199 N.L.R.B. 675 (N.L.R.B. 1972)

J. L. Allen Co.

National Labor Relations Board - Board DecisionsOct 11, 1972

199 N.L.R.B. 675 (N.L.R.B. 1972)

J. L. ALLEN CO. 675 J. L. Allen Co. and James R. Clifton and Randall G. Kanitz and Local No. 204, Laborers ' International Union of North America and Jackie G. Wilbrun. West Central Indiana Building and Construction Trades Council and James R. Clifton and Randall G. Kanitz and Local No. 204 , Laborers' International Union of North America and Jackie G . Wilburn. Cases 25-CA-4278-1, 25-CA-4278-2, 25-CA- 4278-3, 25-CA-4278-4, 25-CB-1175-1, 25-CB- 1175-2, 25-CB-1175-3, and 25-CB-1175-4 October 11, 1972 DECISION AND ORDER On May 11, 1972, Administrative Law Judge John F . Funke issued the attached Decision in this proceeding . Thereafter, Respondent J. L. Allen Co. (herein Respondent Allen) filed exceptions and a sup- porting brief, Respondent West Central Indiana Building and Construction Trades Council (herein Respondent Trades Council ) filed exceptions and a supporting brief, and the General Counsel filed limit- ed exceptions , a supporting brief, and a brief in sup- port of the Decision. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Discrimination Allegations The consolidated complaint alleges, and the Ad- ministrative Law Judge found, that (a) Respondent Allen violated Section 8(a)(3) and (1) of the Act by discharging three employees and refusing to hire a fourth employee because they were members of La- borers, Local No. 204, Laborers' International Union of North America (herein Local 204), rather than members of labor organizations which constitute the Respondent Trades Council; and (b) Respondent Trades Council violated Section 8(b)(2) and (1)(A) of the Act by causing or attempting to cause Respondent Allen's unlawful conduct. Briefly stated, Respondent Allen and Respon- dent Trades Council urge that the Administrative Law Judge erred in finding the above violations be- cause , inter alia, the dispute which gave rise to this case is, in fact, a jurisdictional dispute, cognizable exclusively under Sections 8(b)(4)(D) and 10(k) of the Act. We find merit in this contention. The critical facts, as fully set forth by the Admin- istrative Law Judge , are not in dispute, and arose out of the award of a contract to Respondent Allen for the construction of a gas pumping station at Montezuma, Indiana, referred to as Montezuma # 2. Respondent Allen previously had constructed a similar project, Montezuma # 1, using members of various Laborers locals to perform the unskilled work, and members of the other Respondent Trades Council unions to per- form the skilled work .2 Prior to actual commencement of work on Montezuma #2, Allen employed laborers to assist in laying out the project . Thereafter, at a prejob conference, representatives of the Respondent Trades Council unions made a demand for the un- skilled, as well as the skilled, work and implicitly threatened to refuse to furnish craftsmen unless their demands were met. In accordance with these de- mands , Respondent Allen laid off those laborers al- ready employed , refused to hire another laborer, and reassigned the unskilled work to members of Respon- dent Trades Council unions. Based essentially on the above facts, the Admin- istrative Law Judge concludes that Respondent Allen discharged or refused to hire the laborers because they were members of the Laborers and not members of the Respondent Trades Council unions and that there can be no clearer violation of Section 8(a)(3) and (1). Likewise , relying on the choice given to Respon- dent Allen between employing laborers or craftsmen, and the assurance that Respondent Trades Council would ignore any Laborers picket line, the Adminis- trative Law Judge finds that Respondent Trades Council encouraged Respondent Allen 's unlawful conduct by providing Respondent Allen with unam- biguous notice of what it must do to get the work done, thereby violating Section 8(b)(2) and (1)(A). Subsequent to the issuance of the Administrative Law Judge 's Decision in this case, the Board issued its Decision in Brady-Hamilton Stevedore Company, 198 NLRB No. 18, in which we considered the precise issue raised by Respondents' exceptions ; that is, whether Section 8(a)(3) is applicable in situations where the actions of all parties are part and parcel of an acute, bona fide jurisdictional work dispute. In that case , a majority of the Board concluded that Sections 10(k) and 8(b)(4)(D) of the Act dictate the procedure to be followed in jurisdictional dispute cases, and that that procedure cannot be implemented by resort to Section 8(a)(3). In its determinative aspects, the instant case falls squarely within the doctrine expressed in Brady-Ham- ilton, supra. Indeed, the stated reasons for the Admin- istrative Law Judges ' 8(a)(3) findings in both cases are 2 At that time, Local 204 was a member of Respondent Trades Council. 1 The title of "Trial Examiner" was changed to "Administrative Law Local 204 withdrew from Respondent Trades Council on March 4, 1970, Judge" effective August 19, 1972. prior to Respondent Allen's receiving the contract for Montezuma #2. 199 NLRB No. 111 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD precisely the same; i.e., that the employees were dis- good faith. charged because of an employer's change in work assignment resulting from a rival jurisdictional claim. There can be no question that the present case, like Brady-Hamilton, supra, is a bona fide jurisdictional dispute. The facts recited by the Administrative Law Judge, including the Respondent Trades Council's de- mand for work previously performed by laborers and the implied threat that the Respondent Trades Coun- cil would furnish craftsmen only if they were allowed to perform both skilled and unskilled work,; provide sufficient evidence upon which to find reasonable cause to believe that the Trades Council engaged in conduct in contravention of Section 8(b)(4)(D). Since the facts of this case present the classic dispute cogniz- able under the provisions of Sections 8(b)(4)(D) and 10(k), and for the reasons expressed in the majority opinion in Brady-Hamilton, supra, we shall dismiss the 8(a)(3) and (1) allegations of the complaint against Respondent Allen. Likewise, although Brady-Hamilton dealt exclu- sively with the relationship of the jurisdictional-dis- pute provisions of the Act to Section 8(a)(3), having found that Section 10(k) dictates the procedure to be followed in jurisdictional dispute cases, it would be anomalous to refuse to apply that reasoning to Sec- tion 8(b)(2). Therefore, we shall also dismiss the Sec- tion 8(b)(2) and (1)(A) allegations of the complaint against Respondent Trades Council.4 The Refusal-To-Bargain Allegations The Administrative Law Judge recommended dismissal of the complaint against Respondent Allen insofar as it alleges that Respondent Allen violated Section 8(a)(5) of the Act by unilaterally withdrawing work from unit employees and assigning it to nonunit employees, and by withdrawing recognition from Lo- cal 204 as the exclusive bargaining representative of Respondent Allen's laborers. While we agree that the 8(a)(5) allegation should be dismissed , we do not adopt the Administrative Law Judge's rationale that Section 8(a)(5) has no application to the construction industry . Rather, we rest our dismissal of that allega- tion on our determination that the conduct alleged to constitute a refusal to bargain was, in fact, merely part and parcel of the bona fide jurisdictional work dispute which existed in this case and was so inseparably intertwined with the other conduct in the course of the jurisdictional dispute that to find and remedy any such violation would also stand in conflict with the remedial scheme contemplated by Congress as the exclusive means for resolution of work-assignment claims between competing labor organizations.' Therefore, we shall dismiss the complaint insofar as it alleges that Respondent Allen refused to bargain in ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the consolidated com- plaint herein be, and it hereby is, dismissed in its entirety. MEMBERS KENNEDY AND PENELLO , dissenting in part and concurring in part: For the reasons set forth in our dissenting opin- ion in Brady-Hamilton Stevedore Company, supra, we would find the Respondent Company violated Sec- tion 8(a)(3) and (1) by its discharge of laborers in accordance with the Trades Council's demands. Fur- ther, we believe that the same rationale is equally applicable to the 8(b)(2) and (1)(A) allegations, and would find that the Respondent Union in this case violated the Act by causing and attempting to cause Respondent Company to violate Section 8(a)(3). Ac- cordingly, we cannot agree that Cement-Work, Inc., supra, is properly overruled. Insofar as the 8(a)(5) allegations of the complaint are concerned, we concur with our colleagues in the rejection of the Administrative Law Judge' s rationale that this section has no application to the construction industry. We also agree with them that the dismissal of that allegation was proper because the General Counsel has not established the appropriate bargain- ing unit. However, we do not agree with what appears to be their principal rationale; i.e., that dismissal of the 8(a)(5) allegation is warranted merely because the Respondent Employer's action was part and parcel of the bona fide jurisdictional work dispute. In sum, we would find violations of Section 8(a)(3) and (1) and Section 8(b)(2) and (1)(A), but agree that no violation of Section 8(a)(5) has been shown. 3 Note that even the General Counsel regards the Respondent Trades Council's action as implying a threat of picketing , strikes, and work stoppag- es in the event Allen did not accede to the Council' s demands. 4 To the extent that the procedures utilized in Local 502, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO (Ce- ment-Work, Inc.), 140 NLRB 694, are inconsistent with this Decision, that case is hereby overruled. S Brady-Hamilton Stevedore Company, supra; cf. Local 502, International Hod Carriers, supra We also regard the allegation to be without merit for the additional reason that we believe the General Counsel has not met the requisite burden of establishing with sufficient clarity the appropriateness of any unit upon which to base a finding that Respondent Allen violated Sec- tion 8(aX5) of the Act TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FuNKE, Trial Examiner : This proceeding was brought before the National Labor Relations Board upon: J. L. ALLEN CO. 1. A charge filed in Case 25-CA-4728-1 against J. L. Allen Co., herein Allen, by James R. Clifton on April 28, 1971. 2. A charge filed in Case 25-CA-4278-2 against Allen by Randall G. Kanitz on April 28, 1971. 3. A charge filed in Case 25-CA-4278-3 against Allen by Local No. 204, Laborers' International Union of North America, herein the Laborers, on April 28, 1971. 4. A charge filed in Case 25-CA-4278-4 against Allen by Jackie G. Wilburn on April 28, 1971. 5. A charge filed in Case 25-CB-1175-1 against the West Central Indiana Building and Construction Trades Council,' herein the Trades Council, by James R. Clifton on April 28, 1971. 6. A charge filed in Case 25-CB-1175-2 against the Trades Council by Randall G. Kanitz on April 28, 1971. 7. A charge filed in Case 25-CB-1175-3 against the Trades Council by the Laborers on April 28, 1971. 8. A charge filed in Case 25-CB-11754 against the Trades Council by Jackie G. Wilburn on April 28, 1971. 9. An order consolidating the cases, a consolidated complaint and notice of hearing issued by the General Counsel alleging Allen violated Section 8(a)(1)(3) and (5) of the Act and that the Trades Council violated Section 8(b)(1)(A) and (2) of the Act. 10. Answers of Allen and the Council denying the com- mission of any unfair labor practices. 11. A hearing held by me at Terre Haute, Indiana, on March 1 and 2, 1971. 12. Briefs received from the General Counsel, the La- borers, and Allen on April 14, 1971. Upon the entire record in this case and from my obser- vation of the witnesses while testifying, I make the follow- ing: FINDINGS I THE BUSINESS OF ALLEN Allen is an Illinois corporation having its principal place of business at Tuscola, Illinois. It has engaged in the construction of pumping stations for natural gas and other mechanical systems and has constructed pumping stations at Montezuma, Indiana. During a representative year Allen purchases, transfers, and delivers goods and materials val- ued in excess of $50,000 to jobsites directly from States other than the States in which the jobsites are located. Dur- ing a representative year Allen performs services valued in excess of $50,000 in States other than the State of Illinois. Allen is engaged in commerce within the meaning of the Act. ' It was stipulated at the hearing that on December 9, 1971, after the alleged unfair labor practices took place , the West Central Indiana Building and Construction Trades Council was succeeded by the Central Wabash Valley Building and Construction Trades Council . The Respondent labor II THE LABOR ORGANIZATIONS INVOLVED 677 The Trades Council and the Laborers are labor organi- zations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The issues presented are: (1) Whether Allen discharged three employees and re- fused to hire a fourth at the Montezuma jobsite because said employees were members of the Laborers rather than mem- bers of the craft unions composing the Trades Council. (2) Whether the Trades Council caused or attempted to cause Allen to discharge three employees and refuse to hire a fourth because said employees were members of the La- borers rather than members of the craft unions composing the Trades Council. (3) Whether Allen refused to bargain in good faith with the Laborers as the exclusive bargaining agent of all build- ing and construction laborers employed by Allen at the Montezuma jobsite. B. The Background Because of the multiplicity of the parties the witnesses had best be first identified. Appearing for Allen were: J. L. Allen, president of Allen; James Botner, job superintendent for Allen at Montezuma; and Gene Kanitz, carpenter fore- man for Allen at Montezuma. Appearing for the Laborers were: Leo Nazdin, director of jurisdiction for the Laborers International; and Frank Kazakevich, business representa- tive for the Laborers. Appearing for the Trades Council was: Walter McMahon, treasurer of the Trades Council. Appearing as witnesses on their own behalf were: James R. Clifton, a laborer discharged by Allen; Randall Kanitz, a laborer discharged by Allen; Jackie G. Wilburn, a laborer discharged by Allen; and Donald McCracken, a laborer refused employment by Allen. These descriptions are for the purpose of identification only and do not constitute findings of fact. In November 1969, Allen started construction of a gas pumping station at Montezuma, Indiana, referred to herein as Montezuma #1. This construction was completed in April 1970. At the time construction started the Laborers was a member of the Trades Council, withdrawing its mem- bership, however, on March 4, 1970. At this time Allen had a collective-bargaining agreement with the Laborers Inter- national which was dated September 16, 1969, and ran for 1 year with automatic renewal unless 60-day notice of termi- nation was given. This agreement with the International was not terminated until July 8, 1971, when the Internation- al gave notice of termination. There were no labor disputes between the Laborers and Allen at Montezuma # 1 and members of the Laborers performed the unskilled work at this jobsite. organization will, however, be referred to in this report as the Trades Council respecting all matters subject to litigation herein. Z G.C. Exh. 2. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Dispute Sometime in October 1970,3 Allen received a contract for the construction of another gas pumping station at Mon- tezuma, referred to herein as Montezuma #2. J. L. Allen testified that the work to be performed was essentially the same as that performed at Montezuma # 1. On November 5 N. D. Kellogg, project manager for Allen, and Gene Kan- itz, a carpenter foreman, were sent to the jobsite to prepare the site for construction. Kellogg , however, was not present at the jobsite on a daily basis while Kanitz was present every day until James Botner appeared on November 9 to take over as job superintendent. Botner testified that at this time Kanitz was in charge of three laborers , an operating engi- neer, and two carpenters. On November 5, according to the testimony of Frank Kazakevich, representative of the Laborers, he went to the jobsite in response to a telephone call and saw Gene Kanitz. Kazakevich took with him one copy of an "Acceptance of Working Agreement, Indiana Statewide Building Construc- tion Agreement," effective from April 1, 1970, to March 31, 1973.4 At this time Kazakevich was not aware that Allen was supposedly operating under the collective-bargaining agreement with the International (G.C. Exh. 2, supra). Ka- zakavich asked Kanitz if he had the authority to sign the "Working Agreement" and when he said he had, Kazake- vich had him signs (The next week Kazakevich returned and had Kanitz sign another copy dated November 10 (G. C. Exh. 7).) In their conversation on November 5 Kanitz told Kazakevich that he had had a laborer named James Clifton working and Kanitz was given permission to bring in two more laborers, Randall Kanitz and Jackie Wilburn. Gene Kanitz testified that he was carpenter foreman at Montezuma #2 from early November. He saw Kazakevich in early November (he did not dispute the date could have been November 5) but stated that he told Kazakevich that he was carpenter foreman on the job and that Botner was job superintendent. Kanitz' explanation for his signing the "Working Agreement" as superintendent was that when he told Kazakevich he was foreman Kazakevich asked him if he had ever been superintendent on a prior job. When he said he had Kazakevich told him that was all he needed and Kanitz signed. He explained this by stating that although he knew he had no authority to sign such an agreement he wanted to get the job started .6 Kanitz was the only supervi- sor on the job until Botner arrived on November 9 although Kellogg, not at the site at all times, was in overall charge. James Botner testified that he arrived at the jobsite on November 9 to take over as job superintendent. On Novem- ber 10 he had a prejob conference with the Trades Council. In this discussion Botner was informed by each of the trades that its members would perform both the skilled and un- 3 Unless otherwise noted all dates refer to 1970. 4 G.C. Exh. 6. S Kazakevich testified that he also gave Karatz a copy of "the green book" (G. C. Exh. 8). This was a copy of the collective- bargammg agreement between the Employers Negotiating Committee of the State of Indiana and the State Industrial Council of the Laborers ' International . This agreement ran from April 1, 1970, to April 1, 1973. 6 J. L. Allen testified that Karatz had no authority to sign any collective- bargaining agreement and that he did not know of any such agreement until the charges herein were filed. skilled work on the job. The members also informed him that the Laborers no longer belonged to the Trades Council but they did not tell him they would not furnish men for the job if he employed members of the Laborers. He was told however, that if the job was run their way there would be no work stoppages or picketing. Following this meeting Bother called J. L. Allen. Allen testified that he was told by Botner that he (Bother) had been informed by the Trades Council that the Laborers were no longer members of the Council. Allen received the impression from this conversation that the Trades Council would not make men from the crafts available if Allen employed members of the Laborers and, as he testified, "it took me about five minutes to decide what to do." Allen then talked to J. L. Taylor, secretary of the Trades Council, who confirmed what Bother had said and told him the crafts would probably use "probationary apprentices" for the un- skilled work.? He was assured by Taylor that if the Laborers put up a picket line the craft unions would ignore it. Allen then called Bother back and told him to "knock the laborers off." Following November 10 no laborers were employed at the jobsite. Botner testified that he discharged James Clif- ton, Jackie Wilburn, and Randall Kanitz on that day and that when Eugene McCracken appeared at the jobsite on November 12 he told him he had not put in a call for anyone and there was no work for him. As to the members of the Laborers employed at the jobsite, James Clifton, son-in-law of Gene Kanitz, testified that he had been employed as laborers' foreman on the Montezuma # 1 and was hired at Montezuma #2 on No- vember 4 and expected to be the laborers' foreman . Randall Kanitz testified that he was hired and cleared to the job by Kazakevich and went to work about November 5. Wilburn testified that he worked as a laborer at Montezuma #2 on November 6. On November 10, according to Clifton, Botner told him laborers were no longer needed and gave him the checks for himself, Kanitz, and Wilburn. All three testified that that was the last day they worked. McCracken, a member of the Laborers, testified that he received a referral slip from the Laborers and went to the jobsite on November 12. He reported to Gene Kanitz, gave him his referral slip, and was told to wait. He then saw Botner drive up in a pickup truck and saw Kanitz go out to talk to him. Kanitz came back and told him there was labor trouble on the job and "they wouldn't be able to use me." McCracken then asked Botner if he had reported to the right place and when Bother said he had he left and went home. He returned-to the union hall and he and Kazakevich returned to the jobsite where they talked to Kanitz and Botner. Kellogg joined the conversation and, according to Kazakevich, told him that they had decided not to use mem- bers of the Laborers at the job and would use the crafts to do the unskilled work. The only witness called from the Trades Council was Walter McMahan, treasurer. McMahan testified that he was present at the meeting between Bother and the repre- sentatives of the Trades Council on November 10 and that at this meeting the members warned Botner not to lay off any members of the Laborers. The Trades Council also told 7 It does not appear that any such classification as probationary appren- tices existed at this time and rates had to be fixed for it. J. L. ALLEN CO. Botner that the crafts were going to use their own members to perform the unskilled as well as the skilled work leaving to Botner, apparently, to figure out what work would be left for the member of the Laborers.8 Botner was also told that the Laborers were no longer members of the Trades Coun- cil. D. The Refusal To Bargain It shall be recommended that the allegation that Allen refused to bargain with the Laborers in violation of Section 8(a)(5) of the Act be dismissed. It has from the time of the enactment of the statute been conceded that not all of its provisions can be applied to the construction industry and the industry has received from the Congress the special exemptions provided in Section 8(b)(7)(e) and (f) in recogni- tion of that fact. There is no such thing as collective bargain- ing as that term is used in industry in the construction trades. There are no elections and no certifications to de- termine the representative status of craft unions. When a contractor enters a territorial jurisdiction other than that of his own craft unions he does not bargain over contract terms, he accepts, if he wishes to employ craft union labor, the area agreement as to wages and working conditions. He hires, or may hire, exclusively from union halls. Under these circumstances no bargaining order directed against Allen would serve any meaningful purpose. While the 8(a)(5) alle- gation might be dismissed on the technical ground that the General Counsel, apart from the psi dixit of his complaint, never established an appropriate unit on which to form an order (the issue was never litigated), I prefer to rest it on the broader ground that the section cannot be reasonably or rationally applied to the construction industry. Disputes between the crafts which violate Section 8 are generally determined by the issuance of preliminary injunctions which will ordinarily permit the contractor to get on about, his work. That resort to Section 8(a)(5) is impractical is illustrated by the instant case where the Board has taken almost 1 year from the time of the completion of the project to bring the case to the initial stage of litigation.9 The pur- poses of the statute are not served by fruitless litigation. 8 McMahan's testimony reads: Q. (By Mr. Wolfe): Didn' t you also tell hun (Botner)-and when I say "you" again I am talking about all the people there at the council- tell him that he would not get members of the crafts if he gave work to - the laborers, if he continued to employ laborers? A. I think he was given his choice. Q. (By Trial Examiner): Well, he said he was given his option. Well, was he? A. He was specifically warned not to lay off any (laborers) that he had on his payroll. Q. (Trial Examiner): Not to lay off laborers. He was warned (not) to do that? A. He was warned. Q. (Trial Examiner): He was also told if he wanted to use the crafts he would use them for both skilled and unskilled work in their particular crafts? A. Right. Q. That was made clear to him. A. Yes, it was. 9 The project, on the other hand, was completed in approximately 6 months. 679 E. Conclusions as to Violations of Section 8(a)(1) and (3) and 8(b)(1)(A) and (2) Unlike Respondent Allen I do not find that the dis- charge of the employees who were members of the Laborers was simply a question of job assignment. On the basis of Allen's candid testimony it was a case of discharging these employees because they were members of the Laborers and not members of the crafts which formed the Trades Council. No clearer evidence discouraging membership in the crafts could be found. I find that by discharging James R. Clif- ton,10 Randall Kanitz, and Jackie Wilburn on November 10 and by refusing to employ Donald McCracken on Novem- ber 12 because they were members of the Laborers, Allen violated Section 8(a)(1) and (3) of the Act. I also find that the Respondent Trades Council caused Allen to engage in such discriminatory conduct. This.is based not only on the testimony of Botner, supra, as to what he was told at the prejob conference but also McMahan's testimony that Botner was given his choice between employ- ing members of the Laborers and members of the crafts. This together with the assurances that the crafts would not respect a Laborers picket line was an unambiguous notice to Allen of what he must do to get the work done. As Allen testified, it took him about 5 minutes to make up his mind." The conduct of the Trades Council here goes far beyond "the nod, or a wink or a code" criterion of proof which the district judge found sufficient in United States v. Interna- tional Union, United Mine Workers of America, 77 F.Supp. 563, 566. I find Respondent Trades Council violated Section 8(b)(1)(A) and (2) of the Act. Upon the foregoing findings I make the following: CONCLUSIONS OF LAW 1. By discharging three employees and refusing to hire a fourth employee because they were members of the La- borers and not members of the craft unions which com- posed the Trades Council , Respondent Allen violated Section 8(a)(1) and (3) of the Act. 2. By causing Respondent Allen to discharge three em- ployees and refuse to hire a fourth employee because they were members of the Laborers and not members of the craft unions which composed the Trades Council, Respondent Trades Council violated Section 8(b)(1)(A) and (2) of the Act. 3. Respondent Allen did not violate Section 8 (a)(5) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. THE REMEDY Having found the Respondent Allen and the Respon- dent Trades Council engaged in certain unfair labor prac- 10 While Clifton may have had the expectancy of becoming laborer fore- man at the job, he was working as a laborer at the time of discharge. i i I do not find that the Trades Council was exculpated by its direction to Botner not to fire any Laborers. Since the crafts told hint they would perform all unskilled work there was no work for the Laborers and it is unreasonable to suppose, even under the at tunes incomprehensible practices of the con- struction industry, that Allen was expected to keep the Laborers employed as bystanders. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tices it will be recommended that they cease and desist from the same and take certain affirmative action. Having found that Respondent Allen violated Section 8(a)(1) and (3) of the Act by discharging three employees and refusing to hire another employee to discourage mem- bership in Local 204, Laborers, and that Respondent Trades Council violated Section 8(bXl)(A) and (2) of the Act by causing Respondent Allen to make said discharges and re- fusal of employment for said purpose it shall be recom- mended that said Respondents jointly and severally make James R. Clifton, Randall Kanitz, Jackie Wilburn, and Donald McCracken whole for any loss of pay they may have suffered . Said loss of pay shall be computed as to Clifton, Randall, and Wilburn as from November 10, 1970, and to McCracken from November 12, 1970, until the con- struction work at Montezuma #2 was completed as to la- borers' work. Said computation shall be made on a quarterly basis at 6 percent per annum. Respondent Allen and Respondent Trades Council shall mail copies of the notices required to be posted by each of them respectively to Clifton, Kanitz, Wilburn, and Mc- Cracken and to Local No. 204, Laborers' International Un- ion of North America. The General Counsel has asked that the said dischar- gees be placed by Allen on a preferential hiring list and be offered employment on any existing project or on the next project undertaken by Allen within the territorial jurisdic- tion of Local 204. I doubt the equity of such a remedy since the discharge of the said dischargees not only involved dis- crimination against them but also reduced the number of jobs available for all members of Local 204 by returning said dischargees to the union pool. In this sense the entire membership of Local 204 was the victim of discrimination since available employment was diminished. Nor do I think it wise to disturb whatever rotation or other system Local 204 may be using for referral of its members by imposing preferential hiring upon it. Upon the foregoing findings and conclusions and pur- suant to Section 10(c) of the Act, I recommend issuance of the following: ORDER 12 A. Respondent J. L. Allen Co., its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Discharging or refusing to hire any employee or otherwise discriminating against him because he is a mem- ber of Local 204, Laborers' International Union of North America, and for the purpose of discouraging membership in said labor organization. (b) In any like or related manner interfering with, re- straining, or coercing any employee in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action: (a) Jointly and severally with West Central Indiana Building and Construction Trades Council and/or its suc- 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall , as provided in Sec. 102.48 of the Rules and Regulations, automatically become the findings, conclu- sions, decision, and Order of the Board , and all objections thereto shall be deemed waived for all purposes. cessor Central Wabash Valley Building and Construction Trades Council make James R. Clifton, Randall Kanitz, Jackie Wilburn, and Donald Eugene McCracken whole for any loss of pay or other monetary loss they may have suf- fered by reason of the discrimination practices against them as set forth herein in "The Remedy." (b) Notify the said employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Se- lective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Post at any of its offices, jobsites, or other places of business within the territorial jurisdiction of West Central Indiana Building and Construction Trades Council copies of the attached notice marked "Appendix A."13 Copies of said notice, on forms provided by the Regional Director for Region 25, shall, after being signed by a representative of Respondent, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (d) Mail copies of said notice to James R. Clifton, Randall Kanitz, Jackie Wilburn, and Donald Eugene Mc- Cracken at their last known addresses; mail a copy of said notice to Local No. 204, Laborers' International Union of North America, for posting, it willing, at its place of busi- ness at Terre Haute, Indiana. (e) Notify the Regional Director for Region 25, in writ- ing, within 20 days from the date of this Decision, what steps it has taken to comply herewith."' IT IS FURTHER ORDERED that the complaint insofar as it alleges J. L. Allen Co., violated Section 8(a)(5) of the Act be dismissed. B. Respondent West Central Indiana Building and Construction Trades Council and/or its successor Central Wabash Valley Building and Construction Trades Council, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause J. L. Allen Co., or any other employer within its territorial jurisdiction, to dis- charge or to refuse to hire any employee because he is a member of Local No. 204, Laborers' International Union of North America, for the purpose of discouraging member- ship in said labor orgainization. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action: (a) Jointly and severally with J. L. Allen Co., make James R. Clifton, Randall Kanitz, Jackie Wilburn, and Donald Eugene McCracken whole for any loss of pay or other monetary loss they may have suffered by reason of the 13 In the event that the Board 's 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 14 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read : "Notify said Regional Director for Region 25, in writing , within 20 days from the date of this Order, what steps Respondent has taken to comply herewith." J. L. ALLEN CO. discrimination practiced against them as set forth in "The Remedy." (b) Notify the said employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Se- lective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Post at its place in Terre Haute, Indiana, or, if it has no such place of business, at the place of business of all of its constituent members, copies of the attached notice mark- ed "Appendix B."15 Copies of said notice, on forms provid- ed by the Regional Director for Region 25, shall, after being signed by a representative of Respondent, be posted imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (d) Mail copies of said notice to James R. Clifton, Randall Kanitz, Jackie Wilburn, and Donald Eugene Mc- Cracken at their last known addresses; mail a copy of said notice to Local No. 204, Laborers' International Union of North America, for posting, it willing, at its place of busi- ness at Terre Haute, Indiana. (e) Notify the Regional Director for Region 25, in writ- ing, within 20 days of the date of this Decision, what steps have been taken to comply herewith.16 15 See In. 13, supra. 16 See fn. 14, 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 refuse to hire any em- ployee because he is a member of Local No. 204, La- borers' International Union of North America, in order to discourage membership in that Union. WE WILL, together with Central Wabash Valley Building and Construction Trades Council as successor to West Central Indiana Building and Construction Trades Council, pay James R. Clifton, Randall Kanitz, and Jackie Wilburn backpay for the time they lost at our job at Montezuma, Indiana, from November 10, 1970, until the job was completed and WE WILL pay Donald McCracken backpay for the time he lost be- cause we refused to hire him on November 12, 1970, until the job was completed. All backpay will be paid with interest at 6 percent per annum. WE WILL notify the said employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act, as amended, after discharge from the Armed Forces. J. L. ALLEN CO (Employer) Dated By 681 (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material . Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, 614 ISTA Center, 150 West Market Street, Indianapolis , Indiana 46204, Telephone 317-633- 8921. 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 require J. L. Allen Co., or any other employer in our territorial jurisdiction, to dis- charge or refuse to hire any employee because he is a member of Local No. 204, Laborers' International Un- ion of North America, in order to discourage member- ship in that Union. WE WILL, together with J. L. Allen Co., pay James R. Clifton, Randall Kanitz, and Jackie Wilburn back- pay for the time they lost on the J. L. Allen job at Montezuma, Indiana, from November 10, 1970, until the job was completed and WE WILL pay Donald Eugene McCracken backpay for the time lost from November 12, 1970, until the job was completed. All backpay will carry interest at 6 percent. We have no objection to the employment of said members of Local 204 or other members of Local 204 by Allen or any other employer. WE WILL notify the said employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act, as amended, after discharge from the Armed Forces. Dated By CENTRAL WABASH VALLEY BUILDING AND CONSTRUCTION TRADES COUNCIL, SUCCESSOR TO WEST CENTRAL INDIANA BUILDING AND CONSTRUCTION TRADES COUNCIL (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204 , Telephone 317-633- 8921.