Eichleay Corp.

National Labor Relations Board - Board Decisions

Jan 27, 1953

102 N.L.R.B. 680 (N.L.R.B. 1953)

680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
EICHLEAY CORPORATION and LODGE No. 34, INTERNATIONAL ASsoCIA-
TION OF MACHINISTS . Case No. 13-CA-910. January 27, 1953
Decision and Order
On August 19, 1952, Trial Examiner Frederic B. Parkes, II, issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent, Eichleay Corporation, had engaged in and was en-
gaging in certain unfair labor practices, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions, the brief, and the entire record
in the case,2 and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent , Eichleay Corporation, its
officers , agents, successors , and assigns , shall :
1. Cease and desist from :
(a) The practice of conditioning the hire and tenure of employ-
ment of employees and applicants for employment in millwright
positions at its project in Kenosha, Wisconsin , upon membership in
United Brotherhood of Carpenters and Joiners of America , A. F. L.,
or any other labor organization , except under a nondiscriminatory
arrangement permitted by Section 8 (a) (3) of the Act.
1 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 pane)
[ Chairman Herzog and Members Houston and Murdock].
The Respondent 's request for oral argument is denied because the record and brief
adequately present the issues and the positions of the Respondent.
102 NLRB No. 63.
EICHLEAY CORPORATION 681
(b) Performing, enforcing, or giving effect to, at its project in
Kenosha, Wisconsin, the closed-shop or preferential-hiring provision
of its current oral collective-bargaining agreement or understanding
with United Brotherhood of Carpenters and Joiners of America,
A. F. L., or entering into or enforcing any extension, renewal, modi-
fication, or supplement thereof or any superseding agreements with
such labor organization, containing union-security provisions, except
as authorized by the proviso to Section 8 (a) (3) of the Act.
(c) In any like or related manner interfering with, restraining,
or coercing employees or applicants for employment at its project in
Kenosha, Wisconsin, in the exercise of the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organ-
ization as a condition of employment, as authorized in Section 8 (a)
(3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at its main office at Pittsburgh, Pennsylvania, and at its
project in Kenosha, Wisconsin, copies of the notice attached to the In-
termediate Report as Appendix A.3 Copies of said notice, to be fur-
nished by the Regional Director for the Thirteenth Region, shall,
after having been duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof and main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
$ This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner" in the caption thereof , the words "A Decision and Order ." If this Order
is enforced by a decree of the United States Court of Appeals , the notice shall be further
amended by substituting for the words "A Decision and Order" the words "A Decree of
the United States Court of Appeals , Enforcing an Order."
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by Lodge No. 34, International Association of Ma-
chinists, herein called the I. A. M., the General Counsel of the National Labor
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board,' by the Acting Regional Director for the Thirteenth Region
(Chicago, Illinois), issued a complaint dated June 6, 1952, against Eichleay
Corporation, herein called the Respondent, alleging that the Respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1) and (3) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein called the Act. Copies of the charges, complaint,
and notice of hearing were duly served upon the Respondent and the I. A. M.
With respect to the unfair labor practices, the complaint alleged in substance
that (1) on or about April 11, 1951, the Respondent entered into an agreement
with the United Brotherhood of Carpenters and Joiners of America, A. F. L.,
herein called the Carpenters, providing that the Respondent would hire only
members of the Carpenters to engage in machine dismantling and erection work
and that such employees would be hired only through the Carpenters' business
agent; (2) since April 11, 1951, the Respondent has hired only members of the
Carpenters to engage in machine dismantling and erection work and has dis-
criminatorily refused employment to members of the I. A. M. because of their
membership in the I. A. M. and because they were not members of the Carpenters ;
and (3) on or about April 14, 1951, the Respondent caused members of the
Union to abandon efforts to apply for employment with the Respondent because
members of the Union had knowledge of the Respondent's agreement with the
Carpenters and of the hiring practices through communications of the Respondent
to employees of the Union. The complaint further alleged that by the foregoing
conduct the Respondent has engaged in unfair labor practices within the meaning
of Section 8 (a) (1) and (3) of the Act.
Thereafter, the Respondent duly filed an answer, admitting certain allegations
of the complaint but denying that it was engaged in commerce within the meaning
of the Act and that it had engaged in the alleged unfair labor practices. Pur-
suant to notice, a hearing was held on June 23, 1952, at Kenosha, Wisconsin,
before Frederic B. Parkes, 2nd, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. At the outset of the hearing, the motion of the
Carpenters to intervene was granted. The General Counsel, the Respondent, and
the Carpenters were represented by counsel and the I. A. M. by an official repre-
sentative. Full opportunity to be heard, to examine and cross-examine the
witnesses, and to introduce evidence bearing on the issues was afforded all parties.
At the conclusion of the General Counsel's case-in-chief, the Respondent moved
that the complaint be dismissed. The motion was denied. During the course
of the hearing, the Respondent offered into evidence a copy of an agreement
between it and the Carpenters. However, a copy of the agreement was not then
available and pursuant to arrangements made at the hearing, the Respondent
subsequently submitted to the General Counsel and the official reporter a copy
of the agreement, as Respondent's Exhibit No. 1, for identification. In his brief,
the General Counsel objects to the receipt of the exhibit into evidence. The
objections are overruled and Respondent's Exhibit No. 1 is hereby received in
evidence.
Upon the conclusion of the hearing, ruling was reserved upon the renewal
of the Respondent's motion to dismiss the complaint. The motion is disposed
of in accordance with the findings of fact and conclusions of law reached below.
At the conclusion of the hearing, the undersigned advised the parties that they
might argue before and file briefs or proposed findings of fact and conclusions of
law, or both, with the Trial Examiner. The parties waived oral argument.
Thereafter, the Respondent and the General Counsel each filed a brief with the
undersigned.
I The General Counsel and his representative at the hearing are referred to as the
General Counsel . The National Labor Relations Board is herein called the Board.
EICHLEAY CORPORATION 683
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Eichleay Corporation, a Delaware corporation with its principal office in
Pittsburgh, Pennsylvania, and a branch office in San Francisco, California, is
engaged in general construction work at various job sites throughout the United
States. The nature of the Respondent's operations was summarized in the
following testimony of Norris Stoddard, project engineer in charge of the
Respondent's operations :
Well, we work on what is classed as heavy construction in industrial fields
such as installation of foundations and machinery and equipment in steel
mills and other industrial plants, and building moving, house moving. Our
specialty, however, is mostly machinery installation and building moving.
We do some other general work connected with projects which require that
all types of work be performed by a general contractor.
Approximately 10 percent of the construction work performed by the Respond-
ent was in the Pittsburgh area and the remainder was performed throughout
the United States. The present proceeding arose out of the Respondent's opera-
tions in Kenosha, Wisconsin, where it was engaged in installing machinery,
foundations, and alterations to a hot mill of the American Brass Company. The
Respondent began work on its second project for the American Brass Company
in July 1951, and estimated that in 18 months' time the project would be com-
pleted and that the value of services rendered therein would total approximately
$1,000,000. The machinery to be installed and structural steel for the project
were furnished by the American Brass Company. The Respondent transported
from outside the State of Wisconsin to the Kenosha project approximately $20,-
000 worth of small tools. Larger tools and equipment were rented locally ; and
supplies-such as concrete, lumber, gasoline, and oil, incidental to the perform-
ance of the Respondent's services-were purchased locally by the Respondent.
The Respondent also brought to the Kenosha project from outside the State of
Wisconsin four supervisory employees.
At the time of the hearing, the Respondent was currently engaged in projects
In 8 States other than Wisconsin. In Illinois, it was performing services valued
at approximately $350,000 in a project of 7 or 8 months' duration, for the Re-
public Steel Corporation. In Indiana it was midway through a 3-year project
for the Youngstown Sheet and Tube Company, for whom it was rendering
services totaling approximately $2,000,000 in value. In Colorado, the Respond-
ent was engaged in erecting a mill for the Colorado Fuel & Iron Corporation;
the value of the Respondent's services therein for the next year was estimated
at approximately $1,000,000. In California, it was engaged, under a contract
with the United States Government, in installing machinery in an air tunnel
for Moffet Field, rendering services valued at approximately $500,000. Its opera-
tions in Texas concerned the installation of machinery for the Aluminum Com-
pany of America ; the value of the Respondent's services in such project in
the next year was estimated at approximately $700,000. Its Ohio project was
for the Mullins Manufacturing Corporation, for whom the Respondent had con-
tracted to perform services valued at approximately $40,000 within the next 12
months. In Pennsylvania, it was involved in about 12 projects, the largest of
which was for the National Tube Company, for whom the Respondent was ren-
dering services valued between $100,000 and $300,000. In Virginia, the Re-
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent was near the completion of a 2-year project, valued at approximately
$2,000,000, performed under contract with the United States Government for
the installation of machinery and equipment in a wind tunnel at Langley Field
Air Base. Judicial notice is taken of the fact that the Board has heretofore
asserted jurisdiction over the American Brass Company, Republic Steel Corpora-
tion, Youngstown Sheet and Tube Company, Colorado Fuel and Iron Corpora-
tion, Aluminum Company of America, Mullins Manufacturing Corporation, and
National Tube Company.
The Respondent's answer admitted that its annual sales or gross receipts
were in excess of $10,000,000. According to Project Engineer Stoddard, the
Respondent used in all projects in the last 12 months raw materials valued at
$1,500,000, of which approximately 5 percent crossed State boundaries in order
to reach the Respondent's job sites. One and sometimes two supervisory em-
ployees have been sent from the Respondent's Pittsburgh office to each of its
projects in other States.
The Respondent, considering only its operations in Kenosha, contends that
"the performance of the contract" with the American Brass Company "is en-
tirely an intrastate proposition" and that the Respondent is not subject to the
Board's Jurisdiction. The contention is without merit. Even if the Respondent's
operations outside of Wisconsin are ignored, it is clear that because of the
relationship of its operations to the American Brass Company, the Respondent
is engaged in commerce within the meaning of the Act. The record reveals
that its contract in connection with its construction work of a hot mill for
the American Brass Company requires the Respondent to render services valued
at approximately $1,000,000 which were necessary to the operation of the Amer-
ican Brass Company, over whom the Board has asserted jurisdiction' More-
over, in view of its operations in various States for concerns subject to the
Board 's jurisdiction , it is clear that the Respondent is a multistate enterprise
which is clearly engaged in interstate commerce within the meaning of the Act'
Moreover, its contracts with the United States Government for construction work
on military installations in California and Virginia make the Respondent's oper-
ations a part of the national defense effort and thus subject to the Board's juris-
diction, in view of the Board's announced policy "to assert jurisdiction over
enterprises which substantially affect the national defense."' Upon the fore-
going, the undersigned concludes and finds that the Respondent is engaged in
commerce within the meaning of the Act °
U. THE ORGANIZATIONS INVOLVED
Lodge No. 34, International Association of Machinists and United Brotherhood
of Carpenters and Joiners of America are labor organizations affiliated with the
American Federation of Labor, admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
On July 8, 1948, the Respondent and the Carpenters executed the following
"International Agreement" which is still in effect :
We the firm of EICHLEAY CORPORATION . . . AGREE to recognize
the jurisdiction claims of the United Brotherhood of Carpenters and Joiners
Hollow Tree Lumber Company, 91 NLRB 635.
t The Borden Company, Southern Division, 91 NLRB 628.
4 Westport Moving and Storage Company , 91 NLRB 902.
Cf. Utah Construction Co., 95 NLRB 196.
EICHLEAY CORPORATION 685
of America, to work the hours, pay the wages and abide by the rules and
regulations established or agreed upon by the United Brotherhood of Car-
penters and Joiners of America of the locality in which any work of our
company is being done, and employ members of the United Brotherhood of
Carpenters and Joiners.
No change to be made in the hours and wages in any locality, and no
conditions imposed other than enforced on all Local firms.
In consideration of the foregoing, the United Brotherhood of Carpenters
and Joiners of America agree that no stoppage of work or any strike of its
members , either collectively or individually, shall be entered into pending
any dispute being investigated and all peaceable means taken to bring
about a settlement.
On July 7, 1950, Marshall Johnson, the Respondent's field superintendent,
arrived in Kenosha, Wisconsin, to make arrangements for the commencement
of work on the Respondent's project for the American Brass Company. It
appears from General Counsel's Exhibit No. 4 that the Respondent completed
one project for the American Brass Company under their contracts numbered
5125 and 5045 in 1950 and 1951 and that the current project under contract
numbered 5165 and 5170XM1 commenced in July 1951.
Shortly after Superintendent Johnson arrived in Kenosha , he conferred with
William H. Byrne, business representative of Local No. 161 of Carpenters, in
respect to the prospective employment of members of the Carpenters as carpenters
and millwrights on the project. As a result of the discussion "it was under-
stood," according to Byrne's testimony, that upon Johnson' s request for em-
ployees, the Carpenters would furnish carpenters and millwrights for the project.
On the first project, the Respondent hired five millwrights, the last on April 16,
1951, all of whom were referred to the Respondent by the Carpenters
In the spring of 1951, a similar understanding was reached between Johnson
and Byrne that at the request of the Respondent, the Carpenters would supply
millwrights for the Respondent's second project at the American Brass Company
which started in mid-July 1951.
About the middle of April 1951, before the commencement of work on the
second project, Business Agent Young of the I. A. M. and Elmer A. Ritter, who
was a grand lodge representative of the I. A. M., assigned "to coordinate on con-
struction work for our membership ," called upon Superintendent Johnson and
told him, according to Ritter's credible testimony, that the I. A. M. was "ready
and willing to furnish him men" for millwright work "at any time that he needed
them."' According to Ritter's undenied and credible testimony, Johnson replied
"that he was awfully sorry but he couldn't do business with us because the
Eichleay Corporation was a member of the General Contractors' Association
and the General Contractors' Association has a contract with the Carpenters
Union that covers carpenters and millwrights, and therefore his instructions out
of the Pittsburgh office were that he had to do business with the Carpenters
Events occurring more than 6 months before the filing and service of the charges on
September 6, 1951 , have been set forth for the purpose of background alone, and findings
as to the Respondent 's unfair labor practices are based upon occurrences after April 6,
1951 , within the 8-month period limited by Section 10 ( b). The record is not clear as
to the date of the initial conference between Johnson and Byrne , but the findings made
in the text above are based upon a consideration of the entire record and upon the following
and the inference inherent therein : (1) Byrne 's testimony that he first conferred with
Johnson shortly after the latter 's arrival in Kenosha; (2) Johnson's testimony that he
arrived in Kenosha in early July 1950 ; and (3 ) the fact that on its first project for the
American Brass Company, the Respondent employed five millwrights referred to it by the
Carpenters.
4 The I. A. M. was the statutory representative of the employees of the American Brass
Company.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and he would have to hire all of his millwrights out of the Carpenters
Union." In addition, Johnson told them, as shown by the former's credible
testimony, that it had been his practice "to hire millwrights who were members
of the Carpenters and Joiners of America due to jurisdictional claims. In other
words, I am hiring carpenters and iron workers, millwrights and so forth,
laborers, and of course my contention was that if I hired machinists, con-
sequently I wouldn't have any carpenters working on my job." Johnson also
suggested that the I. A. M. should attempt to solve its jurisdictional dispute
over millwrights with the Carpenters at their common international level.
In early July 1951, Ritter and Business Agent Young again discussed with
Johnson the possibility of the Respondent's employing members of the I. A. M.
as millwrights and Johnson told them that "that was going to be the deal, that
they were going to use millwrights from the Carpenters Union" exclusively.
In the latter part of July 1951, the Respondent hired eight millwrights, who
were referred by the Carpenters to the Respondent at its request. Each of the
millwrights was a member of the Carpenters. Business Representative Byrne
testified that one of the working rules of the Carpenters was that its members
might not work on a job with nonmembers, that he never referred anyone but
members for a job, that when the Carpenters had no members available in the
Kenosha area as millwrights, he obtained such employees for the Respondent
through another local in Milwaukee and gave them working cards so that they
might work on the Respondent's project, and that the Carpenters would not
issue a working permit to a nonmember.
Johnson admitted that he knew that the Carpenters would fulfill his requests
for millwrights by referring only members of the Carpenters. Although no
individual members of the I. A. M. sought and were denied employment as mill-
wrights, Johnson testified that had a member of the I. A. M. applied for mill-
wright work, Johnson would "have referred the applicant to Mr. Byrne." In this
regard, Johnson further testified as follows :
Q. You wouldn't hire a man , though, without referring him to Mr. Byrne
first?
A. No, it has always been our practice to procure our men through the
business agent of the respective trades.
Q. So that in effect you delegated to the business agent of the Carpenters
the function of doing the hiring for the company, is that correct?
A. In that respective trade, yes, sir.
B. Conclusions
Upon the foregoing, it is clear that the hiring practices of the Respondent
were violative of Section 8 (a) (3) of the Act. All of the Respondent's mill-
wrights were obtained through the Carpenters' referrals and none was hired
by the Respondent from applicants at the job site or through employment agencies.
Although neither the Respondent nor the Carpenters specifically stated in dis-
cussions regarding the Carpenters furnishing the Respondent with millwrights
that the Respondent would hire only those millwrights who were members
of the Carpenters, nevertheless, Superintendent Johnson's testimony as to his
practices in employing millwrights and his statements to the representatives of
the I. A. M. reveal that the basic condition of the understanding with the
Carpenters was that the Respondent would hire only millwrights referred by
that organization. Thus, Superintendent Johnson twice refused the I. A. M.'s
offer to furnish from its membership employees for millwright work and told the
I. A. M.'s representative on each occasion that he was going to rely exclusively
EICHLEAY CORPORATION 687
upon the Carpenters to supply him with millwrights. Moreover, Johnson
admitted that he knew that his requests to the Carpenters for millwrights would
be fulfilled by the Carpenters referring to him only their members . He further
admitted that had a member of the I. A. M. applied for employment as a mill-
wright, Johnson would have referred the applicant to the Carpenters. As shown
by Byrne's testimony, however, the Carpenters would not issue a working permit
to a nonmember. The undersigned accordingly infers that the understanding
between the Respondent and the Carpenters was that the Respondent would call
upon the Carpenters for millwrights and would hire only millwrights referred
by the Carpenters. Such an understanding and employment practice established
an unlawful hiring hall tantamount to a closed shop and hence fell within the
proscriptions of the Act with regard to conditioning the hire or tenure of em-
ployment upon union membership! The foregoing factors distinguish and
render inapplicable to the issues of the instant proceeding the court' s opinion in
the Webb case,' relied upon by the Respondent.
The Respondent contends that since no employees or applicants for employ-
ment were called as witnesses, the record is barren of evidence to support the
complaint's allegations that the Respondent interfered with, restrained, and
coerced employees or prospective applicants for employment in the exercise
of the rights guaranteed in Section 7 of the Act. The Respondent's argument
is without merit, even though the record does not reveal that any individual
applicant was denied employment because of the Respondent's discriminatory
hiring practices. The Board has held that the definition of the term "employee"
in Section 2 (3) of the Act covers "in addition to employees of a particular
employer, also employees of another employer, or former employees of a particular
employer, or even applicants for employment . . . the term must be interpreted
to include members of the working class generally, as well as persons standing
in the proximate employer-employee relationship."" The Respondent 's unlawful
hiring practices not only coerced employees into becoming or remaining members
of the Carpenters but also restrained employees from refraining from union
activities within the meaning of Section 7 of the Act and obviously discouraged
membership in the I. A. M. Since the Respondent's hiring practices were viola-
tive of Section 8 (a) (3) and (1) of the Act and since the Respondent had
informed the representatives of the I. A. M. of the Respondent 's discriminatory
hiring practices, it is immaterial that employees represented by the I. A. M.
did not make the futile gesture of applying for employment as millwrights. Such
an application was unnecessary under the facts of the instant proceeding to
establish the illegality of the Respondent's hiring practices and could have served
only to establish a claim for a back-pay award."
The second argument of the Respondent relates to implications which it avers
are inherent in Section 8 (b) (4) (D) of the Act, making unlawful a strike by a
labor organization where an object of the strike is to force or require "any em-
ployer to assign particular work to employees in a particular labor organization
or in a particular trade, craft, or class rather than to employees in another labor
organization or in another trade, craft, or class, unless such employer is failing
to conform to an order or certification of the Board." The Respondent argues
that since the I. A. M. claims exclusive jurisdiction over millwrights, it is seek-
8 F. H. McGraw and Company, 99 NLRB 695 ; Consolidated Western Steel Corporation,
94 NLRB 1590 ; Newspaper and Mail Deliverers ' Union, 93 NLRB 237.
9 Del E. Webb Construction Company v. N. L. R . B., 196 F . 2d 841 (C. A. 8).
io Briggs Manufacturing Company , 75 NLRB 569, 571.
"Hager and Sons Hinge Manufacturing Company, 80 NLRB 163; Julius Resnick, Inc.,
86 NLRB 38.
12 Cf. F. H. McGraw and Company , 99 NLRB 695.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing through the instant proceeding to achieve an end which "cannot be accom-
plished by the economic power of the charging party" inasmuch as the fore-
going section of the Act forbids jurisdictional strikes. The Respondent further
argues that "the clear implication of" Section 8 (b) (4) (D) of the Act "is that
an employer has the right to avoid jurisdictional disputes by assigning work in
accordance with established practice and/or written obligation."
Generally speaking, it is true that an employer has a certain freedom of choice
in assigning work to employees, but that right is not without limitation. That
is, in assigning work, the employer may not infringe upon the prohibition against
discrimination contained in Section 8 (a) (3) of the Act, and numerous decisions
of the Board have rejected the Respondent's argument that Section 8 (b) (4) (D)
implies an exception to the proscription of Section 8 (a) (3) as to unlawful hir-
ing practices . Thus, the Board has stated ;
As we read Sections 8 (b) (4) (D) and 10 (k), these sections do not de-
prive an employer of the right to assign work to his own employees ; nor were
they intended to interfere with an employer's freedom to hire, subject only
to the requirement against discrimination as contained in Section 8
(a) (3)."
Furthermore, in making determinations as to disputes brought before it under
Section 10 (k) of the Act, the Board has stressed the controlling impact of Sec-
tion 8 (a) (3) upon Sections 8 (b) (4) (D) and 10 (k) by including the following
reservation in its award :
We are not by this action to be regarded as "assigning" the work in ques-
tion to the Machinists. Because an affirmative award to either labor organ-
ization would be tantamount to allowing that organization to require West-
inghouse to employ only its members and therefore to violate Section 8 (a) (3)
of the Act, we believe we can make no such award"
Upon the foregoing, the undersigned rejects the Respondent's arguments that
Section 8 (b) (4) (D) by implication gives an employer the right to assign work
without regard to the prohibition against discrimination contained in Secton 8
(a) (3) of the Act. The fact that Section 8 (b) (4) (D) would forbid the
I. A. M. from protesting the Respondent's discriminatory hiring practice by
strike action cannot in any way estop the 1. A. M. from bringing in issue such
practices by filing charges that the Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act. In conclusion,
the undersigned finds (1) that since April 6, 1951, the Respondent has violated
Section 8 (a) (3) of the Act by entering into and/or continuing and enforcing its
discriminatory oral agreement or understanding with the Carpenters that the
Respondent would employ as millwrights only members of the Carpenters, and
(2) that by the foregoing conduct, the Respondent has interfered with, restrained,
and coerced employees in the exercise of the rights guaranteed in Section 7 of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMEROE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
18 Juneau Spruce Corporation, 82 NLRB 650 , 660. See also , United Brotherhood of
Carpenters and Joiners of America, et al., 88 NLRB 844 ; National Association of Broadcast
Engineers and Technicians , Independent, et al., 95 NLRB 1470.
14 Los Angelo& Building and Construction Trades Council, A. F. L., et al., 83 NLRB 477,
482. See also Moore Drydock Company, 81 NLRB 1108, 1119.
EICHLEAY CORPORATION 689
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
undersigned will recommend that the Respondent cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. The operations of Eichleay Corporation constitute trade, traffic, and com-
merce among the several States within the meaning of Section 2 (6) and (7)
of the Act.
2. Lodge No. 34, International Association of Machinists and United Brother-
hood of Carpenters and Joiners of America, A. F. L., are labor organizations
within the meaning of Section 2 (5) of the Act.
3. By entering into and/or continuing and enforcing, on and after April 6,
1951, an oral agreement or understanding, conditioning the hire and tenure of em-
ployment of millwrights upon membership in the Carpenters in contravention
of Section 8 (a) (3) of the Act, the Respondent discriminated in regard to
the hire and tenure of employment and terms and conditions of employment
of employees and applicants for employment, thereby encouraging membership
in the Carpenters and discouraging membership in the I. A. M. and other labor
organizations, and interfered with, restrained, and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL koT condition the hire and tenure of employment of employees
and applicants for employment in millwright positions upon membership in
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS or AMERICA, A. F. L., or
any other labor organization, except under a nondiscriminatory arrangement
permitted by Section 8 (a) (3) of the Act.
WE WILL NOT perform, enforce, or give effect to the closed-shop or prefer-
ential-hiring provisions of our current oral collective-bargaining agreement
or understanding with UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA, A. F. L., or enter into or enforce any extension, renewal, modifica-
tion, or supplement thereof , or any superseding agreement with the said
labor organization containing union-security provisions, except as author-
ized by the proviso to Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of rights guaranteed by Section 7 of
the Act.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 con-
formity 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 for employment because of membership or nonmem-
bership in any such labor organization.
EICHLEAY 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.
SALMON RIvaR LUMBER COMPANY AND IDAHO LOGGING COMPANY and
LUMBER AND SAWMILL WORKERS UNION, LOCAL No . 2649. Case No.
19-A-575. January 27,1953
Decision and Order
On September 4, 1952, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the Act, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
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 brief, and the entire record in this
case, and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations?
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Chairman Herzog and Mem-
bers Houston and Murdock].
2 The Trial Examiner correctly concluded that by refusing employment to Wallace be-
cause he insisted on dealing with his employer through the Union's grievance committee,
the Respondent unlawfully discouraged him in his union activity and thereby violated
Section 8 (a) (3•) of the Act. We think it clear that recourse to union committee action
in employer-employee relationships is as intimate a form , of union activity as direct acquisi-
tion or retention of union membership . By discriminating economically against Wallace
for his participation in the Union's grievance procedures, therefore, the Respondent neces-
sarily discouraged all its employees from continuing their membership in the Union.
102 NLRB No. 70.