Mundet Cork Corp.Download PDFNational Labor Relations Board - Board DecisionsOct 31, 195196 N.L.R.B. 1142 (N.L.R.B. 1951) Copy Citation 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD counted. The Petitioner excepted to this finding and recommenda- tion. Kemp, the alleged independent contractor, estimates the cost of construction work on sets for the Employer, recruits and hires workers, and supervises the work done. If the cost of construction exceeds his estimate, the Employer is responsible for the difference in cost. The costs of materials and the wages of the workers employed by Kemp are billed to the Employer. Kemp receives a fixed fee to cover the value of his services for the Employer and does not stand to gain or lose if the actual cost of the construction is below or above the amount specified in the estimate. The Employer pays him by check covering his fee, the cost of materials purchased, and the wages of the workers. Kemp pays the wages in cash. Neither the Employer nor Kemp makes deductions for withholding tax or social security or unemployment compensation from the wages paid to employees for their services, nor does the Employer make such deductions for Kemp. The Em- ployer's art director exercises direct substantial control over the man- ner in which the work is performed by workmen under Kemp's im- mediate supervision. Kemp does not have the license required by State law for contracting work. Under these circumstances, we agree with the hearing officer and find, contrary to the contention of the Petitioner, that Jester and Ren- dahl are employees of the Employer and as such are eligible to vote in the election. We therefore overrule the challenges to the ballots of Jester and Rendahl and shall direct that their ballots be opened and counted. Direction IT IS HEREBY DIRECTED that the Regional Director for the Twenty- first Region shall, pursuant to the Rules and Regulation of the Board, within ten (10) days from the date of this Direction, open and count the ballots cast by Ralph T. Jester and George A. Rendahl, and thereafter prepare and serve upon the parties to this proceeding a supplemental tally of ballots. MUNDET CORK CORPORATION AND INSULATION CONTRACTORS OF SOUTH- ERN CALIFORNIA, INC. and MRS. EDWIN SELVIN MARINE ENGINEERING & SUPPLY COMPANY and FI EDERIcK M. D. TURNER INSULATION CONTRACTORS OF SOUTHERN CALIFORNIA, INC., AND ITS MEMBERS : MARINE ENGINEERING & SUPPLY COMPANY , MUNDET CORK CORPORATION, J. T. THORPE COMPANY, PLANT INSULATION COMPANY, MUNDET CORK CORPORATION 1143 UNITED CORK COMPANY and DON MURRAY, ARTHUR PETERSON AND NICK CITO MARINE ENGINEERING AND SUPPLY COMPANY and NARCIso DURAN MUNOZ INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS & ASBESTOS WORKERS, AFL, LOCAL No. 5 and MRS. EDWIN SELVIN INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS & ASBESTOS WORKERS, LOCAL 5, A. F. OF L. and FREDERICK M. D. TURNER INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS & ASBESTOS WORKERS, AFL, LOCAL No. 5 and DON MURRAY, ARTHUR PETERSON AND NICK CITO INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS & ASBESTOS WORKERS, LOCAL 5 and NARCISO DURAN MUNOZ . Cases Nos. 21-CA- 491, 21-CA-702, 21-CA-717, 21-CA-780, 91-CB-177, 21-CB-241, 21-CB-243, and 21-CB-262. October 31, 1961 Decision and Order On December 28, 1950, Trial Examiner Maurice M. Miller issued his Intermediate Report in the above-entitled consolidated proceed- ings, finding that the Respondents, Insulation Contractors of South- ern California, Inc., herein called the Respondent Association or the Association; Marine Engineering & Supply Company, herein called Marine; Mundet Cork Corporation, herein called Mundet; J. T. Thorpe Company; Plant Insulation Company; United Cork Com- pany; 1 and International Association of Heat & Frost Insulators & Asbestos Workers, A. F. L., Local 5, herein called the Respondent Union or the Union, had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other alleged unfair labor practices, and recommended dismissal of these allegations of the complaint. Thereafter, the Respondent Associa- tion, the Respondent Union, the General Counsel, and charging party Warren H. Spooner filed exceptions to the Intermediate Report and supporting briefs. The Board 2 has reviewed the rulings of the Trial Examiner made 1 The companies named above are hereinafter collectively referred to as the Respondent Employers. ' 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Members Houston , Murdock, and Styles]. 96 NLRB No. 175. 1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following additions and modifications : 8 1. We find, in accord with the conclusion of the Trial Examiner, that the contract executed by the Respondent Association and the Respondent Union on April 1, 1949, was violative of the Act' This contract provided, in pertinent part: ARTICLE XI. The party of the first part agrees to employ the membership of Local No. 5 in the application of pipe and boiler coverings, insulation of hot surfaces, ducts, flues, etc., also the covering of cold piping and circular tanks connected with the same. This to include alterations and repairing of work similar to the above and the use of all materials for the purpose mentioned. [Emphasis supplied.] ARTICLE V. There shall be a Trade Board consisting of four members of the Master Insulators' Association and four members of Local No. 5 and said Trade Board shall have the right to investigate all labor operations of the parties to this Agreement within its prescribed limits so far as any of the provisions of this Agreement are involved... . * * * * * * ARTICLE VII. In cases where the Joint Trade Board deter- mines an "emergency" exists for which Local No. 5 fails to supply Mechanics or Improvers, the party of the first part may secure the "emergency" number agreed upon. "Emergency" Mechanics and Improvers shall be paid the rate of wages as hereinafter speci- fied in this agreement, and shall work under "permit" of Local No. 5 until replaced by members of said Union. [Emphasis supplied.] Concededly, article XI of this contract did not expressly provide that the Association hire only, or primarily, union members. Article VII, however, by providing for the hiring of nonmembers only in "emergency" situations, when no union members were available, and 8 The Trial Examiner inadvertently found that Spooner last worked for J . T. Thorpe Company on June 8, 1950 . This date is hereby corrected to June 8, 1949 . The Trial Examiner also found that Murray testified without contradiction with respect to a re- mark allegedly made to him by Plant Insulation Company's superintendent, Cordell, in April 1950 . Cordell testified , however, that, , as far as he could recall , he had not heard from Murray since July 1949. 4 This contract expired on May 1, 1950. On May 28, 1950 , the Respondent Association and the Respondent Union entered into a new contract , which contained hiring provisions identical to those in their 1949 contract. MUNDET CORK CORPORATION 1145 for their ultimate replacement by union members, dispelled any doubt as to the meaning of article XI. Considering these provisions together, we find that the Respondents' 1949 contract,.by its terms, both express and implied, provided for preferential hiring of mem- bers of the Respondent Union. Moreover, as pointed out by the Trial Examiner, even if the hiring provisions of the contract were to be considered somewhat ambiguous, the practice of the parties pursuant thereto clearly establishes that the Respondents mutually interpreted and administered the contract as one requiring preferential hiring. - Accordingly, we conclude that, by executing, accepting, and enforc- ing this contract, the Respondent Association and the Respondent Employers violated Section 8 (a) (1), 8 (a) (2), and 8 (a) (3) of the Act, and the Respondent Union violated Section 8 (b) (2) and 8 (b) (1) (A) of theAct5 2. We agree with the Trial Examiner's conclusion that Mundet discriminated against Warren Spooner, in violation of Section 8 (a) (3) and 8 (a) (1) of the Act, when it terminated his employment on June 20, 1949; 6 and that the Respondent Union, by requesting and .obtaining Spooner's discharge, violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. It is clear that, in laying off Spooner, Mundet was acceding to the Union's demands. Thus, for example, Spooner's foreman, Verne Vickers, informed Spooner, at the time, that he was being laid off at the request of the Union. Similarly, when Spooner .telephoned Bruce Porter, business agent of the Respondent Union, later that day, Porter acknowledged that he was aware of Spooner's layoff and stated that he was "merely carrying out orders." As there was no valid union-security agreement in effect, Mundet's acceptance of the Union's determination that Spooner be discharged was plainly violative of the Act.7 We also find, in accord with the conclusion of the Trial Examiner, that neither Mundet nor Marine has discriminated against Spooner , The Trial Examiner concluded that the Union did not thereby violate Section 8 (b) (1) (A) of the Act . For the reasons stated in New York State Employers Association, Inc, at al., 93 NLRB 127, we find that the Union, by executing , accepting , and enforcing this contract , violated Section 8 ( b) (1) (A) as well as Section 8 (b) (2) of the Act. At the hearing , the Respondent Association objected to the introduction of evidence relating to any alleged discrimination against Spooner on the grounds (1) that the issues regarding Spooner's layoff on June 20, 1949, had been disposed of in a prior settle- ment agreement , and (2 ) that Section 10 (b) of the Act precluded the Board from con- sidering any subsequent alleged discrimination based on events which occurred more than 6 months before August 1, 1950, when the complaint herein was issued. For the reasons stated by the Trial Examiner , we find no merit to these contentions. Unlike the Trial Examiner , however, we find that the Association's contentions were not ad- dressed to the consideration of the contract involved herein, but related solely to the alleged discrimination against Spooner. 'American Pipe and Steel Corporation , 93 NLRB 54 . We therefore find it unneces- sary to determine the basis for the Union 's request that Spooner be laid off , and do not rely, as did the Trial Examiner, on letters sent to the Board by the Respondent Union and Mundet , explaining the reasons for the Union ' s request and Mundet 's acquiescence therein. 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since June 23, 1949. As stated by the Trial Examiner, Spooner was reinstated by Mundet on June 23, 1949, and worked intermittently .for Mundet until July 11, 1949, when he was laid off for lack of work. On July 26, 1949, Spooner was employed by Marine and worked until September 11, 1949, when his employment was terminated in connection with a regular layoff. Although Spooner has not since been employed by either Mundet or Marine, there is nothing in the .record to indicate that Spooner's subsequent failure to obtain employ- ment was in any way related to his nonmembership in the Union or -to his inability to obtain a permit from the Union. Under these cir- cumstances, we conclude, as did the Trial Examiner, that Marine's and Mundet's termination of Spooner's employment after June 23, 1949, and their subsequent failure to reemploy him were due solely to the unavailability of work .8 3. The Trial Examiner found that Marine discriminated against Frederick Turner by terminating his employment on February 16, 1950, and against Nick Cito and Narciso Munoz by refusing to employ them in February and April 1950, respectively, because of their in- ability to secure permits from the Respondent Union. We agree. The Trial Examiner found, however, that Marine did not discrimi- nate against Don Murray and Arthur Peterson, whose discharges occurred subsequently. We do not agree with this conclusion. We perceive no basis for distinguishing between Murray and Peter- son, on the one hand, and Turner, Cito, and Munoz, on the other. All had previously worked for Marine or for other members of the Respondent Association pursuant to permits issued by the Respondent Union. In October or November 1949, when employment opportuni- ties in the field of commercial insulation started to decrease, the Union discontinued its practice of issuing permits to nonmembers. However, all these employees continued to work for Marine, performing com- mercial insulation work, for several months after the Union had ceased issuing permits. In February 1950, all were informed by repre- senatives of Marine that they would no longer be able to work ,without permits from the Union and that the Union was "taking over" this works Munoz, Cito, and Turner have not been employed since then; Murray and Peterson, however, were retained for a while longer. Had such termination or failure to reemploy him been due to Spooner 's nonmember- ship in the Union or to his lack of a union permit, the conduct of Marine and Mundet would have been violative of the Act in view of the absence of a valid union-security agreement. And whether Spooner had renewed his efforts to join the Union or had sought a permit from the Union would have been irrelevant , although the Trial Examiner may be suggesting the contrary. ° Thus, Copeland George, a field superintendent for Marine , told Cito, on February 15, and Turner and Peterson , on February 16, that they would not be able to work any longer as the Union was "taking over" the work they were doing . Early in February, when Munoz applied for work, he was informed by George Ferry, another field superin- tendent, that Marine would not hire him without a permit. On February 24, 1950, when MUNDET CORK CORPORATION 1147 With respect to this latter period, after February 1950, the record 'shows the following : After Field Superintendent George told Peter- son and Turner, on February 16, 1950, that the Union was "taking over" the Hughes Aircraft Company job, Peterson was permitted to finish the job,10 although Turner was discharged and replaced by a member of the Respondent Union. Peterson worked on this project until it was completed, around the end of March 1950. Upon the completion of the project, Peterson asked George for additional work, but was told by the latter that, although work was available, only members of the Respondent Union would be hired thereafter. How- ever, both Peterson and Murray were reemployed 'and worked for Marine intermittently throughout April 1950 until their discharge at the end of April. The circumstances leading to their discharge are clear. Both were working at a Bank of America project when John Suitor, a representative of the Respondent Union, visited the job site and asked Murray and Peterson what they were doing there. George thereupon informed them that Marine had ordered their discharge as the Union was "after" the company. Murray's and Peterson's em- ployment was thus terminated, although the job on which they were working had not been completed. Although Murray and Peterson were employed by Marine for a month or two after the other complainants had ceased work, we find that the critical facts in the cases of Murray and Peterson are those involving the Bank of America job. An analysis of this incident compels the conclusion that, like Turner, Munoz, and Cito, Murray and Peterson were discharged at that time for discriminatory reasons. In this connection, we reject the Trial Examiner's conclusion that the record does not contain evidence sufficient to show that work was, in Murray applied for work after a short leave of absence , George informed him that a "big change" had occurred and that the Union had "stopped" him from working. On the next day, Joseph Christian, Marine's contract sales manager, told Murray that work was available , but that if Marine hired Murray, the Union would picket the job. Christian also informed Turner, Cito, Murray, and Peterson, during a conference with them on February 28, 1950, that he had work available and would like to put them to work, but that he could not do so because the Union would "stop" the work. 10 Peterson was told at the time that he would be permitted to remain until the job was completed It is not entirely clear, however, why Peterson was allowed to remain on the job. George testified that Christian told him that the Union had agreed to let Peterson stay on until the Hughes job was completed Christian denied this , however, and testified that Turner and all the others except Peterson were "pulled off" the job and replaced by more competent men because the project had been unduly delayed, and that Peterson was retained because he had been with the company for a long time. In view of the lack of evidence that Turner was an incompetent worker and the fact that Christian told Turner that he was being laid off because he did not have a permit from the Union , we find, in accord with George's testimony, that Turner and the others on the Hughes job were discharged as a result of union pressure . Therefore, it follows, and we find , that an exception was made in Peterson's case, as George stated, because of some agreement between Marine and the Union. 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact, available for Murray and Peterson in April 1950 and thereafter." Such a finding is completely inconsistent with the facts surrounding Murray's and Peterson's discharge in April. Assuming, but not deciding, that work was not available for Murray on February 24, 1950, when George informed him that the Union had "stopped" him from working,- or for Peterson at the end of March 1950, when George informed him that Marine would hire only members of the Respondent Union for commercial insulation work, we believe that the conclu- sion is inescapable that work was in fact available for them in April 1950. Thus, as found above, both Murray and Peterson were dis- charged, at the end of April 1950, before the completion of their work on the Bank of America project. It is clear, therefore, and we find, that there was work still available at that time, and that Murray's and Peterson's employment was terminated, as George so informed them, because of pressure by the Union created by their lack of union membership and their inability to obtain permits from the Union 1s Accordingly, we conclude that by discharging Murray and Peter- son in April 1950, Marine discriminated against them, in violation of 11 In concluding that work was probably not available for Murray and Peterson in April 1950 and thereafter , the Trial Examiner found that "George's statements to the con- trary . . . If made, reflected an analysis of the Respondent Marine's situation grounded in his union partisanship , and should not be taken as a reliable indication that the Re- spondent Marine would have considered the employment of Murray and Peterson for such work, absent discrimination ." We cannot adopt this finding. We find, instead, that George did , in fact, inform Murray and Peterson , in April 1950 and thereafter, that work was available , and that George 's statements accurately reflected the employment situation at such times. Accepting the Trial Examiner 's view that George's testimony is to be credited only where corroborated , we find such corroboration here, not only in the testimony of Murray and Peterson , which the Trial Examiner credited , but in the other factors detailed here- inafter. Thus , although the parties stipulated that Marine 's total dollar payroll for duct insulation , the type of work performed by Murray and Peterson , declined about I percent in 1950, as compared to 1949, we do not believe that this slight decline in the amount of available duct insulation jobs establishes that Marine did not have work available , in April 1950 and thereafter , for Murray and Peterson , who had worked for Marine for 41,2 and 9 years , respectively . In fact, such work must have been available for them in April, when Murray and Peterson were discharged , as found above, in the middle of a job. Moreover , it is equally clear that other types of commercial insulation work were also available in April, despite the fact that Marine's total dollar payroll for commercial insulation work, in general , declined 38 percent in 1950, as compared to 1949. Thus , as found by the Trial Examiner , Marine denied Munoz available employ- ment in April 1950 , when Ferry told Munoz that he had work available for him but would not hire him without a permit from the Union. 12 See footnote 9, supra. is Such pressure had also been exerted directly on the complainants . Thus, in January 1950, John Suitor had informed Peterson that he could not work without a permit from the Union . Similarly , when Munoz advised the Union, in April 1950, that Ferry had work available for him , Union Business Agent Hutchinson informed Munoz that the Union would not issue him a permit and that Munoz could not go to work without one. Although Murray and Peterson each worked 6 hours for Marine after their discharge in April, this employment occurred during the week ending May 21, 1950, when , apparently, there was no contract in effect between Marine and the Union, as the Respondents' 1949 contract had expired on May 1 , 1950, and their 1950 contract was not executed until May 28, 1950 . Neither Murray nor Peterson has been employed by Marine since the execution of the Respondents ' 1950 contract. 1vfUNDET CORK CORPORATION 1149 Section 8 (a) (3) and 8 (a) (1) of the Act, because of their non- membership in the Respondent Union and their inability to secure permits from the Union.14 4. We find, in accord with the conclusion of the Trial Examiner, that the Respondent Union caused Marine to discriminate against Turner, Cito, and Munoz, and thereby violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. We also conclude that the Union caused Marine to discriminate against Murray and Peterson, in violation of Section 8 (b) (2) and 8 (b) (1) (A). In reaching these conclusions, however, we find it unnecessary to infer, as the Trial Examiner did, that the Union had advised Marine and other members of the Asso- ciation that nonunion men could not be hired without permits and that, when the Union ceased issuing permits, the Respondent Em- ployers "were effectively put on notice that the Union intended to insist upon the assignment of available work in the field of commer- cial insulation to its members." Rather, we rely solely on the 1949 contract between the Respondent Association and the Respondent Union, which, as we have found, clearly set forth this discriminatory hiring policy. The Respondents' 1949 contract, as stated above, provided that mem- bers of the Respondent Association, such as Marine, could hire only union members, if union members were available, and that nonmem- bers could be hired only pursuant to permits issued by the Union. The Union, by becoming a party to this contract, became jointly respon- sible with Marine for establishing this discriminatory hiring policy. In discriminating against Turner, Cito, Munoz, Murray, and Peter- son, by conditioning their employment on the possession of such per- mits, Marine was giving effect to the unlawful hiring provisions of its contract with the Union. The fact that the Union may not have specifically requested that Marine discharge or refuse to employ these individuals does not exculpate the Union. As the Board stated in the Childs Company case,15 "once such [an unlawful] contract has resulted in actual discrimination," the Union, by executing and enforcing the contract, "must be deemed to have caused such discrimination." Accordingly, we conclude that the Respondent Union, in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act, caused Marine to discriminate against Turner, Cito, Munoz, Murray, and Peterson in violation of Section 8 (a) (3), even though no representative of the 14 The complaint alleges that Mundet discriminated against Spooner, and that Marine discriminated against Murray, Peterson, Munoz, Cito, and Turner, in violation of Sec- tion 8 (a) (3) and 8 (a) (1) of the Act There is, however, no allegation in the com- plaint that the Respondent Association discriminated against the individual complainants herein, nor was this issue litigated at the hearing. We have confined our determinations herein to those issues alleged and litigated. 15 93 NLRB 281. 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union may have asked Marine specifically to discharge or to refrain from hiring these individuals" 5. We find, as did the Trial Examiner, that Mundet independently violated Section 8 (a) (1) of the Act by Branch Manager Choate's statement to Spooner that Mundet was compelled, pursuant to its, agreement with the Union, to employ union men, and by Choate's offer of steady employment to Spooner if Spooner would withdraw the unfair labor practice charges then pending against Mundet. We also adopt the Trial Examiner's conclusion that Marine inde- pendently violated Section 8 (a) (1) by the following statements of its supervisors: (a) Contract Sales Manager Christian's remarks to Munoz and Turner that they would be unable to work without permits from the Union; and to Turner, Cito, Murray, and Peterson that he could not hire them because the Union would "stop" the work; (b) statements made to Munoz by Field Superintendent Ferry and Fore- man Short that Munoz could not work without a union permit; (c) Field Superintendent George's remarks to Turner, Cito, Murray, and Peterson that they could not work without permits; to Murray that the Union had "stopped" him from working; and to Peterson that Marine would hire only union members for commercial insulation work. 6. The Trial Examiner found, and we agree, that the Respondent Union independently violated Section 8 (b) (1) (A) of the Act by Business Agent Hutchinson's and Secretary Suitor's statements to Munoz and Peterson, respectively, that the latter could not work with- out permits from the Union. We find, further, that the Union vio- lated Section 8 (b) (1) (A) when Hutchinson informed Murray that the Union intended to restrict members of Local 5-B to work in the field of home insulation 17 The Remedy Having found that the Respondent Association, Marine Engineer- ing & Supply Company, Mundet Cork Corporation, J. T. Thorpe Com- pany, Plant Insulation Company, United Cork Company, and the Respondent Union have engaged in certain unfair labor practices, we shall order them to cease and desist therefrom and to take affirma- tive action necessary to effectuate the policies of the Act. We have found that Marine discriminated against Frederick M. D. Turner, Narcisco Duran Munoz, Nick Cito, Don Murray, and Arthur Peterson in violation of Section 8 (a) (3) and 8 (a) (1) of the Act, and that the Respondent Union caused Marine to do so in violation of 16 Utah Construction Co., 95 NLRB 196; Childs Company, footnote 15, supra. 17 The Trial Examiner found that this remark was made, but inadvertently failed to conclude that it violated the Act. MUNDET CORK CORPORATION 1151 Section 8 (b) (2) and 8 (b) (1) (A) of the Act 18 On October 31, 1950, Marine offered all these individuals immediate employment in positions substantially equivalent to those which had been discrimina- torily denied them. Turner accepted the offer and reported for work. Munoz, however, was unable to report for work as the hearing in these cases, which had been in recess, was resumed on November 2, 1950, and Munoz was called upon to testify.19 On November 3, Marine again offered Munoz employment as a transite mechanic. Munoz re- jected this offer on the ground that he would prefer regular commer- cial insulation work, at which he had been employed before Marine discriminated against him. Although Marine's original offer of em- ployment to Munoz was in a position substantially equivalent to that previously discriminatorily denied him, it did not, in these special circumstances, constitute a valid offer of reinstatement as its accept- ance would have required Munoz to absent himself from the hearing in these cases. With respect to Marine's second offer, it did not involve work substantially equivalent to that already discriminatorily denied Munoz 20 Therefore, we shall order Marine to offer Munoz imme- diate employment in a position substantially equivalent to that dis- criminatorily denied him in April 1950, without prejudice to his sen- iority or other rights and privileges. Cito rejected Marine's offer of employment and stated at the hear- ing that he did not desire reinstatement. Both Murray and Peterson also rejected Marine's offers of immediate employment, Murray be- cause he had to give his current employer 2 weeks' notice and Peter- son because he was ill at the time, but both stated that they desired reinstatement. Although Marine's offers to Murray- and Peterson constituted valid offers of employment,' neither Murray nor Peter- son was in a position to report for work at the time. Therefore, we shall order Marine to reinstate these two individuals, upon applica- tion, without prejudice to their seniority or other rights and privileges. In the event, however, that a position substantially equiva- lent to that discriminatorily denied Munoz is not immediately avail- able and positions substantially equivalent to those discriminatorily denied Murray and Peterson are not available when Murray and Peter- 18 We have also found that Mundet discriminatorily discharged warren H Spooner on June 20, 1949, in violation of Section 8 (a) (3) and 8 (a) (1) of the Act, and that the Union caused Mundet to discriminate against him, in violation of Section 8 (b) (2) and 8 (b) (1) (A ). As Spooner was reinstated on June 23, 1949, and was made whole for any loss of pay suffered as a result of the discrimination against him , we, In agreement with the Trial Examiner , find it unnecessary to order Mundet and the Union to take any affirmative action with respect to Spooner. 19 Marine was aware , at the time it made this offer , that the hearing in these cases was scheduled to resume on November 2, 1950 , and that Munoz , one of the complaining wit- nesses, had not yet testified. so Thus, his job as a transite mechanic would have paid $2.321/2 an hour as compared with the established rate of $2 50 an hour for regular commercial insulation work. 21 It does not appear that, when it made these offers, Marine had any knowledge of Murray 's or Peterson 's inability to accept them. 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son apply for employment,22 we shall order Marine to place their names on a preferential hiring list and offer them employment as work becomes available and before other persons are hired for such work, in the order determined by a system of seniority or other non- discriminatory practice as may heretofore have been applied in the conduct of Marine's business .23 We shall also order Marine and the Respondent Union, jointly and severally, to make whole Turner, Mu- noz, Cito, Murray, and Peterson for any loss of pay they may have suffered as a result of the discrimination against them. In accordance with the formula promulgated in F. W. Woolworth Company,24 and for the reasons stated therein, we shall order that the loss of pay suffered by Turner, Munoz, Cito, Murray, and Peterson be computed on the basis of each separate calendar quarter or portion thereof during the period from the date of the discrimination against them 25 to the date of a proper offer of employment or placement on a preferential hiring list, as the case may be. The quarterly periods, hereinafter called "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by de- ducting from a sum equal to that which Turner, Munoz, Cito, Mur- ray, and Peterson normally would have earned as wages during each such quarter or portion thereof, their respective net earnings, if any, in other employment during the same period .26 Earnings in one par- ticular quarter shall have no effect upon the back-pay liability for any other quarter. We shall further order, in accordance with the Woolworth decision'27 that Marine, upon request, make available to the Board and its agents all records pertinent to an analysis of the amounts of back pay due. With respect to Turner, Cito, Murray, and Peterson, Marine's and the Union's liability for back pay terminated on October 31, 1950, when Marine made a valid offer of reinstatement to these individuals. We have found that Marine did not make a proper offer of employ- ment to Munoz; therefore back pay will accrue until a valid offer is made or, if no substantially equivalent position is available, until the placement of his name on a preferential hiring list. It would, how-- 22 In view of the evidence in the record that job opportunities in the field of commercial insulation decreased during 1950, there is a possibility that work may not be immediately available for Munoz or for Murray and Peterson when they apply for employment. 23 The Warren Company, Incorporated, 90 NLRB 689. 24 90 NLRB 289. 25 As found by the Trial Examiner, Marine discriminated against Turner when it termi- nated his employment on February 16, 1950, and discriminated against Cito and Munoz when it denied them available employment in February 1950 and April 1950, respectively. With respect to Murray and Peterson , we have found that Marine discriminatorily dis- charged them in April 1950. u As these are consolidated proceedings , involving both Marine and the Union, we find it unnecessary to provide , as the Trial Examiner did, for the deduction of such sums as Marine normally would have deducted from their wages and normally would have paid, on its own account , for social security and other similar benefits for these individuals. 27 Footnote 24, supra. MUNDET CORK CORPORATION 1153 ever, be inequitable to the Union to permit the amount of its liability for back pay to increase despite the possibility of its willingness top cease its past discrimination, in the event that Marine should fail promptly to' offer employment to Munoz or to place his name on a preferential hiring list. We shall therefore provide that the Union may terminate its liability for further accrual of back pay to Munoz by notifying Marine, in writing, that it has no objection to Munoz' employment. The Union shall not thereafter be liable for any back pay accruing after 5 days from the giving of such notice. Absent such notification, the Union shall remain jointly and severally liable with Marine for all back pay to Munoz that may accrue until Marine complies with our order to offer him employment or place his name on a preferential hiring list 28 We have found that, by executing, accepting, and enforcing their 1949 agreement with the Union, the Respondent Association and its member companies, Marine Engineering & Supply Company, Mundet Cork Corporation, J. T. Thorpe Company, Plant Insulation Company, and United Cork Company, violated Section 8 (a) (2) as well as, Section 8 (a) (1) and 8 (a) (3) of the Act. As the Repondents' 1950 contract contains provisions substantially identical to those in their 1949 agreement,29 we, like the Trial Examiner, view the contract ex- ecuted by the Respondent Association and the Respondent Union on May 28, 1950, as a renewal of their 1949 agreement. Therefore, we: shall order the Association and the Respondent Employers to with- draw recognition from the Union and to cease giving effect not only to their 1949 contract, but also to their May 28, 1950, contract, with the Union, or to any modification, extension, supplement, or renewal thereof, unless and until the Union shall have been certified by the Board as the exclusive representative of their employees. Nothing in our Order, however, shall be deemed to require the Respondent Asso- ciation or the Respondent Employers to vary or abandon those wage, hour, seniority, or other substantive features of their relations with their employees, established in the performance of said contracts, or to prejudice the assertion by the employees of any rights they may have under such agreements.30 The Trial Examiner recommended that each of the Respondents cease and desist from engaging in only those unfair labor practices which he found it had committed. As no exceptions have been taken thereto, we shall, in accord with the recommendations of the Trial Ex- aminer, enter a narrow cease and desist order against each of the Respondents. 3 Pinkerton's National Detective Agency , Inc., 90 NLRB 205; Childs Company, footnote. 15, supra. m The only changes made in the 1950 contract relate to travel allowances and the ter- mination date of the contract. 30 Straus Stores Corporation, 94 NLRB 440 ; Julius Resnick, Inc., 86 NLRB 88. 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order Upon 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 : I. The Respondent, Insulation Contractors of Southern California, Inc., Los Angeles, California, and its members, Marine Engineering & Supply Company, Mundet Cork Corporation, J. T. Thorpe Company, Plant Insulation Company, and United Cork Company, their officers, agents, successors, and assigns, shall: (a) Cease and desist from: (1) Entering into, renewing, or enforcing any agreement with International Association of Heat & Frost Insulators & Asbestos Workers, A. F. L., Local 5, or any other labor organization, containing union-security provisions, except as authorized by-the proviso to Sec- tion 8 (a) (3) of the Act. (2) Recognizing International Association of Heat & Frost Insu- lators & Asbestos Workers, A. F. L., Local 5, or any successor thereto, as the representative of any employees of the Respondent Employers for the purpose of dealing with the Association or the Respondent -Employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until such labor organization shall have been certified by the National Labor Relations Board. (3) Performing or giving effect to their 1949 agreement with Inter- national Association of Heat & Frost Insulators & Asbestos Workers, A. F. L., Local 5, or to any modification, extension, supplement, or renewal thereof, including their May 28, 1950, agreement, or to any other contract, agreement, or understanding entered into with said labor organization relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor organization shall have been certified by the National Labor Relations Board. (4) In any like or related manner interfering with, restraining, or coercing employees or applicants for employment in the exercise of the right to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective -bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8• (a) (3) of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : MUNDET CORK CORPORATION 1155 (1) Withdraw and withhold all recognition from International As- sociation of Heat & Frost Insulators & Asbestos Workers, A. F. L., Local 5, as the representative of any employees of the Respondent Employers for the purpose of dealing with the Association or the Respondent Employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employ- ment, unless and until said labor organization shall have been certi- fied by the National Labor Relations Board. (2) Post at their offices and places of business in the Los Angeles, California, area, copies of the notice attached hereto and marked "Appendix A." 31 Copies of said notice, to be furnished by the Re- gional Director for the Twenty-first Region, shall, after being duly signed by the Respondent Association's representative, be posted by the Association and each of the Respondent Employers immediately upon receipt thereof and maintained by them for sixty (60) consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Association and each of the Respondent Employers to insure that said notices are not altered, defaced, or covered by any other material. (3) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent Association and the Respondent Employers have taken to comply herewith. II. The Respondent, Mundet Cork Corporation, Maywood, Cali- fornia, its officers, agents, successors, and assigns, shall : (a) Cease and desist from: (1) Encouraging membership in International Association of Heat & Frost Insulators & Asbestos Workers, A. F. L., Local 5, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment. (2) Informing its employees or applicants for employment that it will hire only members of International Association of Heat & Frost Insulators & Asbestos Workers, A. F. L., Local 5; and attempting to induce employees or applicants for employment to withdraw unfair labor practice charges by offering them permanent employment. (3) In any like or related manner interfering with, restraining, or coercing its employees or applicants for employment in the exercise of the right to self-organization, to form, join, or assist labor organi- zations, to bargain collectively through representatives of their own ffi In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "A Decision and Order ," the words , "A Decree of the United States Court of Appeals Enforcing." 1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment , as authorized in Section 8 (a) (3) of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Post at its Maywood, California, office and at its places of busi- ness in the Los Angeles, California, area , copies of the notice attached hereto and marked "Appendix B." 32 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by Mundet's representative, be posted by Mundet immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Mundet to insure that said notices are not altered , defaced , or covered by any other material. (2) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order, what steps Mundet has taken to comply herewith. III. The Respondent, Marine Engineering & Supply Company, Los Angeles , California, its officers , agents, successors , and assigns, shall; (a) Cease and desist from: (1) Encouraging membership in International Association of Heat & Frost Insulators & Asbestos Workers, A. F. L., Local 5, or in any other labor organization of its employees , by discharging or refusing to reinstate any of its employees, or by refusing to hire or consider for employment any qualified applicant for employment , or by dis- criminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment. (2) Informing its employees or applicants for employment that it will hire or continue in employment only members of International Association of Heat & Frost Insulators & Asbestos Workers, A. F. L., Local 5; and informing its employees and applicants for employment that it will hire nonmembers of said labor organization only pursuant to permits issued by International Association of Heat & Frost Insu- lators & Asbestos Workers, A. F. L., Local 5, the issuance of such permits being conditioned upon the nonavailability for employment of members of said labor organization. (3) In any like or related manner interfering with, restraining, or coercing its employees or applicants for employment in the exercise of the right to self -organization , to form , join, or assist labor organiza- $2 Ibid. MUNDET CORK CORPORATION 1157 tions, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8 (a) (3) of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Offer to Narciso Duran Munoz, Don Murray, and Arthur Peter- son, in the manner set forth in the section herein entitled, "The Rem- edy," employment in positions substantially equivalent to those dis- criminatorily denied them, without prejudice to their seniority or other rights and privileges. (2) Upon request, make available to the National Labor Relations Board, or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to an analysis of the amounts of back pay due under the terms of this Order. (3) Post at its office and places of business in the Los Angeles, Cali- fornia, area, copies of the notice attached hereto and marked "Appen- dix C." 33 Copies of said notice, to be furnished by the Regional Direc- tor for the Twenty-first Region, shall, after being duly signed by Marine's representative, be posted by Marine immediately upon receipt thereof and maintained by it for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Marine to insure that said notices are not altered, defaced, or covered by any other material. (4) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order, what steps Marine has taken to comply herewith. IV. The Respondent, International Association of Heat & Frost Insulators & Asbestos Workers, A. F. L., Local 5, Los Angeles, Cali- fornia, its officers, representatives, and agents, shall: (a) Cease and desist from : (1) Causing or attempting to cause Insulation Contractors of Southern California, Inc., Marine Engineering & Supply Company, Mundet Cork Corporation, J. T. Thorpe Company, Plant Insulation Company, United Cork Company, their officers, agents, successors, or, assigns, to discharge employees or to deny employment to any qualified applicants for employment or to discriminate in any other manner against their employees or applicants for employment in violation of Section 8 (a) (3) of the Act. sa Ibid. 974176-52-vol 9G 74 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Entering into, renewing, or enforcing any agreement with In- sulation Contractors of Southern California, Inc., or with any of the Respondent Employers, containing union-security provisions, except as authorized by the proviso to Section 8 (a) (3) of the Act. (3) Performing or giving effect to its 1949 agreement with Insula- tion Contractors of Southern California, Inc., or to any modification, extension, supplement, or renewal thereof, including its May 28, 1950, agreement, or to any other contract, agreement, or understanding entered into with said Respondent relating to grievances, labor dis- putes, wages, rates of pay, hours of employment, or other conditions of -employment, unless and until it has been certified by the National Labor Relations Board. (4) Informing employees of Marine or the other Respondent Em- ployers that nonmembers of the Respondent Union will not be per- mitted to work without permits issued by it, the issuance of such per- mits being conditioned upon the nonavailability for employment of its -own members; and informing them, further, that nonmembers of the Union will not be permitted to work at all in the field of commercial insulation. (5) In any like or related manner restraining or coercing employ- ees of, or applicants for employment with, Marine Engineering & ,Supply Company, or Mundet Cork Corporation, J. T. Thorpe Com- pany, Plant Insulation Company, or United Cork Company, its suc- cessors or assigns, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by -an agreement requiring membership in a labor organization as a con- =dition of employment, as authorized in Section 8 (a) (3) of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Notify Insulation Contractors of Southern California, Inc., Marine Engineering & Supply Company, Mundet Cork Corporation, J. T. Thorpe Company, Plant Insulation Company, and United Cork 'Company that it has no objection to the hiring and employment of -Frederick M. D. Turner, Narciso Duran Munoz, Nick Cito, Don Mur- ray, Arthur Peterson, or any other person without membership in, or a permit issued by, the Union. (2) Post at its business offices and meeting halls in Los Angeles, California, copies of the notice attached hereto and marked "Ap- pendix D." 34 Copies of.said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed .by the Respondent Union's representative, be posted by the Respond- --ent Union immediately upon receipt thereof and maintained by it for .sixty (60) consecutive days thereafter, in conspicuous places, includ- i' IMd. MUNDET CORK CORPORATION 1159 ing all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent Union to insure that ,said notices are not altered, defaced, or covered by any other material. (3) Mail to the Regional Director for the Twenty-first Region signed copies of the notice attached hereto as Appendix D, for posting, the Respondent Insulation Contractors of Southern California, Inc., and the Respondent Employers willing, at the offices and places of business of the Respondent Insulation Contractors of Southern Cali- fornia, Inc., and the Respondent Employers in the Los Angeles -California, area, in places where notices to employees are customarily posted. The notices shall be posted for a period of sixty (60) con- secutive days thereafter. Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being -duly signed as provided in paragraph IV (b) (2) of this Order, be forthwith returned to the Regional Director for such posting. (4) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent Union has taken to comply herewith. V. The Respondents, Marine Engineering & Supply Company, Los Angeles, California, its officers, agents, successors, and assigns, and International Association of Heat & Frost Insulators & Asbestos Workers, A. F. L., Local 5, Los Angeles, California, its officers, repre- sentatives, and agents, shall jointly and severally, in the manner set forth in the section herein entitled "The Remedy," make whole Fred- erick M. D. Turner, Narciso Duran Munoz, Nick Cito, Don Murray, and Arthur Peterson for any loss of pay each of'them may have suf- fered as a result of the discrimination against him. IT IS FURTHER ORDERED that the complaint herein, insofar as it alleges other violations of the Act, be, and it hereby is, dismissed., Appendix A NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT 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, as amended, we hereby notify employees of, and appli- cants for employment with, our members that : WE WILL NOT enter into, renew, or enforce any agreement with INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS & ASBESTOS WORKERS, A. F. L., LOCAL 5, or any other labor organi- zation, containing union- security provisions, except as authorized by the proviso of Section 8 (a) (3) of the Act. . WE WILL NOT perform or give effect to our 1949 agreement with INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS & 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ASBESTOS WORKERS, A. F. L., LOCAL 5, or to any modification, extension, supplement, or renewal thereof, including our May 28, 1950, agreement, or to any other contract, agreement, or under- standing with said labor organization relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor organiza- tion shall have been certified by -the National Labor Relations Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees or applicants for employment in the exercise of their right of self-organization, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL withdraw and withhold all recognition from INTER- NATIONAL ASSOCIATION OF HEAT & FROST INSULATORS & ASBESTOS WORKERS, A. F. L., LOCAL 5, as the representative of any employees of our members for the purpose of dealing with us or our mem- bers, concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor organization shall have been certified by the National Labor Relations Board. All employees of our members are free to become, remain, or to, refrain from becoming or remaining, members of the above-named union or any other labor organization, except to the extent that this. right may be affected by an agreement in conformity with Section 8. (a) (3) of the Act. INSULATION CONTRACTORS OF SOUTHERN CALI- FORNIA, INC., AND ITS MEMBERS : MARINE ENGINEERING & SUPPLY COMPANY MUNDET CORK CORPORATION J. T. THORPE COMPANY PLANT INSULATION COMPANY UNITED CORK COMPANY Respondent. By ----------------------------------------------- (Representative ) (Title) Dated --------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. MUNDET CORK CORPORATION 1161 Appendix B NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT 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, as amended, we hereby notify our employees and applicants for employment that : WE WILL NOT encourage membership in INTERNATIONAL ASSO- CIATION OF HEAT & FROST INSULATORS & ASBESTOS WORKERS, A. F. L., LOCAL 5, or in any other labor organization of our em- ployees, by discharging or refusing to reinstate any of our em- ployees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment. WE WILL NOT inform our employees or applicants for employ- ment that we will hire only -members of INTERNATIONAL ASSOCIA- TION OF HEAT & FROST INSULATORS & ASBESTOS WORKERS, A. F. L., LOCAL 5; or attempt to induce our employees or applicants for employment to withdraw unfair labor practice charges by offering them permanent employment. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees or applicants for employment in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. All our employees are free to become, remain, or to refrain from becoming or remaining, members of the above-named union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employ- ment or any term or condition of employment against any employee or applicant for employment because of membership in or nonmember- ship in any such labor organization. MUNDET CORK CORPORATION, Employer. By ----------------------------- (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix C NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT 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, as amended, we hereby notify our employees and applicants for employment that : WE WILL NOT encourage membership in INTERNATIONAL Asso- CIATION OF HEAT & FROST INSULATORS & ASBESTOS WORKERS,, A. F. L., LOCAL 5, or in any other labor organization of our em- ployees, by discharging or refusing to reinstate any of, our employees, or by refusing to hire or consider for employment any qualified applicant for employment, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment. WE WILL NOT inform our employees or applicants for employ- ment that we will hire or continue in employment only members, Of INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS & ASBESTOS WORKERS, A. F. L., LOCAL 5; or inform our employees or applicants for employment that we will hire nonmembers of said labor organization only pursuant to permits issued by INTER- NATIONAL ASSOCIATION OF HEAT & FROST INSULATORS & ASBESTOS WORKERS, A. F. L., LOCAL 5, where the issuance of such permits is conditioned upon the nonavailability for employment of members of said labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees or applicants for employment in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer immediate employment to Narciso Duran Munoz in a position substantially equivalent to that discriminatorily denied him, without prejudice to his seniority or other rights and privileges. WE WILL offer employment, upon application, to Don Murray and Arthur Peterson in positions substantially equivalent to those discriminatorily denied them, without prejudice to their seniority or other rights and privileges. - - WE WILL make whole the individuals named below for any loss MUNDET CORK CORPORATION 1163 of pay they may have suffered as a result of our discrimination against them : Frederick M. D. Turner Don Murray Narciso Duran Munoz Arthur Peterson Nick Cito All our employees are free to become, remain, or to refrain from- becoming or remaining, members of the above-named union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee or applicant foi employment because of membership in or nonmembership in any such labor organization. MARINE ENGINEERING & SUPPLY COMPANY, Employer. By--------------------------------------------- (Representative ) ( Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix D NOTICE To ALL MEMBERS OF INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS & ASBESTOS WORKERS, A. F. L., LOCAL 5, AND TO ALL EMPLOYEES OF7 AND APPLICANTS FOR EMPLOYMENT WITH, MARINE ENGINEERING & SUPPLY COMPANY, MUNDET CORK CORPORATION, J. T. THORPE COMPANY, PLANT INSULATION COMPANY, AND UNITED CORK COMPANY. 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, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause INSULATION CONTRAC- TORS OF SOUTHERN CALIFORNIA, INC., MARINE ENGINEERING & SUPPLY COMPANY, MUNDET CORK CORPORATION, J. T. THORPE COMPANY, PLANT INSULATION COMPANY, UNITED CORK COMPANY, their officers, agents, successors, or assigns, to discharge employees or to deny employment to any qualified applicants for employ- ment or to discriminate in any other manner against their em- ployees or applicants for employment in violation of Section 8 (a) (3) of the Act. 1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT enter into, renew, or enforce any agreement with INSULATION CONTRACTORS OF SOUTHERN CALIFORNIA, INC., or with any of the Respondent Employers, containing union-security pro- visions, except as authorized by the proviso to Section 8 (a) (3) of the Act. WE WILL NOT perform or give effect to our 1949 agreement with INSULATION CONTRACTORS OF SOUTHERN CALIFORNIA, INC., or to any modification, extension, supplement, or renewal thereof, including our May 28, 1950, agreement, or to any other contract, agreement, or understanding with said organization relating to grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other conditions of employment, unless and until we have been certified by the National Labor Relations Board. WE WILL NOT inform employees of MARINE ENGINEERING & SUPPLY COMPANY, or employees of the other Respondent Em- ployers, that nonmembers of our organization will not be per- mitted to work without permits issued by us, where the issuance of such permits is conditioned upon the nonavailability for employment of our members; or inform them that nonmembers of our organization will not be permitted to work at all in the field of commercial insulation. WE WILL NOT in any like or related manner restrain or coerce employees of, or applicants for employment with , MARINE EN- GINEERING & SUPPLY COMPANY, or MUNDET CORK CORPORATION, J. T. THORPE COMPANY, PLANT INSULATION COMPANY, OR UNITED CORK COMPANY, its successors or assigns, in the exercise of their right to self-organization, to form, join, or assist labor organ- izations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL notify INSULATION CONTRACTORS OF SOUTHERN CALI- FORNIA, INC., MARINE ENGINEERING & SUPPLY COMPANY, MUNDET CORK CORPORATION, J. T. THORPE COMPANY, PLANT INSULATION COMPANY and UNITED CORK COMPANY that we have no objection to the hiring or employment of Frederick M. D. Turner, Narciso Duran Munoz, Nick Cito, Don Murray, Arthur Peterson, or any other person without being a member of, or being hired pursuant to permit issued by, our organization. WE WILL make whole the individuals named below for any loss MUNDET CORK CORPORATION ' 1165 of pay they may have suffered as a result of the discrimination against them : Frederick M. D. Turner Nick Cito Narciso Duran Munoz Don Murray Arthur Peterson Dated------ By ------------------------------------------ -- - (Representative) (Title) INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS & ASBESTOS WORKERS, A. F. L., LOCAL 5, Labor Organization. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE After an investigation of certain charges and amended charges duly filed by and on behalf of individuals designated in this Intermediate Report by name and referred to collectively as the Complainants,' the General Counsel of the National Labor Relations Board,' in the name of the Board, caused the Regional Director of its Twenty-first Region at Los Angeles, California, to issue a consolidated complaint on August 1, 1950. Named therein as the Employer Respondents were the Insulation Contractors of Southern California, Inc., designated in this Re- port as the Association ; Marine Engineering and Supply Company, herein called Marine ; Mundet Cork Corporation, referred to herein as Mundet ; J. T. Thorpe Company, designated in this Report as Thorpe ; Plant Insulation Company, herein called Plant ; and the United Cork Company, designated herein as United. The International Association of Heat and Frost Insulators and Asbestos Work- ers, Local No. 5, A. F. of L., designated in this Report as the Union, or simply as the Local, was named as a Union Respondent. The consolidated complaint alleged, in substance, that the Employer Re- spondents engaged and have continued to engage in unfair labor practices af- fecting commerce, within the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, as amended and reenacted by the Labor Management Relations Act. of 1947, 61 Stat. 136, designated herein as the Act, and that the Union Respondent had en- gaged and continues to engage in unfair labor practices affecting commerce, within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the Act 2 Copies of each charge, the amended charges, the Regional Director's order that the cases be consolidated, the consolidated complaint, and a notice of ' This designation will include Warren H Spooner, Frederick M. D. Turner, Don Mur- ray, Arthur Peterson, Nick Cite, and Narciso Duran Munoz 2 The General Counsel and his representative are designated in this Report as the General Counsel, and the National Labor Relations Board as the Board. Before its amendment, pursuant to a motion offered by the General Counsel and a determination in connection with that motion, the consolidated complaint had alleged that certain unfair labor practices affecting Warren H. Spooner and Frederick M. D. Turner had been committed by Local No. 5A of the International Association of Heat and Frost Insulators and Asbestos Workers, A. F of L. In the light of the evidence, which is sufficient to establish that no such organization ever existed, and that "5A" is merely a misnomer conventionally used to designate the Union Respondent in this case, a motion by the General Counsel to correct the complaint accordingly was granted. 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing were duly served upon the Employer Respondents, the Union Respond- ent, all of the Complainants with the exception of Cito and Murray,' and Mrs. Edwin Selvin, the signatory of an amended charge filed on behalf of warren H. Spooner. With respect to the unfair labor practices, the consolidated complaint, as amended, alleged in substance: (1) That the Association, for its members- the other Employer Respondents-had entered into a joint, written, exclusive collective bargaining agreement with the Respondent Union in regard to the wages, rates of pay, hours of work, and other conditions of employment ap- plicable to the employees of the Respondent Employers engaged in insulation work, which required them to maintain membership in the Respondent Union as a condition of employment; (2) that the parties involved in that agree- ment have enforced and given effect to it at all times since May 1, 1949, when it was executed, and have required membership in the Respondent Union as a condition of employment by the Employer Respondents; (3) that no petition for an election to establish the authority of the Respondent Union to bargain for a union-security clause in its agreement with the Employer Respondents, under Section 9 (e) of the Act, was ever filed-before or after the execution of the agreement previously-noted-and that no such election has ever been held among the workers in the employ of the Employer Respondents ; and (4) that the agreement to which reference has been made was, and is, illegal and invalid, by virtue of its requirements with respect to the maintenance of membership in the Respondent Union as a condition of employment by the Respondent Em- ployers, in the absence of an election held in conformity with Section 9 (e) of the statute to authorize a collective bargain with respect to union security. In the consolidated complaint, as amended, it was also alleged : (5) That the Respondent Marine, by its officers, agents, and supervisory employees, had in- terfered with, restrained, and coerced the workers in its employ by discharging five of the Complainants in February of 1950, by its subsequent refusal and fail- ure to reinstate three of them, by its failure to reinstate two of them until a specified date in April of 1950, by its subsequent discharge of these individuals on a later date in April, and by its refusal or failure to reinstate them since that date-all at the request and insistence of the Respondent Union (a) because they did not hold membership in it, (b) under color of the illegal and invalid collec- tive bargaining agreement previously noted, and (c) because it had refused and still refuses to issue work permits to them or to accept them into membership ; and (6) that the Respondent Mundet, by its officers, agents, and supervisory employees, had interfered with, restrained, and coerced the workers in its em- ploy by discharging warren H. Spooner on or about June 27, 1949, and by its subsequent refusal and failure to reinstate him-all at the request and insistence of the Respondent Union (a) because he did not hold membersip in it, (b) under color of the illegal and invalid collective bargaining agreement previously noted, and (c) because it had refused and still refuses to issue a work permit to him or to accept him into membership. With respect to the Respondent Union, the consolidated complaint, as amended, alleged: (7) That the Union, by its officers, agents, and representatives had caused the Respondent Marine to discharge five of the Complainants and the Respondent Mundet to discharge Spooner; and (8) that the Union is presently causing the Respondent Marine and the Respondent Mundet to refuse reinstate- ment to these Complainants because they were not, and are not now, union 4 The record does establish that the documents in question were sent, by registered mail, to Murray and Cito among others ; as to them, however, it contains no return of -service. MtiNDET CORK CORPORATION 1167 Members, and under color of the illegal and invalid collective bargaining agree- ment previously noted. The conduct of the Association and its members, in connection with the execution and administration of the agreement previously noted, is charged as an unfair labor practice within the meaning of Section 8 (a) (1), (2), and (3) of the Act ; the conduct of the Respondent Union in that connection is alleged to be an unfair labor practice under Section 8 (b) (1) (A) and (2) of the statute as well. The course of conduct specifically attributed to the Respondents Marine and Mundet is charged as an unfair labor practice, with respect to each of them under Section 8 (a) (1) and (3) ; the activities of the Respondent Union, insofar as they relate to the conduct attributable to these Respondents Employers, are alleged to involve unfair labor practices within the meaning of Section 8 (b) -(1) (A) and (2) of the Act. The answer of the Employer Respondents, duly filed, admits that each of the association members named as a respondent is engaged in the distribution and Installation of insulation materials, but denies the other jurisdictional allegations of the complaint. Each of the Employer Respondents admits membership in the Association and admits the status of the latter as the agent of its members in labor relations matters and for the purpose of collective bargaining with labor organizations . Its status as an agent for its members in other respects is denied ; the answer also denies that the Association may be considered an employer under the Act as amended. The status of the Respondent Union as a labor organization within the meaning of the Act is, however, admitted. With respect to the contract between the Employer Respondents and the Union, the answer admits that the Association-for itself and for its members-did execute a collective bargaining agreement with that organization on April 1, 1949, cover- ing wages , rates of pay, hours, and other conditions of employment for the workers in the employ of the association members represented by the Local; the answer denies, however, that this agreement required union membership of the employees as a condition of continued employment. The Respondent Em- ployers, as a group, admit that the terms of the agreement were observed while it was in full force and effect, but deny that any of them required union member- ship as a condition of employment during that period. The Respondents Marine and Mundet admit the layoff or discharge of the Complainants, respectively, on or about the dates set forth in the complaint ; the other allegations of the com- plaint with respect to the Respondent Employers are, however, denied. The answer of the Union Respondent, also duly filed, denies the jurisdictional allegations of the complaint, admits the status of the Union as a labor organiza- tion within the meaning of the statute, and denies the commission of any unfair labor practices. Pursuant to the notice, a hearing was held at Los Angeles, California, on various dates between October 20, 1950, and November 7, 1950, before me as a Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel, the Respondent Union, and the Employer Respondents were repre- sented by counsel. Mrs. Selvin appeared in her own name and on behalf of -Warren H. Spooner, but did not participate in the case.' All of the parties .were afforded a full opportunity to participate, to be heard, to examine and cross-examine witnesses , and to introduce evidence pertinent to the issues. At the outset of the case, the Employer Respondents moved to dismiss the consolidated complaint, insofar as it was based upon the charge in Case No. 21-CA-717: (1) On the ground that the record did not show any service of the original or amended charge against them, by the party filing the charge, as ° At the outset of the case, Spooner elected to enter an appearance for himself ; after a decision on the record , however, his appearance was withdrawn. 1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD required by Section 10 (b) of the Act and Section 203.14 of the Board's Rules and Regulations, and (2) on the ground that the service of the amended charge, although effective within 6 months of the several discharges dealt with in the complaint, occurred more than 6 months after the execution of the contract alleged to be illegal and thus barred consideration of the earliest events detailed in the charge at issue. The motion to dismiss on the first ground was denied! The motion to dismiss on the second ground was withdrawn after proof of service with respect to the original charge was supplied by the General Counsel's representative. Thereafter, a petition to revoke certain subpenas, issued at the request of Warren H. Spooner before the hearing, was granted.' At the close of the General Counsel's case, a motion to dismiss was made on, behalf of the Respondent Union, on the ground that the record as made would not support a conclusion that it had caused the Employer Respondents to dis- charge or otherwise discriminate against the Complainants in this case. The Employer Respondents also requested the dismissal of the complaint, on the- ground that none of them was sufficiently engaged in commerce to warrant the- exercise of the Board's jurisdiction. The motions were denied without preju- dice to their renewal at a later date. They were not, however, renewed. At the close of the case, all parties waived oral argument and their right to file briefs. FINDINGS OF FACT Upon the entire record in the case , and upon my observation of the witnesses, I make the following findings of fact : I. THE RESPONDENT EMPLOYERS A. Their involvement N. commerce At the outset of the case, it was stipulated that the Respondents Marine, Mundet, Thorpe, Plant, and United are engaged in the installation of all types of industrial and commercial insulation, and in the distribution of insulation products. They sell insulation materials to owners, builders, and contractors on commercial and industrial construction primarily, and perform services for their customers. Among these are numbered refineries, chemical plants, and electric power generating plants. Something less than 5 percent of their total business involves manufacturing plants, hotels, fishing vessels, and commercial carrying ships. The Respondent Marine also acts as the exclusive distributor for Johns- Manville Power Product Insulation commodities in the southern California area. A summary statement prepared by the Respondent Employer's counsel and received in evidence by stipulation, sets forth in some detail the extent to which each of the employers named above is involved in commerce. A chart setting forth the information contained in this statement will be found among the appendices of this Report. The Respondent Employers contend that their involvement in commerce is so slight as to warrant a refusal on the part of the Board to exercise its jurisdic- tion with respect to them-in the light of the jurisdictional tests which it has Erving Paper Mills, 82 NLRB 434, footnote 3; The Ann Arbor Press, 85 NLRB 58, 59. In support of the petition to revoke it was contended that: (1) The individual who requested them was not at the time, and is not now, a party to the case ; (2) the subpenas, as requested, call for irrelevant material; (3) the subpenas, as framed, are too vague; and (4) they call for a mass of material which the Employer Respondents would find it burdensome to produce. The petition was granted, however, upon the ground that the subpenas did not describe with sufficient particularity the evidence which the Respondent Employers would be required to produce. MUNDET CORK CORPORATION 1169 recently enunciated. I find no merit in this contention. No useful purpose can be served by a recapitulation, at this point, of the detailed information with respect to the business of the Employer Respondents which is set forth in the appendix to which reference has been made, but a summary of the facts re- vealed therein which, in my opinion, warrant the exercise of the Board's juris- diction, would seem to be appropriate : (1) Three of the Employer Respondents-Marine, Plant, and Thorpe-are California corporations qualified to do business in other States. One of these- Thorpe-maintains a permanent office in Texas. The other Respondents- Mundet and United-are New York corporations which maintain home factories in New Jersey. They are qualified to do business in a number of States, and operate through direct factory branches. The instant case involves the Cali- fornia factory branch of each of these Respondents. Regardless of what the record may show as to the character of their business in other respects, I find that the Respondents Mundet, United, and Thorpe operate as integral parts of a national or multistate enterprise, and that with respect to them, the Board's exercise of its jurisdiction is warranted on that ground.' (2) While two of the Employer Respondents-Mundet and United-shipped goods or performed services outside of California valued, separately, at less than $25,000 per year, the out-of-State business of the Respondents Marine, Plant, and Thorpe exceeded that figure. In the light of the admissions by each Employer Respondent with respect to its membership in the Association-noted elsewhere in this Report-the limited extent to which the operations of Mundet and United involve a "direct outflow" of goods and services is immaterial. In accordance with the Board's well-established policy, the Association and its members must be regarded as a single enterprise in connection with the determi- nation of the jurisdictional issue.° Since the totality of the out-of-State business done by the association members, in volume and character, far exceeds the amount nowt established by the Board as its test for the assertion of jurisdic- tion, and, in my opinion, substantially affects interstate commerce, the assertion of the Board's jurisdiction would clearly seem to be justified.1° The fact that the Board might not assert jurisdiction as to each and every member if it were before the Board individually, or that the case may not directly involve all of the association members, is not here material, inasmuch as certain of the unfair labor practices are attributed to the Association itself and are the result of the application of a common labor policy by the Association on behalf of its members, inclusive of those directly involved. (3) The full extent to which the Employer Respondents furnish services or material necessary to the operation of instrumentalities and channels of inter- state and foreign commerce, or public utility and transit systems, or enterprises which produce or handle goods destined for shipment out of the State is not revealed, definitively, by the record. (4) Marine, Plant, and Thorpe-the Employer Respondents previously iden- tified as California corporations-admit to a combined interstate inflow of materials valued at $817,763.50. The Respondents Mundet and United admit the shipment of materials valued at $300,000 and $125,000, respectively, into the State. In each case, the goods involved were shipped from the New Jersey factory of the Respondent, on consignment and without a change of title, to 8 The Borden Company, Southern Division, 91 NLRB 628. ° Carpenter and Skaer, Inc, et at., 90 NLRB 417, 26 LRRM 1223 ; Indianapolis Cleaners and Launderers Club, 87 NLRB 472, reversing 85 NLRB 1198 ; Wirta Distributing Co., et at., 82 NLRB 669; Air Conditioning Company of Southern. California, et al., 81 NLRB 946. i° Stanislaus Implement and Hardware Co., Ltd., 91 NLRB 618. 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD California warehouses in which they were stocked pending delivery to a customer; who was required to make payment to the Respondent's New Jersey home office directly. For the purposes of this case, shipments handled in this way may be regarded as direct interstate inflow attributable to each of the Employer Re-, spondents involved. Upon the record, it is clear that the total amount of inter- state purchasing done by the association members in the 1949 calendar year is more than sufficient to warrant the assertion of the Board's jurisdiction n I so find. (5) The amount of the goods and services which the association members purchased locally, but which originated outside of the State, is not set forth definitively. in the record. (6) The Respondents Marine and Mundet, in the 1950 calendar year, devoted a small percentage of their total business activity to work for a prime contractor of the Bureau of Reclamation. The Respondent Thorpe was involved to an equally slight extent in work for the United States Navy and for a prime con- tractor of the Office of Rubber Reserve, engaged in the reactivation of a syn- thetic rubber plant. Approximately 20 percent of the 1950 business done by the Respondent Plant, however, has been done for a prime contractor of the Atomic Energy Commission. I find that the business activity of the Respondents Plant and Thorpe substantially affects national defense, and that, as to them, the asser- tion of the Board's jurisdiction is warranted on that ground" The Association is a California corporation with its principal office and place of business at Los Angeles, California. It is, and has been at all material times, the duly authorized agent of its member firms in matters pertaining to labor relations and collective bargaining with labor organizations . Each of the other Employer Respondents involved in this case admits its membership in the Asso- ciation. Upon the entire record I find, for the purposes of this case , that the Associa- tion, contrary to its contention, is an employer within the meaning of Section 2 (2) of the Act, that the Association and each of the other Employer Respond- ents are engaged in commerce within the meaning of the Act, and that it would effectuate the policies of the Act to assert jurisdiction in this matter, to resolve the substantive issues raised in the complaint. B. The nature of their business The Respondent Employers are primarily engaged in ,the distribution of ma- terials for, and the installation of, commercial insulation. The field of com- mercial insulation, apparently, involves a number of different operations and the application or installation of several types of insulation material. When asked to describe the work of the trade, Mr. J. J. Christian, the manager of the Respondent Marine's contract sales department, testified that : Well, it is the application of sectional pipe covering, of insulation by blocks, which includes the application of mesh wire and the use of asbestos cement over the blocks, which requires experience with flat trowels and pointed trowels. It also covers the application of cork [sectional] pipe covering and cork boards; the sewing of canvas; and there are monolithic jobs where pure cement is applied in several layers to bring about the re- quired thickness of the insulation specified. There is also duct work. There are two kinds of duct work. . . . There are ducts for induced draft systems on power houses, which use block insulation with an intricate finish, and 11 Federal Dairy Co., Inc., 91 NLRB 638. 12 Westport Moving & Storage Company, Crate Making Division, 91 NLRB 902. MUNDET- CORK CORPORATION 1171 with the appurtenances it is required to have. . . . Then, there are ducts which are commonly known in the air conditioning field for space heating. These are of light metal and are generally, in this territory, insulated with a fiber glass or mineral wool blanket, which [is] wired in place. - Albert Hutchinson, the business agent of the Respondent Union, in defining its craft jurisdiction, testified that it covered the application of cork "lags" to vessels and equipment, the installation of cork blocks or segments on a vessel, tank, or pump, and various other operations in connection with tinning. I find that such operations are also within the field of commercial insulation' Vari- ous firms in the industry also do home insulation, which is defined as the in- stallation of loose insulating fill or insulating wool "bats" within the walls, floor, or ceiling of a residential or existing commercial structure. While the record contains no evidence with respect to the activity of most of the Respond- ent Employers in the field of home insulation thus defined, it does establish, and I find, that the Respondent Marine assigned several employees to such work, on commercial structures under construction, on a number of occasions within the period with which this Report is concerned. II. THE RESPONDENT UNION A. Its jurisdiction The International Association of Heat and Frost Insulators and Asbestos Work- ers, Local Union No. 5, affiliated with the American Federation of Labor, I find, is a labor organization within the meaning of the Act, which admits to member- ship insulation workers in the employ of the Respondent Employers. The Union is chartered directly by its parent international . Its craft jurisdiction as defined in the present record is sufficiently comprehensive to cover work at all of the operations and with all of the materials previously mentioned with the exception of home insulation. A charter conferring jurisdiction over the field of home insulation-defined as ceiling, wall , and floor insulation in homes and existing buildings-was outstand- ing, at the inception of the events with which this case is concerned, for an organization designated in the record as Local 5 -B of the parent international. On June 23, 1950, however , a "National Joint Board" for the arbitration of juris- dictional disputes among various A. F. of L. craft unions, under the chairman- ship of John Dunlop , issued a jurisdictional award which deprived the Interna- tional Association of Heat and Frost Insulators and Asbestos Workers of its jurisdiction over home insulation ; that jurisdiction was awarded , instead, to the United Brotherhood of Carpenters and Joiners . Thereafter, Local 5-B ceased to exist ; the exact date on which it was disbanded , however, is not set forth in the record. "The record also contains an outline of the work which "Improvers" are required to perform in order to qualify for a mechanicls rating in the trade; to the extent that this outline defines the type of work involved in commercial insulation, a recapitulation of it is significant. Improvers, according to the outline, are required to demonstrate experience in the application of magnesia coverings in building construction, oil field construction, and marine and ship construction ; monolithic work of the type previously noted ; sewing ; and the application of such materials as Aircell pipe covering , Aircell blocks , spongefelt, mag- nesia blocks, Hi-Temp-Superex blocks, mineral wool, mesh, and air spacing, asbestos paper, asbestos board, Fiberglas pipe covering , Fiberglas blocks, removable pads and flanges, and woolfelt . The materials listed are employed in the field of heat insulation . The installa- tion of frost insulation, according to the outline, involves the application of vegetable cork pipe covering, flat and removable flanges, and heads of vegetable cork , hairfelt, rock cork , and antisweat materials. 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Its organization At the time of the events with which this case is concerned, the Union admitted insulation workers to membership, upon application by a majority vote of its membership. Applicants for membership were required, at the outset, to Seek an application card from the executive board of the Union, which met periodically. If permitted to file an application, the applicant was first required to appear before a trade board, designated in the record as the Joint Trade Board, estab- lished pursuant to a collective bargaining agreement between the_ Union and the .Employer Respondents in this case. He was examined by that board with respect to his qualifications. The recommendations of the board with respect to the applicant's ability to work in the trade as an "Improver" or full-fledged "Me- chanic" were then considered by the Union's membership, which was free to .accept or reject each membership application previously filed."" The initiation .fees normally payable by successful applicants for membership were usually paid, it would appear, at this time. While Local 5-B of the parent international was in existence, it received applications for membership from persons employed by any one of the various "home insulation" firms within its territorial jurisdiction. Normally, such appli- cations were received after the individual involved had been employed for a period of time sufficient to enable him to decide that he wished to remain in the employ of a home insulation contractor. Upon the submission of an application containing his name and social security number, information as to his status :as an American citizen, and his previous experience in the trade, if any, the applicant was admitted to membership by a vote of Local 5-B's membership, in the light of his personal qualifications. Local 5-B, it is clear, issued no permits to nonmembers employed within its craft jurisdiction. At the outset of the period with which this case is concerned, however, the Respondent Union regularly issued such permits, without cost, to nonmembers. According to Hutchinson, whose testimony in this connection has .not been denied, permits were issued, prior to an unspecified date in November or December of 1949, to qualified persons who were willing and able to do insulation work, if one of the "shops" active in the commercial insulation field -had indicated a willingness to hire him. The business agent's testimony also establishes that, in the 1949-50 period with which this case is concerned, about .50 percent of the Respondent Union's permit holders were persons with no rela- tionship to Local 5-B. The remainder of the Union's permit holders were apparently-at the time-members of the affiliated "B" local. I so find. III. THE UNFAIR LABOR PRACTICES A. The agreement between the Association and the Respondent Union On April 1, 1949, the Association and the Respondent Union executed a trade :agreement, to become effective on the 1st of May, which was to be "rigidly observed" until its expiration on May 1,1950." Certain articles of the agreement are particularly relevant in this case. They read as follows: 14 Each applicant for membership, also, had to present evidence of sponsorship by three union members. 15 The agreement provided that any party wishing to renew it, with or without a change or amendment, had to make known its intention in writing 90 days before the agreement's .expiration date. IIUNDET CORK CORPORATION ARTICLE XI 1173 The party of the first part agrees to employ the membership of Local No. 5 in the application of pipe and boiler coverings, insulation of hot surfaces, ducts, flues, etc., also the covering of cold piping and circular tanks connected with the same. This to include alterations and repairing of work similar to the above and the use of all materials for the purpose mentioned. * * * * * * s ARTICLE V There shall be a Trade Board consisting of four members of the Master Insulators' Association and four members of Local No. 5 and said Trade Board shall have the right to investigate all labor operations of the parties to this Agreement within its prescribed limits so far as any of the provisions of this Agreement are involved, in connection with which any question may arise ... The Trade Board shall be governed by the following By-Laws ... 4. The vote on all questions of violations of this Agreement shall be by secret ballot. 5. It shall require a majority vote to carry any question .. . ARTICLE VII In cases where the Joint Trade Board determines an "emergency" exists for which Local No. 5 fails to supply Mechanics or Improvers, the party of the first part may secure the "emergency" number agreed upon. "Emer- gency" Mechanics and Improvers shall be paid the rate of wages as herein- after specified in this Agreement, and shall work under "permit" of Local No. 5 until replaced by members of said Union. The established rate for mechanics, or journeymen, was fixed by agreement at $2.50 per hour. Improvers-who appear to occupy positions in the industry equivalent to apprenticeship-were to be paid at the rate of $1.625 per hour in their first year, $1.75 per hour in their second year, $1.875 in their third year, and $2.125 per hour in their fourth year of employment. The agreement provided that improvers were not to be eligible for a mechanic's "examination" until they had spent 4 years in the trade. Applications for such an examination were to be filed at the "quarterly" meetings of the Joint Trade Board previously noted. The agreement concluded with a provision that : Any portion of this Agreement found to be in violation of existing federal or state law shall become inoperative and the balance of the Agreement as such continue in full force and effect until date of expiration. The agreement was in effect throughout the 1949-50 period with which this case is immediately concerned. Thereafter, on May 28, 1950, a new agreement was executed, identical in its terms except with respect to termination date and the matter of travel allowances. It is now, I find, in lull force and effect. Under these agreements, the Joint Trade Board has functioned as a "labor relations committee" at which representatives of the Employer Respondents and their employees discuss and seek to adjust the "common" problems which arise to "vex" their relationship. Additionally, as one of its members testified, it serves as a board to examine and "qualify" men for employment in the field of commercial insulation. The record reveals, and I find, that the Respondent Employers have not required individuals in their employ to pass an examination 974176-52-vol 96-75 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Joint Trade Board as a condition precedent to their employment in the capacity of an asbestos mechanic ; it is clear , however, that the "qualification" of thesL individuals as mechanics by the Joint Trade Board has been regarded by the Respondent Union as a prerequisite to their eligibility for union member- ship. I so find . It is of interest to note, in this connection , that the minutes of the Joint Trade Board for August 26, 1949, indicate that : Upon a report that the application of Joe Lindle has been rejected by Local 5, and since the application had been previously approved by the joint trade Board after having been approved first by the executive board of Local 5 after first having the signature of three vouching mechanic members of Local Union 5, it was recommended that the Joint Trade Board now go on record that it requires reconsideration by the Local Union membership upon Joe Lindle's application for membership, and that the Joint Trade Board disapproves the action of the Local Union in opposing the unanimous recom- mendation by this Board in regular meeting February 9, 1949 , wherein it approved Joe Lindle as a mechanic for the industry . ( Emphasis supplied.) The minutes of the meeting also establish that "some tune" was spent in a discussion of the industry's obligation to comply with the Act, to the extent that it modified the terms of the current agreement "applicable" to union-shop practices. At the meeting of the Joint Trade Board on November 1.5. 1949, according to the minutes: Local No 5 requested the cooperation of the shops toward placing into employment as many of its unemployed members as possible , since approxi- mately 25 men, or better than 10 percent of the Local is out of work and par- ticularly since it was reported that several permit workmen were now em- ployed by the shops. In discussion of a cooperative working plan, it was suggested that permit mechanics employed by the shops applying duct wrap should make application to [join] Local No. 5. . . . In general discussion it was the consensus that the Joint Trade Board has performed very cooperatively in the past and that it could and should in the future render a greater service by a more strict adherence to the intentions and written terms of the labor agreement. Thereafter , on January 18, 1950, at the next meeting of the Joint Trade Board : . . . Consideration was given to various procedures for correcting a situation which exists in the duct wrapping portion of the industry , wherein "B" men had been used on duct wrapping jobs. particularly where wool or fibre glass is used on Air Conditioning ducts, but no conclusive action was reached for a joint recommendation. At, this meeting also, the function of the Trade Board in connection with the "qualification" of workers in the industry was reaffirmed Two men were ap- proved as "2d Year Improvers " and four were recommended for mechanics' cards ; it was agreed that the Trade Board, at each meeting, might receive, review, and act upon "applications for membership and for mechanics cards" in addition to the other business before it. Analysis and Conclusions 1. The nature of the agreement The complaint alleges, and the General Counsel contends, that the 1949-50 agreement required membership in the Respondent Union as a condition of em- ployment by the Employer Respondents ; that the Respondents have, at all times MUNDET CORK CORPORATION 1175 since its execution, enforced and given effect to their agreement as one which requires membership in the Respondent Union as a condition of employment ; and that the agreement, by virtue of its scope, and by virtue of the fact that it was executed in the absence of an antecedent union-security authorization election under Section 9 (e) of the Act, was, and is, an illegal and invalid agree- ment. I find merit in this contention. While the agreement, on its face, does not require the Employer Respondents to employ the membership of the Respondent Union exclusively, its provision in that respect-when considered in conjunction with the contractual requirement which governs the employment of "emergency" mechanics and improvers, com- pellingly suggests that the parties to the agreement understood it as one which would require the Respondent Employers to maintain "closed shop" or "union shop" conditions. And even if the contract is to be considered somewhat ambiguous in that respect, the Board-under well-established principles-is free to look to the relevant statements and conduct of its signatories in the resolution of that ambiguity. In that connection, it is worthy of note that the minutes of the Joint Trade Board establish that the parties understood their agreement to contain a section which "applied" to union-shop practices in the industry-a section which they understood to be "modified" by the Act. And the fact, revealed by the record, that certain of the Respondent Employers sought to confer, and did confer, with representatives of the Respondent Union in regard to the possible employment of "emergency" workers, under the terms of article VII, at the inception of the Korean crisis, certainly warrants an in- ference that the parties involved in the conference considered an agreement under that article to be essential before the Respondent Employers would be free to hire workers who did not hold union membership. The record also establishes that on one occasion, at least-to be cited and detailed elsewhere in this Report-a responsible official of the Respondent Mundet informed Warren H. Spooner that Mundet regarded the agreement as one which required it to use "union" men. There is testimony in addition-which I credit-that some of the Complainants were told by accredited and responsible representatives of the Union and the Respondent Employers that they could not do commercial insulation work for the latter without a permit from the former, absent membership in it. And when, as the record will show, the Complainants were denied permits by the Union, they were informed by various representa- tives of the Respondent Marine and others that it could not offer them employ- ment because of the Respondent Union's insistence that the work they had been doing was properly assignable to union members only. I find the testimony to which reference has been made sufficient to establish that the parties bound by the agreement understood it as one which established "closed shop" or "union shop" conditions The agreement, thus interpreted, obviously does not fall within the limita- tions established by the proviso to Section 8 (a) (3) of the Act; and the record contains no evidence that its execution or renewal were preceded by an election of the type which the statute requires as a condition precedent to the execution of permissible union-security agreements. 2. The settlement agreement The Employer Respondents argue vigorously that the Board ought to con- soler itself, in this case, precluded from any conclusion that the execution of the agreement noted involved an unfair labor practice. This contention is based upon the asserted fact that the only charges in this consolidated case which were filed within 6 months of the contract's execution date were settled in- 1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formally thereafter on the basis of a settlement agreement, executed on October 6, 1949; the Employer Respondents allege that the cases involved were "closed" by their compliance with the settlement agreement, and that they were not thereafter served with a copy of any charge which referred to execution of the contract as an unfair labor practice until more than 6 months after its execution date. The facts in this connection are not in dispute: The record establishes that the original charge in Case No. 21-CA-491, and its companion case, 21-CB-177, was filed by Warren H. Spooner on June 29, 1949. Amended charges in each case were thereafter filed by Mrs. Edwin Selvin on behalf of Warren H. Spooner on August 2, 1949. In the amended charges, it was alleged for the first time that Spooner had been discharged by the Respondent Mundet pursuant to an unlawful closed- or union-shop contract executed by the Association on behalf of the Respondent Employers-and that the Union, when it caused the Re- spondent Mundet to discharge Spooner, on a date noted elsewhere in this Report, was giving effect to and enforcing the aforesaid unlawful closed- or union-shop agreement. The charges, as amended, were clearly filed within 6 months of the events alleged as unfair labor practices. Thereafter, on October 6, 1949, how- ever, the Respondent Mundet, the Association, and the Respondent Union en- tered into a settlement agreement-approved by the Board's Regional Director on the 10th of October-in which the Respondent Mundet and the Union agreed to make Spooner whole, jointly and severally, for an agreed amount of back pay ; the Association, Mundet, and the Union agreed to cease giving effect to any contractual provision which illegally required membership in the Union as a condition of employment: and each of the signatory parties agreed to post appropriate notices, declarative of their intention to comply with the Act, and to comply with all the terms and provisions of the notices as posted. In con- sideration of this agreement, the Regional Director agreed to refuse to issue a complaint on the charges which the agreement purported to settle. The record establishes that Spooner received back pay, thereafter, in the amount called for by the agreement, and that each of the parties involved in the agreement posted and maintained the notices attached to it. On March 2, 1950, however, the original charges in Case No. 21-CA-71 and'. Case No. 21-CB-243 were filed by Complainants Murray, Cito, and Peterson. The charges were directed to the Association and to four of the Respondent Em- ployers-the Respondent United not being listed. They contained the allega- tion , among others, that the Association, on behalf of its member firms, and the Respondent Union had executed an agreement on or about April 1, 1949, which contained a closed- or union-shop clause violative of Section 8 (a) (1) and (3) of the Act ; that the Association, its members, and the Respondent Union had given effect to that agreement ever since April 1, 1949; and that the Association, the Respondent Mundet, and the Respondent Union had, since January 1, 1950, violated the settlement agreement executed by them in October. The record -establishes that these charges were served on the parties by registered mail on the 7th of March, and that their receipt was acknowledged by each of the Em- ployer Respondents served, and the Respondent Union, on that date or the following day. On March 13, 1950, the parties involved in the settlement agree- ment were advised by the Regional Director that: In view of the filing of the new charges, the undersigned is hereby with- drawing his approval of the Settlement Agreement and Cases Nos. 21-CA-491 and 21-CB-177 are hereby reopened and restored to the pending docket. Copies of each reopened charge were served upon each of the Respondents by registered mail , together with copies of every other charge upon which the MUNDET CORK CORPORATION 1177 consolidated complaint in this case is based, on August 2, 1950. Receipt was acknowledged by the interested parties on the 3rd and 4th of August. In the light of this record, I find no merit in the contention of the Respondent Employers.10 There can be no doubt that Spooner's original charge with respect to his allegedly discriminatory discharge by the Respondent Mundet and the amended charge filed in his behalf by Mrs. Selvin, which alleged for the first time that he had been discharged pursuant to an illegal closed- or union-shop con- tract, were both filed within 6 months of the contract's execution date. The validity of the' agreement and the propriety of its execution, under the statute, were thus effectively placed in issue-and a complaint, at any later date, based on these charges would clearly be proper n absent circumstances, not present in this case, which might persuade the General Counsel or the Board to "dismiss" such charges in their sound discretion. The fact that a supposedly successful informal settlement may have been reached before the complaint was finally issued cannot, legally, affect the General Counsel's right to proceed in a formal manner under Section 10 (b) of the Act. There is no indication, in the present record, that Case No. 21-CA-491 or Case No. 21-CB-177 were ever formally closed by order of the Regional Director after the settlement agreement was signed. Even if it could be established that they were closed I find no legal im- pediment, in the statute or the Rules and Regulations of the Board, to a sub- sequent decision that they ought to be reopened as a prelude to formal pro- ceeding.1B Such a course of action, I find, is clearly permissible in the Regional Director's discretion. I find, therefore, contrary to the contention of counsel for the Employer Re- spondents, that the validity of the agreement executed by the Association and the Respondent Union on April 1, 1949, and the propriety of its execution, are properly before me in the present consolidated case. And in view of the con- clusions reached elsewhere in this Report with respect to subsequent unfair labor practices attributable to the Union and the Employer Respondents, I find- in accordance with a well-established Board policy which has received judicial approval-that the execution of the settlement agreement will not bar a finding with respect to the propriety of their antecedent conduct.18 16 Counsel for the Respondent Union objected strenuously to any discussion of the settle- ment agreement or related matters , on the ground that a mere reference to the agreement and its content was certain to prejudice the Union ' s case I find this contention to be deficient in merit also . Evidence and argument relevant to a substantive issue is clearly receivable in cases of this kind , whatever collateral impressions they may foster. 17 The contention that no unfair labor practice findings, in this case, may properly be based upon the execution of the agreement in question, because the complaint which chal- lenged its propriety was issued more than 6 months after the contract 's execution date, clearly rests upon an erroneous construction of Section 10 (b) of the Act. That section provides, in this connection, that no complaints shall issue-at any unspecified later date- based upon unfair labor practices occurring more than 6 months prior to the filing of the charge with the Board , and the service of a copy of it upon the person against whom it is made. 18 Section 202.7 of the Board's Statements of Procedure , as amended on August 18, 1948, provides with respect to informal settlements that : These agreements , which are subject to the approval of the regional director, pro- vide for the withdrawal of the charge by the complainant at such time as the respond- ent has complied with the terms of the settlement agreement. Proof of such com pliance is obtained by the regional director before the case is closed . If the respond- ent fails to perform his obligations under the informal agreement, the regional director may determine to institute formal proceedings. The parties, and their counsel, are charged with constructive, if not actual, notice of this provision by virtue of its publication in the Federal Register on August 21, 1948 (13 Fed. Reg. 4871) and its subsequent publication by the Board. Cf. also Armstrong Cork Com- pany, 80 NLRB 566. 19 The Wallace Corporation v. N. L. R. B., 323 U. S. 248, 253-255 and the cases therein cited ; Taylor Mfg. Company, 83 NLRB 142. 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Conclusions Upon the entire record, I find that the Association and the other Employer Respondents , by the execution and acceptance of the agreement now in question, on April 1 , 1949, interfered with, restrained , and coerced their employees, in the exercise of the rights guaranteed by Section 7 of the Act . I further find that the execution of the agreement in question on that date, by the Association on behalf of its members , contributed support and assistance to the Respondent Union and established discrimination in regard to the hire and employment tenure of persons employed or available for employment by the Respondent Em- ployers, to encourage membership in the Respondent Union-a labor organiza- tion.20 Section 8 (b) (2) of the Act, which is alleged to be applicable to the con- duct of the Respondent Union, provides that it shall be an unfair labor practice for a labor organization or its agents to cause or attempt to cause an employer to discriminate against employees in violation of Section 8 (a) (3) of the statute. I have found that the Respondent Employers engaged in discrimination with respect to the hire and employment tenure of their employees , to encourage mem- bership in a labor organization , by the execution of an agreement containing illegal union -security provisions . It follows, and I find, that the Union was also engaged in an unfair labor practice . As the Board has recently stated :21 . . . when the Respondent Unions executed the contract . . . they intended that the entire contract , including the unlawful union-security pro- visions, would be enforced to the end that employees failing to acquire or retain union membership would be discharged pursuant to its terms. It is, furthermore , beyond question that such enforcement of the unlawful union- security provisions would constitute discrimination in violation of Section 8 (a) (3). We find, accordingly , that by the act of executing the contract containing unlawful union -security provisions , with the intention that such provisions be enforced , the Respondent Unions joined with the Respondent Employer in creating the conditions which would result in future discrimina- tion , and that they thereby have attempted to cause the Respondent Em- ployer to discriminate against employees , in violation of Section 8 (a) (3) of the Act . ( Emphasis supplied.) A similar conclusion would seem to be warranted herein. It is found , however, contrary to the General Counsel's contention , that the Union , by its participation in the execution of the agreement here in question , has not restrained and co- erced employees in the exercise of rights guaranteed in Section 7 of the Act.22 I shall recommend that this allegation of the complaint be dismissed. The complaint alleges that the Union and the Respondent Employers have, at all times since the execution of the agreement , enforced and given effect to it and required membership in the Union'as a condition of employment . The evi- dence in the present record with respect to the enforcement of the agreement's union-security provisions is confined exclusively to evidence and exhibits which bear upon the allegedly discriminatory treatment accorded to the Complainants. To the consideration of that evidence , therefore , this Report now turns. 20 Julius Resnick, Inc , 86 NLRB 38 , Salant and Salant, Incorporated , 87 NLRB 215; The Great Atlantic and Pacific Tea Company , 81 NLRB 1052. 21 Acme Mattress Company , Inc, 91 NLRB 1010, 26 LRRM 1611. 22 National Maritime Union of America , et at, 78 NLRB 971, 985-986; United Mina Workers of America , et at, 83 NLRB 916, International Typographical Union, et at, 86 NLRB 951, 956-957 MUNDET CORK CORPORATION B. The dischai yes 1. Warren H. Spooner 1179 Spooner, with 15 years of experience as an insulation worker, was employed at various times in 1949, within the period with which this Report is concerned, by the Respondents Marine, Mundet, and Thorpe. Since 1947 he has worked under permits issued by the Respondent Union. The payroll record of the Respondent Thorpe establishes that he was initially employed by that company on April 14, 1949, at a construction project in Redondo Beach. Thereafter, he was employed full time on 9 days in the month of April, 20 days in May, and for 6 days in the month of June. Spooner last worked for Thorpe on June 8, 1950, the records of the company indicate, and I find that he was replaced thereafter by employees with more seniority and-in the Respondent's opinion-more experience. Karl M. Glasco, Jr , in charge of insulation construction for the Respondent Thorpe, testified, without effective contradiction, that : . . . [Spooner] was employed with several others sometime during the spring of 1949 in order that we could commence work on a job at the Edison Company at Redondo and that these several men were employed temporarily until such time as we were able to complete our job at the Harbor Steam Plant, at which time we wanted to transfer certain employees who had been with us for a period of time and were experienced in that type of work. On June 13, 1949-after he got a work permit from Bruce Porter, identified as the Respondent Union's assistant business agent-Spooner was employed by the Respondent Mundet at a construction project identified as the "General Food Corporation" job in Hollywood, California. Mundet's records establish that Spooner worked full time on the 13th and 14th, with four other asbestos mechanics. Work was then suspended for lack of materials. He was asked to resume work on the 20th, and did so.' At 1: 30 p. m. on that date, Verne Vickers, his foreman, told him that he was being laid off at the request of the Union, on the strength of a letter received from its parent international. Spooner immedi- ately telephoned Bruce Porter, identified himself, and reported that he had been laid off. Porter replied, I find, that he was sorry to hear of it but that he was merely "carrying out orders" and that there was nothing he could do about the situation. The record establishes, and I find, that Spooner subsequently tele- phoned Henry Thompson, a vice president of the parent international, that he identified himself, and that he "explained the circumstances" of his dismissal ; Thompson, I find, acknowledged familiarity with the situation but observed, in his turn, that he had his "orders" and that there was nothing he could do about it. The record indicates that Spooner had at one time been a member of a Phila- delphia local of the parent international; that he had been "lapsed" by it for failure to meet his financial obligations; that he had subsequently sought direct affiliation with the Union-which had instructed him to address his request to the international ; that he had written to the parent organization in that con- 13 Spooner testified that he returned to work on the 27th I find that his recollection with respect to the date was in error . Counsel for the Respondent Union sought to im- peach Spooner 's credibility by eliciting admission that he had been convicted of a felony in the '20's. The conviction grew out of a Dyer Act violation In the light of the entire record , I found Spooner generally credible . When his testimony varies from that of other witnesses , Spooner's errors-in my opinion-are attributable to faulty recollection rather than mendacity ; I find, therefore , that his conviction of a felony twenty-odd years ago does not , per se, impair his credibility 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nection ; and that he had received, before his dismissal, a communication from the parent international with respect to the procedure he would have to follow in order to achieve necessary "re-affiliation" with the Philadelphia organization. The precise way in which his relationship to the Philadelphia local came to the attention of the Respondent Union is not clear ; the record warrants an inference however, and I find, that it was responsible for his dismissal. Thompson, in a letter to the Board's Regional Office on the 22nd of July-sent in response to the original charge filed by Spooner in Case No. 21-CB-177-admitted the respon- sibility of the Respondent Union in the following language : We believe that a report made to our officers and members, that Mr. Spooner had failed to keep his dues in order with our International Union, created confusion resulting in an unintended, but temporary termination of Mr. Spooner's employment .. . Thompson went on to state that when the Union learned of Spooner's dismissal, it requested his reemployment-and that he was in fact reemployed within 48 hours. The Respondent Mundet, in a similar letter to the Board's Regional Office, sent in response to a notice that an amended charge had been filed in Case No. 21-CA-491 on Spooner's behalf, described the incident as follows: ... We originally secured Mr. Spooner through the union's business agent, because we needed men and could not find any of this particular skill through other sources at the time. Later when a state of confusion started to develop on the job in connection with Mr. Spooner's situation with the union, our foreman did lay him off until we could get the "waters calm" so to speak. Upon the entire record, it is clear, and I find, that the Union had requested Spooner's discharge, and that he was laid off by the Respondent Mundet pursuant to that request. He was reemployed, at the same job, on the 23rd of June ; and worked 6 hours on that date and 6 hours on the following day. Eight other asbestos mechanics were employed on the job at the time. In the following week, Spooner worked only 2 hours on July 1, a Friday.R4 No other asbestos mechanics were employed on the job at any other time during the week.26 Spooner's employment with the Respondent Mundet was resumed on the fifth of July, a Tuesday; he worked full time for 4 days.28 In the following week, Spooner worked 121/ hours on Monday, July 11. He did no other work for the Respondent Mundet that week, having been told on the 11th that the job was finished, that everyone was being -laid off, and that he would be called when work became available. On the 11th, Spooner had been one of nine men on the crew. Of these, only four worked on Tuesday, the 12th. None was employed on Wednesday. There is tes- 24 Spooner's testimony establishes, and I find, that he also saw Mr. Choate, the Respond. ent Mundet ' s branch manager , on this date . The latter expressed concern about the charges filed by Spooner at the time of his discharge. He explained that he regretted Spooner's dismissal, but that he had been unable to prevent it Continuing, he informed Spooner that Mundet had employed insulation mechanics in the past on an "open shop" basis ; that these employees had been satisfactory ; but that because of Mundet ' s agree- ment with the Respondent Union it was "compelled" to use union men. He concluded, I find, with a verbal offer of regular and steady employment if the charges were withdrawn. 2n The record shows that six of the other men on the crew worked a similarly limited schedule. 26 The total number of hours he worked , 32, represents the maximum number of hours worked by any of the asbestos mechanics in his crew ; some of them put in fewer hours. MUNDET CORK CORPORATION 1181 timony, which I credit, that the job was finished at that time. Spooner has not been employed by the Respondent Mundet since. Thereafter, Spooner was employed, under permit, by the Respondent Marine at the Redondo Beach Steam Plant, approximately on July 26, 1949. He was laid off on the 11th of September in connection with a regular layoff which involved 12 men. Spooner has not been employed as an asbestos mechanic since his layoff by the Respondent Marine. His testimony, which I credit in this connection, es- tablishes that he made a number of efforts to find such work. On a date not set forth specifically, he telephoned George Ferry, a field superintendent of the Re- spondent Marine ; he was told, in substance, that Marine had work for its regu- lar men only, and that be would be called when work was available. And in February or March of 1950, while conversing with Ferry at the offices of the Respondent Marine, Spooner was told, I find, that work as an asbestos mechanic was not then available ; Ferry expressed the hope that the company would have more work and promised to call Spooner when it materialized. Spooner also testified-credibly, I find-that he sought work with the Respond- ent Mundet on a number of occasions, by telephone, in February, March, May, July, and September of 1950. On one occasion-the date of which he could not fix-Spooner was informed by Clarence May, the Respondent's general superin- tendent, that no work was available at the time and that he would be called when a job opportunity existed. 2. Narciso Duran Munoz Munoz, originally an ironworker by trade, was employed by the Respondent Marine as an asbestos mechanic for 5 years prior to 1950. At the outset of his employment, he was engaged in the installation of Transite-a form of heavy in- sulation board. Later in the course of his employment, he worked primarily as a pipe coverer or "paste and band" worker. His last employment with the com- pany was in the week ending January 22, 1950; at the time, he was employed on a construction project in San Bernardino and was laid off for lack of work27 The record establishes, and I find, that Munoz, while in the employ of the Respondent Marine, had regularly secured "permits" to work in the field of com- mercial insulation from the Respondent Union.28 These permits were signed and given to the Complainant by the Union's secretary or by Bruce Porter. Early in August of 1949, Munoz, in accordance with established practice, had gone before the executive board of the Respondent Union and requested permis- sion to file a formal application for membership in it. Permission was granted and his application was filed. Thereafter, he was asked by Porter to appear before the Joint Trade Board, which interviewed him on August 26, 1949, with respect to his experience in the trade. Shortly thereafter, he was notified by a union representative that the Joint Trade Board had "passed" him and that his application for membership in the Union would be considered by it on September 16, 1949. Munoz was present in the union hall when his application for membership was considered, in a closed meeting, by that organization ; he was told by a member 27 His credited testimony establishes that Allan Short, his foreman , advised him at the time, that we would be laid off for a week at the most ; he was not, however , recalled. 28I find , in the light of the record, that he was told on various occasions by a union business went, Marine's field superintendent , and Joseph Christian , that he would have to secure such permits in order to work for the Respondent Marine. The dates on which these instructions were communicated to him, however , are not set forth in the record. 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that his application had been rejected The last permit issued to him by the Union was given to him in late October of 1949. Thereafter, he was informed by an executive board member that the Union would issue no more permits and that the receipt he held for the initiation fee submitted by him in connection with his unsuccessful application for membership would serve as a permit. Early in February of 1950, after his layoff in San Bernardino, Munoz sought new employment from George Ferry, the Respondent Marine's field superintend- ent. His undemed testimony with respect to their conversation reads as follows : I called him at work and I called him up at his home and at the office. He said that he was afraid the work was a little slow, but when we get started-he gave me the understanding that when we done very much I would go back to work ; Local 5 had ruled out the permits and they wouldn't work me without a permit. Further efforts on the part of Munoz to secure work through Allan Short, his foreman, and Contract Sales Manager Christian were also unsuccessful .0 Early in April, Munoz again spoke to Ferry. The latter suggested that Munoz attend the forthcoming meeting of the Union's executive board, request a permit, and advise them that the Respondent Marine had work for him on the following Monday. Munoz complied with this suggestion and spoke to Business Agent Hutchinson of the Respondent Union. He informed the latter that, according to Ferry, he could go to work for the Respondent Marine on the following Monday if he could secure a permit. Hutchinson informed him that it was impossible, that the Union would not issue any more permits and that Ferry was "crazy"; Munoz then asked if he could go to work on the basis of his initiation fee receipt as the equivalent of a permit Hutchinson replied in the negative and stated that he simply could not go to work.30 On the next day, Munoz called at the office of the Respondent Marine to discuss the situation. A preponderance of the evidence establishes, and I find, that he was offered two alternatives : A short period of employment at insulation' work in San Bernardino which involved the installation of insulating material with a welder's gun, and possibly extended employment with an affiliate of the Re- spondent Marine in Phoenix, Arizona. With respect to the Phoenix opportunity, it was suggested, in substance, that he ought to go to Phoenix at his own expense, verify the availability of employment with the manager of Marine's affiliate, secure a permit from the Phoenix local of the Union's parent international, and apply for membership in that local after 2 or 3 months at work. Christian suggested that after he was admitted to membership in the Phoenix local, he could get a "traveler's card" from it and return to work: in the Los Angeles area. Munoz chose to accept the suggestion that he make a trip to Phoenix ; lie was immediately given the name of the manager of the Respondent's affiliate there. Upon his arrival, however, he learned, in substance, that he would be unable to secure a permit from the Phoenix local, and that Marine's affiliate would 29 Munoz testified, and I find, that Christian suggested on one occasion that he might be able to find work in Albuquerque , New Mexico Munoz agreed but asked for "a little time" to work things out so that he might be able to accept it Nothing developed however. "Hutchinson admitted that Munoz and the other Complainants were told that the Union would not issue any more permits,, he denied, however, that anyone was told he would be unable to work without one I do not credit these denials. MUNDET CORK CORPORATION 1183 therefore be unable to employ him, despite the fact that work was available." He then returned to Los Angeles. Munoz made no immediate effort to secure employment with the Respondent Marine after his return-although he did telephone Ferry to report that his visit to Phoenix had not been fruitful. Thereafter, he telephoned his foreman, Allan Short-on a date not set forth specifically in the record. His undenied testimony indicates, and I find, that Short had work available and promised to ask Ferry if arrangements could be made for him to get a permit and go to work. In a subsequent telephone conversation, however, Short reported that the Union was unwilling to issue permits, and that Munoz would be unable to work. Previously, at the time of his conversation with Hutchinson, Munoz had made another effort to apply for membership in the Union, requesting its executive board to permit him to do so; the Board had refused to give him an application blank. The amount tendered by him as an initiation fee at the time of his original application was later refunded to him by the Respondent Union. On October 31, 1950, the Respondent Marine offered Munoz employment as an asbestos mechanic. He accepted The record indicates, however, that he did not actually perform services ; the hearing in this case, then in recess, resumed on November 2, 1950, and Munoz was called, as a complainant, to testify. There- after, on the following day, he was offered work by the Respondent Marine as a Transite mechanic at the regular rate for that work-$2 325 per hour plus a $5 per diem travel allowance. He rejected it on the ground that he would rather have conventional insulation work, and on the further ground that he wished to remain in attendance at the hearing and did not wish to leave the city. 3. Frederick M. D. Turner Turner's experience in the field of insulation work, I find, dates from December of 1941, at which time he was employed in an east coast shipyard. He came to California in 1943 and continued to work as a pipe coverer and general insula- tion worker for various employers. In 1944, he became a member of Local 5-B but continued to work in the field of commercial insulation under permits issued by Local 5.n He received his last permit in November of 1949; early in December he was called to the union hall by Business Agent Hutchinson and was informed that the Respondent Union would issue no more permits. Throughout 1949, Turner was employed by the Respondent Plant, in the field of duct insulation-otherwise described in the present record as duct wrapping. At the turn of the year, he was employed on a construction project in Lincoln 21 The General Counsel contends that the possibilities of employment in Phoenix had been called to the Complainant's attention because of the Respondent Marine's desire to avoid giving him employment directly, and that the suggestion had been made in bad faith, with knowledge that he would be unable to secure union clearance in Arizona. I find these contentions lacking in merit. A preponderance of the evidence establishes, in my opinion, that Contract Sales Manager Christian initiated the suggestion when informed by a spokesman for the Complainant that he believed himself to be the victim of discrimination by the Union because of his national origin I find, in accordance with Christian's testimony, that he expressed doubts as to the validity of this explanation for the Union's antecedent iefusal to admit Munoz but suggested the Phoenix trip as a method by which any conceivable racial discrimination on the part of the Union, with respect to the Complainant, might be circumvented. Fiank Pestana, the Complainant's spokesman, testified without contradiction, however, and I find , that Christian-in the course of their conversation-had attributed the unem- ployment of Munoz to the fact that he did not hold a permit or membership in the Union. 82 His only attempt to join Local 5 occurred in 1948, at which time he was told by Henry Thompson, then its business agent, that he was "next in line" for admission to it. 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Heights which was finished in the pay period ending on January 29, 1950. No other work was available ; Turner, therefore, was laid off38 On or about February 14, 1950, he secured work as a duct wrapper for the Respondent Marine at the electronics building of the Hughes Aircraft Company, then under construction. Copeland George, a field superintendent of the Re- spondent Marine, served as his immediate superior. Turner worked for 2 days ; at 2: 30 p. m. on the third day, George brought another asbestos mechanic-Ver- non Lumbrattis-to his place of work. The foreman advised him that the "A" Local-the Respondent Union-was "taking over" and that he was through" Turner was permitted, however, to finish the day. On the following morning, Turner called at the office of the Respondent Marine and spoke to Christian. His testimony with respect to their conversation reads as follows : Well, I just asked him what the story was and he told me we couldn't work without permits from the local and if I waited a little while that things would probably straighten out and I could go back to work. Thereafter, Turner spoke to Christian, on various occasions, by telephone. Once, according to his testimony, he was asked by the latter if he would take a helper's job. He replied in the affirmative and was told that the Respondent might be able to find a place for him ; thereafter, however, he heard nothing further with respect to the possibility of employment as a helper. On October 31, 1950, the Respondent Marine offered Turner employment as a duct wrapper in Wilmington ; he accepted, and was employed in that capacity at the time of the reconvened hearing. 4. Nick Cito, Don Murray , Arthur Peterson Cito, Murray, and Peterson were employed at various times by the Respondent Marine as asbestos mechanics and assigned to work, primarily, as duct wrappers. In mid-February of 1950, at or about the time alleged in the complaint, their employment was terminated, temporarily, by the Respondent Marine. Their employment history, and a recital of the circumstances, follows : Cito was first employed by the Respondent Marine in February of 1948, ap- proximately, as a helper. Several months later, he joined Local 5-B; having been told by Copeland George when he started that he would have to have a permit from the Respondent Union to work in the field of commercial insulation, he secured one, and continued to work under permit until November of 1949. Cito's last permit from the Union was issued on the 17th of October. There- after-in November-he requested another permit of Bruce Porter ; Porter did not acknowledge the request-and Cito never received a permit. Late in November, Cito was laid off by the Respondent Marine due to lack of work. He sought employment through Copeland George at intervals thereafter and was finally employed in the week ending February 12, 1950 He was assigned to work at the Hughes Aircraft Company project as a duct wrapper. The records of the Respondent Marine indicate that he worked 32 hours in the week ending February 12 and 31 hours in the following week. According to Cito, whose testi- mony is not disputed, his employment at the Hughes Aircraft Company project 'S Turner testified, and I find, that he was told by Plant's superintendent, J. Cordell, on various occasions thereafter, that he could remain in the employ of the firm as long as he wanted to, so long as work was available. He advised the Complainant, however, that no work was then on hand. 34 Christian testified that Turner and others were "pulled off" the job and replaced by a number of more experienced, competent workmen because the project had been unduly delayed. This may well have been true. However, it is clear, and I find, that Turner's layoff was not explained to him in such terms. MUNDET CORK CORPORATION 1185 ended on the 14th. On the 15th, he was transferred to a Bank of America project and worked 1 day. His further testimony, which I credit, establishes that he telephoned George that evening and was told that the Respondent Marine would no longer be able to employ him since the Respondent Union was "taking over" the work. George finally agreed to let Cito finish the job-which he did-on the following day. Cito has not worked since for the Respondent Marine On or about the 23rd of February, he called on Christian at Marine's office and asked him what the "deal" was with respect to further work. His testimony, which I credit, estab- lishes that Christian asked him if he could "hold out" for a while and expressed the opinion that he could "straighten out" the situation. Cito's testimony establishes that he sought work from the Respondent Marine again in March, but was told by Foreman George that the company would be unable to employ him until he "got straightened out" with the Union. Late in March, however, he was employed for 2 days by the Respondent Plant. The testimony of its construction superintendent establishes, and I find, that he re- quested the Union to supply three men for a job of "batt insulation" to be applied to the walls and studs of an ice box, and that Cito was one of the men who reported for work 96 At the conclusion of the job, which lasted only 2 days, Cito's employment was terminated. He has not sought reemployment at the Re- spondent Plant. Cito was also offered work by the Respondent Marine on October 31, 1950, as a duct wrapper; the record establishes that he expressed himself as unable to accept it because it would require him to give inadequate notice to his present employer. He also told Christian that he did not wish to leave his present em- ployment because it was steadier than duct insulation work, which he could not depend upon under present circumstances. When questioned at the hear- ing, he stated that he did not wish reinstatement by the Respondent Marine at the present time. Murray's employment with the Respondent Marine began in 1946. In January of 1947, he joined Local 5-B. When employed, he secured a permit from the Respondent Union to work within its craft jurisdiction, after having been told by its business agent and a field superintendent of Marine that he would have to have one to do such work. Murray's employment with the Respondent Ma- rine was "steady" thereafter except in 1949. In July of that year, for a period of 2 weeks, approximately, he was employed by the Respondent Plant to apply duct insulation and was released at the completion of his assignment. There- after, he resumed work for the Respondent Marine. At a meeting of Local 5-B in November, he was told by Business Agent Hutchinson that the Respondent Union intended to restrict "B" men to work in the field of home insulation. Murray's request for a new permit was refused by Bruce Porter ; he renewed his request in December and was told by Hutchinson, again, that the local would issue no more permits. Despite the Union's failure to give Murray a permit, he continued in the em- ploy of the Respondent Marine. The records of this Respondent establish that he was employed intermittently throughout the month of January 1950 and on a full-time basis in the first pay period ending in February. On or about Febru- ary 7, 1950, Murray took a "leave of absence"; he did not seek reemployment until the 24th of the month. On that date-according to his testimony, which I credit-he telephoned Copeland George to request an assignment ; he was in- formed that a "big change" had occurred in his absence and that the Local had 86 Cita testified , explicitly , that Bruce Porter had referred him to the job. The applica- tion of "batts" as noted is normally regarded as incidental to home insulation. 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD `'stopped" him from working. Murray called at the office of the Respondent Marine on the following day and discussed the situation with Walter Barman, a salesman of duct insulation for the Respondent Marine, and Christian. His testimony with respect to the conversation, which I credit, reads as follows : I asked Wally what the trouble was, why [we] couldn't square away to go to work. He said he had always worked for us, but that it was up to the union. If I get cleared through the union, why I could go to work . . . Joe Christian said that he would like to have a meeting with the fellows that had been knocked off their jobs, and said that it was a dirty deal but it was something that couldn't be helped and they would try to get us squared away . . . Barman stated that Peterson and I had always been first call on duct insulation, and that he always had work for us. He would always make work available for us when there was work possible to be made avail- able . . . Joe Christian said that they had more work than they have had in the last three years at the present time, but he couldn't put out the work due to the fact that the union would put a picket line around the job to Stop it cold. In March, on a (late not set forth in the record, Murray requested permission to apply for membership in the Respondent Union. He was told by a member of its executive board, however, that such permission had been refused. Murray was reemployed by the Respondent Marine in the week ending April 2, 1950; the record establishes that he worked intermittently thereafter through- out the month of April;' thereafter, he was not employed by the Respondent Marine until the week ending May 21, 1950; in that week, he worked 6 hours. The record is silent as to the circumstances of his termination .37 Despite his efforts to secure new employment through Copeland George, thereafter, he has not been employed since by this Respondent 38 On October 31, 1950, he was of- fered work, but refused it on November 2, on the ground that he was employed and would have to give his present employer 2 weeks' notice. Peterson was employed by the Respondent Marine in 1941 as an improver; he worked in this capacity for a year and was then promoted to work as a mechanic. In this capacity, he covered pipes. For the last 2 years of his employment, how- ever, the record establishes that he worked as a duct wrapper. In 1943 he joined Local 5-B, but continued to work in the field of commercial insulation under permits received from the Respondent Union. His last permit was issued on October 31, 1949. The record establishes that he sought another by letter, but received no answer. In December, he asked Business Agent Hutch- inson for a permit and was told that the Union no longer issued them. 39 On a date in April not set forth specifically in the record, Murray sought wol k with the Respondent Plant He testified without contradiction, and I find, that its superin- tendent, J. Cordell, replied with the observation that, "You know what the situation is better than I do" It is inferrable, and I find, that this remaik had ieference to the situation created by Murray's lack of a permit 34 Murray testified that John Sutor, a member of the Union's executive board, visited the Job at which he was last employed by the Respondent Marine in April and inquired as to what he and Peterson were doing there. Subsequently, according to Muiiuy, lie and Peterson, who were employed together, were told by Foreman Geoige that they could not work any longer since Christian had ordered their discharge because the Union was "after" the company I credit Murray's testimony as to what he was told at the time his employment ended in April it was essentially corioborated by George's testimony and that of Peterson The record, however, will not support a conclusion that such a conversation preceded his layoff in May 38 George testified, and I find, that lie told Murray that he had work available but could not' use Iuni unless he got it "clearance" from the Union His testimony also establishes, I find, that he made similar statements to Peterson, Turner, and Cite after their final termination by the Respondent Marine , noted elsewhere in this Report. MUNDET CORK CORPORATION 11 87 Peterson was employed by the Respondent Marine intermittently throughout January i950.3fl Thereafter, the Respondent Marine continued to employ him intermittently throughout February, March, and April. He testified credibly, and I find, that on one occasion in February, at the Hughes Aircraft Company project, he and Turner were informed by George that all of the "5-B" men would have to leave the job to make way for union members.4° Peterson , however, was told that he would be permitted to remain until the job was completed; according to him, it lasted intermittently thereafter for a month. When not em- ployed at the Hughes project, Peterson, I find, was assigned to a number of "small jobs" by George. When the Hughes project was completed, in the latter part of March, Peterson asked George for additional work ; he was told, I find, that there was work available, but that members of the Respondent Union would be employed to do that type of work thereafter. The record establishes, how- ever-as noted-that Peterson continued to work as a duct wrapper through- out the month of April. His last employment with the Respondent Marine was in the week ending May 21, 1950, at which time he worked 6 hours ; his testimony indicates, and I find, that George then told him that Marine could no longer use him until he got "clear" with the Union. Peterson made no effort to reapply for work with the Respondent Marine thereafter. On October 31, 1950, he too was offered employment as an asbestos mechanic by this Respondent. On November 2, 1950, when the hearing in this case reconvened, Peterson re- ported to Christian at the hearing that lie had been ill. The record does not indicate that he is presently employed. C Other developments Turner's original charges against the Respondent Marine and the Union, now embodied in the consolidated complaint, were filed on February 17, 1950. Thereafter, on or about the 25th of the month, Turner, Cito, Peterson, and Murray called upon Christian at the office of the Respondent Marine. The record establishes, in the absence of an effective denial, that the men informed Christian of their intention to bring the situation to the attention of the Board. Christian, I find, asked them to "hold off" for a time until he could determine the possibilities of a settlement. He also informed the men, I find, that he had work and wanted to put them back to work, but could not do so because the Union would "stop" the work. Murray, Peterson, and Cito, however, as noted, filed their original charges at the Regional Office on March 2, 1950. Thereafter, in September, on a date not set forth specifically in the record, the Complainants met as a group with Christian and two other representatives of the industry, at the office of the former A preponderance of the evidence with respect to this conference establishes, and I find, that Christian opened the discussion with the observation, in substance, that his company had suffered greatly because of "this unfortunate situation" and that he would like to have the matter settled. He indicated, I find, that he could not "buck" the Union, but he promised that he would make every effort to persuade the Joint Trade Board to recommend each of them as qualified for union membership. The evidence with respect to his additional remarks is in conflict. The witnesses offered by the General Counsel all testified that Christian had declared himself 39 His testimony, which I credit , establishes that while employed at a Bank of America construction project during this period , he was visited by Sutor , then the secretary of the Union , who told him that he could not work at the job without a permit. Sutor then left . the record contains no evidence , however , that Peterson ' s employment tenure \cas impaired as a result of the conversation or its aftermath. "This remark appears to have been made upon the occasion with respect to which 't'urner testified I so find 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unable to put them to work because the Union, specifically, would establish a picket line at Marine's plant if he did so. Christian's testimony with respect to the incident reads as follows : . . . Mr. Spooner . . . made what I consider to be a derogatory remark with regard to the construction industry, and he stated that the Taft-Hartley Act was going to curtail all those things, and he stated that at least we could be Americans and stand on our own two feet and fight, and I said, "Don't be silly." I told him that he had been employed in the construction industry, as I understood it, for several years, and that to operate that way would bring a flock of picket lines .. . I find Christian's version of his remarks credible. The conference ended inconclusively. Conclusions A. The issues Basically, the problem with which this Report is concerned developed as the result of a diminution in the number of job opportunities in the field of com- mercial insulation during the latter part of 1949 and the earlier months of 1950. Clearly, this meant that less desirable employment was available for the union members. And a reasonable interpretation of the entire record certainly war- rants the inference that the Union-which had issued permits freely prior thereto, particularly to men employed as duct wrappers-was anxious, therefore, to reassert its exclusive "jurisdiction" over all the work conventionally designated as work in the field of commercial insulation. The decision of the union leader- ship to discontinue the issuance of permits was clearly calculated to assist in the achievement of that objective. I so find That decision, standing alone, however, has not been challenged in this case as an unfair labor' practice." Simply stated, it is the contention of the General Counsel, rather, that the Union, after it reached that decision, sought to invoke its "closed shop" contract with the Association and the other Employer Respond- ents to bar nonmembers and former "permit" workers from any employment normally associated with commercial insulation-and that the Respondent Em- ployers acquiesced in the efforts of the Union to apply and give effect to the agreement with that objective in mind. In reply, the Respondent Employers assert-in substance-that their agreement with the Union is not invalid, and that their treatment of the Complainants does not, in any event, reveal an intent to implement an illegal and invalid collective bargaining agreement. And the Respondent Union contends that it did not, at any time, cause or attempt to cause the Employer Respondents to take action in conformity with such a contract. Analysis and Conclusions • 1. The discharges a. Warren H. Spooner In the light of the record, it is clear-and I find-that Spooner's employment by the Respondent Mundet was terminated in June of 1949, as a result of some "confusion" which had developed in regard to his relationship to the Union and its parent international. Since Mundet's course of conduct represented a reaction to that confusion, and was reversed only after the "unrest" engendered among its employees as a result of Spooner's situation had been dissipated, I find that 41 Cf. the proviso to Section 8 (b) (1) (A ) of the Act. MUNDET CORK CORPORATION 1189 Spooner was subjected to discrimination in regard to the tenure of his employ- ment, and that such discrimination was reasonably calculated to encourage membership in the Respondent Union ' Mundet, of course, was a party to that organization 's 1949-50 agreement with the Association and. its members. Its union-security clauses, however, as I have found in this Report, were illegal and invalid by virtue of their failure to comply with the limitations and conditions precedent established by the proviso of Section 8 (a) (3) of the statute's The agreement, therefore, provides no defense , for the Respondent. I find that Mundet, on June 20, 1949, subjected Spooner to discrimination in regard to the tenure of his employment to encourage membership in the Respondent Union, and that, by such conduct, it interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. In the light of the admission by Henry Thompson, the vice president of the Union's parent international, that the "confusion" which led to Spooner's termi- nation resulted from a report made to the Union's officers and members, and the oral admissions of Porter and Thompson to Spooner that they were merely exe- cuting "orders" in connection with the incident, I infer and find that Spooner's employment was terminated by the Respondent Mundet at the request of the Respondent Union. By its conduct and that of its agents in that connection I find that the Union caused Mundet to discriminate against Spooner in violation of Section 8 (a) (3) of the Act, and restrained or coerced Mundet's employees in the exercise of rights guaranteed by the statute. . Spooner was subsequently reinstated. Thereafter, pursuant to the settlement agreement noted, he received back pay, in full, for the period in which he was denied employment. It has been found that his employment with the Respondent Mundet was ultimately terminated for lack of work. I find no substantial or probative evidence in the record to warrant a conclu- sion that Spooner was subsequently subjected to discrimination because of his nonmembership in the Union. There is no evidence, at the outset, that he ever re- newed his effort to become a union member, or that he ever sought a permit. Assuming, for the sake of argument, that Spooner believed a permit, or proof of union membership, was no longer necessary in connection with his search for employment-after the execution of the settlement agreement-I still find the record barren of evidence that the absence of either was a factor in his failure to find employment as an insulation worker. His testimony establishes only that certain responsible officials of Mundet and Marine refused him employment thereafter because no work was available There is other evidence to support that conclusion. Mundet's branch manager testified, without contradiction, that the number of man-hours devoted to pipe insulation work by its employees was less in 1950 than it had been in the previous year, and that its opportunities for the employment of asbestos mechanics had declined in number. * And Mundet's superintendent of construction testified, credibly, that, since mid-1949, it has employed asbestos mechanics on three projects of relatively short duration, several "small jobs" at Swift and Company and elsewhere, and one project current at the time of the hearing. The record establishes that Mundet employs 42 Horn Manufacturing Company, 83 NLRB 1177, 1207 43 The exculpatory provision of the agreement , previously noted-article XVIII-upon which Mundet relied at the outset, in its response to Spooner' s original and amended charge, cannot absolve it . The language of the clause in question is clearly prospective in tenor-and at the time of Mundet's action with respect to Spooner, there had been no antecedent finding that the union-security clauses were in violation of "existing" Federal law. Even if the union-security clauses of the agreement played no part in the Respondent's decision to terminate Spooner's employment , such action taken at the request of the Union, or to allay "unrest" among its members in Mundet 's employ, would still be an unfair labor practice. 974176-52-vol. 96-76 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a regular crew of asbestos mechanics, with considerable seniority, and that the projects listed merely provided sufficient work for the regular crew. There is no evidence in short, sufficient to establish that an employment opportunit3; was ever available with the Respondent Mundet, for which Spooner might have been considered absent discrimination. Upon the entire record, therefore, I find that Spooner, since his reinstatement by the Respondent Mundet on June 23, 1949, has not been subjected to discrimi- nation by that Respondent in regard to his hire or the tenure of his employment. A similar conclusion must be reached with respect to the Respondent Marine. 'The parties stipulated that its total dollar payroll for asbestos workers dropped 38 percent in 1950, as against 1949, the wage rate for individual workers being the same-and that every month of 1950 showed a decrease in total dollar payroll as against the comparable month of 1549, except January of 1950, when work contracted for in 1949 was performed. While the record establishes that -Marine has employed asbestos mechanics since July of 1949 at a number of projects, the total volume of its work in the insulation field has been less in 1950 than it was in the previous year. The record shows that its regular crew, made up of men with considerable seniority, has been employed in connection with the available work, and that some members of the regular crew have in fact been laid off for lack of work. In the absence of evidence sufficient to warrant an inference that 'Spooner would have been employed by the Respondent Marine at available work, absent discrimination, I am constrained to find, with respect to this Respondent also, that Spooner was not subjected to discrimination, after September 11, 1949, in connection with his efforts to secure employment With respect to the responsibility of the Respondent Union for Mundet's later treatment of Spooner, it is sufficient to note that the record contains no evidence of a renewed attempt on its part to cause discrimination as to him, on the part of any Employer Respondent, because of his failure to achieve union mem- bership. Since I have found no evidence that he was in fact subjected to dis- crimination in violation of the statute, it cannot be found that the Respondent Union "caused" such discrimination. The contention of the General Counsel, in substance, that the illegal "closed shop" or "union shop" contract of the parties, per se, constituted a continuous "attempt to cause" discrimination against the Complainants, even in the absence of evidence with respect to specific statements or conduct attributable to the Respondent Union made or undertaken in reliance upon it, need not be discussed at this point. Since any such "attempt to cause" discrimination-if the contract, standing alone, was one- had no observable effect in Spooner's case, a conclusion with respect to this particular contention would not affect any remedy recommended in this Report. I find it unnecessary, therefore, to pass upon the question-insofar as Spooner's case is concerned-and will make no finding as to whether the Re- spondent Union did or did not commit an unfair labor practice, after June 23, 1949, affecting his hire, or the tenure of his employment, or any term or con- dition of such employment. b. Narciso Duran Munoz A contrary conclusion would seem to be warranted, however, with respect to the employment of Munoz. Insofar as the Respondent Marine is concerned, the record is clear that he was denied union membership and that the Respond- ent Union subsequently refused to give him a permit, that the responsible of- ficials of Marine were aware of his plight, and that he was refused employment because of it. Whatever the situation may have been in February. and immedi- MUNDET CORK CORPORATION 1191 -ately thereafter, with respect to available employment, the record is clear, and I have found, that Munoz was told on two occasions in April of work which was available for him. Reference is made to his undenied testimony in regard to his conversations with Ferry and Short. On each of these occasions he was denied employment because of his inability to produce a permit." The willing- ness of the Respondent Marine to give him limited employment in San Bernar- dino, or to assist him in a plan whereby the policy of the Union, insofar as it affected him, might be circumvented, cannot affect the significance of these conclusions of fact. Upon the record, I had that the Respondent Marine, on various dates subsequent to its last employment of Munoz, subjected him to discrimination in regard to his hire and the terms and conditions of his employ- ment, to encourage membership in the Respondent Union 46 By its course of conduct in that respect, the Respondent Marine has interfered with, restrained, and coerced employees, I find, in the exercise of rights guaranteed by Section 7 of the Act The Respondent Union contends that it did not cause or attempt to cause the course of action thus attributed to the Respondent Marine. I find no merit in this contention. The record, it is true, contains no evidence of a specific request, attributable to the Union, that Munoz be denied employment because of his inability to pro- duce a permit or proof of union membership. The lack of direct evidence in this connection, however, has no bearing, in my opinion, upon the validity of the General Counsel's contention. Reference has been made to the argument in this connection, that the illegal "closed shop" or "union shop" agreement in effect at the time ought to be construed as a continuing "cause" of action taken in conformity with its terms. Any consideration of the argument's validity would involve a close analysis of the law and its legislative history. I find it unneces- sary, however, to consider the contention at length, the record as a whole, in my opinion, will support an inference that a request of the sort proscribed by the statute was made. The evidence, for example, is more than ample to support a finding that the various Complainants were advised by responsible agents of the Union and their current employer, when they began work in the commercial insulation field, that possession of a permit issued by the Respondent Union was a condition precedent to such employment. I find it difficult, if not impossible, to believe that this interpretation of the employment relationship established by the agree- ment previously noted was adopted independently, and without consultation, by each of the signatory parties It is, instead, reasonable to infer, and I do infer, that the Union-as the party principally interested in the enforcement of the union-security clauses of the agreement-had fully stated its position at the time "{ Counsel sought to adduce evidence as to the nature of the Complainant's experience . apparently, it is the Respondent Marine's contention that the experience Munoz had was so limited that he would not receive calls foi employment, in the normal course of events, during a period in which little work was available. In the light of the evi- dence that he was told of available work on at least two occasions after his last layoff- by Ferry and Short-I find his limitations as a worker, it any, irielevant in this case. Similar contentions with respect to the other Complainants must also be considered de- ficient in merit AJ Counsel adduced evidence that Munoz had never been employed by any of the other Employer Respondents, and that he had never, in tact, made an application for employ- ment with them His failure to make such applications is asserted to be indicative of a lack of good faith in connection with his prosecution of charges I find this conten- tion to be without merit ; the record establishes that he was registered for work with the State Employment Seivice as an asbestos worker Harvest Queen Mill and Elevator -Company, 90 NLRB 320 Similar contentions with respect to the other Complainants -must also be rejected 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with respect to the conditions under which nonmembers might be employed at the type of work the agreement purported to cover. The minutes of the Joint Trade Board noted, clearly reveal the Union's desire to preserve every available work opportunity in the field of commercial insulation for the benefit of its members-at the expense, if necessary, of permit holders. I find, in the language used to describe the discussions, a clear indication that the Employer Respondents represented on the trade board were effectively advised of the Union's desires in that regard, acid of its insistence upon their literal adherence to the terms, of the agreement. Under the circumstances, the Employer Respondents, when they learned of the Union's decision to refrain from further issuance of permits, were effectively put on notice that the Union intended to insist upon the assign- ment of available work in the field of commercial insulation to its members. The awareness of the Employer Respondents with respect to the Union's de- cision to withhold the issuance of permits is not seriously disputed ; at the very least, I find, they were fully aware of its decision not to issue such permits to Munoz and the other Complainants herein. The absence of a specified request that each of the Complainants be discharged or denied further employment is therefore, I find, immaterial. I am satisfied, upon the entire record, that the necessary and intended result of the Union's action in withholding new permits, in the light of the antecedent discussion re- ported by the trade board, was to cause Employer Respondents to deny any further employment to Munoz and the others. It has been found elsewhere in this Report that such employment would have been available for Munoz absent the discrimination thus induced. Accordingly, I find that the Respondent Union, by its course of conduct in this connection, caused the Respondent Marine to discriminate. against him in violation of Section 8 (a) (3) of the Act; and since the Union's course of conduct was, I find, directed primarily at compelling Munoz and other employees to forego certain rights which Section 7 of the Act protects, I find, in addition, that the Union, by its course of conduct, restrained and coerced employees in their exercise of those rights. 46 c. Turner, Ccto, Murray, and Peterson With respect to these Complainants, the Respondent Marine in particular argues that it has not been guilty of an unfair labor practice because the employ- ment of each was terminated in February 1950 for business reasons, and because subsequent employment was denied them for reasons having no relation to their lack of union membership. With two exceptions, however, I find no merit in these contentions. In the case of Turner, the record establishes that his employment was inter- rupted by the arrival of a replacement, Lumbrattis, and that he was told by Copeland George that his employment was being terminated because the Re- spondent Union was "taking over" the work. George has confirmed Turner's testimony in that connection. 47 Christian, it is true, did testify that Turner had been replaced because of the Respondent's desire to secure a larger and more competent crew in order to expedite the Hughes Aircraft Company project. I find this explanation, however, incomplete. The record, in my opinion, does not 49 Clara-Val Packing Co., et al, 87 NLRB 703, 25 LRRM 1159 47 The Respondent Union sought to attack George's credibility on the ground that he was and is biased against the Respondents, since (1) He was discharged by the Respondent Maine shortly alter the events related in this Report; and (2) he was, at all times, a member of Local 5-B and a partisan of the "5-B" men in their efforts to retain work in the field of commercial insulation. I find that the record sustains these contentions ; accordingly, I have credited George only as to matters with respect to which his testimony corroborates, or is corroborated by, other witnesses. MUNDET CORK CORPORATION 1193 warrant a conclusion that Turner was an incompetent worker. If additional men were needed, in fact, to expedite Marine's work at the project, no persuasive reason has been given for its decision to dispense with the services of Turner at the same time. His testimony that Christian told him on the following day that he would be unable to work without a permit has not been denied. I find , there- fore, that his inability to secure a permit was the principal factor, if not the only factor, in Marine's decision to dispense with his services at a time when members of the Respondent Union were being assigned to available work at the project. Cito's experience was essentially similar . The record establishes that he was told by George, in the midst of a bank construction project, that the Union was "taking over" the work. Although he was later permitted to finish the job, the record shows, and I find, that he was asked by Christian shortly there- after , to "hold out" for a time-in connection with his request for additional work-until the Respondent Marine could "straighten out" the situation. In the light of the record, the reference is clear ; I find that Cito was told, in effect, that the Respondent Marine would be unable to employ him until he secured a permit from the Union, or until his right to work without one became established. At the end of February, Turner, Cite, Murray, and Peterson were told by Christian, at a conference in the offices of the Respondent Marine, that work was available for them and that he would like to put them all to work, but found himself unable to do so.48 The testimony of the Complainant with respect to these remarks on the part of Christian at the February conference has not been denied; I find that employment opportunities in the field of duct insulation, with the Respondent Marine, were in fact available at the time, and that Turner and Cito were denied such employment because of their inability to secure .union permits." Murray and Peterson, however, were in fact employed thereafter. There is no reliable evidence to show that they were in fact denied available employment in February, or at any later date. George's testimony, it is true, would seem to establish that they were subse- quently told the Respondent Marine could not employ them for available work because of the Union's refusal to give them permits. Upon the entire record, however, I doubt that work for which they would have been considered, non- discriminatorily, was in fact available. George's statements to the contrary, I find, may be explained upon the assumption-warranted by the record, in my opinion-that he considered "5-B" men entitled to duct insulation work in preference to union members and had, in the past, acted upon that assumption. In short, I find that his statements with respect to available work in April of 1950 and thereafter, if made, reflected an analysis of the Respondent Marine's situation grounded in his union partisanship, and should not be taken as a re- 4e It was stipulated by the parties that the total dollar volume of Marine's sales of duct -insulation declined not more than 10 percent in 1950 as against 1949, while its total dollar payroll for duct insulation workers declined only 1 percent in 1950 as against the previous year. 49 At various times, the Respondents attempted to prove that Turner and Cito, as well as Murray and Peterson, had received "firm" offers of employment-through Local 5-B-from several home insulation contractors, and that they had rejected such offers. I found the proferred evidence immaterial ; upon reconsideration I adhere to that ruling. Even if the "B" local was authorized in every case to make a "firm" job offer on behalf of the con- tractor involved. evidence in that connection has no place in this proceeding If offered to show that desirable new employment was refused , it would be more appropriate in some later compliance proceeding. If offered to show that the Complainants were not anxious for work but only for a "showdown" before the Board with respect to their right to seek and get commercial insulation employment, it should be rejected as immaterial. N. L. R. B. V. Indiana and Michigan Electric Company , 318 U. S. 9. 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD liable indication that the Respondent Marine would have considered the employ- ment of Murray and Peterson for such work , absent discrimination. Upon the entire record, I find that the Respondent Marine discriminated against Turner and Cito, as noted, with respect to their hire and tenure of employment and the terms and conditions of their employment , to encourage membership in the Respondent Union, and that, by such conduct, it interfered with, restrained , and coerced employees in the exercise of rights guaranteed by the Act. Since the record , in my opinion , does not contain substantial , probative evidence that Murray and Peterson were ever dismissed or laid off discrimina- torily , for a similar reason, or that they were ever denied available work, dis- criminatorily, to encourage union membership, I find that the Respondent Marine, in its treatment of them, has not engaged in an unfair labor practice. For the reasons previously noted in connection with my conclusions with regard to the treatment of Munoz, I find that the Respondent Union caused Marine thus to discriminate against Turner and Cito in violation of Section 8 (a) (3) of the Act, and that it restrained and coerced employees thereby, in their exercise of rights which the Act guarantees. In the absence of any justification for a conclusion, however, that Murray and Peterson were, in fact, subjected to discrimination in violation of the statute , I find it unnecessary to determine whether the conduct of the Union, insofar as it was calculated to affect their status, amounted to an "attempt to cause" such discrimination. 2. Other interference, restraint, and coercion The record establishes, and it has been found, that Warren H. Spooner was told by the branch manager of the Respondent Mundet in June 1949 that it was "compelled" under its agreement with the Respondent Union to employ union men-and that Spooner was offered steady employment by Mundet if he would agree to withdraw the charges against it then pending. It has also been found that the Respondent Marine, on various occasions, advised Munoz, Turner, Cito, Murray, and Peterson-by its accredited agents, Ferry, Christian, Shoit, and George, and by the statements of Walter Barman to Murray in the presence of Christian, previously noted-that they would be unable to work for the Re- spondent Marine in the field of commercial insulation without a union permit. These statements, I find-without regard to their foundation in fact, and with- out regard to the subsequent inconsistent conduct of the Respondents, in some cases-were reasonably calculated to interfere with, restrain, and coerce these employees in the exercise of rights guaranteed by Section 7 of the Act. I find that the Respondents Marine and Mundet by these statements committed an unfair labor practice. The record also establishes that Munoz was told on at least one occasion by Business Agent Hutchinson of the Respondent Union that he would be unable to work for the Respondent Marine without a permit-and that some of the other Complainants were given similar advice by John Sutor, at various times an officer and executive board member of the Respondent Union. These re- marks, I find, were reasonably calculated to coerce the Complainants in the exercise of their statutory right to refrain from joining or assisting the Union, and to refrain from concerted activities sponsored by it for the purposes of mutual aid or protection.' Upon the entire record, I find that these statements contained a threat that the Complainants would be deprived of the employment opportunities which they might otherwise reasonably anticipate, and were rea- Smith Cabinet Manufacturuig Company , Time, 81 NLRB 138, Seampru fe, Inc, 82 NLRB 892 MUNDET CORK CORPORATION 1195 sonabiy calculated to have an effect upon them without regard to the question of the Union's ability to carry out the threat. Accordingly, I find that the Respondent Union, by the statements of Hutchinson and Sutor, restrained and coerced employees in the exercise of rights guaranteed by the Act, thereby engaging in an unfair labor practice. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Employers and the Union, set forth in Section 111, above, occurring in connection with the operations of the Respondent Em- ployers set forth in Section I, above, have it close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent Employers and the Union have engaged in unfair labor practices, it will be recommended that each of them cease and desist therefrom and take certain affirmative action, including the posting and distribution of appropriate notices, designed to effectuate the policies of the Act. Since it has been found that the Association and the Respondent Employers, by their execution and acceptance of the 1949-50 agreement discriminated against employees to encourage union membership, and contributed assistance and sup- port to the Union. I shall recommended that they withdraw recognition from the Union and cease giving effect to their subsequent agreement of May 28, 1950, with that organization-which in every respect now material merely involved the renewal and extension of the agreement herein found to be unlawful and invalid-and to any modification, extension, supplement, or renewal of it, unless and until the Union shall have been certified by the Board as the exclusive repre- sentative of their employees. Nothing in this recommendation, however, should be deemed to require the Employer Respondents to vary or abandon those wages, hour, seniority, or other substantive features of the relationship between them and their employees which have been established pursuant to that agreement, or to prejudice the assertion by the employees of any rights they may have under the agreement. Having found that the Respondent Union caused the Respondent Marine to discriminate against Munoz, Turner, and Cito, I shall recommend that the Union notify these Complainants, the Association, and the other Employer Respondents, in writing, that it has withdrawn its objections to their em- ployment by the Respondent Employers." Any such notice, addressed to the Respondent Marine as the last employer of Munoz, Turner, and Cito should contain a request that Marine offer Munoz and Turner-in particular-immediate and full reinstatement to their former or substantially equivalent positions 62 if a' In view of the evidence in the record that commercial insulation workers , and par- ticularly those with relatively little seniority, frequently shift their employment among the Respondent Employers, I find it necessary and appropriate for the Union to send the notice I hereby recommend to each Employer Respondent. 52 The expression "former or substantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer in existence, then to a substantially equivalent position." See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. In view of Cito's indication that he does not presently desire reinstatement, I shall not recommend that the Union request his reinstatement, or recommend that such a reinstatement offer be communicated to him. 1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such positions are available-in the manner set forth hereinafter, without prejudice to their seniority or other rights and privileges. The record establishes, it is true, that the Respondent Marine, in fact, recently offered employment to Munoz and Turner. The Respondents, however, have made no contention that Marine's action has rendered the case moot as to them or vitiated any previously indicated need for remedial action. It is clear, however, that fewer work opportunities for mechanics in the commercial insula- tion field are available at the present time than were available when the Respondent Marine discriminatorily terminated the employment of Turner and discriminatorily refused reemployment to Munoz, Turner, and Cito. In view of the possibility that work may not be available at this time in the field of commercial insulation, as herein defined, for Munoz and Turner, I shall recom- mend that the Respondent Marine offer these Complainants immediate reinstate- ment if they are not employed by it when this Intermediate Report and Recom- mended Order is served upon it-if they would have been so employed absent the discrimination practiced against them. If Munoz and Turner are not employed by the Respondent Marine when this Intermediate Report and Recommended Order is served upon it, and if work in the field of commercial insulation as herein defined is not then available for them, I shall recommend that the Respondent Marine place their names upon its seniority roster or list of prospec- tive employees , in the positions they would have occupied absent the discrimina- tion found, and offer them reinstatement in accordance therewith b' It will also be recommended that the Respondent Marine and the Union, jointly and severally , make whole Munoz, Turner, and Cito for any losses of pay and other incidents of the employment relationship which they may have suffered by reason of the discrimination practiced against them " These Com- plainants should be made whole by: (1) The payment to each of them of a sum of money equal to the amount which they normally would have earned as wages, from the date of their discriminatory layoff or the Respondent Marine's discriminatory refusal to reemploy them to the date of its unconditional offer of reinstatement to them, noted elsewhere in this Report, less the net earnings of each of them during such period,' and less such other sums as the employer, absent the discrimination, normally would have deducted from their wages for deposit with State and Federal agencies on account of social security and other similar benefits; and (2) payment to the appropriate State and Federal agencies, to the credit of these Complainants and the Respondent Marine, of a sum of money equal to the amount which, absent the discrimination, would have been deposited by Marine, either to satisfy a tax obligation of its own, or as the equivalent of deductions properly assessable against the earnings of the Com- plainants by Marine on account of such social security or other benefits " The pay losses of each Complainant should be computed upon a quarterly basis, in the manner established by the Board in the recent Woolworth case.67 In order to insure expeditious compliance with these recommendations in re- gard to back pay and reinstatement, I shall recommend that the Respondent 53 New York Shipbuilding Corporation and Industrial Union of Marine and Shipbuilding Workers of America, Local No. 1, C. 1. 0 , 89 NLRB 1446. 69 Since the record establishes that the discrimination practiced by the Respondent Mundet against Spooner was followed by his reinstatement, the payment of the back pay due him , and the posting of appropriate notices, I find it unnecessary to recommend any comparable affirmative action on the part of the Union or the Respondent Mundet, with respect to Spooner, to effectuate the purposes of the Act . Cf. N. L . R. B. v. National Bis- cuit Company, (C. A. 3) decided November 21, 1950. sc Crossett Lumber Company , 8 NLRB 440 , 497-498. ens See Pen and Pencil Workers, 91 NLRB 883. 51 F. W. Woolworth Company, 90 NLRB 289. MUNDET CORK CORPORATION 1197 Marine, upon request, make available to the Board and its agents, all pertinent records.6e CONCLUSIONS OF LAW Upon these findings of fact, and upon the entire record in the case, I make the following conclusions of law : 1. The Insulation Contractors of Southern California, Inc, designated in this record as the Association, is an employer within the meaning of Section 2 (2) of the Act. 2. The Association and its members-Marine Engineering and Supply Com- pany, Mundet Cork Corporation, J. T. Thorpe Company, Plant Insulation Com- pany, and United Cork Company-are engaged in commerce and business activi- ties which affect commerce, within the meaning of Section 2 (6) and (7) of the Act. 3. The International Association of Heat and Frost Insulators and Asbestos Workers, Local 5, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 4. By interfering with, restraining, and coercing their employees in the exer- cise of rights guaranteed in Section 7 of the Act, the Employer Respondents engaged and have continued to engage in unfair labor practices within the mean- ing of Section 8 (a) (1) of the Act. 5. By their execution and acceptance of a collective bargaining agreement with the Respondent Union which contained illegal and invalid union-security clauses, and by their renewal and extension of that agreement with immaterial modifica- tions, the Association and the other Respondent Employers engaged and have con- tinued to engage in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By contributing support and assistance to the Union, through the execution and enforcement of collective bargaining agreements containing illegal and in- valid union-security clauses, the Association and the other Respondent Employers engaged in and have continued to engage in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 7. By discriminating in regard to the hire and employment tenure of specific employees, to encourage membership in a labor organization, the Respondents Mundet and Marine engaged, and the Respondent Marine has continued to en- gage, in unfair labor practices, within the meaning of Section 8 (a) (3) of the Act. 8. By attempting to cause the Association and the other Respondent Employers to discriminate against employees, and thus to commit an unfair labor practice within the meaning of Section 8 (a) (3) of the Act, and by causing the Respond- ents Mundet and Marine to discriminate against specific employees in violation of the statute, the Respondent Union engaged and has continued to engage in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 9. By restraining and coercing employees in the exercise of certain rights guaranteed in Section 7 of the Act, the Respondent Union engaged and has con- tinued to engage in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 10. 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 in this volume.] 51 See F. W. Woolworth Company, supra, footnote 19 Copy with citationCopy as parenthetical citation