Gay Engineering Corp.

National Labor Relations Board - Board Decisions

Aug 12, 1959

124 N.L.R.B. 451 (N.L.R.B. 1959)

GAY ENGINEERING CORPORATION 451
Gay Engineering Corporation and Leslie P. Gibford. Case No.
20-CA-1477. August 12, 1959
DECISION AND ORDER
On April 27, 1959, Trial Examiner David F. Doyle issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel
filed exceptions to the remedial portions of the Intermediate Report,
and a supporting brief.
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 Rodgers, Jenkins, and
Fanning].
The Board 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, including the granting of the General
Counsel's motion for severance and dismissal of Case No. 20-CB-637
because of a settlement agreement in that case. The Board has con-
sidered the Intermediate Report, the exceptions and brief, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, to the extent consistent
herewith.
1. As no exceptions were filed to the Trial Examiner's findings that
the Respondent violated Section 8(a) (1) and (3) of the Act by virtue
of its illegal hiring-hall arrangement with Local 350, and its unlaw-
ful discrimination against Gibford thereunder, we adopt such find-
ings, pro forma.
2. Contrary to the contention of the General Counsel, we find upon
the entire record, as the Trial Examiner did, that Gibford was made
and refused a valid offer of reinstatement on August 29, 1958, and
therefore that Gibford's back pay should terminate on that date.
Accordingly, we find it unnecessary to pass upon the Trial Examiner's
additional findings that Gibford also refused valid offers of reinstate-
ment on October 31, 1958, and November 5, 1958.1
3. We find merit in the General Counsel's exception to the Trial
Examiner's refusal to recommend the Brown-Olds remedy.' The
Trial Examiner based such refusal on a stipulation that the Respond-
ent and Local 350 brought themselves within the terms of the General
Counsel's "reprieve" or "moratorium" with respect to the Brown-Olds
' The Trial Examiner's reference to this latter date as November 3, 19'58, is obviously
an inadvertent error.
2 J. S. Brown -E. F. Olds Plumbing & Heating Corporation, 115 NLRB 594.
124 NLRB No. 65.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remedy, and also on the fact that the Brown - Olds remedy was not
applied in the settlement agreement w ith Local 350. With respect
to the stipulation , the Board has held that the remedy to be applied
for the correction of unfair labor practices lies within the exclusive
discretion of the Board , and that the Brown-Olds remedy is required
where the closed-shop prohibitions of the Act are flagrantly ignored,
despite a subsequent correction of unlawful hiring practices pursuant
to the General Counsel 's suggested "reprieve ." 3 Such was the situ-
ation here where, according to the stipulation of the General Counsel
and the Respondent , the Respondent and Local 350 commenced nego-
tiations on the correction of their unlawful hiring practices on July 1,,
1958, a-nd' actually effected such correction by the November 1, 1958,,
"deadline" date of the "reprieve ," but nevertheless adhered to,
these unlawful hiring practices in the interim when they discrimina-
torily refused employment to Gibford on August 6 and 14,1958 . With-_
respect to the fact that the Brown - Olds remedy was not applied in the'.
settlement agreement with Local 350 , the Board has held that the fact
that some respondents originally joined in a proceeding obtain Brown-
Olds concessions in settling charges against them is not sufficient
reason to omit the Board 's established remedy for the unfair labor-
practices of those whose cases are litigated.' We believe that the
Brown-Olds remedy is appropriate and necessary here in order to.
expunge the coercive effect of the Respondent 's unfair labor practices.
Accordingly, as part of the remedy we shall order the Respondent to.
refund to its employees initiation fees, dues , assessments , and other-
moneys paid by them as the price of their employment . The Respond-
ent's liability for reimbursement shall begin 6 months prior to the.,
date of the filing and service of the charge against it , and shall extend
to all such moneys thereafter collected , until November 1, 1958, the.
date on which it was stipulated that the Respondent and Local 350.
corrected their collective -bargaining agreement and hiring practices.
to conform with the standards of the Mountain Pacific case ( Moun-
tain Pacific Chapter of the Associated General Contractors , Inc., 119.
NLRB 883) .5
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor-
Relations Board hereby orders that Gay Engineering Corporation,
Squaw Valley, California., its officers, agents, successors, and assigns,,
shall :
1. Cease and desist from :
(a) Giving effect to or performing any agreement or practice with
Local 350 or any other labor organization which discriminates against.
3 See Argo Steel Construction Company, 122 NLRB 1077, footnote 17.
4 Morrison-Knudsen Company, Inc., of at., 123 NLRB 12.
5 See Argo Steel Construction Company, supra.
GAY ENGINEERING CORPORATION 453
employees by affording preference in employment to persons dis-
patched by Local 350, or discriminating in any other manner in re-
spect to hire or tenure of employment or any term or condition of
employment, thereby encouraging membership in Local 350, except as
.are authorized by Section 8(a) (3) of the Act.
(b) In any like or related manner interfering with, restraining, or
coercing employees or applicants for employment in the exercise of
;the rights guaranteed by Section 7 of the Act, except to the extent
that such right may be affected by an agreement as authorized by
.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) Make whole Leslie P. Gibford for any loss of pay suffered by
:reason of the discrimination against him in the manner set forth in
.the "Remedy" section of the Intermediate Report.
(b) Reimburse all employees for all initiation fees, dues, assess-
ments, and other moneys illegally exacted from them, to the extent set
forth above.
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all records necessary to compute
the moneys due under this Order.
(d) Post at its offices at Los Angeles, California, and at Squaw
Valley, and at all its projects within the territorial jurisdiction of
Local 350, copies of the notice attached hereto marked "Appendix." 6
Copies of said notice, to be furnished by the Regional Director for the
'Twentieth Region, shall, after being duly signed by authorized repre-
sentatives of the Company, be posted by the Company immediately
.upon receipt thereof and maintained for 60 consecutive days thereafter
in conspicuous places, including all places where notices to all em-
ployees are customarily posted.
(e) Notify the Regional Director for the Twentieth Region in
writing, within 10 days from the date of this Order, what steps it
has taken to comply herewith.
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an
Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT maintain in effect any agreement or practice with
Local Union 350, United Association of Journeymen and Appren-
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, or any other labor organization
which, except as authorized by Section 8(a) (3) of the Act, dis-
criminates against employees or applicants for employment who
are not dispatched by Local 350, nor will we discriminate in any
other manner in respect to hire and tenure of employment or any
term or condition of employment, to encourage membership in
said labor organization, except as authorized by said section
8(a) (3).
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees or applicants for employment in
the exercise of rights guaranteed by Section 7 of the Act, except
to the extent that such rights may be affected by an agreement
as authorized by Section 8 (a) (3).
WE WILL make Leslie P. Gibford whole for any loss of pay
suffered as a result of the discrimination against him.
WE WILL reimburse all our employees for initiation fees, dues,
assessments, and other moneys which they were unlawfully re-
quired to pay to the above-named labor organization, as a result
of the illegal hiring provisions in our contract with said labor
organization.
GAY ENGINEERING CORPORATION,
Employer.
Dated----- ----------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Leslie P. Gibford , the General Counsel of the National
Labor Relations Board issued a consolidated complaint, and notice of hearing
herein, on November 21, 1958, against Gay Engineering Corporation and Local
Union 350 , United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada, AFL-CIO.' The
complaint , in substance , alleged that the Company and Local 350 had jointly com-
mitted unfair labor practices by (1) giving effect to their collective -bargaining
agreement , whereby employees of the Company were secured exclusively through a
hiring hall operated by the Local, which failed to meet the requirements of the
Mountain Pacific decision , and was otherwise violative of the Act; and (2 ) discrimi-
nating in the hire, tenure, and terms of employment of Leslie P. Gibford, the
Charging Party.
'In this report Gay Engineering Corporation is referred to as the Company or Gay ;
Local Union 350, United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Is referred to
as Local 350, or the Local, and its parent labor organization as the International, and
its sister locals by their number ; the General Counsel of the Board and his representa-
tive at the hearing , as the General Counsel ; the National Labor Relations Board, as the
Board ; and the Labor Management Relations Act of 1947, as amended , as the Act.
GAY ENGINEERING CORPORATION 455
The Company and Local 350 by their duly filed answers denied the commission
of the unfair labor practices.
Pursuant to the above notice, a hearing was held before the duly designated Trial
Examiner at San Francisco , California , on February 3 and 4, 1959 . At the opening
of the hearing , the General Counsel announced that the General Counsel and
Local 350 had entered into a settlement agreement , immediately prior to the
commencement of the hearing, and that as soon as the agreement was embodied in
a formal document he would introduce the settlement agreement in evidence, and
move for the severance of the cases and the dismissal of the allegations of the
complaint relating to Local 350 . Accordingly , the evidence received at the hearing
was directed to the alleged unfair labor practices of the Company , and in the course
of the proceeding the settlement agreement aforesaid was received in evidence, and
the motions for severance and dismissal were granted.2
The Settlement Agreement
The settlement agreement ,3 drawn in the Board 's conventional form, provided
for the payment of back pay in the sum of $2,478 to Gibford, and for the posting
of an appropriate notice. The settlement agreement did not provide for the appli-
cation of the Brown-Olds remedy, and this fact gave rise to one of the Company's
contentions at the hearing, namely, that in the light of all the evidence the Brown-
Olds remedy should not be applied against the Company alone, in the event it was
found guilty of the unfair labor practices alleged in the complaint . This phase of
the proceeding will be set forth with more particularity hereafter.
Thereafter the hearing proceeded with the Company as sole respondent. All
parties were represented by counsel and were afforded an opportunity to examine
and cross-examine witnesses and to introduce evidence relevant to the issues. The
General Counsel and the Company have both presented briefs which have been
considered.
The Issues
The contentions of the General Counsel have been set forth in the reference to
the complaint . For the Company , counsel raised three principal contentions: (1)
that the Company did not commit the unfair labor practices alleged; (2) that the
Company offered reinstatement to Gibford to a substantially equivalent position on
August 29 , 1958, and various dates thereafter , all of which offers were refused by
Gibford; and ( 3) that the Brown-Olds remedy in the circumstances of this case
should not be applied against the Company alone.
In connection with the above , it should be noted that at the opening of the
hearing, the General Counsel stated frankly upon the record that he sought the
application of the Brown-Olds remedy against the Company. He also stated that
he did not seek to impose back -pay liability upon the Company after November 10,
1958, upon which date the Company made a valid offer of reinstatement to Gibford,
which was refused. However , the General Counsel contended that until that date
no valid offer of reinstatement had been made by the Company.
From my observation of the witnesses , and upon the entire record in the case,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a California corporation engaged in the engineering and the
installation of refrigerating systems. The principal office of the Company is located
in Los Angeles , California, but it performs work throughout the United States, and
annually performs services valued in excess of $ 100,000 at places located outside
the State of California . Therefore , it is found that the Company is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union 350, United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
2 On April 13 , 1959 , the General Counsel moved to correct the transcript of testimony in
certain respects . The motion was granted in part, by Order dated April 21, 1959.
A General Counsel's Exhibit No . 39 in evidence.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Background
Squaw Valley is a ski resort in the Lake Tahoe area of California and has been
selected by the Olympic Games Committee as the site of the Winter Olympic
Games of 1960. In the preparation of facilities for the Games it was necessary to
construct skating rinks, ski runs, bobsled runs, and all types of accommodations for
the participants and spectators at the Games. The site of this construction work is
a wilderness area remote from any sizable town, the nearest city of any consequence
being Reno, Nevada, which is approximately 40 miles from Lake Tahoe. Local 350
has its headquarters at Reno, Nevada, and its geographical jurisdiction under the
International extends to the Squaw Valley and Lake Tahoe area. It is a local of
small membership as compared with locals in metropolitan areas.
The Company, which specializes in engineering and refrigeration work, was
engaged by a prime contractor to install the refrigeration system for the ice-skating
rink and other facilities at Squaw Valley. Prior to the commencement of its opera-
tions, the Company was concerned with recruiting an adequate skilled labor force
composed principally of welders and pipefitters in this remote area. It is undisputed
that approximately 3 weeks prior to June 11, 1958, John S. Padrick, general manager
of the Company, telephoned Adam Alger, business agent of Local 350, and inquired
from Alger as to the availability of pipefitters and welders at Squaw Valley. Alger
told Padrick that the Local could not supply pipefitters and welders in the number
required by the Company from its own membership, but he felt sure that with the
assistance of neighboring locals the Union could supply the required craftsmen.
Padrick outlined his requirements and Alger agreed to notify neighboring locals of
the job opportunities at Squaw Valley.
The Contract
On June 11, 1958, the Company began its construction operations on the Olympic
skating rink at Squaw Valley. Robert Brawley was the superintendent on the job
site. At the hearing Brawley testified that when the job commenced, Padrick gave
him a contract, with instructions that the contract was to govern the rates of pay and
working conditions on the job. Approximately a month later, a second contract was
given to him as a replacement for the first contract. It was undisputed that this
contract 4 was the contract governing conditions of labor at the job site. It is
entitled "Agreement Between Local Union #350 of the United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, and Plumbing, Heating, Oil Burner, Refrigera-
tion, Piping and Air Conditioning Contractors." The contract covers the industry
in the. Reno-Lake Tahoe area. By its terms the agreement was to take effect on
July 1, 1958, and remain in effect until June 30, 1959. It sets forth rates of pay
and hours and conditions of employment in conventional terminology. Article IV
of the document is entitled "Hiring of Men." It reads as follows:
HIRING OF MEN
Section I. If the Employer requested the Union to furnish men, it is agreed
by the undersigned that the following terms and conditions shall be observed.
Section II. In hiring of men, the Employer shall be the sole judge of the
number of men required and the requests for the furnishing of men shall be
made to the Local Union at least forty-eight (48) hours before the men are
needed. Preference shall be given to persons who have been employed in this
area for the past five (5) years, if they are qualified, and the Employers agree
not to hire any person to perform any portion of the work covered herein, except
a bona fide registered apprentice, or a qualified journeyman having affidavits
to prove at least five (5) years experience of working at the trade, and a certifi-
cate of Competency showing that he has passed the Journeyman's examination
as set up by the City of Reno or any other incorporated City.
Section III. The Employer shall have the sole right to determine the compe-
tency and qualification of men referred by the Local Union, and the right to hire
and discharge accordingly. No employee shall be otherwise discharged, except
for just cause. No employee covered by this Agreement may be discharged
by any Employer for refusing to cross a picket line established by an Interna-
tional Union affiliated with the Building and Construction Trades Department
4 General Counsel's Exhibit No. 33 in evidence.
GAY ENGINEERING CORPORATION 457
of the AFL-CIO or a, Local Union thereof, which picket line has been authorized
by the Local Building and Construction Trades Council having jurisdiction over
the area in which the job is located.
As will be noted hereafter, neither the Local nor the Company paid any atten-
tion to the above provision in procuring or hiring men for the job.
The Hiring Procedure
Brawley testified that all the pipefitters and welders employed on the job were
obtained from Local 350 which maintained an office at Reno, Nevada, and part-time
offices at Al Tahoe and Kings Beach, both small villages on Lake Tahoe, California.
When the Company needed men for the job Brawley notified Local 350 at Reno or
Kings Beach, and the men were supplied to the Company. He also said that when
men came to the job site and asked for work as pipefitters and welders, they were
referred to Local 350 since the local was the source of employment.
Under Brawley in authority on the job site was General Foreman Bethea, who
was a member of the Los Angeles local of the International. Richard Lockie was a
foreman, a member of Local 350 and union steward on the job. The principal
officers of Local 350 with which the Company did business were Adam Alger, the
business agent, who conducted operations principally at Reno, and Assistant Business
Agent Otto Fietz, who operated from the part-time office at Kings Beach, California.
Adam Alger, the business agent previously referred to, testified that at Reno
the Local kept an out-of-work list. As members of Local 350 desired work they
made their desires known to Alger or his office assistant who wrote their names on a
piece of paper. When members of sister locals applied for work through Local
350, they deposited their traveling card from their own local with the business agent
of Local 350, paid the travelers' fee, and then their name was also noted on this
list. Alger was in daily communication with Otto Fietz at Kings Beach, which was
close to the center of construction activity, and between them they ran the dispatch-
ing of men to the various jobs in the valley.
The Discrimination Against Gibford
There is little or no dispute as to the facts which constitute the discrimination
against Gibford. As to those events leading up to his termination on the job, Gibford
testified in a frank and candid manner. I credit this portion of his testimony in
full, although I do not credit his testimony as to his refusal of certain jobs, as will
be hereafter noted. The facts as to the discrimination of Gibford may be summarized
in the following narrative.
Gibford is a resident of Rialto, California, which is located near Riverside in the
same State. He is a member of Local 364 located at Riverside. He is a fitter-welder
by trade and has followed that occupation for many years. Late in July 1958, Gib-
ford learned through an acquaintance, Clayton Johnston, that there was a good
deal of work for welders at Squaw Valley, in connection with the construction for
the Olympic Games. Gibford secured a traveling card from Local 364 and journeyed
to the offices of Local 350 at Reno, Nevada, for the purpose of obtaining a job.
Meanwhile, Johnston, who was working for the Company on the installation at
Squaw Valley, spoke to Superintendent Brawley and General Foreman Bethea on
Gibford's behalf and requested that Gibford be hired as a welder. When Gibford
reached Reno, he deposited his travel card with Local 350, and asked Alger what
the prospects were for a job at Squaw Valley. Alger said that they were going to
need more welders at Squaw Valley and that he was expecting a call from the Com-
pany. Gibford left the Reno office and on the following day went to the union
office -at Kings Beach. There he also registered for work, and he noted that the
young lady to whom he talked placed his name in the out-of-work book at Kings
Beach. That evening, Gibford learned from Johnston that the Company had asked
that Gibford be dispatched to its job on that afternoon. In consequence, Gibford
was at the dispatcher's window of the office at Kings Beach at 7:30 the next morning,
August 6. At the office at that time was another welder, Hanson, who told Gibford
that he had just finished one job, and was requesting a new assignment, and a second
welder named Rex Tomlinson, who had his travel card in his hand, and who had
not yet registered. Otto Fietz, the assistant business agent of Local 350, was also
at the office and in the process of dispatching men. Fietz came from his office, and
dispatched Hanson to a job, and then dispatched Tomlinson. Then Fietz said, "That
is all for today."
On the next morning, August 7, Gibford met Fietz at the Kings Beach office and
asked him if there was anything new. Fietz said no, and added that he was going
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to get some breakfast. Gibford said he would accompany Fietz. When they were
seated in the restaurant, Gibford told Fietz that he knew he had been called for work
by name on the Company's job, and that Fietz had sent Hanson and Tomlinson to
jobs ahead of him although they were behind him on the out-of-work list. Gibford
told Fietz that he didn't like this pushing around, so he was going to Reno to see
an attorney. At this, Fietz became very excited and told Gibford that whatever else
he did, he should not see an attorney as he would only hurt himself, and that if
Gibford would leave the situation with him, he would try to straighten it out. Gib-
ford said that it would be fine with him, if Fietz straightened it out, as his only purpose
was to get a job.
Both men then went to the union hall and Fietz made a telephone call. Gibford
heard him say, "Gibford is here and he's going down and see an attorney and we got
to do something quick." When he finished the conversation, Fietz said that he would
give Gibford a work order for the Gay Engineering job for the next morning, August
8, but that Gibford was not to see any attorney. At this time Gibford asked Fietz
how long he estimated the job would last. Fietz replied that he thought it would last
until at least December 15.
With his referral slip, Gibford went out to the job site and spoke with Superin-
tendent Brawley and a foreman named Ham. Gibford turned in his referral slip,
and then explained to the foreman and the union steward that he would consider
it a favor if he could report for work on Monday, August 11, instead of Friday,
August 8, since he wanted to go home and make arrangements to get a car and trailer,
so that he would have a place to live. They agreed that he could report for work on
the following Monday.
Gibford reported for work at starting time on Monday, August 11. On the job he
saw Fietz. Gibford completed the day's work, but about 3 o'clock Fietz came to
him and told him that there was a shortage of pipe, and the last four welders hired
would have to be laid off. Gibford talked with the general foreman, Bethea, who
told him that the shortage of pipe had been caused by a trucking strike and that
he did not know when the pipe would arrive. Bethea also gave Gibford a paycheck
for his day's work. Gibford told Bethea that he hoped he would get back on the job.
Bethea replied that he had an agreement with Local 350 not to ask for a man by
name, that he had broken that agreement by calling for Gibford before, and that he
certainly wasn't going to do it again.
On the next morning, Gibford reported at the union hall at Kings Beach for work
but did not receive an assignment. On Thursday of the same week, he learned from
other men still employed at the job site that the Company had received a load of
pipe, and that the men laid off with Gibford had been called back to work. On
August 18 he went to the union hall at Kings Beach and saw Otto Fietz. He asked
Fietz when he was going to be sent back on the Company's job at Squaw Valley, that
he understood the pipe had arrived. Fietz replied that the Company would not
have Gibford on the job, so he might as well take his travel card and leave.
At this point in his testimony, the Trial Examiner asked Gibford if he had ever
gone to the officials of the Company at the job site and applied for work, or acquainted
them with the situation which had developed. He replied that he had not and when
asked to explain said that the union rules call that conduct "soliciting a job" and
in his local there was a $500 fine for such conduct.
When he was pressed further as to why he didn't go to the Company about the
situation, Gibford replied, "I naturally assumed that Mr. Bethea and Otto Fietz
were married, as we call it in the business, so I couldn't see any point to it."
Jasper J. Bethea, the general foreman and a member of the Los Angeles local,
testified and in general corroborated the testimony of Gibford. Bethea said that all
the men on the job were hired through Local 350, through the Kings Beach office,
and that when men came to the job site seeking jobs he referred them to Local 350
for referral or clearance.
Bethea first heard of Gibford through Clayton Johnston, a welder on the job.
Johnston recommended Gibford as a qualified welder who was available. On the
next occasion that Bethea needed men he called Fietz and asked that Gibford be
sent out to the job with two other men. He mentioned Gibford by name but did
not name the other two men. On the following morning the Local sent out three
men. Schrecengost, Smith, and Hanson. The date on which these men arrived at
the job was August 6.
On the following morning, Fietz called Bethea. Fietz said that Gibford was in
his office and that he was threatening to sue the Company and Local 350 because he
had not been sent out when Bethea had asked for him by name. Fietz asked Bethea
if he could use Gibford on the job and Bethea answered that he could. Fietz then
dispatched Gibford to the job, but when Gibford arrived Bethea did not see him.
GAY ENGINEERING CORPORATION 459
On the next day, Bethea learned that Gibford had come to the jobsite and talked to
Brawley and Foreman Ham and had received permission to start work on the follow-
ing Monday. On that day Gibford reported for work and his work was satisfactory.
At the end of the day Gibford, Smith, and Schrecengost were laid off because there
was a shortage of pipe due to a trucking strike.
On August 14, the delivery of pipe was made and Bethea ordered three welders
from Fietz. Schrecengost, Hanson, and another welder were dispatched to the job.
Bethea said that he never again asked for Gibford by name because, after Gibford
made his complaint, Bethea and Fietz had a talk and agreed that no more men
would be requested by name; that the selection of men would be left to Fietz because
he was familiar with that area, the men available, and their qualifications. In
further explanation of why he didn't ask for Gibford by name again, Bethea said
that all the men on the job had a friend for whom they wanted a job and he felt
that he had to stop asking for men by name to prevent discord.
The only explanation of the discrimination against Gibford was offered by Adam
Alger, the business agent of Local 350. Alger said that he saw Gibford when he
presented his travel card at the Reno office of the union. Gibford, on this occasion,
told him that he wanted to work for the Company. Alger told him that at that time
he did not have a call from the Company but that he was hoping to get a call from
them soon. According to Alger, on this occasion he told Gibford that "there is no
doubt that you will get to work there, but you surely can't expect to go to work
ahead of all these members that have been out of work here anywhere from three
months to a week." Gibford replied that he was going to get a place to stay at
the Lake, and left the office. Alger put Gibford's name on the out-of-work list.
Alger said that at that time they had a practice that a contractor had the privilege
of calling for a man by name. On August 6, Fietz called Alger and told him that
he had received a call from the Company asking that Gibford and two men be sent
to the job. He consulted the list and told Fietz to send Smith, Schrecengost, and
Hanson to the job. Alger said that he did not send Gibford to the job because he
considered Gibford's conduct constituted a subterfuge by which Gibford would obtain
a job before the men who were awaiting referral from the list. Alger said that he
did not consider it a bona fide request from an employer asking for a'man by name,
because Gibford had never before worked for the Company and the Company had
no knowledge of his ability.
Later, Fietz reported to Alger that Gibford had hired an attorney, Mr. Ernest
Brown, and that Gibford threatened suit against Local 350 if the Local did not put
Gibford to work. He then told Fietz to send Gibford to the Company.
Gibford testified that he took his travel card out of Local 350 on September 24
and returned it to his own local at Riverside, California. He never again worked
for the Company.
The Offers of Jobs to Gibford
John S. Padrick, the general manager of the Company, testified in a frank and
candid manner as to his participation in the events here under consideration. He
impressed the Trial Examiner most favorably. I credit his testimony fully.
Padrick testified that he had conversations with Alger relative' to the availability
of skilled men in the Lake Tahoe area approximately 3 weeks before June 11, 1958.
In this telephone conversation Alger stated that his own local was small but he was
sure that they would have sufficient qualified men in the area by the time the job
would start. Padrick encouraged Alger to obtain sufficient men for the various
jobs. Padrick said that his general instructions to Superintendent Brawley and
General Foreman Bethea were to employ the best available men and to get the job
done. He gave no specific instructions about employment through Local 350 or
employment of either union or nonunion men.
The first time that Padrick went to Squaw Valley was in the week that Gibford
was laid off. At that time he had a discussion with Brawley and Bethea about asking
for men by name. This question had been discussed at the start of the job, and it
had been decided at that time that if they knew of a good man who was in the area,
the superintendent and general foreman could ask for the man by name. On this
occasion, however, they discussed the situation in the light of the Gibford incident
and he told the superintendent and the general foreman not to ask for a man by
name unless the man had definitely worked for the Company before the Squaw
Valley job, and the superintendent or general foreman had personal knowledge of
his qualifications.
Padrick testified that he attempted to telephone to Gibford at his home in Rialto
on several occasions prior to August 29. On August 28 he reached Gibford and
asked Gibford if he would come to the Company's offices at Los Angeles for a
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conference . Gibford agreed and went to Padrick's office the next day. Brawley,.
who was down from Squaw Valley, was in and out of the conference room while
Gibford and Padrick talked . In the conference , Padrick asked Gibford if he would
accept employment by the Company as a journeyman . Gibford said that he had
nothing against the Company and he'd like very much to work on the Squaw Valley
job. Padrick told Gibford that he was dissatisfied with Bethea as general foreman
and he asked Gibford if he was qualified to handle that job. Gibford then related
his experience in the industry and gave the names of certain jobs on which he had
been employed in a supervisory capacity . Gibford stated that he felt qualified by
experience to handle the job of general foreman. In the discussion which ensued,.
Padrick told Gibford that if he made a change in the position of general foreman it
would not be immediate , that Gibford would be reemployed as a journeyman, and'
then a position of foreman would be created for Gibford , and ultimately the position
of general foreman given to Gibford . Gibford said that all of that was very satis-
factory to him except for the presence of one person on the job, Jack Bethea, the
then general foreman. Gibford gave Padrick to understand that his employment
by the Company would be conditioned upon Bethea being dismissed from the job.
Padrick said he would talk to his employer and check out on some of the technical
aspects of the job before he could say anything more definite to Gibford.
At the first opportunity Padrick talked to the president of the Company about
the reemployment of Gibford . When he stated that Gibford would accept reem-
ployment on condition that Bethea was put off the job, the president said, "How can
these guys tell us how to run our business ." Padrick then did nothing further until
he was advised to make further offers to reemploy Gibford by counsel for the
Company.
Brawley also testified as to certain portions of the Gibford -Padrick conference.
According to Brawley , in the course of these conversations , Padrick asked Gibford
if he would be interested in a job at Squaw Valley as general foreman and that
Gibford replied , "Yes, under certain circumstances ." On further examination as
to this conversation , Brawley said that the substance of Gibford 's reply was that
he didn't want to take a job under Mr. Bethea because of the trouble he had had
with Local 350.
Gibford was cross-examined as to the substance of this conversation. He ad-
mitted that Padrick said to him, "Would you be willing to go back as a journeyman
up at Squaw Valley?" When asked if he did not reply that he would not go back
there as long as Bethea was there , Gibford testified that his reply was, "It would
be impossible for me to go back under those circumstances."
A moment later , he testified that his reply was "that it would be impossible for
me to go back there at that time," because "The tie-up seemed apparent to me be-
cause of the .treatment I received up there would make it impossible for me to go,
up there under those circumstances."
On redirect examination , Gibford was asked if he had told Padrick that he would
not go back to the job at Gay Engineering unless Bethea was taken off the job.
Gibford replied , "Not in those words ." Then in answer to a question of the
Trial Examiner , he testified , "It would be impossible under the set-up that I just
went through which I assumed to be Mr. Otto Fietz and Bethea . I didn't see how
it would be possible for me to go back to work under that same set-up."
Late in October, Padrick , on behalf of the Company , again offered a job to
Gibford. On October 31, 1958, he addressed the following letter to him:
DEAR "WHITEY": Confirming our telegram of today, we hereby request that
you report for work as refrigeration fitter on our job at Squaw Valley, near
Tahoe City, California on Monday , November 3rd, 1958.
Our job phone number is Juniper 33205 and Richard Locke is our General
Foreman.
Sincerely,
[Emphasis supplied.]
On November 3, 1958 , Gibford replied as follows:
DEAR "JOHN": Received your telegram and letter of confirmation to report
on the job Monday Nov. 3rd. The telegram came too late on Friday to get a
"TRAVEL CARD" from this local here. I am not, and never have been a
refrigeration fitter as you very well know, inasmuch as I dont care to be in-
volved intentionally in any type of fraud I could not with any honesty take a
job. for which I am not qualified . Thanking you for your . offer even at this
late date I am yours,
Sincerely,
[Emphasis supplied.]
GAY ENGINEERING CORPORATION 461
On November 5, 1958, Padrick again wrote Gibford as follows:
DEAR "WHrrEY": We hereby request that you report for work as refrigera-
tion welder on our job at Squaw Valley, near Tahoe City, California on
Monday, November 10, 1958.
Sincerely,
[Emphasis supplied.]
On November 8, 1958, Gibford replied as follows:
DEAR "JOHN": Rec'd your registered letter to report for work 11- 10-58 as
a refrigeration welder. My understanding from your foreman was that the
job is to be shut down on Dec. 15th. Going up there for just these few
remaining weeks with the expense involved would be an added hardship and
aggravate the position I'm in, as I would lose what seniority I've built up
waiting here at the Local here in Riverside, resulting in my going to the bottom
of the list here at the worst possible time of the year.
Sincerely,
Explaining his refusal to take the jobs offered him by letter by Padrick, Gibford
said that the first job he was offered was as a refrigeration fitter and he was not
qualified for that job so he did not take it. He did not accept the second job
offered by the Company because at the time he applied for employment early in
August, Fietz and Bethea said that the job would last until December 15. When
questioned upon that point, Gibford said that on the basis of that conversation with
Bethea on approximately August 11, and without further inquiry to either the
Company or Local 350, he refused the job.
Counsel for the Company also called as a witness Arnold DeJulis, business mana-
ger for Local 364 at Riverside, California. This witness testified that according to
records in the office of Local 364, that local had offered jobs to Gibford on Septem-
ber 24, 1958, September 30, 1958, October 13, 1958, and January 29, 1959, and
that Gibford had refused them.
In his testimony, Gibford gave his reasons for refusing these jobs. Gibford testi-
fied that the first job offered him by Local 364 was as a pipefitter on the rocket
installation at Redlands, California. He did not take the offer of the job because it
was for the job of pipefitter and he is a welder. On October 30, 1958, he was
offered a welder's job on a pipeline, and asked if he could pass a downhill welder's
test. He did not take the job because he had not done downhill welding for a long
time, and did not think at that time that he could pass the test. On November 13,
1958, he was also offered a 2 weeks' repair job at Needles, California. He did not
take that job because by taking a 2 weeks' job he would lose his place on the out-of-
work list, and might obtain a better and longer job by waiting. The rules of the
local permitted him to pass up a job when he wanted to. Gibford did not testify as
to why he refused any other jobs, inasmuch as the General Counsel's announced
position was that he sought no back pay for Gibford after November 10, 1958.
In the course of his cross-examination, Gibford was asked about the classifica-
tion listed on his union card, and he admitted that his union classification was
"Fitter-Welder."
The Brown-Olds Remedy
As indicated previously , at the hearing the General Counsel announced that he
sought the application of the Brown -Olds remedy in this case in the event the dis-
crimination alleged in the complaint was found . Counsel for the Company vigor-
ously opposed the application of that particular remedy on both equitable and legal
principles , with the result that certain testimony , documents , and stipulations were
put in evidence . The representative of the General Counsel at the hearing stated
frankly that he disagreed with the contentions of the Company on this point, but
would enter no technical objections which might preclude counsel for the Company
from presenting his contentions to the Board.
Thereafter , counsel for the Company was permitted to put in evidence three
letters of the General Counsel addressed to the Building and Construction Trades
Department ,. AFL-CIO , or similar groups operating in the construction industry.
By the first of these letters , dated February 7, 1958, the General . Counsel called
the attention of unions , employer associations, and employers in the construction
industry to the decision of the Board in the Brown -Olds case , 115 NLRB 594, and
urged the building contractors and unions to correct unlawful hiring practices then
existent . The letter continues:
If this is done, it may warrant the disposition , without full application of the
Brown-Olds reimbursement remedy, of charges based upon illegal hiring
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arrangements which have been voluntarily conformed to the provisions of the
Act during the period prior to June 1, 1958. It will also warrant my recom-
mending to the Board during such period a similar disposition of all cases
currently pending or brought before the Board with respect to such illegal
hiring arrangements. It is understood, however, that apart from the non-
application of the Brown-Olds reimbursement remedy, all charges and cases
relating to or arising out of illegal hiring arrangements must be processed in.
normal fashion although such arrangements may have been corrected during
the period prior to June 1, 1958.
The second letter on the subject is dated April 23, 1958, and is addressed to,
Associated General Contractors, National Constructors Association and National
Electrical Contractors Association. It reads as follows:
On February 7, 1958, this Agency announced that during the period March 1
to June 1, 1958, it would withhold full application of the Brown-Olds re-
imbursement remedy where employers and unions voluntarily bring their union
security and hiring arrangements into conformity with the provisions of the
Labor Management Relations Act, 1947.
Since then we have been advised that a number of unions and employers are
vigorously undertaking to bring their union-security and hiring arrangements.
into conformity with the Act. We have been further advised that unions and
employers are also reviewing such arrangements in the light of the Board's
decision in Mountain Pacific Chapter of the Associated General Contractors,
Inc. (119 NLRB 883), which established certain legal requirements for exclu-
sive hiring arrangements.
In view of these circumstances, a further extension of time beyond June 1,
1958, is warranted so that the parties may have sufficient opportunity to com-
plete their negotiations in an orderly and informed manner. We have there-
fore extended to September 1, 1958, the period during which this Agency will
withhold full application of the Brown-Olds reimbursement remedy where the
parties voluntarily and diligently correct their union-security and hiring
arrangements.
The third letter is addressed to the Building Trades Employers and Unions and is.
dated August 19, 1958. This letter stated in substance that unlawful hiring prac-
tices in the building trades would be subject to Brown-Olds remedy after that date
unless negotiations to correct the practices had already been initiated. After review-
ing his previous letters, the General Counsel stated the following:
Under all the circumstances, we have determined that no general extension
of the policy of withholding the full application of the Brown-Olds remedy
beyond September 1 is warranted. However, where the parties have initiated
steps and have made genuine efforts to correct their union security and hiring
arrangements prior to the September 1 deadline, the full application of the
remedy may be withheld provided that conformity with the Act is achieved by
November 1, 1958.
The Stipulations
At the hearing counsel for the Company offered to stipulate that throughout July
and up to the time that the contract (Exhibit No. 33) was executed, and thereafter,
representatives of the Local and the contractor-employers in that area including
the Company had ,negotiated in an earnest effort to place their hiring arrangements
in compliance with the Brown-Olds remedy and the Mountain Pacific case. The
General Counsel said that the statement of counsel agreed with his understanding
of the facts as to the efforts of Local 350 and the contractor-employers to put their
hiring-hall arrangements in conformity with the Mountain Pacific case, and that
these negotiations had taken place from approximately July 1 up through Novem-
ber 1, 1958.
The General Counsel and counsel for the Company also stipulated that the
collective-bargaining agreement, and the hiring practices, of Local 350 and the
employers, which are relied upon as being unlawful in the instant case, were brought
into conformity with the Mountain Pacific case on or before November 1, 1958.
Counsel for the Company then called Adam Alger, previously referred to, who
testified that Local 350 and the contractor-employers began their negotiations on
the subject of the hiring arrangements on approximately May 1, 1958, and that
they were continuous thereafter.
GAY ENGINEERING CORPORATION 463
Concluding Findings
Upon all the evidence, I find that the Company has violated Section 8(a)(1) and
(3) of the Act as set forth in the complaint.
From the undisputed evidence it is clear that the Company adopted the area-
industry contract when it moved into the Local's jurisdiction, and in addition, I
find, it agreed with the local to secure its employees exclusively through the hiring
hall operated by the Local. No other conclusion can be reached from the testimony
of both Company and Local officials, as to how the hiring hall operated. Such a
coordination of efforts, and efficiency of operation, could only be the result of a basic
agreement. Thus, the total agreement, part written, part verbal, was violative of
the Act because the hiring-hall arrangements did not meet the requirements of the
Mountain Pacific decision.5
Furthermore, the undisputed evidence establishes that the Company delegated its
hiring prerogative to the Local and was therefore jointly and severally liable, to-
gether with the Local, for any discriminatory action by the latter in carrying out the
hiring procedure.6
The undisputed evidence establishes that on or about August 6, 1958, and on or
about August 14, 1958, the Local discriminatorily refused to dispatch Gibford and
for that reason alone he was denied employment by the Company.
It is noteworthy that the Company offered no or little evidence to disprove the
facts of the discrimination against Gibford, based upon the illegal agreement, the
illicit hiring hall, or the conduct of the Local in regard to Gibford.
The Company centered its defense on contentions that on several occasions Gib-
ford had refused offers of employment made to him, and that the Brown-Olds
remedy should not be applied against the Company because the illegal agreement
and hiring arrangement between Local 350 and the Company had been brought into
compliance with Mountain Pacific requirements by November 1, 1958. These
contentions of the Company merit more detailed discussion.
From the testimony of Padrick, it is clear that at the time the Gibford dispute
arose Padrick considered the dispute as involving only the Local and Gibford. At
that time he did nothing. However, at approximately the time that unfair labor
practice charges were filed against both the Company and the Local by Gibford,
Padrick took steps directed to Gibford's reemployment. He arranged for a confer-
ence with Gibford at the Company's office in Los Angeles on August 29, 1958. In
that conference Gibford and Padrick discussed not only Gibford's reemployment in
a position equivalent to that which he formerly held, but discussed his reemploy-
ment as general manager on the Squaw Valley job, because the Company was dis-
satisfied with the performance of duty of General Foreman Bethea. According to
Padrick, and Brawley who also heard part of the conversation, Gibford stated that
he was willing to be reemployed by the Company-but he laid down one condition,
that he would not go back to work for the Company while Bethea was on the job.
For his part, Gibford said that he considered reemployment by the Company
"impossible" in view of the continued employment of Bethea, and Bethea's rela-
tionship with Fietz. Upon that testimony, I find that in this conversation Padrick
offered Gibford reemployment on the job as a journeyman, with the prospect of
Gibford becoming a temporary foreman, and ultimately general foreman of the
Squaw Valley project, and I also find that Gibford agreed to accept the position, but
upon the condition that Bethea be removed from the job prior to his reemploy-
ment. Under the circumstances Gibford could not legally condition his reemploy-
ment upon the discharge of Bethea, so his conditional acceptance was tantamount
to a refusal of the job.
Thereafter the Company made Gibford other offers of employment, but in each
instance Gibford had an excuse for not accepting the job. Although his classifica-
tion is that of "fitter-welder," when the Company offered him a job as "refrigeration
fitter" he refused it on the ground he was a welder. When the Company offered
him a job as a "refrigeration welder," he refused it on the ground that the job would
last only a short time. Other jobs he refused because one was for a "fitter"; another
for a "downhill welder" and he could not pass the test; and other jobs he refused
in the hope and expectation of getting a better or longer job. This is not the con-
duct of a man sincerely receptive to reasonable offers of employment. From all
of Gibfords conduct in this regard, I must conclude that for some reason known
only to himself, after his discriminatory discharge Gibford was determined to accept
employment from the Company only if Bethea was dismissed from the job, and to
5119 NLRB 883.
6lmparato Stevedoring Corporation, 116 NLRB 667, enfd. 250 F. 2d 297 (C.A. 3).
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accept employment from no one else . I find that Gibford refused valid offers of
reinstatement made by the Company on October 31 and November 3, 1958, in
addition to the offer made and refused on August 29, 1958.
Because the General Counsel has asked for the . application of the Brown-Olds
remedy in this proceeding , a request which is vigorously opposed by counsel for the
Company, certain testimony , stipulations , and documents were received in evidence
at the hearing . Although counsel differed as to the propriety of applying the
remedy in this case , they were in agreement that the facts presented a question for
the Board . Consideration of the question requires that the posture of the proceeding
as originally brought, and as it stands now, be examined.
The consolidated complaint alleged that Local 350 and the Company jointly en-
forced an agreement for the operation of a hiring hall which violated the require-
ments of the Act and was the instrumentality of discrimination against Gibford.
Prior to the hearing, the General Counsel and Local 350 arrived at a settlement
which required the payment of back pay to Gibford and the posting of the conven-
tional notices . Counsel for the Company urges that the imposition of the Brown-
Olds remedy against the Company alone in this proceeding would be inequitable and
unjust, as it would allow the Local to retain the dues, fees , or other money unlaw-
fully exacted as the price of employment and require the Company , who has never
collected or had in its possession any such payments, to pay to its employees hired
pursuant to the illegal contract , such sums . Counsel urges that such an ultimate
disposition of this proceeding would permit Local 350 to escape without disgorging
the proceeds of its illegal activity, and transfer the burden of reimbursement to the
Company, who never at any time collected or had in its possession such unlawful
proceeds . Counsel for the Company urges that such a result would be manifestly
inequitable and unjust , and at variance with the Board 's traditional policy of fashion-
ing remedies in accordance with accepted principles of law and equity.
Recently, in Morrison-Knudsen Company, Inc., 123 NLRB 12, the Board rejected
considerations similar to those now advanced . In that decision , a panel of the
Board wrote as follows:
Contrary to the Trial Examiner , we do not believe that the fact that some
of the Respondents originally joined in this proceeding had obtained concessions
in the course of settlement of charges against them is sufficient reason to omit
the Board 's established remedy for the unfair labor practices of those whose
cases were litigated herein.
That statement would appear to be diapositive of the question here, except for one
important factor present here which apparently was not present in the Morrison-
Knudsen case-the stipulations of the General Counsel.
The record herein establishes that the General Counsel by the letters in evidence
assured employers and unions in the construction industry that if they voluntarily
undertook to eliminate their illegal hiring arrangements prior to June 1, the
General Counsel would recommend disposition of pending cases , and cases brought
in the interim , without full application of the Brown-Olds remedy . Thereafter this
"reprieve" or "moratorium " was extended by further letters to November 1, 1958.7
In this proceeding , it has been stipulated that the Company herein and Local 350
initiated negotiations, within the time specified , and placed their hiring arrangements
in conformity with the Mountain Pacific doctrine by the deadline date of November
1, 1958. Thus, it would appear that the parties had brought themselves within the
terms of the reprieve or moratorium.
Furthermore , it appears that in the settlement made with the Local the General
Counsel gave effect to his stipulation set forth in his letters and did not require
application of the Brown -Olds remedy . Under the circumstances , I find that the
application of the Brown-Olds remedy herein would be inequitable , and contrary to
the stipulations of the General Counsel contained in this record . For the reasons
stated, the General Counsel's request that the Brown -Olds remedy be applied herein
against the Company alone is denied , and the remedy will not be recommended
hereafter.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company and Local 350, set forth in section III, above,
which occurred in connection with the Company's operations set forth in section I,
7 These terms are the General Counsel's. See address of Jerome D. Fenton, General
Counsel, before 'Smerco Hacca, at 1959 Southeast Trade Exposition, Atlanta, Ga., March
21, 1959.
GAY ENGINEERING CORPORATION 465
above, have 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 Company has engaged in unfair labor practices, it will be
recommended that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Since it has been found that the Company and Local 350 maintained and enforced
the terms and provisions of a collective-bargaining agreement and followed a practice
whereby employees of the Company were secured exclusively through a dispatching
procedure operated by the Local, and whereby the Company delegated its hiring
prerogative to the Local, thereby encouraging membership in Local 350, it will be
recommended that the Company cease from performing said contract or maintaining
any such hiring arrangement or practices with Local 350, except such as are author-
ized by Section 8(a) (3) of the Act.
Since it has been found that the Company has discriminated in the hire and tenure
of employment of Leslie P. Gibford, it will be recommended that the Company
make Leslie P. Gibford whole for any loss of pay he may have suffered by reason
of the discrimination against him, by payment to him of a sum of money equal to
the amount he would normally have earned as wages during the period of such
discrimination. The loss of earnings will be computed in accordance with the
formula of the Board stated in F. W. Woolworth Company, 90 NLRB 289. The
period of discrimination mentioned above shall start on August 14 and end on
August 29, 1958, for the following reasons. Although Gibford suffered discrimina-
tion on August 6, and was not dispatched to employment until the following day,
no loss of pay resulted for on that day Gibford requested the Company to defer his
employment until August 11. From those circumstances, I conclude that Gibford
was not ready to begin work until August 11, Monday of the following week. On
August 11, 1958, Gibford worked, and the evidence establishes that he was laid off
for a non-discriminatory reason, lack of pipe. However, on August 14, 1958, the
pipe was delivered, and the men previously laid off with Gibford were redispatched
to the job. On that date, discrimination resulting in loss of pay to Gibford
actually commenced. The period shall end on August 29, 1958, the date upon which
Gibford refused the first valid offer of reinstatement by the Company, as found
hereinabove.
It is also recommended that the Company be ordered to make available to the
Board upon request, payroll and other records to facilitate the checking of the
amounts of earnings due.
Upon the foregoing findings of fact and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Local Union 350, United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act, which
admits to membership employees of the Company.
2. Gay Engineering Corporation is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. By discriminating in regard to the terms and conditions of employment of
Leslie P. Gibford, thereby encouraging membership in Local 350, the Company has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Company has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5. By maintaining and enforcing the terms of a collective-bargaining agreement
with Local 350, whereby its employees were secured exclusively through the Local's
hiring hall which was not operated in conformity with the Act, and by delegating its
hiring prerogative to Local 350, the Company discriminated against employees in
violation of Section 8(a) (1) and (3) of the Act.
6. Ttie aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
525 543-60-vol. 124-31