Truitt Construction Co., Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1971

191 N.L.R.B. 508 (N.L.R.B. 1971)

508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Truitt Construction Co., Inc . and Alex J. Soares, an
Individual
International Association of Bridge , Structural, Orna-
mental & Reinforced Iron Workers Union, Local
378 and Alex J. Soares, an Individual . Cases 20-
CA-6155 and 20-CB-2258
June 24, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On January 27, 1971, Trial Examiner James T.
Barker issued his Decision in the above-entitled pro-
ceedings, finding that the Respondents 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
attached Trial Examiner's Decision. Thereafter, the
Respondent Union filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief, and the Gen-
eral Counsel filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this proceeding to a three-member
panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, and briefs, and the
entire record in this proceeding, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner directed to the Respondent Em-
ployer and Respondent Union and hereby orders that
the Respondents, Truitt Construction Co., Inc., Oak-
land, California, its officers, agents, successors, and as-
signs , and International Association of Bridge, Struc-
tural, Ornamental & Reinforced Iron Workers Union,
Local 378, its officers, representatives, and agents, shall
take the action set forth in the Trial Examiner's recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Trial Examiner: This matter was heard
at San Francisco, California, on October, 15, 1970, pursuant
to separate charges filed on June 12, 1970,' in Case 20-CA-
6155 and Case 20-CB-2258 by Alex J. Soares, an individual.
On August 17, 1970, the Acting Regional Director of the
National Labor Relations Board for Region 20 issued an
order consolidating cases, consolidated complaint and notice
of hearing alleging that Truitt Construction Co., Inc., had
violated Section 8(a)(3) and Section 8(a)(1) of the National
Labor Relations Act, and that International Association of
Bridge, Structural, Ornamental & Reinforced Iron Workers
Union, Local 378, had violated Section 8(b)(2) and Section
8(b)(1)(A) of the Act. The parties timely filed briefs on
November 20, 1970.
Upon consideration of the briefs and upon the entire record
in this case and my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
Truitt Construction Co., Inc., hereinafter called the Com-
pany, is, and has been at all times material herein, a Cali-
fornia corporation with a place of business in Oakland, Cali-
fornia, where it is engaged in business as a general contractor
in the construction industry.
During the calendar year immediately preceding the issu-
ance of the complaint herein, the Company furnished goods
and services valued in excess of $50,000 to nonretail custom-
ers in the State of California, which customers annually sell
products and services valued in excess of $50,000 directly to
purchasers located outside the State of California.
Upon these stipulated facts, I find that at all times material
herein Truitt Construction Co., Inc., has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondents concede that at all times material herein
International Association of Bridge, Structural, Ornamental
& Reinforced Iron Workers Union, Local 378, hereinafter
called the Union, has been a labor organization within the
meaning of Section 2(5) of the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The initial issue in this case is whether the evidence ad-
duced by the General Counsel is sufficient to establish that
the Union caused or attempted to cause the Company to lay
off or terminate Alex Soares from his position of employment
with the Company. The further issue arising under the plead-
ings and record in this case is whether the Company laid off
or terminated the services of Soares because he did not pos-
sess the job skills then required by the Company or whether
his layoff was accomplished because of his lack of member-
ship in the Union.
' All references herein are to the calendar year 1970, unless specifically
indicated otherwise
191 NLRB No. 73
TRUITT CONSTRUCTION CO.
B. Pertinent Facts
1. The company and union heirarchy
John Truitt is president and sole stockholder of the Com-
pany. The Company is licensed as a general contractor under
the laws of the State of California. Truitt supervises the work
of his employees and performs construction work on con-
struction projects of the Company, as required.
Richard Zampa and Ronald McDonald are business agents
of the Union.
2. The employment of Alex Soares
Alex Snares commenced work for the Company on April
16. He was employed as a welder at the hourly rate of $4.50.
At the commencement of his employment, Soares sought to
obtain from John Truitt a commitment of a minimum of 6
months' work. Truitt declined to give Soares such a commit-
ment but informed him that as long as he did his work there
would be no problem with layoffs. At this point in time,
Soares was not a member of any labor organization.
During his period of employment by the Company, Soares
divided his worktime evenly between shopwork and work
performed outside of the shop. In this connection, he welded,
cut, and set up I-beams and performed some erection work.
Additionally, he used the cutting torch, stamped holes in
metal, and fitted metal members together for erection at pro-
jects of the Company. While Soares spent approximately 40
to 50 percent of his worktime in the employ of the Company
performing field tasks, he spent only approximately 2'2 days
in the employ of the Company performing construction tasks
at construction sites. In this latter capacity , he erected some
staircase enclosures and performed some welding around
pipe on the project. The balance of his fieldwork in the em-
ploy of the Company was spent in erecting and performing
necessary welding tasks in connection with the installation of
material he had built in the shop.
3. Welding work and skills
Shop welding is performed on metal material which, to
facilitate the welding work, is placed by the welder on a
stationary horizontal or vertical plane. Construction welding
differs from shop welding in that the welding work must be
done on the metal materials as they exist in their fixed posi-
tion at the building site. Thus, the welder is required in con-
struction welding to perform vertical, horizontal, or overhead
welding. Welding which is to be erected on construction pro-
jects performed under the codes or auspices of the State of
California, is inspected by a government inspector for
strength, dimension, and appearance. A uniform width and
texture is required to pass inspection. The Respondent Union
has recognized jurisdiction over outside welding while a
different local of the Iron Workers has jurisdiction over shop
welding.
4. The Cal-State project
During the month of June, the Company was engaged in
work relating to a construction project being carried on at the
Cal-State College in Hayward, California. Alex Soares per-
formed shopwork on materials- destined for installation and
erection on the Cal-State project. All construction work, in-
cluding welding , performed on the Cal-State project was sub-
ject to inspection by a building inspector in the employ of the
State of California.'
3 All of the foregoing is based on undisputed record testimony.
509
5. The layoff of Alex Soares
On Friday, June 5, Alex Soares was performing work in the
employ of the Company at the Cal-State work project. He
had been dispatched there by John Truitt to correct some
work which Soares had performed in the shop. At approxi-
mately 2 p.m. on June 5, Snares injured his foot and returned
to the shop from the project at approximately 4 p.m. He
informed Truitt of the injury.
Soares was scheduled to return to work on Monday, June
8, but during the weekend of June 6 and 7 Soares experienced
substantial swelling in his injured foot . Thereafter , on Mon-
day morning, June 8, he telephoned Truitt and informed him
of the condition of his injured foot. Truitt instructed Soares
to consult a doctor and have X-rays taken . Soares did so on
the afternoon of June 8 and received the following statement
from his physician:
Alex Soares was seen and treated by me today and is to
remain away from work until further notice . His next
appointment is Thursday, June 11.
Upon receipt of the doctor's certificate Soares went directly
to see Truitt at the office of the Company. Soares informed
Truitt that the doctor had instructed him to "stay off" his foot
for a "few days." Soares showed Truitt the statement which
the doctor had given him. Truitt instructed Soares to give all
of the information to his secretary and then to return to the
office . Soares spoke with Truitt 's secretary and gave her the
statement which the doctor had given him. He returned and
spoke with Truitt.
Truitt informed Soares that the Iron Workers had come to
the Cal-State job and had "kicked them all off the property"
because the employees had to be union members to work on
the project. Truitt further told Soares that as Soares was not
a union member he had to lay Soares off . Thereupon Soares
then asked Truitt if he could work if he became a member of
the Union and Truitt answered in the affirmative. Addition-
ally, Truitt stated that he could perform work in the shop
without becoming a member of the Union. Truitt showed
Soares a piece of paper bearing the names Richard Zampa
and Robert McDonald.'
6. The collective -bargaining agreement
On Friday, June 5, Truitt had in his employ at the Cal-
State project, in addition to Alex Soares, employees Pavon
and Denbreejen. Additionally, Truitt worked at the project.
For,a period of several days prior to June 5, Truitt had
endeavored through contacts with a friend who was a mem-
ber of the Iron Workers local union in San Francisco, to
obtain the services of two specific members of the local.
Efforts to obtain the services of these two individuals had
proved unsuccessful . On Monday, June 8 , Pavon and Den-
breejen worked with Truitt on the Cal-State project. During
the workday, Truitt was approached by an individual who
informed Truitt he would be able to obtain some Iron Work-
ers for Truitt from the Hayward area.' Truitt was receptive
' The foregoing is based principally upon the credited testimony of Alex
Soares. I credit the testimony of John Truitt concerning this incident only
to the extent it is consistent with the above findings. As I observed Soares
testify, he impressed me as a credible witness whose recollection was accu-
rate and whose testimony was not tailored by considerations of self-interest.
On the other hand, Truitt was not interrogated directly concerning the
context or substance of his conversation with Soares wherein he informed
Soares of his layoff. Truitt 's fragmentary denials of isolated aspects of
Soares' testimony are not sufficient to overcome the credible account given
by Soares of the conversation in question.
° The context of the testimony of record concerning this subject clearly
reveals that the workers to be supplied were Iron Workers and that the
geographic area from which they would emanate was the Hayward, in
(Cont.)
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and stated that he was in need of their services. The individual
to whom Truitt was speaking asked if he had a job. steward
on the project. Truitt stated that he did not. Soon-thereafter,
at approximately 3:30 p.m., Truitt spoke to Pavon and Den-
breejen saying, "Wise up, we'll go home." Truitt took his men
off the Cal-State job and left the project.
Neither Pavon nor Denbreejen was a member of the Re-
spondent Union.
On June 8, John Truitt executed a collective-bargaining
agreement with the Respondent Union. The agreement con-
tained a hiring hall arrangement, including union security
and maintenance of membership provision.
Thereafter, on Wednesday, June 10, Truitt employed two-
members of the Union supplied to him by the Union. They
were employed to do welding work and erecting related to the
welding craft. One of the welders supplied was capable of
doing vertical welding and the other was not. Truitt retained
the individual who lacked the necessary vertical welding skill
and obtained an additional qualified welder from the Union.
The individual who was not qualified as a vertical welder was
utilized in performing flat welding and in welding deck plates
onto beams. Additionally, he did some erection work. John
Truitt testified that he did not use the services of Alex Soares
in lieu of the services of the latter employee because Sorares
"was not experienced in that sort of thing. He had never
worked on that sort of thing before."5
John Truitt testified that on June 10 at the Cal-State project
he had need for employees to work as construction welders
and as erectors. He testified that the work to be done in these
categori es of employment was work connected with the con-
struction craft and not the shop craft. Additionally, he tes-
tified that on neither June 5 nor June 8 did he have in his
employ an erector.
John Truitt further testified that at times relevant to this
proceeding he had a need for personnel skilled in vertical and
horizontal welding and in the performance of construction
erection. -He testified that the basic tools of a construction
erector are a spud wrench, a level, and a transit. He testified
that Soares lacked the capability of using a level and transit.
Truitt testified, in substance, that Soares lacked the necessary
skill and knowledge to properly use a transit and also was not
sufficiently sensitive to the safety requirements incident to
working as an erector.
John Truitt additionally testified that upon his own obser-
vation of the work of Alex Soares during the term of his
employment with the Company, Soares lacked the skills
necessary to perform vertical and horizontal welding. During
the early stages of Soares' employment with the Company,
Truitt and Soares had discussed the need for Soares to, im-
prove his skills as a vertical welder.
7. Soares contacts Union
In the meantime, upon returning to his home on the after-
noon of June 8, Soares placed a telephone call to the office of
the Union. The individual who answered the telephone iden-
tified himself as "McDonald" and Soares in turn identified
himself by name and asserted that he was in the employ of
Truitt Construction. Soares added that he was calling "about
contrast to the San Francisco, area
5 The evidence of record revealed that in his pretrial affidavit given to an
agent of the National Labor Relations Board during the investigatory stages
of this proceeding John Truitt stated as follows:
The reason I could not have had Soares perform the work that Balmer
[the employee lacking vertical welding skills] was doing on the job was
that Balmer came to do the work he was doing, erection work, period.
Soares was not doing erection work. I never asked him if he could do
erection work.
getting into the union . . . " McDonald responded that he had
spoken with Truitt but that Soares couldn't get into the
Union because there was a waiting list of 100 men. Addition-
ally, McDonald stated that Soares would have to go through
an apprenticeship after being placed on the waiting list.
Soares remonstrated that McDonald had no right to "knock
[him] off the job" asserting that he, Soares, had been working,,
in the employ of the Company. Soares stated,,that in such
circumstances when a union comes in they,should take the
employees on the payroll and initiate them, into the union.
McDonald made a brief retort and hung up the phone.
Thereafter, on June 10, Soares again called the office of the
Union and asked to speak with Dick Zampa. In speaking with
Zampa, Soares inquired if it were not possible for the Union
to accept him into membership in that he had been working
on the Truitt job before the agreement between the Company
and the Union had been signed. In connection with this re-
quest, Soares observed that on a prior occasion he had been
employed by a company which recognized the Union and the
Union had automatically taken the employees into member-
ship. Zampa responded that the Union did not follow this
procedure and observed that he had too many men out of
work. He further stated, in substance, that the Union placed
their members in jobs before placing anyone else . ' Zampa
further stated that the Union had signed a contract with
Truitt Construction Company on the day previous.
Alex Soares made no further effort to gain membership in
the Union. He did not apply for admission to the apprentice-
ship program.'
8. Soares seeks reemployment
On June 11, Alex Soares returned to the Company and
submitted his medical release to Truitt. Soares requested that
Truitt permit him to return to work and Truitt stated that he
had no work available for Soares. Truitt stated that he had
qualified welders on the construction job and that as a conse-
quence he was not assigning Soares to that work.
John Truitt testified that following Soares' layoff it was not
until July 31 that there was any shopwork to be performed.
He further testified that subsequent to July 31 there had been
some shopwork available. He did not utilize the services of
Alex Soares in performing this work. He further testified, in
substance, that although during the period June 5 until July
31 there was maintenance work to be done it was not suffi-
cient in volume to "keep a man going full time."
Alex Soares has not worked in the employ of the Company
since June 5. On June 8, he was paid for his services through
the workday of June 5.
John Truitt testified without contradiction that neither
Richard'Zampa nor Robert McDonald had requested him to
terminate or lay off Alex Soares.
9. The job classifications and experience of Alex Soares
Alex Soares credibly testified that he gained his first experi-
ence as a welder in 1963. He gained this experience while
working with a machine works concern doing spotwelding
during a period of 2 or 3 months. For a period of 2 years, he
worked for another concern where he began as a spotwelder.
During his employment, he worked on a variety of machines
and for a portion of his employment was doing setups. Addi-
tionally, for a period of 2 years, he worked for a mining
concern in Nevada where he erected a mercury mill. In per-
forming this work, Soares did flat, vertical, and horizontal
All of the foregoing concerning the conversations which Soares had
with McDonald and Zampa is based upon the credited and unrefuted tes-
timony of Alex Soares.
TRUITT CONSTRUCTION-CO.
welding. For 7 months in Arizona, Soares was employed in
cleaning up and rendering operative a mine which had been
closed down. He performed some welding work in connection
with this assignment. Prior to his employment by the Com-
pany, Soares had never been employed by a construction
contractor as a construction welder:
At the time of his original hire in April 1970, Soares in-
formed Truitt that he had not been certified as a .welder and
early in the course of Soares' employment, Truitt informed
him that his vertical welding was not satisfactory. When he
hired Soares in April, or later during the course of Soares'
employment, Truitt learned of Soares' prior employment ex-
periences.
CONCLUSIONS
The complaint alleges that on or about June 8, the Union
caused or attempted to cause the Company to lay off or
terminate Alex Soares because of his lack of membership in
the Union. The complaint further alleges that, acting pursu-
ant to the Union's demand, the Company laid off or ter-
minated Soares because he was not a member of the Union.
The evidence establishes that on June 8 the Union and Com-
pany entered into a collective-bargaining agreement contain-
ing a union security provision requiring membership in the
Union after 8 days of employment. The validity of the union
security provision is not challenged.
It is well settled that specific evidence of intent to encour-
age or discourage membership in a labor organization is not
an indispensable element of proof of a violation of Section
8(a)(3) of the Act.' An employer violates Section 8(a)(3) and
(1) of the Act by terminating or otherwise adversely affecting
an employee's job tenure because of his lack of union mem-
bership.' Direct proof of union complicity in such a discharge
is not essential if the sum of the evidence supports the finding
that the employer acted upon the demand of the union.'
The evidence of record, viewed in context of the
chronology of events which it discloses,, requires a finding,
which I make, that the failure and refusal of the Company on
and after June 8 to employ Alex Soares was predicated upon
Soares' lack of membership in the Union and was in fulfill-
ment of an understanding with the Union reached on June 8
with John Truitt, the alter ego of the Company.
On April 16, Alex Soares had commenced his employment
with the Company upon verbal assurances of a certain con-
tinuity of employment. From April 16 until June 5, Soares
had worked each day without layoff or downtime. He com-
menced the workday of June 5 with no advanced warning of
any impending layoff. To be certain, during the preceding
days, John Truitt had been seeking the services of qualified
vertical welders to perform welding on the construction site
at Cal-State in Hayward. The need for such craftsmen had,
so the record suggests, been foreseen by Truitt and there is
no warrant for assuming that Soares was given any considera-
tion for the particular assignment. However, the record evi-
dence rather clearly reveals that the need of the Company was
not exclusively for qualified vertical welders, and that, in
point of fact, after June 8, the Company had a continuing
need for the services of an employee to perform other types
of construction welding and to do erection work at the con-
' The Radio Officers' Union of the Commercial Telegraphers Union, AFL
v. N..L.R.B., 347 U S. 17.
8 See, e.g ., Endicott Church Furniture, Inc., 125 NLRB 853, enfd. 286
F.2d 533 (C.A.D.C.); N.L.R.B. v St. Joe Paper Company, 319 F.2d 819
(C.A.2)
' N.L.R.B. v. Local 776, Stage Employees & Moving Picture Machine
Operators (Cascade Pictures Co. ofCalifornia), 303 F.2d 513 (C.A 9), enfg.
as modified 124 NLRB 842, cert denied 51 LRRM 2222.
511
struction,site. It was against this backdrop that Soares was
informed by John Truitt on the afternoon of June 8 that he
could no longer work because he was not a member of the
Union. -I am convinced that Truitt so informed Soares be-
cause of the meeting he, Truitt, had had earlier in the day
with a representative of the Union and because he learned
from that representative that he could obtain welders from
the Union by entering into an exclusive referral contract with
the Union. The quid pro quo, however, was to be Truitt's
abstention from using any nonunion help on the construction
10project.
I am unable to accept Truitt's explanation for not continu-
ing Soares in his employ, There is little of substance in the
record to.suggest that Soares lacked skill in the less com-
plicated'procedures,of flat welding, and the facts of record
reveal,that Truitt simply did not know when he informed
Soares of his layoff whether Soares could work as an erector
on construction work. Truitt concedes that over the course
of Soares' employment he learned of Soares' prior job experi-
ences and there was basis enough in what Soares had told
Truitt to suggest capacity in Soares to perform uncom-
plicated construction welding and to do erection Work at the
jobsite. Soares' purported disregard for safety at heights ap-
pears not to have weighed significantly in Truitt's decision
not to employ him in performing erection work at the Cal-
State project, and Truitt knew that Soares had had the experi-
ence in similar work and enjoyed performing it.
That Soares did not possess the tools of an erector crafts-
man is established, but Truitt did not assert that this was a
barrier to utilizing Soares in that capacity and the work was
of the variety that Truitt had reason to believe Soares could
perform. If union membership considerations had not been a
factor, the reasonable course of action for Truitt would have
been to retain Soares in his employ and to utilize his job skills
in conjunction with his capacity to do the more routine con-
struction site welding and erection work which was per-
formed by the worker referred by the Union who lacked
acceptable vertical welding skill. As Soares' tenure with the
Company antedated that of the latter employee, and as Soares
possessed shop skills of proven value to the Company his
retention would normally have been anticipated, absent dis-
criminatory considerations. I am convinced that the reasons
Truitt did not follow this course of action were (1) his recog-
nition of the Union as the source of supply for qualified
vertical welders and (2) the stricture placed upon him by the
Union in utilizing other than Union-supplied craftsmen in
fulfilling the Company's manpower needs. While it was per-
missible under the Act for the Company and the Union to
enter into an exclusive referral agreement of the variety which
they on June 8 executed, it was not permissible for them to
use the agreement as they did to exclude immediately from
present employment nonunion personnel.
The Respondents both contend that the employment ar-
rangement between the Company and Soares was on a day-
to-day basis and that the Company had the right to discon-
tinue this arrangement at any time. It is the Respondents'
contention that by virtue of Section 8(f) of the Act, the pre-
10 That Truitt, contrary to his testimony, recognized the individual who
visited him at the jobsite on June 8 as being a representative of the Umon
cannot be doubted. Truitt's statements made to Ins employees on June 8,
when he removed them from the jobsite, and his summation to Snares on
that date when he informed him of his layoff, both convincingly establish
that Truitt recognized the visitor as being an agent of the Umon. Moreover,
the record evidence establishes that Truitt learned on June 8 that he could
obtain welders from the Union There is no reasonable explanation of record
revealing who, other than an agent of the Union, could have given Truitt
these assurances upon which he relied and to which subsequent events, as
found, related.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hire, exclusive referral procedure imbedded in their collec-
tive-bargaining agreement was lawful and served to insulate
Soares' layoff from the reach of the Act. Without regard to
whether or not the Company is an employer engaged
primarily in the building and construction industry," it is
sufficient to find that upon the facts of this record Section 8(f)
is not applicable. Despite Truitt's contention that on June 8
when the agreement was signed Soares was no longer on the
payroll, the objective evidence does not support this assertion.
Soares was scheduled to work on June 8 and but for his injury
undobtedly would have done so, just as his coworkers, Pavon
and Denbreejen, did. Moreover, on Monday morning, June
8, when Soares called in concerning his injury Truitt did not
inform Soares that he was being laid off. It was not until the
intervening events of the day had been experienced that
Truitt decided upon the layoff. I am convinced, and find, that
this action was taken in response to the verbal hiring arrange-
ment struck between Truitt and the Union on June 8, which
arrangement was immediately formalized in the collective-
bargaining agreement. The subsequent practical effect given
this arrangement was the termination of Soares' employment.
Never again, on or after June 8, was Soares given employment
in any capacity by the Company. The role of the Union in
terminating Soares' prospects for employment in any
capacity related directly to the Cal-State job is inferable ini-
tially from Truitt's June 8 accounting to Soares concerning
the reason for Soares' layoff. But this inference of direct
involvement of the Union is further enhanced by the evidence
of record revealing the privative and negative character of the
responses ' given Soares by Union Agents McDonald and
Zampa. These conversations had the effect of informing
Soares that, for practical purposes, union membership and
referral were closed to him. While there is no direct evidence
of record revealing that any agent of the Union in specific
terms demanded Soares' termination or layoff, the statements
of Truitt on June 8 concerning union demands, the execution
of the collective-bargaining agreement between the Company
and the Union soon thereafter, on June 8; the hire of union
referrals on June 10 and the separate telephonic disclosures
by McDonald and Zampa produce an interrelationship of
events and occurrences telescoped within a brief time period
persuasively establishing union involvement in the layoff of
Soares which was the equivalent of an explicit demand. This
involvement constituted, in law, a cause or attempt to cause
as those terms relate to Section 8(b)(1)(A) and Section 8(b)(2)
of the Act, construed in light of Section 8(a)(3) of the Act. 12
Whatever course was open to the Respondents on and after
June 8, by reason of their collective-bargaining agreement
their conduct toward Soares is not rendered lawful by Section
8(f) of the Act. This is so because the plain facts of record
reveal that Soares was an employee of the Company at the
time the agreement became effective and his tenure of em-
ployment was immediately affected adversely solely because,
as Truitt explained at the time to Soares, he was not a member
of the Union. On June 11 when Soares submitted his medical
release, his' status had already been sealed, as the events of
June 8 reveal. In such circumstances, Respondents may not
validly contend that the union referrals employed at Cal-State
had achieved superior job retention rights, and that Soares'
displacement had resulted merely from the normal and legiti-
mate operation of the contractual job referral system. On
June 11, not only had Soares' displacement been foreor-
" Neither party undertook directly to litigate this issue but in his brief
the General Counsel challenged the status of the Company as an employer
so engaged.
12 See, e.g, N.L.R.B. v . Jarka Corp., 198 F 2d 618 , 621 (C.A. 3).
dained, but on that date he was also denied the benefit of the
8-day time period contractually provided for the perfection of
membership in the Union. In the prevailing circumstances,
any effort on his part to have made formal application for
membership in the Union had been reduced to a futility by
the telephonic responses of McDonald and Zampa. ,
The decision herein that Respondents discriminated
against Soares in violation of the Act in no manner limits the
freedom of an employer to in any nondiscriminatory fashion
determine the composition of his work force. Neither is the
right given employers and labor organizations to enter into
exclusive referral arrangements in any manner curtailed. The
Company herein violated Section 8(a)(3) of the Act by per-
mitting the composition of its work force to be dictated by the
union affiliations of the individuals comprising it in disregard
not only of the statutory rights of Soares but in excess of the
membership acquisition period allowed by the collective-bar-
gaining agreement. The Union violated Section 8(b)(1)(A)
and Section 8(b)(2) of the Act by requiring that all present
employees be members of the Union and by failing to provide
them an opportunity or time period in which to perfect mem-
bership.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondents set forth in section III,
above, occurring in connection with the operations of the
Company set forth in section I, above, had a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondents have engaged in cer-
tain unfair labor practices, I shall recommend that they each
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Company unlawfully laid off Alex
Soares in violation of Section 8(a)(3) and (1) of the Act, and
that the Union violated Section 8(b)(2) and Section
8(b)(1)(A) by unlawfully causing or attempting to cause
Soares' layoff, I shall order that Respondents cease and desist
from such unlawful conduct and post appropriate notices. I
shall also order that the Company offer Alex Soares immedi-
ate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or
other rights or privileges. I shall further order that Respond-
ents, jointly and severally, make Alex Soares whole for any
loss of earnings he may have suffered by reason of the dis-
crimination against him by payment to him of money equal
to that which he would have earned as wages from June 8,
1970, the effective date of his layoff," to the date of the offer
of such reinstatement, less his net earnings during said period,
in the manner prescribed in F W. Woolworth Company, 90
NLRB 289, together with interest in accordance with the
policy of the Board as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716.
The Union may terminate its liability for further accrual of
backpay by notifying the Company, in writing, that the
Union has no objection to Soares' reinstatement. The Union
shall not thereafter be liable for any backpay accruing after
five days from the giving of such notice. Absent such notifica-
tion, however, the Union shall remain jointly and severally
11 Although physically indisposed on June 8, 9, and 10 to perform work,
this factor is a matter for compliance consideration
TRUITT CONSTRUCTION CO.
liable with the Company for all backpay to Soares which may
accrue thereafter until the Company complies with this order.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Truitt Construction Co., Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. International Association of Bridge, Structural, Orna-
mental & Reinforced Iron Workers Union, Local 378, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By laying off Alex Soares the Company has engaged in,
and is engaging in, unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
4. By causing or attempting to cause the Company to lay
off Alex Soares because Soares was not a member of the
Union, the Union has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(b)(1)(A) and
Section 8(b)(2) of the Act.
5. The aforesaid, unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER14
Respondent, Truitt Construction Co., Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in International Association
of Bridge, Structural, Ornamental & Reinforced Iron Work-
ers Union, Local 378, or any other labor organization of its
employees, by laying off employees because of their lack of
union membership, or in any other manner discriminating
against any of its employees in regard to hire to tenure of
employment or any other term or condition of employment,
except to the extent permitted by Section 8(a)(3) of the Act,
as amended.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed in Section '7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Offer employee Alex Soares immediate and full rein-
statement to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privi-
leges, and make him whole, jointly and severally, with Re-
spondent Union, International Association of Bridge, Struc-
tural, Ornamental & Reinforced Iron Workers Union, Local
378, for any loss of pay he may have suffered by reason of the
discrimination against him, in the manner set forth above in
the section entitled "The Remedy."
(b) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after dis-
charge from the Armed Forces, in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act.
3" In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes
513
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying all payroll
records, social security payment records, timecards, person-
nel records, and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(d) Post at its Oakland, California, place of business and
at the Cal-State project in Hayward, California, if the Com-
pany continues to be engaged in that project in any viable
manner, copies of the attached notice marked "Appendix
A."15 Copies of said notice to be furnished by the Regional
Director for Region 20, shall, after being duly signed by a
representative of the Company, be posted by the Company
immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Company to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 20, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.16
Respondent, International Association of Bridge, Struc-
tural Ornamental & Reinforced Iron Workers Union, Local
378, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Truitt Construction
Co., Inc., its officers, agents, successors, or assigns, to lay off
or otherwise discriminate against Alex Soares, or any other
employee, for a reason other than a failure to tender or pay
the periodic dues and initiation fee uniformly required as a
condition of acquiring or maintaining membership in the
Respondent Union.
(b) Causing or attempting to cause Truitt Construction
Co., Inc., its officers, agents, successors, or assigns, to lay off
Alex Soares in violation of Section 8(a)(3) of the Act, because
he was not a member of the Union.
(c) In any like or related manner restraining or coercing
employees of Truitt Construction Co., Inc., its successors 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 condition of employment, as authorized by
Section 8(a)(3) of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Notify Truitt Construction Co., Inc., in writing, with
a copy to Alex Soares, that it withdraws its objections to the
Company's employing Alex Soares and will not oppose his
reinstatement.
(b) Jointly and severally with Truitt Construction Co.,
Inc., make whole Alex Soares for any loss of pay sustained
by him by reason of his layoff effective June 8, 1970, in the
manner set forth in the section of the Decision entitled "The
Remedy."
" In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a judgment of the Umted States Court of Appeals
enforcing an order of the National Labor Relations Board."
16 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read-
"Notify the Regional Director for Region 20, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its business offices and meeting halls in Oakland, Dated By
California, and at that portion of the construction project at
Cal-State in Hayward, California, at which the Company
may be presently engaged as a contractor in a viable manner,
copies of the attached notice marked "Appendix B." Copies
of said notice, to be furnished by the Regional Director for
Region 20, shall, after being duly signed in an official repre-
sentative of the Union, be posted by it immediately upon
receipt thereof, and be maintained by it for a period of 60
consecutive days, thereafter, in conspicuous places, including
all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Union to insure that
said notices are not altered, defaced, or covered by any other
material.
(d) Mail or deliver to the Regional Director for Region 20
signed copies of the attached notice marked "Appendix B"
for posting by Truitt Construction Co., Inc., in places where
notices to the Company's employees are customarily posted.
(e) Notify the Regional Director for Region 20, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent Union has taken to comply here-
with.18
" In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a judgment of the United States Court of Appeals
enforcing an order of the National Labor Relations Board."
18 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 20, in writing, within 20 days from
the date of this Order, what steps the Respondent Union has taken to
comply herewith "
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT except to the extent permitted by Sec-
tion 8(a)(3) of the National Labor Relations Act, as
amended, lay off or otherwise discriminate against Alex
Snares, or any other employee, because of lack of mem-
bership in International Association of Bridge, Struc-
tural, Ornamental & Reinforced Iron Workers Union,
Local 378, or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce employees in the exercise of their
rights guaranteed in Section 7 of the Act.
WE WILL offer immediate and full reinstatement to
Alex Soares to his former or substantially equivalent
position without prejudice to his seniority or other rights
and privileges.
WE WILL jointly and severally with International As-
sociation of Bridge, Structural, Ornamental & Rein-
forced Iron Workers Union, Local 378, make Alex
Soares whole for any loss of earnings suffered by him by
reason of the discrimination against him, together with
interest on the pay he lost by reason of his layoff on June
8, 1970.
TRUITr
CONSTRUCTION
Co., INC.
(Employer)
(Representative) (Title)
Note: WE WILL notify immediately the above-named
individual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act.
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 13050
Federal Building, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 556-3197.
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, except to the extent permitted under
Section 8(a)(3) of the National Labor Relations Act, as
amended, cause or attempt to cause Truitt Construction
Co., Inc., to discriminate against Alex Soares or any
other employees because they are not members of our
Union.
WE WILL NOT restrain or coerce employees of Truitt
Construction Co., Inc., in the exercise of any right guar-
anteed under Section 7 of the Act, except to the extent
that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act.
WE WILL write Truitt Construction Co., Inc., and
Alex Soares informing them that we withdraw our objec-
tions to the Company's employment of Soares or to his
reinstatement.
WE WILL jointly and severally with Truitt Construc-
tion Co., Inc., make whole Alex Soares for any loss of
earnings suffered by reason of his layoff on June 8, 1970,
and jointly and severally with the Company pay him
interest on the pay he lost by reason of his layoff on June
8, 1970.
Dated By
INTERNATIONAL
ASSOCIATION OF
BRIDGE,
STRUCTURAL,
ORNAMENTAL &
REINFORCED
IRON WORKERS
UNION, LOCAL 378
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 13050
Federal Building, 450 Golden Gate Avenue, Box 36047, San
Francisco, California, 94102, Telephone 556-3197.