Local 369

National Labor Relations Board - Board DecisionsNov 2, 1955

114 N.L.R.B. 872 (N.L.R.B. 1955)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Burns, Joseph Tibensky, Michael F. Foley, Edward Morrisey, Patrick T. Seckler, John Seng, William Lynn, Walter Broadbent, Lester Alexander, James P. Dewar, and John J. O'Donnell, Jr., thereby encouraging membership in Respondent Union, Re- spondents Stoudt and Weisker have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By all of the above conduct, thereby interfering with, restraining, and coercing employees and prospective employees in the exercise of rights guaranteed by Sec- tion 7 of the Act, Respondents Stoudt and Weisker have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By entering into and enforcing the unlawful closed-shop hiring arrangement on and after July 21, 1954, and causing Respondents Stoudt and Weisker to discrimi- nate against employees and prospective employees in violation of Section 8 (a) (3) of the Act, Respondents Union and Schwartz have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 6. By causing Respondents Stoudt and Weisker to discriminate as aforesaid, thus restraining and coercing employees and prospective employees in the exercise of rights guaranteed in Section 7 of the Act Respondents Union and Schwartz have engaged in and are engaging in unfair labor practices within the meaning of Section 8. (b) (1) (A) of the Act. 7. The 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.] Local 369, International Hod Carriers ' Building & Common Laborers' Union of America , A. F. L. and James Carr and A. C. Frommeyer, Charles M. Foley, and Joseph F. Murphy,, d/b/a Frommeyer & Company, Party to an agreement. Case No. 4-CB-228. November 2,1955 DECISION AND ORDER On July 6, 1955, Trial Examiner Arthur Leff issued his Interme- diate Report in the above-entitled proceeding, finding that the Re- spondent 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, a supporting brief, and a request for oral argument. The Board has reviewed the Trial Examiner's rulings made at the, hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case,"" and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner. 'Because the exceptions and brief adequately present the Respondent's position, the request for oral argument is denied. 2 In section III, A, of the Intermediate Report, in describing the conversation between Peters and Conway about Carr, the Trial Examiner inadvertently stated that Carr replied to Peters. It is clear that it was .Conway who so replied. The Intermediate Report is= corrected accordingly. 114 NLRB No. 136. LOCAL 369 ORDER 873 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 the Respondent, Local 369, Inter- national Hod Carriers' Building & Common Laborers' Union of Amer- ica, A. F. L., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Giving effect to, entering into, renewing, maintaining, or en- forcing any agreement, arrangement, understanding or practice with Frommeyer & Company, requiring employees or applicants for em- ployment to be or become members of, or to obtain clearance or ap- proval from, the Respondent as a condition of employment, except as authorized by Section 8 (a) (3) of the Act. (b) Causing or attempting to cause said Company, its officers, agents, successors, or assigns, to refuse employment to employees or applicants for employment because they are not members in, or have not secured. clearance or approval from, the Respondent, or in any other manner to discriminate against employees or applicants for em- ployment in violation of Section 8 (a) (3) of the Act. (c) In any like or other manner, restraining or coercing employees of, or applicants for employment with, the said Company in the exer- cise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify Frommeyer & Company and James Carr, in writing, that it withdraws objection to the employment of James Carr and, if the McGuire Air Base project has not been completed, that it requests the Company to offer him immediate and full employment. (b) Make James Carr whole for any loss of pay he may have suf- fered by reason of the discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Post at its offices and meeting halls in Trenton, New Jersey, copies of the notice attached to the Intermediate Report and marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by the Respondent's representatives, be posted by the Respondent immedi- 3 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall he 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." 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ately upon receipt thereof, and maintained by it for sixty (60) con- secutive days thereafter in conspicuous places, including all places where notices to its members 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. (d) Mail to the Regional Director for the Fourth Region signed copies of the notice attached to the Intermediate Report marked "Appendix," for posting, the Company willing, on the McGuire Air Base job, for sixty (60) consecutive days, in places where notices to employees are customarily posted. Copies of said notice, to be fur- nished by the Regional Director for the Fourth Region, shall, after being duly signed by the Respondent's representative, he forthwith re- turned to said Regional Director for such posting. (e) Notify the Regional Director for the Fourth Region in writing, within ten (10) days from the date of this Order what steps it has taken to comply herewith. MEMBER MURDOCK took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed by James Carr, the General Counsel of the National Labor Relations Board, by the Regional Director for the Fourth Region ( Philadelphia, Pennsylvania ) issued a complaint , dated May 2, 1955, against the Respondent Union named in the caption , alleging in substance that the Respondent had engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (b) (2), and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act, by (1) joining with the Company named in the caption in an agree- ment or arrangement under which all employees hired by the Company must re- ceive the Respondent Union's clearance and approval as a condition of employment; and (2) causing the Company, on or about July 19, 1954, to discriminate against James Carr in violation of Section 8 (a) (3) of the Act because Carr was not a member in good standing of the Union. Copies of the complaint together with notice of hearing thereon were duly served upon the Respondent as well as upon the Company. The Respondent filed an answer denying the commission of the unfair labor practices alleged. A hearing was held on June 7, 1955, at Trenton, New Jersey, before Arthur Leff, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondent Union, and the Company were represented at the hearing by counsel, and were afforded full opportunity to be heard, to examine and cross -examine witnesses , and to introduce evidence bearing on the issues . At the conclusion of the General Counsel' s case, the Respondent moved to dismiss the complaint on the ground that the General Counsel had failed to make out a prima facie case. The motion was denied . At the conclu- sion of the entire case, ruling was reserved on a motion by the Respondent to dismiss the complaint for failure of proof. That motion is now disposed of in ac- cordance with the findings of fact and conclusions of law made below. Opportunity was afforded all parties to argue orally upon the record and to file briefs and pro- posed findings and conclusions . On June 28, 1955, the Respondent filed a brief which has been considered. Upon the entire record in the case , and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. COMMERCE ; THE BUSINESS OF THE COMPANY A. C. Frommeyer , Charles M. Foley and Joseph E. Murphy, d/b/a,Frommeyer & Company , a partnership •duly organized and existing under the laws of the Corn- LOCAL 369 875 monwealth of Pennsylvania, maintains its office and principal place of business at Philadelphia, Pennsylvania, where it is engaged as a bricklayer contractor in the con- struction business. During 1954 Frommeyer & Company performed bricklaying work in States other than Pennsylvania valued at more than $1,000,000. From- meyer & Company, it is found, is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 369, International Hod Carriers' Building & Common Laborers' Union of America, A. F. L., is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Sequence of events relating to the Company's denial of employment to Carr In mid-July, 1954, James Carr, seeking employment as a laborer, called on Frank Gonzales, the Union's secretary-treasurer, at the Union's headquarters in Trenton. Carr, who was not a union member, asked Gonzales for a "work slip." Gonzales told Carr he had no work available. Carr then asked Gonzales whether the Union would be willing to accept his initiation fees for union membership if Carr himself located a job. Gonzales said it would cost Carr $25 to join. He gave Carr his business card and told Carr to call on him in the event Carr succeeded in finding work. After leaving the Union's office, Carr was told by a friend and neighbor, Alec Power, who was employed as a laborer leadman by Frommeyer & Company that work was available for a laborer at the Companys' McGuire Air Base construc- tion site. Thereafter, Can again visited the union office, and, in the absence of Gonzales who had in the meantime left on a vacation, spoke to Michael Neylan, the Union's business agent. Carr asked Neylan about "going union." The record does not disclose whether he also made mention at the time of a job with the From- meyer Company. Neylan declined to allow Carr to join the Union at that time. He told Carr that he then had 18 or 19 men "on the bench" waiting for work. Those men, he said, would first have to be placed before Carr could be accepted for union membership.' . That weekend, after again talking to Alec Power, Can decided to go to the Frommeyer job site at the McGuire Air Base near Fort Dix, New Jersey, to make personal application for a laborer's job. On Monday morning, July 19, 1954, at about 6 a. m., Carr boarded at Philadelphia a Frommeyer Company station wagon that was used to transport workers to the job site from Philadelphia and intermediate points. En route, the station wagon picked up at Garden State Park the Company's job superintendent, Charles Conway. After the car driver introduced Carr to Conway as a man Powers had sent, Carr told Conway that he wanted a job. Conway asked Can if he had a union card. Carr said he had none, but he showed Conway the business card Gonzales had given him on the occasion of his first visit to the union office. Conway then said in substance that it would be "all right with him if it was all right with [James Peters, the Union's job steward]." At the same time Conway indicated that if it were all right with Peters he would give Can a job. When the station wagon arrived at the job site Conway referred Can to Peters? 1 The findings made in this paragraph are based upon Carr 's undenied and credited testimony. 2 The findings in this paragraph are based upon Carr's testimony. Conway, a witness for the Respondent, took issue with Carr's testimony concerning the details of their con- versation. Conway admitted, however, that before Carr left the vehicle at the job site, Carr asked him for a job, that Carr showed him a card, and that he "waved" Carr to the steward. According to Conway's version, he had no work for Carr at the time, and he sent Carr to Peters so that Peters might make a record of his name and address for future reference in the event that he might later be needed by the Company. Conway's testimony as to why it was necessary for him to refer Carr to Peters for that purpose was evasive and unconvincing Further, Peters testified that it was not his function to note the names and addresses of prospective employees 'and that Conway never asked him to make such a record. Moreover, Conway conceded that his recollection of the entire incident was vague and uncertain. In other respects his testimony was contradictory and incon- sistent with a prehearing statement he had given the Board's field examiner who had investigated the case. His overall testimony impressed me as less than reliable in many particulars. Carr, on the other hand, impressed. me as a forthright witness. To the extent the accounts of Carr and Conway are at odds, I credit that of Carr 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peters interviewed Carr outside in the presence of Conway. Their testimonial reports of what was said are substantially identical. Peters' was as follows: Q. (By Mr. Naimark) When Mr.- Carr came to see you what did he say with reference to his going to work? A. What did he say? Let me see, now. What he said. He said "What about giving me a job"" I says, "You got a book?" He said, "No." And he pulled out this card [the business card given him by Gonzales]. I said, "Well, this don't say anything about `okay for work.' " I said, "you go to the Union hall and get the business agent to okay that card and you go to work." After Carr left him, Peters spoke to Conway about Carr. Peters, as appears from his testimony, told Conway that "Carr didn't have a book," to which Carr simply replied, "Okay." Peters testified that he made no express statement at the time with reference to whether Carr should be hired.3 Carr also spoke to Conway following his interview with Peters, but it is not pos- sible to tell from the record whether that was before or after Peters' conversation with Conway. As appears from Carr's credited testimony, Carr reported to Conway the results of his conversation with Peters. Conway told Carr there was nothing he could do. Carr asked Conway whether a job would be open for him if he got straightened out with the Union. Conway replied that in the event Carr got straight- ened out with the Union, he should come back and see him and he would be taken care of. After leaving the job site, Carr went to the Union's headquarters at Trenton where he saw Business Agent Neylan. He told Neylan he had found a job, but made no specific reference to the Frommeyer job. Again Carr asked Neylan about "going union" and offered to pay his initiation fees. Neylan's response was the same as it had been on the occasion of Carr's previous visit. He told Carr he had 18 or 19 men waiting for work and that they would have to be placed before Carr could be admitted. . Carr never returned to the McGuire Air Base construction site and had no further contact with the Frommeyer Company or its representatives. No laborers were hired by the Company on the morning of July 19, 1954. However, that afternoon Conway put two new laborers on the Company's payroll. According to Conway, one of them had been on the job site that morning and for several days prior thereto looking for work. The other, according to Conway, came to the job for the first time that afternoon and was put on because he was immediately needed. B. Discriminatory hiring practices The complaint alleges, and the Respondent denies, that at the time Carr unsuc- cessfully sought employment from Frommeyer & Company, the Respondent and the Company were parties to an agreement or arrangement requiring employees hired by the Company to receive the Union's clearance and approval as a condition of employment. At the hearing, the General Counsel made no effort to prove the existence of a formalized agreement to that effect. Instead, he sought to establish that the procedure followed in the case of Carr was not an isolated incident, but con- formed to a regular hiring practice, jointly participated in by the Company and the Union. From this and other circumstances he would have it inferred that there existed between the two at least a tacit understanding or arrangement, illegal in character, calling for union clearance and approval of laborer applicants for employ- ment. To provide factual support for his position, the General Counsel called James Peters, the union steward to whom Carr had been referred by Conway. Peters testified in substance as follows: When Peters was appointed job steward at the McGuire Air Base job he was instructed as to his duties by Business Agent Neylan, who, in Peters' presence, also advised Conway what his duties were to be. Among other things, Peters was instructed that when a new man came on the job, the super- intendent was to send that man to the shop steward to have his union book checked before the man started to work. After checking the book-the purpose of which, according to Peters, was to determine whether or not the man was in good standing 3 Conway testified that he could remember no conversation with Peters about Carr However, in his prehearing statement to the Board's field examiner, Conway stated that after he had referred Carr to Peters, "Peters then informed me that Carr was not a nember of Local 369 and it would not be satisfactory with the union if I hired him." If Conway's testimony is to be read as a denial of Peters' concerning their conversation, I do not credit it. LOCAL 369 877 with the Union-Peters was to let the superintendent know whether the new man was "okay or not." He was, however, to have nothing to do with the actual hiring -which was to be the sole function of the job superintendent. But though Peters was supposed to check the books of new men before they started work, there were -some instances where Conway hired men without Peters' advance knowledge. In those instances Peters checked the books of the new men as soon as he discovered they were on the job. In each such instance he found, after checking, that the man's ,union book was in order. Carr's was the only situation he ever had on the job where he found after checking that a-man did not have a union book. While he was steward, all laborers employed at the McGuire Air Base job were union mem- bers, though not necessarily members of the Respondent Union, some being members ,of other locals affiliated with the same International organization. The Respondent called three witnesses-Frank Gonzales, its secretary-treasurer, Fred Stevens, who like Peters was a job steward, and Charles Conway, the Company's job superintendent. It did not call Business Agent Neylan to take issue with Peters' account concerning the instructions Neylan had given him and had also communicated to Conway. Gonzales denied generally that the Respondent had "any exclusive hiring arrange- ments" with the Company on the job in question. He further testified that he could not remember supplying any men for that job, and that he had "never received a call" from the Company for men to be sent to that job site. In the latter respect, however, Gonzales' testimony was not entirely consistent with that of Conway who testified that on some occasions at least he utilized the Union as a manpower source. Stevens, who along with Peters was a union shop steward at the Frommeyer job site, denied that Conway "cleared" laborers with him before they went to work. He further testified that because his own job on the mixing machine was "confining," Peters often checked for him the books of men on the job. According to Stevens, however, on a number of instances when he himself had occasion to check men working on the job he found that new men had been hired who were not members of the Union or any of its affiliated locals. Stevens could recall only 3 or 4 instances where he discovered that nonunion men had been hired. In each such instance, his .testimony reflects, those nonunion men either joined the Union or made payments on account of their initiation fees immediately or shortly after coming on the job. On the key issue of whether the Union cleared employees for hire, additional testimony given by Stevens, though garbled, confused, and not altogether compre- hensible, appears in certain aspects to cast a cloud upon the reliability of his assertions that the Union maintained a hands-off position with regard to company hirings and had no contact with company representatives in that connection. Thus, Stevens testified at one point that if an applicant for employment at the job site was already "assured of a job," the foreman would send the man to him and say, "Well, see if his book is all right. Check him. See if he is okay with you." Thus, too, Stevens testified that Business Agent Neylan instructed him that no transfer to the Respondent Local was necessary in the case of job applicants who were members of sister locals in the general area, and that if members of the Respondent or of any such other locals came down to the job and work was available for them, "it was okay for them to go to work" without transferring into the Respondent Local. With regard to those who were not members of any local, Stevens testified that in a situation where it appeared that the employee had already obtained a job his instructions were simply to advise the employer of the advantages of union membership and to collect, if the employee were willing "$10 or $15 if he has got it." According to Stevens he was told by the business agent "never to accept a man's money if he hasn't got a job. Accepting a man's money then on the job is only a favor to the fellow that was being hired." As to what his instructions were in the case of an employee who had not yet been hired, Stevens' testimony was vague, ambiguous and, I thought, evasive. At one point during cross-examination, however, he testified that in that event his instructions were to refer the man to the union hall Conway, like Gonzales, denied generally that the Company had any "exclusive hiring arrangements" with the Union. On direct examination, he testified that in hiring laborers he never concerned himself with their union status or their accept- ability to the Union, but acted entirely on the basis of his own judgement without taking such considerations into account . But . on cross-examination Conway admitted that he "sometimes" referred laborer job applicants to the union steward. Conway was then referred to a signed written statement he had given the Board's investigating field examiner in which he was quoted as stating, "In hiring such labor it is customary for me, prior to placing a man on the payroll to refer him to the shop steward for Local 369." Conway admitted signing that statement, but asserted 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at first that the quoted statement was not his, but the field examiner's version, after editing, of what he had said. Cross-examination then proceeded as follows: Q. (By Mr Naimark.) Did you read the statement before you signed it? A. Yes. Q Is that true? A. In part, yes. I already said "Yes." TRIAL EXAMINER: What part is not true? The WITNESS: [If] "usual or customary" is interpreted to mean a hundred' percent. No, it is not a hundred percent of the time. Q. (By Mr. Naimark.) I didn't say that. I said, "It is customary." A. Yes, it is customary. Conway's explanation was unconvincing as to why, in view of his professed disin- terest in whether job applicants were acceptable to the Union, he nevertheless custom- arily followed the procedure of referring them to the steward. He testified he did so either for the purpose of having the shop steward make a record of the applicant's name and address so that he might be reached if later he should be needed, or else as a means of getting rid of the applicant. However, he was unable persuasively to explain why management could not itself record the names and addresses of applicants without delegating it to a union representative who by his own account had nothing to do with hiring. Nor did he satisfactorily explain how it would aid him in getting rid of an applicant to refer him to the Union steward if, as he asserted, the Union played an entirely negative role in the hiring process. Other evidence further serves to discredit Conway in this regard. Thus, Peters, who impressed me generally as a credible witness, testified that Conway never told him to record the names and addresses of men referred to him by Conway. According to Peters, the only reason for which Conway sent men to him was to have their union books checked. Moreover, if Conway's real reason was what he asserts it to be, there would have been no purpose in having the Union steward advise Conway whether or not the applicant was acceptable from the Union's point of view. Yet Conway's own testimony reveals that at least one object of the referral must have been to determine whether or not the applicant was satisfactory from the Union's point of view. Thus Conway testified on further cross-examination: Q. (By Mr. Naimark.) What was the custom ? You have indicated that you told men who applied for jobs to go see the steward in July 1954. After they spoke to the steward did the steward have any conversation with you in regard to their union membership or nonunion membership? A. Oh, usually yes, sometimes later on. Q. What would he say? A. Oh, "This guy isn't satisfactory," or "that guy is satisfactory." As already noted, Peters impressed me as a forthright witness. On the basis of his credited testimony , buttressed by Conway 's concessions on cross-examination. as set out above, I am persuaded , and I find, that , as a matter of general although not invariable practice, the Company at its McGuire Air Base job site required job applicants whose work fell within the Union's jurisdiction to clear with the Union's job steward as a prerequisite to final hiring. Though Stevens gave contrary testimony, I regard his testimony for reasons already indicated as less than reliable, and there- fore, and because the testimony he gave was at variance not only with that of Peters' but with that of the Respondent's own witness, Conway, I do not credit it. Further, I think it clear from all the record, and I find, notwithstanding Conway's discredited protestations to the contrary, that the Company's principal object in referring job applicants to the union steward was to obtain in advance of final hiring an expression from the Union as to whether individual applicants whom the Company was otherwise ready to hire would be acceptable to the Union. As Peters' credited testimony discloses, the steward's determination of acceptability was made to turn on whether or not a prospective employee was in good standing with the Union or one of its affiliated locals. That the Company must have recognized that to be so is I think obvious; and if there could otherwise be any doubt of it, such doubt in my view is effectively dispelled by Peters' undenied and credited testimony showing the communication to Conway of Business Agent Neylan's instructions to Peters about checking union books of new men before they started work. Conway's assertion, nevertheless, that in making his actual hiring decision he never concerned himself with the question of an applicant's union status or acceptability to the Union, is I think implausible. If that were so; it would have been wholly pointless for him to solicit in that manner an expression of the Union's views. Moreover, Conway's refusal to hire Carr because he failed to win the approval of the union LOCAL 369 879 steward, coupled with his indication to Carr that the situation would be different if Carr got straightened out with the Union, serves to illustrate in concrete and striking form that Conway must have given at times at least decisive weight to the Union's approval or disapproval. From what has been said, I think it clear, and I find, that the general hiring practice pursued by the Company of requiring laborers before being placed on the payroll to submit themselves to the union steward for approval was unlawfully discriminatory in character within the meaning of Section 8 (a) (3). The circum- stance that the practice may not have been invariably applied does not cure it of its illegal taint The mere fact that there were exceptions-though relatively few in number, as Conway's testimony discloses-made the illegal impact of that practice no less so upon those who were or might be subjected to it. The finding just made does not, of course, completely meet the issue here, of whether that discriminatory hiring practice was pursued pursuant to an agreement, arrangement, or understanding with the Union which alone is a Respondent in this case. However, on all the evidence I think such an affirmative inference is warranted-and, in strength, sufficient to overcome and discredit the Respondent's denial and contrary testimony. To begin with, I think it highly improbable that, absent some arrangement with the Union to that effect, the Company unilaterally and as a matter of customary practice would have chosen to send laborers applying for work at its own job site to the union steward to have their union acceptability established in advance of determining their company acceptability. If there were some other plausible reasons for this I think the record would have shown it, but it does not.4 Moreover, the unlawful hiring practice followed by the Company was one that could not be carried out without the willing participation and co- operation of the Union. Here the Union's active participation and cooperation is reflected by the record facts showing that, just as the Company customarily referred applicants to the union steward, so, too, the union steward customarily contacted the company representative to advise him whether individual employees were "okay or not." In this posture there can be little room to doubt that each party not only knew of and acquiesced in what the other was doing, but that what they did was done by prearrangement. Additional evidence that both were working in accord in the operation of the unlawful hiring practice is found in Peters' credited testimony that the union business agent not only instructed Peters, but communicated to Conway as well, what Peters' duties and functions as a steward were to be with regard to job applicants sent to him by the Company's job superintendent. Further, Conway's conduct in referring Carr, whom he was otherwise willing to employ, to Steward Peters for approval, coupled with his statement to Carr upon learning of Peters disapproval that there was nothing he could do, is scarcely explainable except on the hypothesis that the Union and the Company had in some way-agreed that in certain circumstances at least union approval was to be a condition of employment. Finally, the fact that all employees on the job falling within the Union's work jurisdiction either were members of the Union or had arranged to make payments to the Union on account of initiation fees, while it does not itself prove, nevertheless serves to confirm the validity of the finding I make, that the Union and the Company were parties to an understanding or arrangement requiring employees to receive the Union's approval as a condition of employment. Accordingly, I conclude that the Respondent violated Section 8 (b) (2) and Section 8 (b) (1) (A) as well, by entering into an agreement, arrangement, or understanding with the Company for the hiring of employees in an unlawfully discriminatory manner, and by participating along with the Company in the opera- tion of the unlawful hiring practices thereunder.5 C. Conclusions with regard to the Union's responsibility for discrimination against Carr The facts get out in section A, above, disclose clearly enough, and it is here found, that the Company denied employment to Carr on July 19, 1954, because Carr had failed to obtain the approval of the Union's steward. As the Company had conditioned Carr's employment upon the steward's approval, the reasons that led the steward to withhold approval must in law be imputed to the Company as the 4 As found above, the reasons given by Conway were patently implausible and have been discredited 5 See, e. g, International Brotherhood of Boilermakers, etc, 94 NLRB 1590; Construc- tion Specialties Coinpany, 102 NLRB 1542, Consolidated Weston Steel Corp, 108 NLRB 1041 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasons that led it to deny employment to Carr . Those reasons having been unlaw- fully discriminatory, it must be concluded that the Company's denial of employment to Carr constituted conduct falling within the proscription of Section 8 (a) (3). The Respondent 's argument that the Company 's real reason for denying Carr em- ployment at the time was that no job was then immediately available is rejected as opposed to the credible evidence. That was not the reason stated to Carr. Carr's credited testimony establishes that when Carr asked Conway for work that morning, Conway indicated to him he would be hired if Peters approved. Besides, the record shows that the Company hired, that same afternoon , 2 employees in laborer posi- tions, 1 of whom had made application after Carr did. Though factually accepted that no job actually became available until that afternoon and that it was the Company's regular practice not to hire men until actually needed , and then only from among those physically present at the job site, it would not alter the con- clusion that Carr was discriminated against with regard to hire. For, as was stated in Consolidated Western Steel Corporation, 108 NLRB 1041, at 1042: The Board has, consistently held that where an employer engages in a discrimina- tory hiring practice and where such practice is communicated to applicants for employment , albeit when no jobs for them are available , an inference and finding is warranted that further application would be futile because from the existence of the discriminatory practice it is clear that the same discriminatory conditions would be attached whenever the jobs became available [citing Board and court cases] The basic question remains, whether the Respondent Union is responsible for causing that discrimination against Carr. On the basis of what has already been found the answer is clear-and this though it be assumed, as is done here, that Conway's final advice to Carr, that he could do nothing for him until "he got straightened out with the Union," preceded rather than followed Peters' communication to Conway that "Carr didn't have a book." 6 The refusal to hire was the proximate result, and a natural and forseeable consequence, of the discriminatory hiring arrangement found above. Those responsible for an unlawful hiring arrangement are also responsible for its reasonably to be anticipated results. Just as the hiring arrangement must be held, on the part of the Respondent, an attempt to cause the Company to discriminate against employees , so, too, the discrimination against Carr resulting from an ap- plication of that arrangement must be held to have been caused by the Respondent. There is no merit to the Respondent 's argument that it is relieved of responsibility because of Carr's failure specifically to advise Business Agent Neylan that he was seeking work with the Frommeyer & Company, when later that day Carr called at the union office to tell Neylan he had found a job and to offer to pay his initiation fees. The discrimination against Carr and the Union's responsibility therefor was then already complete by reason of the earlier application to Carr at the job side of the discriminatory hiring arrangement. It is concluded and found that the Respondent Union violated Section 8 (b) (2) of the Act on July 19, 1954, by causing Frommeyer & Company to discriminate against James Carr within the meaning of Section 8 (a) (3). By such conduct, it is further found, the Respondent also violated Section 8 (b) (1) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Company described in section I, 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 com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices , it will be recommended that the Respondent cease and desist therefrom, and take certain affirmative action to effectuate the policies of the Act. o If Peters' direct contact with Conway preceded Conway's advice to Peters, a Section 8 (b) (2) and 8 (b) (1) (A) violation might perhaps be spelled out, without more, on the principle of Turner Construction Company , 110 NLRB 1860; but that is not free from doubt in light of the Board's language in the more recent Carrier Corporation case, 112 NLRB 1385, citing Denver Building Trades (Henry Shore), 90 NLRB 1768, enfd. 194 F 2d 577 -(C A. 10). LOCAL 369 881 It has been found that the Respondent was a party to an unlawful oral agreement, arrangement, or understanding with Frommeyer & Company, requiring employees hired by the Company to receive clearance from or approval by the Respondent as a condition of employment. It will therefore be recommended that the Respondent cease and desist from giving effect to, entering into, renewing, maintaining, or en- forcing any such or like agreement, arrangement, understanding or practice with said Company requiring employees or applicants for employment with the Company to be or become members of, or to obtain clearance or approval from, the Respondent as a condition of employment, except as authorized by Section 8 (a) (3) of the Act. It has been found that the Respondent caused the Company discriminatorily to refuse to hire James Carr on July 19, 1954. It will be recommended that the Respondent notify the Company and Can, in writing, that it withdraws objection to the employment of Carr, and, if the McGuire Air Base project has not been com- pleted, that it requests the Company to offer him immediate and full employment. It will be further recommended that the Respondent make Carr whole for any loss of pay he may have suffered by reason of the discriminatory action against him by payment to him of a sum of money equal to that which he normally would have earned from the date of the discrimination to a date 5 days after the giving of the aforesaid notice, or the date of the completion by the Respondent of the McGuire Air Base project involved in this case, whichever event shall first occur, less his net earnings during said period.? Back pay shall be computed on a quarterly basis in a manner consistent with the policy established by the Board in F. W. Woolworth Company, 90 NLRB 289. On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 369, International Hod Carriers' Building & Common Laborers' Union of America, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By entering into and participating in an agreement, arrangement, or under- standing with Frommeyer & Company, under which employees hired by said Com- pany were required to receive clearance from or approval by the Respondent as a condition of employment, and by causing said Company to discriminate against James Can within the meaning of Section 8 (a) 1(3) of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 3. By the aforesaid conduct the Respondent also restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. The 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.] 7 For, the manner of computing net earnings , see Crossett Lumber Co , 8 NLRB 440, 498 APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 369, INTERNATIONAL HOD CARRIERS' BUILDING AND COMMON LABORERS' UNION PF AMERICA, A. F. L., AND TO ALL EMPLOYEES OF FROMMEYER & COMPANY Pursuant to the recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT give effect to, enter into, renew, maintain, or enforce any agree- ment, arrangement, understanding, or practice with Frommeyer & Company requiring employees or applicants for employment to be or become members of, or to obtain clearance or approval from, our organization as a condition of employment, except as authorized by Section 8 (a) (3) of the Act. WE WILL NOT cause or attempt to cause Frommeyer & Company to refuse employment to employees or applicants for employment because they are not members in, or have not received clearance or approval from, our organization, or in any other manner to discriminate against them in violation of Section 8 (a) (3) of the Act. 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or other manner restrain or coerce employees of, or applicants for employment with, the above -named employer in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment , except as authorized by Section 8 (a) (3) of the Act. WE WILL make James Carr whole for any loss of pay suffered as a result of the discrimination against him. LOCAL 369, INTERNATIONAL HOD CARRIERS ' BUILDING AND COMMON LABORERS ' UNION OF AMERICA, A. F. L., Labor Organization. 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. General Electric Company, Major Appliance Division and The Fall Cities District Council of Carpenters, Millwrights, Con- veyors and Machinery Erectors Local Union #2209, United Brotherhood of Carpenters and Joiners of America, AFL, Petitioner. Case No. 9-RC-2560. November 2, 1955 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William G. Wilkerson, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer I is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer? 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following rea- sons: The Petitioner seeks a departmental unit of all employees of the Em- ployer's central maintenance unit, excluding office clerical employees and supervisors as defined in the Act. At the close of the hearing, the Petitioner requested, as an alternative, that the Board establish a plantwide craft unit consisting of all employees of the following clas- sifications : Maintenance leader, maintenance technician, maintenance mechanic, maintenance man, maintenance worker, and maintenance helper. The Intervenor, who has represented the Employer's em- 1 The Employer 's name appears as amended at the hearing 9 Local 761 , International Union of Electrical, Radio and Machine Workers , CIO, was permitted to intervene at the hearing on the basis of its contract with the Employer which expired on September 15, 1955, and its supplemental contract of September 25, 1955, covering the employees in question as part of a production and maintenance unit. 114 NLRB No. 133.