appears that
on and after January 11, when Lasswell demanded Sands' discharge, the Employer
did in fact follow the hiring and transfer procedures of the AGC contract.
To provide legal justification for a labor organization's discharge demand based
on hiring hall procedures, the burden rests -on that organization to show that the
procedures under which the discharge was required were contained in a binding,
unequivocal, lawful agreement . I think the Respondent has not discharged the
burden. I am unable to say that the Pisgah job was controlled by the AGC con-
tract as a matter of law, regardless of the understanding of the parties. And I am
unable to say, on the basis of the evidence afforded me, that there was -a clear
understanding between the parties that the hiring procedures of the AGC contract
controlled. The fact that following the Respondent's demands with respect to Sands
and others hired prior to the prejob conference, and demands for Sands' discharge,
the AGC hiring procedures were actually followed, does not, in my opinion, dispose
of the issue. Sands was discharged under a threat of a work stoppage and imposi-
tion of the AGC hiring procedures by threat and duress does not establish a meeting
of the minds as to their proper application to the job.
The very fact that prior to the conference of January 8, the Employer had
already hired some 12 persons to organize and set up the Pisgah job, without ref-
erence to Respondent's hiring hall and referral procedures, is strongly indicative of
the Employer's belief that the National agreement was applicable to this operation.
and is corroborative of the testimony of its officers that that was the position the
Employer took at the prejob conference and subsequently. Nor do I find anything
inconsistent with this position in the memorandum agreement reached at the prejob
conference, whereby wage rates established under the AGC contract were made
applicable to the Pisgah job and the Employer. agreed to "notify" the local office
of the Respondent of its manpower needs. This clearly did not bind the Employer
to hire exclusively through Respondent's hiring hall and it appears that such notifica-
tion might well have taken place under the National agreement. That the parties
deemed it necessary to make this memorandum agreement applying wage rates and
some other conditions of the AGC contract indicates that there was at least
uncertainty in the minds of one or both that the AGC contract superseded the
National agreement and automatically applied to the Pisgah job. I think what the
memorandum agreement was intended to do, and did, was to modify certain terms
of the National agreement with respect to the Pisgah job but that there was no
understanding between the parties that the hiring arrangements of the National
agreement were set aside and superseded by provisions of the AGC contract. In
short, I must agree with the General Counsel that viewing the evidence in a light
most favorable to the Respondent, there was no meeting of minds on the application
of the AGC hiring procedures to the Pisgah job. Accordingly, I must find, and do,
that there was no justification, in law, for the Respondent's action in attempting to
cause, and in causing Sands' discharges on January 12 and March 1. By the said
action the Respondent violated Section 8(b)(1)(A) and (2) of the Act.
The General Counsel's contention that Respondent's discharge demand was based
on Sands' nonmembership in the Respondent finds its only support in the undisputed
testimony of Erlewine, superintendent of the Pisgah job. When Respondent' s agent,
Lasswell, came on the Pisgah job on January 111, he told Erlewine, according to the
latter, that he was "disappointed" in the number of persons already employed on
the job who were not members of the Respondent. Of the some 15 employees then
on the job it appears that 5, including Sands, were nonmembers. Lasswell told
' In a pretrial affidavit given an agent of the Respondent, Erlewine stated , inter altar
"In the prejob conference . .. It was agreed that the job would operate under the hiring
procedures set up by the Operating. Engineers Local No. 12 and all of the men on the job
would be secured out of the hiring hall of the Operating Engineers for work in their
jurisdiction " Admittedly, references to AGC procedures were struck from the affidavit
at Erlewine's request, and with reference to the quoted language left in the affidavit, he
testified at the hearing: "I understood that when we got down by striking out the AGC
procedure, which this is, that we were still operating through the San Bernardino local
under the international (National] agreement."
INT'L UNION OF OPERATING ENGINEERS, LOCAL 12, ETC. 1259
Erlewine that he would have to do something "with these people that were not out
of Local 12." Further discussion between Lasswell and Erlewine turned on the
prejob conference agreement , with Lasswell taking the position that the AGC contract
applied , and Erlewine contending that hiring procedures were governed by the
National agreement . On the following day, the Employer discharged Sands. This
appears to have been done primarily to placate the Respondent and Sands was
singled out because though hired for specialized work he was at that time engaged
in unskilled labor . His reinstatement followed his filing of a charge of unfair labor
practices , and he was again discharged on March 1 on threat of the Respondent to
shut down the Pisgah job.
From the foregoing , an inference of mixed motivation with respect to the dis-
charge demand might arise, an inference strengthened by the fact that Lasswell,
though apparently available , did not testify . - But Erlewine 's testimony is by no
means "all of a piece " with respect to the circumstances attending the discharge
demand . On further examination by the General Counsel, in answer to the ques-
tion what Respondent 's representatives were "saying" with respect to Sands, Erlewine
testified:
They were of the opinion that we were working under the Master Laborers'
Agreement there, which is AGC contract, and that Lloyd Sands had not been
hired in accordance with these procedures and, therefore , that was the basis
of not keeping him.
Lasswell 's insistence that Erlewine would have to do something "with these people
that were not out of Local 12," is just as reasonably construed to mean employees
not referred to the job by the Respondent , as to mean nonmembers of the Respond-
ent, and therefore this language is not necessarily inconsistent with Erlewine's later
testimony that the basis of the discharge demand was Respondent 's belief that the
AGC hiring agreement applied to the Pisgah job. Respondent 's explanation that
Sands being engaged in unskilled labor , there was no problem in filling his job
through its hiring hall, explains why he was singled out just as reasonably as his
nonmembership in the Respondent along with several other employees who, being
engaged in skilled operations , remained on the job.
Considering Erlewine's entire testimony , and his prehearing affidavits , I can only
say that there emerges a zigzag and confusing pattern with respect to circumstances
attending the Respondent 's discharge demands, from which I can draw no conclu-
sions of a preponderance in support of the General Counsels' position that the de-
mands were based on Sands' nonmembership in the Respondent , it appearing that
Erlewine may very well have construed Lasswell 's representations to mean non-
membership when Lasswell actually meant nonclearance through Respondent 's hiring
hall. A good deal depends on the emphasis that it placed on one part, or another
part, of Erlewine 's testimony , and since there can be no doubt that the Respondent
insisted , from the first , on the application of AGC hiring procedures , I can find no
license for plucking out certain pieces of Erlewine 's testimony from the context of
his entire testimony , and basing thereon a finding of unfair labor practices. While
undisputed , his testimony with respect to the discharge demands lacks the strong
corroboration of his testimony on the Employer 's position with respect to the appli-
cation of the National agreement to the Pisgah job , on the basis of which I was
convinced that there was no agreement between the Respondent and the Employer
that AGC hiring procedures applied . In short, I am unable to adopt the General
Counsel 's theory that the Respondent caused Sands ' discharges because of his non-
membership in the Respondent . The matter of Respondent 's enforcement of its
exclusive hiring hall procedures with respect to Sands, not specifically raised in the
complaint herein , was nevertheless thoroughly litigated and my findings that the
Respondent violated Section 8(b)(1)(A) and (2 ) of the Act rest there.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Employer described in section I, above, have a
close , intimate , and substantial relation to trade , traffic, and commerce among the
several States and such of them as have been found to be unfair labor practices tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent caused the Employer herein to discharge its
employee , Lloyd D. Sands, in violation of Section 8(a)(3) of the Act, thereby
engaging in unfair labor practices within the meaning of Section 8 (b)(1)(A)
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (2 ) of the Act, I shall recommend that the Respondent notify Pacific and
Engineers , in writing , and serve a copy upon Sands, that the Respondent has no
objection to Sands' employment by Pacific and Engineers individually or in their
capacity as a joint venture. It is further recommended that the Respondent make
Sands whole for any loss of pay he may have suffered as a result of the discrimina-
tion against him. The amount of backpay in each case shall be computed and paid
in accordance with the Board 's Woolworth formula. F. W. Woolworth Company,
90 NLRB 289. Respondent 's backpay liability will terminate 5 days after notifica-
tion of Pacific and Engineers that it has no objection to Sands' employment.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Pacific and Engineers , individually and as a joint venture , are employers
within the meaning of Section 2(2) of the Act.
2. Pipeline Contractors Association , engaged in collective bargaining for, and the
negotiation of collective -bargaining agreements on behalf of, its members , including
Pacific and Engineers , is an employer within the meaning of Section 2(2) of the Act.
3. The Respondent is a labor organization within the meaning of Section 2(5)
of the Act.
4. By causing the Employer herein to discharge its employee , Lloyd D. Sands, in
violation of Section 8(a) (3) of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of
the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Howard Johnson , Inc., of New Jersey and Howard Johnson Com-
pany and Hotel and Restaurant Employees and Bartenders
Union, Local 4, Hotel and Restaurant Employees and Bar-
tenders International Union , AFL-CIO. Case No. ?2-CA-977.
February 26, 1962
DECISION AND ORDER
On December 8, 1961, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
135 NLRB No. 128.