American Pipe ana Steel Corp.

National Labor Relations Board - Board Decisions

Feb 7, 1951

93 N.L.R.B. 54 (N.L.R.B. 1951)

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Collelouri and Astrid Knudson in December 1949, or in connection with the
termination of Laura Celaya's employment at or about the same time ; nor did
its conduct in connection with the layoffs it made in March of 1950 involve such
an unfair labor practice.
[Recommended Order omitted from publication in this volume.]
AMERICAN PIPE AND STEEL CORPORATION and T. R. WATSON
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS , IRON SHIPBUILDERS
AND HELPERS OF AMERICA , AFL, AND ITS LOCAL UNION No. 92 and
T. R. WATSON. Cases Nos. 21-CA-361 and i1-CB-130. February
7,1951
Decision and Order
On March 29, 1950, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent American Pipe and Steel Corporation, herein referred to
as the Employer, and Respondent Local Union No. 92, referred to
herein as the Local, had engaged in and were engaging in certain
unfair labor practices, and recommending that they cease and desist
therefrom, and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. He also found that these
Respondents had not engaged in certain other unfair labor practices
and recommended that the complaint be dismissed as to them. The
Trial Examiner found that Respondent International Brotherhood of
Boilermakers, Iron Shipbuilders and Helpers of America, AFL, re-
ferred to herein as the International, had not engaged in any unfair
labor practices and recommended that the complaint with respect to it
be dismissed. Thereafter, the Local and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs."
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. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, recommenda-
tions, and conclusions, to the extent that they are consistent with our
conclusions and order, hereinafter set forth.
1. We agree with the Trial Examiner that the contract executed on
October 16, 1948, by the Employer, the Local, and the International is
not invalid. In so finding, we reject the General Counsel's contention
1 The General Counsel and the Local also requested oral argument . These requests are
hereby denied because the record and the exceptions and briefs , in our opinion , adequately
present the issues and the positions of the parties.
93 NLRB No. 11.
AMERICAN PIPE AND STEEL CORPORATION 55
that this agreement establishes an illegal "closed shop hiring hall
arrangement." The contract, by its terms,' merely requires the Em-
ployer to notify the Local of vacancies, and, when requested, the Local
agrees to supply personnel within 2 or 3 days There is no written
contractual obligation either that workers be obtained from the Local
or that only union members be employed; and the record, in our opin-
ion, fails to establish any oral understanding to that effect.
Accordingly, we shall dismiss the complaint insofar as it pertains
to the alleged illegality of the October 16, 1948, contract.' By so
doing, we are not, of course, to be taken as approving the practice of
the Employer and the Local of making clearance from the Local a
prerequisite to hiring.
2. The Trial Examiner found the discharge or indefinite suspension
of Thomas Ray Watson to be violative only of Section 8 (a) (1) by
the Employer and of Section 8 (b) (1) (A) by the Local. We are of
the opinion, however, that by their action with respect to Watson, the
Employer further violated Section 8 (a) (3), and the Local, Section
8 (b) (2), of the Act.
As more fully described in the Intermediate Report, Watson, on
February 2, 1949, following his receipt of an active membership card
in the Local,4 reported to the Employer's Cuyama Valley project for
employment as a welder. Upon his arrival, he was asked for his
referral from the union hall, and when it was apparent he did not have
such referral, Watson was informed by Tally, the project foreman,
and Connor, the Local's steward, that he could not be put to work
s The contract provides , in pertinent part :
When the contractor requires employees to perform the work included within the
scope of this agreement , the contractor agrees to notify the local union having luirs-
diction of the job of the number of employees and classifications required When the
local union is requested to furnish men, the Union agrees to supply the Contractor
with the most competent workmen available within two ( 2) working days in metro-
politan areas and three ( 3) working days in rural areas after the date for which
men are requested . The Contractor shall not discriminate against employees in regard
to hire or tenure of employment by reason of union membership
3 Cf Northern Indiana Public Service Company, 91 NLRB 172
Members Houston and Reynolds do not agree with the finding that the contract in
question is lawful In their opinion , the contract is at best ambiguous, and, for this
reason , they would turn to the practice of the parties to determine the meaning of the
ambiguous provisions N L R B v Scientific Nutrition Corporation, 180 F 2d 447
(C A 9) ; 0 B Andrews Company, 86 NLRB 59 This practice, according to the testi-
mony of the Employer ' s field superintendent , Kennan, shows that virtually all employees
were obtained from the Local ' s hiring hall , where, it appears , preference was accorded to
members Moreover , it was Watson ' s uncontradicted testimony that Kennan told him that
the contract required hiring through the hall. Members Houston and Reynolds would find,
therefore , that the contract , as interpreted by the parties, is unlawful , and that its execu-
tion and enforcement were violative of section 8 (a) (1) and ( 3) by the Employer, and of
Section 8 ( b) (2) and ( 1) (A) by both the International and the Local Cf. Acme Mattress
Company, Inc., 91 NLRB 1010
4 As found by the Trial Examiner , Watson , in obtaining his reinstatement to active
membership , misinfoimed the Local as to the status of his current employment.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without a "work order" from the Local. However, as a result of a
call to the Employer's field superintendent , Kennan, it was decided
that Watson be put to work while Kerman attempted to get the matter
straightened out with the Local. Shortly thereafter, on the same day,
a business agent of the Local appeared at the project. Upon learning
that Watson did not have a'referral from the union hall, the business
agent stated that Watson could not work at the project. The project
foreman then told Watson that he was "through," whereupon Watson
left the project. Watson promptly attempted to, obtain a "work
order" from the Local, but this was refused on the ground that there
were other members "sitting in the hall" with a prior right to the job.
Later, the Employer's field superintendent indicated to Watson that
he could not be employed Without the Local's clearance.
The Trial Examiner found the discharge or suspension of Watson 5
not to be violative of Section 8 (a) (3) and therefore not violative of
Section 8 (b) (2), because, as Watson was already a union member,
such action would not encourage or discourage membership in a labor
organization, but would only encourage the acceptance of a member-
ship obligation, i. e., hiring through the hall, by one already a member.
We do not agree.
It is well established that an employer's acceptance of the deter-
initiation of-a labor organization as to Who shall be permitted to work
for it is violative of Section 8 (a) (3) of the Act, where, as here, no
lawful contractual obligation for such action exists.' Contrary to
the implication of the Trial Examiner, neither Watson's membership
in the Local, nor the Local's desire to enforce an alleged obligation of
such membership, removes this case from the application of that prin-
ciple. Rather, by the act of yielding to the Local's demand that
Watson be removed, the Employer perforce strengthened the position
of the-Local and forcibly demonstrated to the employees that member-
ship in, as well as adherence to the rules of, that organization was
extremely desirable. Such encouragement of union membership was
particularly effective when, as in the present case, the Employer de-
ferred to the demand of the Local that employees be cleared through
its ball, and membership appears to have been a condition precedent
to obtaining the necessary clearance.
We also cannot agree with the position of Member Murdock, in his
separate dissent, that Watson's discharge Was lawful because he had
fraudulently misrepresented to the Employer that he had been en-
, We agree with the Trial Examiner that Watson was either discharged or indefinitely
suspended We find no merit in the Local ' s contention that Watson quit voluntarily
Pinkerton's National Detective Agency , Inc , 90 NLRB 205. Air Products , Incur porated,
91 NLRB 1381 , of N L R B v Fred P Weissman Co, 170 F. 2d 952 (C A 6),
cert den 336 U S 972
AMERICAN PIPE AND STEEL CORPORATION 57
dorsed by the Local for the position sought, and the Employer was
seeking only to remedy the fraud perpetrated upon it and the Local.
Such conclusions are incompatible with the record. As to the alleged
fraudulent misrepresentation, it was apparent when Watson reported
at the project that he had not obtained a "work order" from the Local,
and it was for this very reason that he was advised to contact Super-
intendent Kennan, who would attempt to obtain the necessary clear-
ance. Watson at no time asserted that he had a "work order," and,
indeed, the Employer has never asserted that it was under any mis-
apprehension in this regard. Similarly, as to the Employer's intent
in connection with Watson's discharge, Watson was told by Foreman
Tally that he was "through" after Strickel, the Local's business agent,
indicated that others with a prior right to the job were in the hall and
that Watson would not be granted a "work order." Later, as already
observed, Superintendent Kennan informed Watson that he could not
be employed without the Local's clearance. Thus, it is manifest that
the Employer did not intend to correct any alleged fraud, but dis-
charged Watson, at the behest of the Local, solely because he did not
have clearance by that organization. We refuse to impute to the
Employer an intent which it has never asserted and which, in our
opinion, did not exist.
Moreover, any alleged fraud perpetrated by Watson was merely
engaged in by him in an attempt to fulfill the illegal conditions which
the Employer was requiring Watson to comply with in order to be
hired, and for the failure to comply with such conditions, Watson was,
after having been hired, discharged or suspended. Because Watson
was a former employee, the Employer knew he was competent and did
not need the referral from the Local to establish that fact. Indeed,
we have held many times that inquiries by employers of applicants
for employment or employees as to their union membership are them-
selves violations of Section 8 (a) (1).7
We find that the discharge or suspension of Watson by the Em-
ployer encouraged membership in the Local, and was therefore viola-
tive of Section 8 (a) (3) and 8 (a) (1) of the Act. As the Local
caused or attempted to cause the Employer to discriminate against
Watson in violation of Section 8 (a) (3) of the Act, we find that the
Local violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act."
4 Standard-Coosa-Thatcher Company, 85 NLRB 1358
8 See Pinkerton's National Detective Agency, lee, supra, Air Products, Incorporated,
supra , Lloyd A Fry Roofing Company, et at, 89 NLRB 854, of N L R B v Walt Disney
Productions, 146 F 2d 44 (C A 9), cert den 324 U S 877. See also Kalamazoo Coaches,
Inc, 66 NLRB 171.
Members Houston and Reynolds would find , in addition , that the discrimination against
Watson was pursuant to the unlawful union-security contract between the Employer, the
Local, and the International, and that the International, which was a party to that
contract, also violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Remedy
We have found that the Employer discriminated against Watson
in violation of Section 8 (a) (1) and (3) of the Act, and that the
Local caused or attempted to cause the Employer to discriminate
against Watson in violation of Section 8 (b) (2) and (1) (A) of the
Act. Therefore, as did the Trial Examiner, we shall order the Em-
ployer to offer Watson immediate reinstatement to his former or sub-
stantially equivalent position without prejudice to his seniority or
other rights and privileges.
As we have found that both these Respondents are responsible for
the discrimination suffered by Watson, we shall order them jointly
and severally to make Watson whole for the loss of pay that he may
have suffered by reason of the discrimination against him .9 It would,
however, be inequitable to the Local to permit the amount of its
liability for back pay to increase despite the possibility of its willing-
ness to cease its past discrimination, in the event that the Employer
should fail promptly to offer reinstatement to Watson. We shall
therefore provide that the Local may terminate its liability for fur-
ther accrual of back pay to Watson by notifying the Employer, in
writing, that the Local has no objection to his reinstatement. The
Local shall not thereafter be liable for any back pay accruing after
5 days from the giving of such notice. Absent such notification, the
Local shall remain jointly and severally liable with the Employer
for all back pay to Watson that may accrue until the Employer com-
plies with our order to offer him reinstatement io
We shall also conform the back-pay order recommended by the
Trial Examiner with the formula promulgated in F. W. Woolworth
Company, 90 NLRB 289, by ordering, for the reasons stated therein,
that the loss of pay on the part of Watson be computed on the basis
of each separate calendar quarter or portion thereof during the
period from the discriminatory action to the date of a proper offer of
reinstatement. The quarterly periods, hereinafter called quarters,
shall begin with the first day of January, April, July, and October.
Loss of pay shall be determined by deducting from a sum equal to
that which Watson would normally have earned for each such quarter
or portions thereof, his net earnings," if any, in other employment
9As we have found that the Local violated Section 8 (b) (2) and (1) (A), we do not
pass upon the Trial Examiner's conclusion that the Local would be jointly and severally
liable for any back pay due to Watson by reason of its violation of Section 8 (b) (1) (A)
alone.
10 Von 's Grocery Company, 91 NLRB 504.
By "net earnings" is meant earnings less expenses , such as for tfansportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where , which would not have been incurred but for the unlawful discrimination and the
consequent necessity of his seeking employment elsewhere. Crossett Lumber Company,
AMERICAN PIPE AND STEEL CORPORATION 59
during that period. Earnings in one particular quarter shall have no
effect upon the back-pay liability for any other quarter.
We shall further order, in accordance with the Woolworth deci-
sion, supra, that the Employer, upon request, make available to the
Board and its agents all records pertinent to determination of the
amount of back pay and the right to reinstatement.
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 :
1. The Respondent American Pipe and Steel Corporation, Alham-
bra, California, its officers, agents, successors, and assigns, shall:
(a) Cease and desist from:
(1) Encouraging membership in International Brotherhood of
Boilermakers, Iron Shipbuilders and Helpers of America, AFL, Local
Union No. 92, or in any other labor organization of its employees, by
discharging or suspending any of its employees, or refusing to hire
any applicant for employment for failure to obtain clearance from
that labor organization or by discriminating in any other manner in
regard to their hire or tenure of employment or any term or condition
of their employment;
(2) 'In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condition
of employment, as authorized by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Offer to Thomas Ray Watson immediate and full reinstatement
to his foriner or a substantially equivalent position without prejudice
to his seniority or other rights and privileges, and jointly and severally
with the Respondent Local make him whole in the manner set forth
in the section entitled The Remedy, for any loss of pay suffered by
reason of the discrimination against him;
(2) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary for a determination of the
amount of back pay due and the right of reinstatement under the terms
of this Order;
8 NLRB 440 Monies received for work performed upon Federal , State , county, municipal,
or other work -relief projects shall be considered earnings Republic Steel Corporation v.
N L.R B,311U S.J.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) Post at its plant in Alhambra, California, and distribute to its
field employees in the manner in which notices to field employees are
customarily distributed, copies of the notice attached hereto, and
marked Appendix A.12 Copies of said notice, to be furnished by the
Regional Director for the Twenty-first Region, shall, after being duly
signed by the Respondent Employer's representative, be posted by it
immediately upon receipt thereof, and maintained by it for a period
of at least sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted and be otherwise made available to field employees. Reason-
able steps shall be taken by the Respondent Employer to insure that
such notices are not altered, defaced, or covered by any other material;
(4) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
2. The Respondent International Brotherhood of Boilermakers,
Iron Shipbuilders and Helpers of America, AFL, Local Union No.
92, of Los Angeles, California, its officers, agents, representatives, suc-
cessors, and assigns, shall:
(a) Cease and desist from:
(1) Causing or attempting to cause American Pipe and Steel Cor-
poration, Alhambra, California, its officers, agents, successors, and
assigns, to discharge, suspend, or otherwise discriminate against its
employees or any applicant for employment because they have not
obtained clearance from that organization, except in accordance with
Section 8 (a) (3) of the Act;
(2) In any other manner causing or attempting to cause American
Pipe and Steel Corporation, Alhambra, California, or its agents, suc-
cessors, or assigns, to discriminate against its employees in violation
of Section 8 (a) (3) of the Act;
(3) Restraining or coercing employees of American Pipe and Steel
Corporation, its successors or assigns, in the exercise of the rights
guaranteed in Section 7 of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(1)• Jointly and severally with American Pipe and Steel Corpora-
tion make Thomas Ray Watson whole, in the manner set forth above
in the section entitled The Remedy, for any loss of pay he may have
suffered by reason of the discrimination against him;
(2) Post is conspicuous places in its offices in Los Angeles, Cali-
fornia, and wherever notices to members are customarily posted,
^ In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall he inserted before the words "A Decision and Order," the words
"A Decree of the United States Court of Appeals Enforcing "
AMERICAN PIPE AND STEEI: CORPORATION 61 o
copies of the notice attached hereto as Appendix B 13 Copies of said
notice, to be furnished by the Regional Director for the Twenty-first
Region, shall, after being duly signed by an official representative of
the Local, be posted by it immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Local to insure that
such notices are not altered, defaced, or covered by any other material;
(3) Mail to the Regional Director for the Twenty-first Region
signed copies of the notice attached hereto as Appendix B, for posting,
the Employer willing, in the plant of the American Pipe and Steel
Corporation, in the places where notices are customarily posted, and
for distribution to its field employes. Copies of said notice to be
furnished by the Regional Director for the Twenty-first Region, shall,
after being signed as provided in paragraph 2 (b) (2) of this Order,
be forthwith returned to the Regional Director for said posting;
(4) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what
steps it has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that Respondent American Pipe and Steel Corporation or Respondent
International Brotherhood of Boilermakers, Iron Shipbuilders and
Helpers of America, AFL, Local Union No. 92, otherwise violated
the Act, or the commission of any unfair labor practices by Respond-
ent International Brotherhood of Boilermakers, Iron Shipbuilders
and Helpers of America, AFL, be, and it hereby is, dismissed.
MEMBER MURDOCK, dissenting in part:
While I agree with the decision of the majority in other respects,
I find no warrant for and must therefore dissent from that portion
which finds, contrary to the recommendation of the Trial Examiner,
that by discharging Watson the Employer violated Section 8 (a) (3)
of the Act and the Local by its related conduct Section 8 (b) (2).
The majority dismiss the Trial Examiner's careful analysis of the
Employer's obligations under Section 8 (a) (3) by finding that the
discharge of Watson strengthened the Local's position and demon-
strated to the employees the desirability of membership in the Local
and adherence to its rules . This, it is found, constituted "encourage-
ment of union membership" within the meaning of Section 8 ( a) (3).
But the discharge of Watson, as the Trial Examiner has amply ex-
plained, had nothing to do with his or any other employee' s member-
13 In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words "A Decision and Order ," the words "A Decree
of the United States Court of Appeals Enforcing "
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship in the Local . Indeed, Watson was discharged despite the fact
that he was a member of the Local . Unless the Board were to find, as
a majority do not, that the Employer was under an obligation to hire
and retain unlawfully union members only , no employee could reason-
ably suppose in the light of Watson's discharge that he would gain
any advantage in joining the Local. On the contrary, should such
an employee subject himself to the Local's hiring hall practices he
might conceivably find himself with Watson at the bottom of the list
of "competent workmen" to be referred to the Employer. Unques-
tionably, the Local's position was "strengthened" by the Employer's
act. It was strengthened in the sense that those who came through
the Local 's hiring hall were made to realize that they could not jump
their turn and use the Local 's name to secure employment without its
endorsement. I cannot regard this result as encouragement of union
membership within the meaning of Section 8 (a) (3).
In my opinion, Watson was not discharged merely to secure ad-
herence to union rules or even, as the Trial Examiner found, to en-
courage acceptance of a membership obligation . Watson was
discharged in recognition of and to give effect to an agreement between
the Local and the Employer similar to that which many employers
have with employment agencies. This agreement, which Chairman
Herzog, Board Member Styles and, I find to be valid, required the
Local , upon the Employer 's request , to supply the Employer with
"the most competent workmen" within a specified time after the
request was made. Nothing in the contract obligated the Employer
to hire workmen referred to it by the Local. Thus the Employer,
under the terms of the contract, could not be forced by the Local into
either hiring or discharging Watson whether he sought employment
on his own behalf or came to it properly from the Local's hiring hall.
While the element of pressure against the Employer is therefore
absent in this case, Watson himself interposed another element which
challenges the right of the Local and the Employer to make the kind
of agreement that a majority of the Board here . find to be valid. This
was the element of fraud.
Watson was not a stranger to the Employer seeking employment for
the first time . He had previously been employed as a welder at the
Employer's Alhambra plant. At that time he was a member of the
Local in good standing . He was therefore known to the Employer and
known as a union member seeking reemployment. Appearing as he
did in the guise of a union member, the Employer could reasonably
suppose that he was one of the available competent workmen in the
Local's hiring hall . Such workmen were to be referred to the Em-
ployer by the Local in accordance with the terms of their contract.
AMERICAN PIPE AND STEEL CORPORATION 63
It was suggested to Watson that he obtain the Local's endorsement.
Watson did not protest nor did he inform the Employer that he had
disassociated himself from the Local's procedures and was seeking em-
ployment as a free lance. Aware, however, that he was not entitled
to the Local's endorsement under its rules, he nevertheless went to its
offices and by subterfuge and false statements regarding his record of
previous employment tried to establish- his status as an active, paid-
up Local member. By this means he secured certain Local authoriza-
tion documents. He appeared before Foreman Tally at the project
site and, when asked for his "work order," showed Tally' the docu-
ments thus falsely obtained. The majority find that this conduct of
Watson's was not a "fraudulent misrepresentation" because it was ap-
parent that Watson did not have and did not assert he had a "work
order" from the Local. But Watson did represent that iie was right-
fully in possession of the documents he showed Tally in lieu of a work
order. This was an admitted falsehood on the part of Watson. We
need not conjecture whether he would have been hired tentatively but
for the false identification he elected to give himself as an active, paid-
up Union member. But I do not think it is an unreasonable conclusion
and certainly not "incompatible with the record" to find, as I do, that
Watson practiced fraud upon the Local initially and upon the Em-
ployer subsequently by attempting to secure employment on the
basis of a dues receipt, a regular membership "book" and a "work-
ing card," all of which he had falsely obtained from the Local. I am
satisfied, as the majority are not, that the elements of falsification and
misrepresentation are inextricably a part of this record. It is no
answer to say that Watson was discharged because he did not secure
clearance from the Local. That is partially true. But it is neverthe-
less the practice of this Board to decide cases in the light of all sur-
rounding circumstances and to refuse to find respondents guilty of
unfair labor practices when reasonable cause exists for a contrary
result. Watson deliberately put himself in the position of one who
came through the Local and was the Local's choice from among its
,pool of workmen for the job he sought. Foreman Tally put him
to work on the condition subsequent that the Local would later ap-
prove him as the workman authorized to use its name in seeking
employment for that particular vacancy.
It was under these circumstances that the Local's business agent,
Strickel, arrived at the project site and questioned Watson with re-
gard to the latter's "reinstatement" in the Local. When Watson ad-
mitted the falsity of his statements to the Local, Strickel immediately
ordered Watson off the scaffold on which he was working and told
him he could not work on that job. There were 300 men in the hiring
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hall, Strickel informed Watson, who had a prior right to fill the
vacancy for which Watson had been hired. It is clear that Strickel
spoke to Watson as a union member. No other bond of authority ex-
isted between these two. But regardless of the relationship between
Strickel and Watson, Foreman Tally, who witnessed the conversation,
was under no pressure or coercion from the Local to inform Watson,
as Tally later did, that Watson was "through" in the light of what
Strickel had said. Strickef had said, in effect, that Watson did not
have the Local's support, that his authorization documents were falsely
obtained, and that other men would be referred to the Employer by
the Local to fill the vacancy of welder. The Employer had the choice
of retaining Watson despite the Local's objections or of recognizing
the fraud that Watson had perpetrated on both the Employer and
the Local, by insisting that one who represented himself as having
the support of the Local and who used its name must, in fact, have
its endorsement. This was the condition to which Watson had sub-
mitted himself when he was tentatively employed. If, as a majority
of the Board finds, the contract between the Local and the Employer
was valid in permitting the Local to select competent workmen for
referral to the Employer, the latter being under no obligation to hire
them, then, in my view, it was not unlawful of the Employer to dis-
charge Watson and thereby recognize the right of the Local to desig-
nate the workman who was actually the Local's choice for the job,
as their agreement contemplated.' In choosing this course rather
than one which would, in effect, reward Watson for his fraudulent
misrepresentation I cannot believe that the Employer has engaged
in conduct violative of Section 8 (a) (3) of the Act. It follows that
the Local did not by its related conduct violate Section 8 (b) (2).
I would therefore dismiss that portion of the complaint dealing
with the above alleged violations of the Act.
In view of my conclusion that the Local did not violate Section S
(b) (2) of the Act because the General Counsel has failed to establish
a violation of Section $ (a) (3) by the Employer, I deem it unneces-
sary at this time to pass upon the question whether the means used
by the Union to procure Watson's discharge was sufficient to "cause
or attempt to cause" the Employer to violate Section 8 (a) (3), within
the meaning of Section 8 (b) (2).
"I note that the complaint alleges that discharge of Watson to be discriminatory because
it was pursuant to an invalid collective bargaining agreement The majority, having
rejected the latter contention , nevertheless take the position that "illegal" conditions
were imposed on Watson in connection with his hiring and discharge or suspension These
conclusions , in my opinion , are inconsistent ,
AMERICAN PIPE AND STEEL CORPORATION 65
Appendix A
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, as amended, we hereby notify our employees that :
WE WILL NOT encourage membership in INTERNATIONAL BROTH-
ERHOOD OF BOILERDIAKERS, IRON SHIPBUILDERS AND HELPERS OF
AMERICA, AFL, LOCAL UNION No. 92, or in any other labor or-
ganization of our employees, by discriminatorily discharging or
suspending any of our employees or refusing to hire any appli-
cant for employment for failure to obtain clearance from that
labor organization, or by discriminating in any other manner
in regard to their hire and tenure of employment, or any term
or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed them
by Section 7 of the Act, except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section 8
(a) (3) of the Act.
WE WILL offer to Thomas Ray Watson immediate and full rein-
statement to his former or substantially equivalent position with-
out prejudice to any seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of pay suf-
fered as a result of the discrimination against him.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members of the above-named union or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of
the Act.
AMERICAN PIPE AND STEEL CORPORATION,
Employer.
By --------------------------------------------
(Representative ) (Title)
Date --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
941742-51-6
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix B
NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF BOILER-
MAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA, AFL, LOCAL
UNION No. 92 AND TO ALL EMPLOYEES OF AMERICAN PIPE AND STEEL
CORPORATION
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause AMERICAN PIPE AND
STEEL CORPORATION, its officers, agents, successors, and assigns,
to discharge, suspend or otherwise discriminate against employ-
ees or any applicant for employment for their failure to obtain
clearance from this organization, except in accordance with Sec-
tion 8 (a) (3) of the Act.
WE WILL NOT in any other manner cause or attempt to cause
AMERICAN PIPE AND STEEL CORPORATION, or its agents, successors,
or assigns, to discriminate against its employees in violation of
Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees of AMERICAN PIPE
AND STEEL CORPORATION, its successors or assigns, in the exercise
of the rights guaranteed in Section 7 of the Act.
WE, WILL make Thomas Ray Watson whole for any loss of pay
he may have suffered because of the discrimination against him.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,
IRON SHIPBUILDERS AND HELPERS OF AMERICA,
AFL, LOCAL UNION No. 92.
Union.
By --------------
(Repiesentative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Mr. Jerome Smith, for the General Counsel
Messrs. Morrow and Trippet, by Oscar A. Trippet and Fulton Haight, of Los
Angeles, Calif, for the Respondent Company.
Messrs. Arthur Garrett and James M. Nicoson, of Los Angeles, Calif., for the
Respondent Unions.
STATEMENT OF THE CASE
Upon charges and an amended charge duly filed by Thomas Ray Watson, desig-
nated herein hs the Complainant, the General Counsel of the National Labor
AMERICAN PIPE AND STEEL CORPORATION 67
Relations Board,' in the name of the Board, caused the Regional Director of
the Twenty-First Region, at Los Angeles, California to issue a consolidated
complaint, on the 1st day of July 1949, against the American Pipe and Steel
Corporation, herein called the Respondent Company, and the International
Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, A. F. L.
and its Local Union No. 92, herein called the International and the Local, resNc-
tively, and designated collectively as the Respondent Unions. The consolidated
complaint alleged that the Respondent Company did engage and has continued
to engage in unfair labor- practices affecting commerce, within the meaning of
Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, as amended and reenacted by the Labor Manage-
ment Relations Act of 1947, 61 Stat. 136, designated herein as the Act, and that
the Respondent Unions did engage and have continued to engage in unfair labor
practices affecting commerce, within the meaning of Section 8 (b) (1) (A) and
(2) and Section 2 (6) and (7) of the Act. Copies of the charges, the amended
charge, the Regional Director's order that the cases be consolidated, the con-
solidated complaint, and a notice of hearing were duly served upon the Respond-
ent Company, the Respondent Unions, and the Complainant.
With respect to the unfair labor practices, the consolidated complaint alleged,
in substance: (1) that the Respondent Company and the Respondent Unions
had executed and given effect to an invalid collective bargaining agreement
which requires all employees of the Respondent Company to be and remain
members of the Local ; (2) that the Respondent Company-by Shelby Kennan,
its Field Superintendent, John Tally, its foreman, and other officers, agents and
supervisory employees-had discharged the Complainant on or about February
1, 1949, at the demand of the Respondent Unions, and because he had not re-
ceived a work order for his employment from the Local, under color of the
above-mentioned invalid collective bargaining agreement; (3) that the Re-
spondent Company had thereby discriminated against the Complainant with
respect to the hire and tenure of his employment, and interfered with, restrained,
and coerced its employees, in a manner and for an object characterized by the
Act as an unfair labor practice; (4) that the Respondent Unions-by Bud
Pierce and other officers, agents and representatives-had caused the Respondent
Company to discharge the Complainant on or about February 1, 1949, , because
he had not been given a work order by the Local, and under color of the above-
mentioned invalid collective bargaining agreement; and (5) that the Respondent
Unions had thereby caused the Respondent Company to discriminate against
the Complainant with respect to the hire and tenure of his employment, and
restrained and coerced employees in a manner and for an object proscribed as
an unfair labor practice by the statute.
The answer of the Respondent Company, duly filed, admitted the jurisdictional
allegations of the consolidated complaint, denied the status of the Respondent
Unions as labor organizations, and denied the commission of any unfair labor
practices. Affirmatively, it alleged that the Complainant had never been dis-
charged, that he had merely failed to report for work on February 3, 1949,
and thereafter, and that the agreement between the Respondent Company and
the Respondent Unions, in any event was not invalid under the Act. The
answer of the Respondent Unions denied the jurisdictional allegations of the
consolidated complaint, admitted their status as labor organizations and also
' The General Counsel and his representative are designated herein as the General
Counsel, and the National Labor Relations Board as the Board.
68 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
denied the commission of any unfair labor practices. Affirmatively, it chal-
lenged the right of the Board to assume jurisdiction in the case, (a) because
the consolidated complaint did not state a cause of action against them under
the statute, (b) because the relevant sections of the Act applicable to them
were and are unconstitutional, and (c) because the Board had failed to establish
its,right to assert personal jurisdiction over them.
Pursuant to notice, a hearing was held at Los Angeles, California, on various
dates between September 13 and 19, 1949, before the undersigned Trial Examiner,
duly designated by the Chief Trial Examiner The General Counsel and the
Respondents were represented by counsel. All of the parties were afforded a
full opportunity to participate in the case, to be heard, to examine and cross-
examine witnesses, and to introduce evidence pertinent to the issues.
At the outset of the case, the Respondent Unions moved to dismiss the con-
solidated complaint, insofar as it applied to them, on the ground that the record
failed to show any service of the original or amended charge against them,
by the party who filed the charges, as required by Section 10 (b) of the Act
and Section 203.14 of the Board's Rules and Regulations. The Respondent Com-
pany then moved for the dismissal of the case against it on similar grounds, and
further moved for a severance of the consolidated cases. The inotions were
denied' These rulings have been reconsidered by the undersigned; they are
hereby affirmed.
In the midst of the General Counsel's presentation, after the undersigned had
ruled that a vice-president of the Respondent Company might be examined by
leading questions under Rule 43 (b) of the Rules of Civil Procedure for the
District Courts of the United States-even though his responses might subse-
quently be held to dispose of a contention urged by the Respondent Unions in
their own defense-the Respondent Umr ns moved to sever the cases. The
2 The record contains affidavits to the effect that the original charges against the Re-
spondent Company and the Local were served upon them respectively, by registered mail
on Februaiy 10, 1949, and that the amended charge in Case No 21-CB-130 was served
upon the Respondent Unions on July 1, 1949, in similar fashion In each case, service
was effected by an agent of the Regional Director Counsel argue, in support of their
motions to dismiss, that Congress has placed the burden of service, in this respect, on
the person who filed the charge . that no one could assume that burden in his behalf , and
that the failure of the Complainant to effect the service required by the statute deprived
the Board of jurisdiction in the consolidated cases with respect to the service of the
amended charge in Case No. 21-CB-130 on the International, it is argued also, in any
event, that the service of a charge concurrently with a complaint, even if made effective
within six months of the event giving rise to the charge , does not satisfy the statutory
requirement of the Board 's Regulation, noted
The first of these contentions is clearly without merit, under the applicable Regulation
cited Erving Paper Mills, 82 NLRB 434, n 3, The Ann Arbor Press, 85 NLRB 58, 24
LRRDI 1356. Nor can it be said that the statute requires a narrower interpretation.
Section 10 (b) requires, in effect that a charge be filed and served upon the party charged
within six months after an unfair labor practice has occurred , before any complaint may
issue, but it establishes no requirement with respect to the identity of the person charged
with these responsibilities except to excuse the timely filing of a charge by "the person
aggrieved" in certain cases The contention made on behalf of the International is
equally without merit The statute does not bar the service of a charge concurrently
with a complaint if both are served within the six-month period cited , and the Regulation
merely requires that "upon the filing of a charge" there must be "timely and proper
service" of it, i e. service in proper form within six months of the unfair labor practice
alleged.
With respect to the denial of the motion to sever, compare Rule 20 of the Rules of
Civil Procedure for the District Courts of the United States See also, Des Moines, Spring-
field and Southern Route , 78 NLRB 1215.
AMERICAN PIPE AND STEEL CORPORATION 69
motion was denied a This ruling also has been reconsidered by the undersigned ;
it is also, hereby, affirmed.
Motions to dismiss, at the close of the General Counsel's case, were denied
without prejudice. They were subsequently renewed by counsel, and a decision
with respect to them was reserved ; they are disposed of by the Recommended
Order embodied in this report At the close of the case, after an informal
discussion of the issues, which forms a part of the record, the General Counsel
moved to conform the pleadings to the proof in formal matters. The motion
was granted. Briefs have been received from the General Counsel and counsel
for each of the Respondents.
FINDINGS OF FACT
Upon the entire record in the case, and upon his observation of the witnesses,
the undersigned makes the following findings of fact :
1. THE BUSINESS OF THE RESPONDENT COMPANY
The American Pipe and Steel Corporation, designated herein as the Respondent
Company, is a Nevada corporation, with its principal office and plant in Alhambra,
California. The company also maintains an office and warehouse at Bakersfield.
It is engaged in the fabrication of steel plates, and the erection-at the site-of
bolted steel tanks, full welded tanks, pressure vessels, tubing, water well casing
and miscellaneous welded steel products required by the oil industry, primarily
in the State of California. About 300 men are employed in this connection,
most of them in the Respondent Company': plant. As many as 75 men may be
employed, at times, on the company's field crews, 30 were so employed at the
time of the hearing in this case
The basic raw materials used by the Respondent Company include sheet steel,
plate steel and skelp It has a limited number of steel suppliers: Columbia Steel
Company, Kaiser Company, Inc, Lukens Steel Company, Alan Wood, and the
Bethlehem Steel Company In the twelve-month period immediately prior to
the issuance of the consolidated complaint, the Respondent Company purchased,
from these and other suppliers, more than $1,000,000 worth of materials, equip-
ment and supplies which came to it in the stream of interstate commerce. The
record reveals that about 50 percent of the company's raw steel is purchased
from the Columbia Steel Company. Most of the steel so purchased-45 percent
of the total amount purchased by the company-is shipped to it from the Geneva,
Utah, plant of the Columbia Steel Company ; 5 peicent is shipped to the
Alhambra plant from Torrance, California, and a negligible amount, in the form
of bars, from the supplier's plant at Pittsburg, California About 10 percent
of the company's raw steel is purchased from Alan Wood, at Conshohocken,
Pennsylvania ; 5 percent is shipped from the Sparrows Point, Maryland, plant of
Bethlehem Steel Company ; and an additional 5 percent is shipped to the com-
pany from the Allentown, Pennsylvania, plant of the Lukens Steel Company.
The remainder of the Respondent Company's raw steel is derived, presumably,
from the Fontana, California, plant of Kaiser Company, Inc.
In the 12-month period which antedated the issuance of the complaint, the
Respondent Company sold products valued in excess of $2,000,000; over 50 per-
S See Section 2055, Code Civ. Proc A (Cal ) ; Goehrniq v Rogers, 67 C A 260, 227 P
689, Cf Koeberlc v Frigaaza, 66 C A 323, 226 P 35, Western Brick Go v, Smith, 95)
C. A 370, 271 P. 356 • Sniellse v Southern Pacific Go, 212 C 540, 299 P 529 , Green Y
Newwark, 136 C A 32, 25 P 2d 395: Burns Estate, 26 C A 2d 741, 749, 80 P 2d 77,
Joseph v . Vogt. 35 C A 2d 439, 95 P 2d 947
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cent of this amount-according to the admissions embodied in the Respondent's:
answer-was sold in interstate commerce
Upon the entire record in this connection, the undersigned finds, in accordance
with the admissions of the Respondent Company, and in the face of a contrary
contention by the Respondent Unions,' that the Respondent Company is engaged.
in commerce and activities which affect commerce, within the meaning of the Act.
II. THE STATUS OF THE RESPONDENT UNIONS
Despite the unwillingness of the Respondent Company to admit, by its answer,
that the Respondent Unions are labor organizations within the meaning of the
Act, its counsel so stipulated at the hearing; pursuant to that stipulation, and
upon the entire record, the undersigned so finds. The unions admit to member-
ship employees of the Respondent Company.
Pursuant to a further stipulation, and upon the entire record, the under-
signed finds that Frank H (Bud) Pierce is, and has continuously been, since
before February 1949, an assistant business agent and president of the Local
and that an individual identified only as "Okie" Strickel was the assistant
business agent of that organization, in the Bakersfield, California, area, at the
time of the events with which this case is concerned.
III. THE UNFAIR LABOR PRACTICES
Statement of Facts
A. The organization of the Respondent Company
The Company , as noted, maintains separate plant and field departments Its
field operations are supervised by Shelby P. Kennan, Superintendent of Field'
Construction and Erection ; the record establishes that lie is a full-time, salaried
employee of the Respondent Company, directly in charge of the functions sub
gested by his title.
At any given moment, the company may have several active field projects
under the general supervision of the superintendent; each, while it is in opera-
tion, is supervised by a foreman These foremen, like the men they supervise,
are paid by the hour ; the record establishes, however, that they receive a "set
differential" in pay by virtue of their status While they may function as work-
ing foremen in some cases, their work is "basically" supervisory. They are
vested, the undersigned finds, with the right to hire and fire employees.
In February 1949, at the time of the events with which this case is concerned,
the Respondent Company had a field project near Taft, California- repairing
a 55 thousand barrel welded tank for the Richfield Oil Company at its Cuyama
Valley operation. The project foreman was John Tally; he was in charge of
the project until it was completed, and the record establishes that his authority
4 The contention of counsel for the Respondent Unions that the record does not contain
substantial , probative evidence with respect to the involvement of the Respondent Com-
pany in commerce is without merit Cf International Longshoreman's and 11Warehouse-
men's Union, C 1 0 et at , 79 NLRB 1487 , 1513-1515 , Arnalgamated heat Cutters and
Butcher Workmen of North America ( A F L ) et at , 81 NLRB 10 .52: see also North
Electric Mfg Co , 84 NLRB 136 . Counsel have misconceived the application of the
"best evidence" rule It has no application to the testimony offered in behalf of the
General Counsel to establish the Respondent Companl s involvement in commence That
testimony was offered and received as proof of the fact that the company ' s principal
sources of supply were outside the state, it was not offered or received to prove, the
contents of the company ' s records in that respect Evidence that a fact has been described
in written form does not exclude other proof of the fact , if it is otherwise relevant.
AMERICAN PIPE AND STEEL CORPORATION 71
and responsibilities as a foreman were comparable to those of the other foremen
in the Respondent Company's employ. The undersigned so finds.
B. The Respondent Company's collectwe bargaining agreements
The record indicates that the Respondent Company has maintained contractual
relations with the Local for an indeterminate number of years-and that the
agreements executed in the course of that relationship have covered, separately,
the plant and field employees of the company.' Copies of the agreements between
the Respondent Company and the Local effective before August 3, 1948, were
not available for the record. Testimony with respect to them, however, indicates
that the agreements executed before August 1947, contained a "closed-shop"
provision ; the undersigned so finds. The Respondent Company's vice-president,
Oliver Kilham, who testified in some detail, over objection, about the 1947-48
contract, was vague with respect to its union-security provision. He testified,
however-and the undersigned finds-that he had been responsible for its
„administration, and that the practice of the Respondent Company during the
period covered by it was to notify the Local of its need for men to fill vacant
positions, and to receive the application of anyone referred by that organization
within a fixed period. Kilham insisted-and the undersigned finds-that the
Respondent Company felt itself free at all times, under the agreement, to hire
men at the "gate" or on the job; that it was in fact, free to hire union members
and others referred by the Local or to hire men not referred by that organization ;
and that it had exercised this freedom in the period covered by the 1947-48
contract. He also testified without contradiction-and the undersigned finds-
that the Respondent Company did not even notify the Local of every vacancy
that developed while the agreement was in force, refraining from such action
when it chose.
At a General Conference of Management and Labor in San Francisco, Cali-
fornia, which met from June 18 to October 16, 1948, subcommittees representing
(1) the International and its various locals in certain Pacific Coast and Mountain
states, and (2) employers engaged in field construction work, within the trade
jurisdiction of the International, in these states, negotiated an agreement gov-
erning the wages and working conditions applicable to such field work. The
agreement, as negotiated, was subsequently approved and adopted by the General
Conference, which recommended its execution by the labor organizations and
contractors represented The International, the Local, and the Respondent Com-
pany, by Vice-President Kilham, were parties to its execution.
The agreement, as noted, was applicable to all field construction work done
by its contractor signatories within the International's trade jurisdiction. It
became effective asof August 3, 1948, to remain in full force and effect until
October 1, 1949, and from year to year thereafter, subject to modification by
negotiation to be initiated after notice, by the party proposing a change, at
least sixty days before any anniversary date. With respect to union security,
the agreement contained the following clause :
Rule 2.'Hiring of Men
(a) The contractor recognizes the Union as the sole collective bargaining
agent for all of its employees employed on work covered by the scope of
this agreement.
6 The nature of the relationship between the Respondent Company and the -International
before 1948, if any, is not revealed by the record.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) When the contractor requires employees to perform the work in-
cluded within the scope of this agreement, the contractor agrees to notify
the local union having jurisdiction of the job of the number of employees
and classifications required When the local union is requested to furnish
men, the Union agrees to supply the Contractor with the most competent
workmen available within two (2) working days in metropolitan areas and
three (3) working days in rural areas after the date for which the men are
requested The Contractor shall not discriminate against employees in re-
gard to hire or tenure of employment by reason of union membership.
(c) The Contractor shall have the right to determine the competency
and qualifications of its employees and the right to discharge any employee
for any just and sufficient cause, provided, however, that no employee shall
he discriminated against . . .
This agreement was in full force and effect at the time of the events with which
this case is concerned. Vice-President Kilhani of the Respondent Company could
not recall that its employment policy and practice under the agreement differed-
in any way from the policy and practice it had applied under the antecedent
contract between the company and the Respondent Unions, previously noted.
C. The employment of Watson and its termination
The Complainant, previously employed at the Alhambra plant of the Respond-
ent Company as a welder and thereafter by the Mack International Motor Truck
Corporation, was laid off by the latter and sought reemployment by the Respond-
ent Company, on one of its field crews, in January 1949 The record establishes
that he requested a friend-identified as Floyd Bull, a company employee-to
ask Superintendent Kennan if there was a field vacancy which he could fill. On
February 1, 1949, the Complainant received a verbal report from Bull that
Kenmrri had said there was a job for him at the Cuyama valley project, already
mentioned; Bull reported, according to the Complainant, that Kennan had
"said" he was to go to the "union" to get '*straightened up" with it, and that he
was then to report for works The Complainant attempted to comply with the
suggestion, embodied in Bull's report, forthwith.
Throughout his period of prior employment with "Mack-International" the
Complainant had held a withdrawal card, issued by the Local, pursuant to which
he had been absolved from the payment of current clues while employed outside
of the Local's trade jurisdiction.' After his conversation with Bull, however,
the Complainant repaired at once to the Los Angeles office of the Local; there
6 Vigorous objections to the receipt of testimony about Bull's report of his conversation
with Kennan, on the ground that Wat'son's testimony with respect to the report was
"hearsay" and not probative of what Kennan actually said, were overruled by the under-
signed, on the basis of a representation by the General Counsel that it was offered merely
to explain the conduct of the Complainant thereafter. Bull was clearly not an agent of
the Respondent Company when he reported to Watson , the undersigned has not considered
Watson's testimony about Bull's report, therefore. as substantial or probative evidence of
the statements made by Kennan
7 The Complainant had originally been initiated as it member of the Local on January
16, 1942 As of January 31, 1947 however, the Coin plainant-then a "member" of the
International and the Local-had been permitted to "withdraw from said membership"
pursuant to certain relevant provisions of the Locals constitution, for the purpose of
working outside of the Internationals trade Jurisdiction By the terms of the withdrawal
card, lie had surrendered and waived all rights, benefits and privileges accruing to members
under the insuiance provisions of the International's Constitution and By-Laws . lie had
acknowledged expressly, in accepting the card, that lie was "voluntarily leaving" the
Respondent Unions, for the reason previously noted
AMERICAN PIPE AND STEEL CORPORATION 73
he "deposited" his withdrawal card and executed an "Application For Member-
ship" in which lie stated that he had resumed work as a welder with a firm
other than the Respondent Company.' He paid the dues for the current month,
and received a dues receipt, his regular membership "book" and a "working
card" with which to establish his status as an active, paid-up, Local member.
On the following day, February 2, 1949, the Complainant reported for work
at the Cuyama Valley project. He reached it, after a drive directly from Los
Angeles, shortly before noon Upon arrival, he accosted Tally. The foreman,
who had been led to expect a crew replacement, asked the Complainant for his
work order' He was shown the documents which the latter had received in
connection with his "reinstatement" but insisted that he would have to'discuss
the Complainant's situation with the Local's steward The latter, I Connor,
when asked to join the group, advised Watson, in Foreman Tally's presence,
that he would have to present a work order from the Local "hall" before he
would be permitted to start work. According to the Complainant, whose testi-
mony is credited, the foreman concurred.
Steward Connor, the record shows, then suggested that Watson telephone the
"hall" at Los Angeles or return to get the necessary work order. Tally, however,
offered the suggestion that the Complainant might be able to get a work order by
"wire" if he telephoned Superintendent Kerman with a request that the latter
"straighten out" the matter. Watson testified, credibly, that he took action pur-
suant to Tally's suggestion. Repairing to Maricopa, a nearby town, for the
purpose, he telephoned Kennan and related the substance of his conversation
with Connor and the Respondent Company's foreman. Kennan promised to call
the office of the labor organization involved, he advised the Complainant to
await a return call Within a short time, Kennan did call back. The Com-
plainant was informed that no responsible union official had been available ;
he was advised, however, to report back at the project site and to inform Tally
that he was to be put to work pending a further attempt to secure the acquiescence
of,a responsible Local official with respect to his continued employment.
Watson reported this conversation to Tally at noon, approximately, in the
presence of Connor ; he reported Kennan's statement that he was to be put to
work-correctly, the undersigned finds-as an instruction which he had been
authorized to communicate. Tally complied; Watson received an assignment
when the lunch period at the job site ended. The record does not reveal that
Connor made any objection
At about 2 :30 p. in, however, a car in which several "well-dressed" men were
riding arrived at the project site. One of them, later identified as "Okie"
Strickel, asked the Complainant-in the presence of Tally who had been sum-
moned by Connor-where he, the Complainant, had previously been employed.
Watson gave an evasive answer ; when pressed, he admitted that the "Mack
Truck" company had been his most recent employer. Strickel, still in the pres-
ence of Tally, immediately ordered him to get off the scaffold on which he was
working, saying that the Complainant's previous employment had not been under
the Local's jurisdiction, and that he could not work at the Respondent Company's
8 This statement was obviously false , the Complainant conceded in direct and cross-
examination that he had made the false statement knowingly His reasons are set forth
in the record They will be discussed elsewhere in this report
°Tlie record establishes that this request reterred to a document, issued by the Local
through a business agent, which served to identify its bearer as a person referred by the
Local for possible employment Work orders are distinguished, in the present record, from
"working cards" which serve merely as a convenient iecord of dues payment
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job any more. There was no objection.10 In the course of the conversation that
ensued, which the Complainant could not recall in detail-some of it being be-
tween Strickel, Tally, and Connor, at a considerable distance-Strickel asked
him when he had received his working card ; the Complainant reported, correctly
that he had received it on the previous day. At or about the time he received this
information, Strickel-according to Watson's credible and undenied testimony-
told him that he could' not work on the Respondent Company's job because there
were 300 men "sitting in the hall" with a prior right to fill the vacancy which he
had been employed to fill.
After some delay, the Complainant-still on the scaffold-came down, without
objection from Tally, and joined the group; he requested Strickel to see if some-
thing could be done which would enable him to keep his job. Strickel, accord-
ing to the Complainant's credited testimony, replied that he would do what he
could, saying also that he did not think the situation due to any fault on the part
of Watson. "There has been a mistake some place," he said, "and I intend to
find out where it is." In the meantime, he instructed the Complainant to follow
the other employees into Taft that evening; he advised the Complainant that
Tally would be "told" by telephone, at the Taft Hotel, whether or not he could
go to work.
Upon the departure of Strickel, Tally-according to the credited testimony of
Watson-said that he was sorry but that the Complainant was "through" in the
light of what Strickel had said. -
The Complainant, without orders, but witlidut objection from the foreman,
sat in his car for the rest of the afternoon and followed the crew into Taft at the
end of the working day. After a short wait in front of the local hotel he was
approached by Tally, who told him that he had just had a telephone conversation
with Strickel and that Strickel had reiterated his earlier statement that the
Complainant would not be allowed to work at the Cuyama Valley project. Tally-
according to the Complainant, whose testimony is again credited-again ob-
served that he was "sorry" about the situation, but that the Complainant was
"through" at the project.31 He offered to hold the job "open" for a reasonable
period if the Complainant could get the matter "straightened up" in town. Wat-
son left immediately for Los Angeles.
On the next day, February 3, 1949, the Complainant called Kennan ; he reported
the developments of the previous day, at the job site and later in Taft, and re-
quested Kennan to see what could be "done" for him. Kennan promised to do
what he could, and the conversation ended. Thereafter, apparently at Kennan's
suggestion and in order to qualify for a day's pay, the Complainant reported at
the gate, of the Alhambra plant to execute certain forms required- by the Re-
spondent Company of newly-hired employees ; 12 he saw no responsible official,
however, and left when the forms were completed.
In a series of conversations between the 3rd and the 10th of February, the
Complainant learned, in effect, that he would be unable to resume work, for the
10 Tally identified himself, at the hearing, as a regular Local member, and testified, in this
connection, that he knew Strickel as a Local agent, whose instructions he was bound to
obey
11 Tally testified that he had only told Watson there was "nothing" he could do about the
situation , the reference to Strickel's declaration, as the matter about which he was power-
less to act, is obvious In this state of the iecord, the undersigned does not consider Tally's
testimony inconsistent with that of Watson
12 On January 11, the regular payday thereafter, the Complainant received a check for
one day's work.
AMERICAN PIPE AND STEEL CORPORATION 75
Respondent Company." First, apparently in a further conversation with Ken-
nan, Watson - was told by the superintendent that he had done all he could
without result . Keenan reported , according to Watson 's testimony , that the
"union" would not let the Respondent Company put him to work ; he went on to
say, the undersigned finds, that he could do nothing about the situation , and sug-
gested that Watson telephone Pierce, the Local's assistant business agent. Wat-
son, the record shows, did telephone Pierce, presumably after his talk with
Kennan, at the Local 's office ; his testimony in cross-examination , with respect
to the substance of their conversation reads as follows :
Q. Well, did you ask him why you couldn't stay on the job?
A. Yes . . . I believe I did ask him that question.
Q. What did he say?
A. "There is 300 men sitting down in the hall here ahead of you."
Q. Then what did you say?
A. Well . . . I told him that I thought it was silly for me to come down
in the hall and sit there behind 300 men and wait for a job that would never
materalize in my case, and that I didn 't think it was right for them to pull
me off the job that I had hustled myself instead of sitting down in the
hall and waiting for some man to bring me a job on a platter ... He argued
that my line or reasoning was all wrong. He says, "You can't have it that
way. We have got to go by the union rules and take that man off the top
of that list of 300." He even went so far as to say "Where would we be if
everybody went and hustled their own jobs." . . . He says , "You know that
you were reinstated by subterfuge." . . . I said, "Yes , I realize that." . . . I
think he wanted to know if I thought that was fair . . . I told him, yes, I
thought it was fair.
In direct examination , previously , Watson had testified to a comment by Pierce
that he could not be reinstated on one day and go to work on the next; the
undersigned finds this comment to have been made in the course of the
conversation noted.
Upon the entire record, it would appear that the Complainant then telephoned
Kennan. His report of the conversation indicates that Kennan described the
"job" as held "open" for him, and suggested that he see if the Board's Regional
Office could- "fix _it up" so that the Respondent Company could send him back to
work ; Kennan, the undersigned finds, concluded with an expression of regret at
his inability to send the Complainant back to work at once, and for the "trouble"
which his employment had caused.
Pursuant to Kennan 's suggestion, the Complainant did visit the Board's
Regional Office ; he was advised informally by a Board agent, according to his
testimony ', that he had been "pulled off the job " illegally. On the basis of his
understanding with respect to the Board agent's opinion , Watson advised the
superintendent of the Respondent Company, in a final telephone conversation that
the company was free to send him out . His testimony , with respect to this con-
versation , which the Respondent Company made no effort to deny, reads as
follows :
I told Mr. Kennan that the lawyer at the N. L. R. B. said that wasn't any
of his business nor anyone else 's business ; that if Mr. Kennan wanted to
" While the exact sequence of these conversations is not clear, Watson's testimony with
respect to them is undenied . The findings of the undersigned are based upon a synthesis of
that testimony in its entirety
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
send we on the job , he was perfectly in his rights, and Mr. Kerman says-I
can't quote his exact words-he said that he didn' t think that was right
because he was looking over the contract with the union just a short time
ago-it could have been that day-and that they had a clause in there that
they were to hire from the hall.
The Complainant has had no further contacts or conversations , which he can
recall , with the Respondent Company 's superintendent
At or about this time , he received a letter , signed by the Local 's business agent,
E. V. Blackwell , in which he was asked to visit the Local ' s office to discuss his
`.application" to deposit his withdrawal card In a telephone conversation with
Pierce, which followed , Watson reiterated his desire to return to the Cuyama
Valley project Pierce insisted however , that there were 300 others "ahead" of
him. He was advised by Watson that the Board agent had described the action
of Strickel in pulling him off the job as an "illegal " act ; Pierce , insofar as the
record shows , made no direct reply The conversation ended without any indica-
tion that the Local , through its officials , expected to alter the position it had
taken with respect to Watson's employment
Thereafter , the Complainant received a second letter from the Local dated on
the 23rd of February , which contained a refund of the dues he had paid for
February and March of 1940; his withdrawal card was also returned ' Since
the date of its return , Watson has renewed it, by making another of the annual
payments required under the Local ' s constitution to effectuate its renewal, 1" at
the time of the hearing he was back in the employ of the "Mack Truck " company,
which had reemployed him early in March of 1040
Conclusions
A What, is the nature of the discrsin iaatiou alleged?
At the threshold of discussion with respect to the present case a question arises
as to the nature of the discrimination with which the Respondents are charged.
The complaint alleges that Watson was dismissed; the General Counsel's inten-
tion, it would seem, was to charge the Respondents with discrimination in regard
to his tenure of employment. For the reasons herein noted the undersigned so
infers, and finds.
Although the General Counsel's representative argued, orally, that the Com-
plainant had been "encouraged" to get union clearance as a condition precedent
to his employment by the Respondent Company, the statement attributed to its
field superintendent in that connection was not alleged, specifically, to be viola-
tive of the statute In short, there is no contention that Watson, in particular,
was subjected to discrimination with respect to his hire
Even if it could be said that such a contention was implicit in the case as
litigated, the undersigned would find the evidence insufficient to sustain it. The
testimony which provides the sole justification for the contention is clearly
hearsay ; it consists of a recital, by the Complainant, of the remarks atti ibuted to
the Respondent Company's field superintendent by an intermediary. Floyd Bull,
the intermediary involved, was patently acting only as an agent of the Com-
plainant when he communicated the latter's desire for employment to the field
11 The Complainants March dues had been paid by a money order dated on February 18,
1949 , the money order was retained
15 Watson s piesent withdrawal card, which was issued at the time of the annual pay-
ment noted, is dated 11a i ch 10, 1949.
AMERICAN PIPE AND STEEL CORPORATION 77
superintendent and returned with the field superintendent 's reply ; the General
Counsel makes no argument that Bull 's report should be regarded as binding
upon the Respondent Company under any theory of agency . Nor has the atten-
tion of the undersigned been directed to any rule of evidence which would
render Watson ' s testimony in this connection receivable , against the Respondent
Company , under an exception to the hearsay rule .16 The General Counsel made
no effort to produce Bull as a witness , or to explain his absence-and Superin-
tendent Kennan , though available , was not called , as a hostile witness, to testify
in this connection ." Although the General Counsel now argues that other testi-
mony , with respect to the employment practices of the Respondent Company and
the subsequent conduct of the field superintendent , corroborate the hearsay testi-
mony of the Complaint , the record does not establish , to the satisfaction of the
undersigned , that direct testimony with respect to the matter thus in issue was
unavailable , or that its production was impracticable . Under the circumstances,
the undersigned concludes and finds that the record does not contain the substan-
tial , probative evidence required to justify a conclusion that the Complainant
was subjected to discrimination with respect to his hire.
If Watson was subjected to discrimination within the meaning of Section 8
(a) (3) of the Act , in short , it must have been with respect to the tenure of his
employment . The undersigned, accordingly , turns to a consideration of the
record insofar as it bears upon the merits of that contention
B. Was the complainant discharged?
The General Counsel, in the light of the record, contends essentially that Wat-
son was hired by the Respondent Company and that lie was subsequently dis-
charged There can be no doubt that he was hired; and the Respondents, in fact,
do not challenge this interpretation of the record He was referred to the
Cuyama Valley project by Superintendent Kennan, and he received an assign-
ment from the project foreman. He performed services in connection with the
assignment, and was subsequently compensated for them is The Respondents,
however, vigorously deny that he was ever discharged. They argue, in effect,
that he abondoned his employment voluntarily, after being advised of the Local's
objection to the continuation of his services This contention poses the issue
which the undersigned is next required to consider.
Upon the entire record, the undersigned finds no merit in the cited contention of
the Respondent's counsel. While it is true that Watson did no work after
Strickel asked him to leave the scaffold,19 the record shows that Strickel's i equest
was made in the presence of Foreman Tally, and that the latter interposed no
objection. In the light of Tally's earlier insistence that the Complainant would
be requii ed to produce a "woi k order" in order to make his assignment possible,
the latter was entitled to assume that the foreman's silence indicated a willing-
ness to acquiesce Strickel's contention that Watson's employment by the Re-
"The evidence was admitted originally, on the basis, of a representation by the General
Counsel's representative that it had been offered nieiely to establish an explanation for
the subsequent conduct of Watson
11 Since the General Counsel's representative elected to rest upon the record thus made,
the undersigned refused to allow cross -examination of the field superintendent in this
connection when lie was called as a Trial Examiner ' s witness with respect to another issue
18 The fact that lie was not required to execute the documents normally executed by
newly-hired employees of the Respondent Company until after his short period of service
is clearly immaterial , under the circumstances.
19 The status of Strickel as the Local's agent is discussed elsewhere in this report
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent Company was not proper.20 Watson's further assumption that he would
not be permitted to work for the rest of the day may have been unwarranted,
but, in the light of later developments, the fact that he remained voluntarily idle
for the balance of the afternoon must be regarded as immaterial. That evening,
when lie was told that he was "through" at the project because of Strickel's
opposition to his continued service, his immediate employment was effectively
terminated.
The Respondent Company's counsel argue that Tally's comment, if made,
ought not to be taken as evidence of a decision binding upon the Respondent
Company; it is argued that he, was merely an intermediary, transmitting to
Watson the substance of Strickel's most recent communication. Secondarily, it
is contended that Tally, a Local member, functioned as such in transmitting
Strickel's message to Watson, and that the Respondent Company should not be
held liable for statements or conduct not attributable to Tally in his supervisory
capacity. The undersigned finds no merit in these contentions. Tally's testi-
mony that he was merely a messenger with a report to give, when he spoke to
Watson, was effectively impeached. The undersigned has credited the testimony
of Watson with respect to their conversation in Taft; on the basis of that testi-
mony it is clear that Tally's statement was more than a report, and that it
included an announcement, in the name of his employer, that the Complainant
was "through" at the project. Since Tally was known to Watson as the project
foreman, not as a fellow union member, and since the foreman made no effort to
indicate he was speaking in another capacity, the conclusion seems inescapable,
that the statements at issue were made in his supervisory capacity-and the
undersigned so finds. It follows, and is found, that Watson was effectively dis-
charged.
Even if Tally's willingness to hold the job "open" for a reasonable period
of time, and his failure to notify the Respondent Company's office of the fact that
Watson's service was over, are considered sufficient, for the purpose of argument,
to cast doubt upon the irrevocable character of the Complainant's separation, it
cannot be gainsaid that he was at least suspended, indefinitely, until the question
of his right to hold the job, in the opinion, of the local officials, was settled The
undersigned, in the alternative, so finds.
The conclusion that Watson was discharged or suspended by the Respondent
Company, pending the adjustment of his differences with the Local officials,
finds further support in the undenied testimony of the Complainant with respect
to his further conversations with Kennan, the field superintendent. The re-
luctance of the latter to reassign the Complainant to the Cuyama Valley project,
absent the acquiescence of the Local, is patent When he told Watson, in their
final conversation , that the Respondent Company could not reassign him,
unilaterally, because it was obligated, by contract, to "hire" men from the
Local's hall, he confirmed the position previously taken by his project foreman.
Even if it be assumed, arguendo, therefore, that Tally's statement to Watson in
Taft was not intended as a notice that his employment was terminated or sus-
20 Counsel for the Respondent Unions sought to establish that Connor and Tally had
voiced no objection when Strickel said that he would do what he could for Watson The
undersigned regards their silence in that connection as immaterial Since their conduct
clearly evidenced acquiescence in Strickel's decision to "pull " Watson "off" -the piojeet,
their apparent willingness to accept the prospect that he might return merely warrants
an inference that they bore him no malice , actual or constiuctive
AMERICAN PIPE AND STEEL CORPORATION 79
pended, the subsequent comments of Kennan can only be so construed 21 It is
concluded and found that Watson, if not dismissed by the project foreman, was
effectively discharged or suspended by the Respondent Company's field superin-
tendent.
C. Was the Complainant a union member?
The General Counsel, essentially, contends that the Complainant was sub-
jected to discrimination in regard to the tenure of his employment to encourage
membership in the Respondent Unions. By way of reply, the Respondent Com-
pany argues vigorously that Watson could not have been encouraged to assume
or retain membership in the Respondent Unions, by any action attributable to
it as his employer, since he was already a union member.
The General Counsel's representative, in rebuttal, argues that the actual
membership status of the Complainant with respect to the unions is, in every
respect, immaterial. The undersigned, however-for the reasons noted else-
where in this report-is constrained to reject this view. The statute proscribes,
as an unfair labor practice, discrimination reasonably calculated to encourage
or discourage "membership" in a labor organization. The argument of the
Respondent Company, therefore, has presumptive merit; its consideration re-
quires, at the outset, a determination with respect to Watson's relationship to the
unions involved in the case. To that question, the undersigned now turns
A study of the International's constitution justifies the conclusion, in the
opinion of the undersigned, that Watson was a member of that organization at
the time of his discharge or indefinite suspension. Under Article XIII of
that constitution-the only one which contains language revelant in this
connection-insurance benefits are made available to each "member" of the
International in "good standing" at the time he sustains an insurable loss ; and
the first section of the article limits eligibility for insurance to "members" over
sixteen but under sixty at the time of "initiation, last reinstatement, or de-
positing of withdrawal card." The reference to the deposit of a withdrawal card
as one condition precedent to International membership seems clear. The sec-
tion also refers, in this connection, to "any former member who shall make
application for reinstatement or deposit his withdrawal card"; while it is
not clear that all persons holding withdrawal cards are regarded as former
members, it is amply clear that their eligibility for complete insurance coverage,
at least, is renewed only when the card is deposited Thus reference is made,
in another section of the article to "any former member to whom a withdrawal
card has been issued" ; such persons are permitted to carry "withdrawal in-
surance" by the payment of the necessary monthly premium-but "any member
who shall hereafter apply for and receive a withdrawal card" may only claim
the privilege of converting his insurance into another type of policy. In the
light of the language quoted it seems clear that, whatever the membership status
of a person with a withdrawal card may be. such persons are entitled to full
participation in the insurance program of the International, as members of the
organization, after their card has been deposited. Watson's card, as noted else-
where in this report, was-in the undersigned's opinion-effectively deposited
before his employment was terminated. Thereby, he achieved "membership"
status under the terms of the International's constitution. It is so found.
21 The failure of the Respondent Company to " process" Watson's records in conformity
with its separation procedure is clearly immaterial , his immediate employment had ended,
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article VI of the union's Subordinate Lodge constitution, which governs the
local involved in this case, does provide that an applicant for membership is
to be considered a member of the International Brotherhood when his signed
application and fee are "received, approved and'recorded" in the office of the
International Secretary-Treasurer. The article also provides that:
The application form for initiation, reinstatement, or deposit of with-
drawal card or service card, with signature of the applicant thereon and
the cost of initiation, reinstatement, or fee for deposit of withdrawal card
or service card, plus one insurance premium, shall be forwarded to the
International Secretary-Treasurer and the initiation, reinstatement, with-
drawal card or service card receipt issued by the International Secretary-
Treasurer, and the remainder of the fee shall be retained by the Subordinate
Lodge involved.
And other sections of the-article require that an application for membership
must be signed by the applicant, who must be recommended for admission by a
member of the Subordinate Lodge in good standing and indorsed by two other
members who know him. Applications thus indorsed must be accepted by a
vote of the Subordinate Lodge, before the applicant may be considered "eligible"
for membership.
A companion clause, in Article VIII of the Subordinate Lodge Constitution,
provides, with respect to dues payments, that any "ineinber" two months in
arrears with payments of any kind "shall be automatically suspended from all
rights, privileges and benefits" tinder the International's constitution Before
such a "mnember" may be again recorded as in "good standing" he must make a
personal application for "reinstatement" to his Subordinate Lodge Receipts in
connection with any "iemnstatement" are to be signed by the International
Secretary-Treasurer when the "official membership application" and necessary
remittance are received by him. Pending action by the International Secretary-
Treasurer, the applicant for reinstatement is regarded as a "delinquent member"
tinder Section 3 of the Article.
And, with specific reference to withdrawal cards, Article X, Section 7, of the
Subordinate Lodge Constitution does provide that.
A member holding a withdrawal card on ietui ning to work at the trade
shall deposit such withdrawal camel in the Subordinate Lodge . whether
such member is employed in either an organized or unorganized shop . .
After the withdrawal card is accepted by the Subordinate Lodge, it shall be
forwarded to the International Secretary-Treasurer's office with a completed
application for membership together with [necessary I dues . . plus one
(1) month's insurance premium . Official monthly receipts shall be issued
by the International Secretary-Treasurer's office and returned to the Sub-
ordinate Lodge Secretary. Upon the issuance of the official receipt by the
International Secretai y-Treasui er's office, a member shall be entitled to all
of the benefits and privileges of this International Brotherhood as provided
for in Article XIII, Section 1 (a) of the International Constitution and
Bylaws 22 . .
Pursuant to this constitutional provision the Complainant's application for mem-
bership in the International Brotherhood, dated on the lst of February, did
embody a formal acknowledgment, over his signature, that he understood he would
22 Article XIII, Section 1 (a), as noted, refers to the insurance protection of members
AMERICAN PIPE AND STEEL CORPORATION 81
not become a "member" of the organization until his application was accepted
and recorded on the books of• the International Secretary-Treasurer.
In the light of these provisions it is necessary to determine whether the Com-
plainant, in this case, had effectively deposited his withdrawal card and achieved
"membership" status. Upon the entire record the undersigned is satisfied that,
for every purpose relevant in the present case, the Complainant was a union
member His application for membership, it is tine, does not show that he was
"recommended" for admission to the Union by a member of the Subordinate
Lodge in good standing, that he was ever indorsed by two other members
acquainted with him, or that his application had been accepted by a vote of the
Subordinate Lodge membership ; nor does the record establish that his applica-
tion form and fee payment were ever received, approved or recorded in the office
of the International Secretary-Treasurer. These technical deficiencies however,
in the opinion of the undersigned, are not crucial.23 The functions of the interna-
tional Secretary-Treasurer, with respect to the receipt, approval, and recording
of membership applications, appear to be ministerial; the absence of action by
that official, insofar as the pi ovisions of the International's Constitution are
concerned, does not appear to affect any of the rights, privileges or obligations
of those who have taken every step otherwise required in connection with a
membership application-except the right to claim full insurance benefits and
the right to receive sti ike benefits under Article XI, Section 9 of the constitution,
which are not involved in this case. Insofar as the Local is concerned, the record
establishes that Connor, Strickerand Pierce regarded the Complainant as a union
member, they obviously considered him under an obligation to observe the Local's
rule with respect to job referrals, and Pierce-in his first conversation with the
Complainant expressly acknowledged that he had been reinstated, albeit by
subterfuge Upon the entire record the undersigned is satisfied, and finds, that
the Complainant held "membership" in the Respondent Unions at the time of
the events with which this case is concerned
D. Did the Respondent Company commit an unfair labor practice under Section
8 (a) (3) of the Act by its indefinite suspension, or discharge of the
Complainant?
In the light of the undersigned's conclusion that Watson was a union member
at the time of his suspension or discharge, a question arises as to the legal effect
of the Respondent Company's action Its counsel argue vigorously that Watson's
status as a union member precludes any inference that the termination of his
employment was reasonably calculated to encourage or discourage union member-
ship; they contend that the Respondent Company intended by its action merely to
indicate "respect" for the Local's rules, and that proof of this objective immunizes
it against the application of statutory sanctions.
23 See In Be Interstate Steamship Company, et al and National Maritime Union of
America (CIO), (WLB, Sept 1, 1943) 13 L1{RM 1508, Cf In Re Broice and Sharpe Mfg
Co and International Association of Machinists, Local Nos 1142, 1086 (AFL), (WLB,
June 2, 1942) 10 LRRM 987 ; In Re North American Aviation, Inc, and United Automobile
Workers'of America, Aviation Division (CIO), (Arb March 10, 1942) 10 LRRM 1184;
In Re North American Aviation. Inc, and United Automobile, Aircraft and Agricultural
Implement Workers, Local 887 (CIO), (Arb July 10, 1943) 13 LRRM 2579 ; In Re Grower-
Shipper Vegetable Association of Central California and United Cannery, Agricultural,
Packing, and Allied Workers of America, Local 78 (CIO), (Arb September 4, 1944) 15
LRRM 2033 , In Re Bendix Aviation Corporation, Pacific Do,ision and United Automobile,
Aircraft and Agricultural Implement Workers of America, Local No 179 (CIO), (Arb.
December 12, 1944) 15 LRRM 2050.
943732-51-7
82 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
Even absent acquiescence in the full sweep of the Respondent Company's argu-
ment, the undersigned finds merit in the contention that its action did not dis-
courage or encourage membership in a labor organization . The Board decisions
clearly establish that discrimination with respect to an employee 's hire or tenure
of employment , which is reasonably calculated to encourage or discourage the
acquisition or retention of union membership by employees is an unfair labor
practice. There is no suggestion in the present record, however, that the
Respondent Company's action was reasonably calculated to accomplish either
result. It was reasonably calculated the undersigned finds, only to encourage
the acceptance of a membership obligation , by one already a member.
The privileges and obligations of membership , in the undersigned 's opinion,
are not synonymous with the fact of membership-even though they come into
existence when membership status is recognized by the group which confers
or imposes them; they derive from and are not identical with the fact of mem-
bership in the group-in this case , a labor organization . While it is easily con-
ceivable that a union member who is discouraged in an attempt to exercise one
of the privileges of membership may be discouraged thereby, indirectly, in his
desire to retain membership , 24 it is difficult to see how one who has been "en-
couraged" or persuaded by economic pressure , to accept one of the obligations
of membership-i. e. the duty of compliance with union rules-is derivatively
encouraged, thereby, to retain it-unless "membership" is construed to require
something more than the mere satisfaction of minimum eligibility requirements
and to include the acceptance of all the obligations incidental to it. The under-
signed has found no warrant in law for this interpretation of the "membership"
concept.
And while it has been held that the statute protects the right of one not a
union member to retain his job, so long as it appears that he has tendered his
initiation fees and dues and was denied membership for some other reason,' it
does not follow, necessarily, that the statute, by this section, protects the right
of a union member to retain his job if he has met his financial obligations but
refuses to accept some other responsibility incidental to membership.26 It is
difficult for the undersigned to see how the discharge of a union member in such
a case-absent previous notice to the member that his refusal to accept all of the
obligations of membership might result in its forfeiture, and disciplinary action
on the part of the union calculated to deprive him of membership status, or the
threat of such action-encourages him, directly or indirectly, to retain the union
membership he already holds, albeit upon his own terms.2' In the absence -
24 N. L R B v Walt Disney Productions , 146 F 2d 44 , 49 (C A 9)
23 Union Starch and Refining Company, 87 NLRB 779 , 25 LRRM 1176, 1366
26 The Clara -Val Packing Company, case, 87 NLRB 703 , 25 LRRM 1159 , is clearly not
an acceptable authority for the latter proposition Although the Inteimediate Report
speaks of the discipline meted out to the dissentient member in that case as a fine and
incidental loss of "good standing", the Board found that she had been expelled and rested
its finding of discrimination on the fact that she had been discharged because she was no
longer a member of the Union.
29 The Board did find that the employee involved in the H Milton Newman case, 85
NLRB 725, was still a union member , albeit in bad standing, at the time of the discrimina-
tion practiced against him. There can be no doubt however, that the failure of a union
member to meet his financial obligations to the union is generally regarded as the breach
of a condition precedent to his right to retain membeislup , it seems clear , therefore, that
action calculated to induce an employee to correct a dues delinquency may properly be
regarded , even without further proof , as action designed to encourage his retention of
membership The Newman case , accordingly , cannot be described as a controlling prece-
dent in the light of the present record, which does not reveal a dereliction on the part of
AMERICAN PIPE AND STEEL CORPORATION 83'
proof that the Local regarded compliance with its "seniority " rule as a condition
precedent to the Complainant 's right to retain membership, and in the absence of
proof that effective action had been taken by it to implement that position, the
undersigned is satisfied , then, that the Respondent Company's action, whatever
its ostensible purpose or effect, was not reasonably calculated to encourage
membership in a labor organization." It is so found,
E. Did the Respondent Company commit an unfair labor practice within the
meaning of Section 8 ( a) (1) of the statute by the Complainant 's indefinite
suspension or discharge?
The conclusion that the Respondent Company's course of conduct did not in-
volve discrimination with respect to Watson 's tenure of employment, to en-
courage membership in a labor organization , does not, however, dispose of the
issue raised by the termination of his employment , since the complaint expressly,
alleges that the Respondent 's course of conduct in that connection also inter-,
fered with , restrained , and coerced its employees in the exercise of rights guar-
anteed by the statute.
The Respondent Company's counsel argue , as noted , that its action with respect
to Watson was predicated on respect for the Local's rule in connection with
referrals . It is contended that a refusal on the part of the Respondent Com-
pany to "respect" the rule would destroy the Local's ability to function effectively
for the benefit of its members.
The argument , even if it represents an acceptable interpretation of the Re-
spondent Company's conduct , cannot justify or excuse it. Even conceding,
arguendo , the correctness of the conclusion cited, it does not follow that the
Respondent Company's acquiescence in the position of the Local, that Watson
was obligated to abandon his employment in compliance with its rule , was not
an unfair labor practice . In his refusal to defer to the rule, Watson was clearly,
exercising his right to refrain from engaging in a particular type of concerted,
activity, sponsored and made effective by the union, for the purpose of mutual,
aid or protection:' And his right to refrain from such activity, as noted else-
where in this report, was not affected by an agreement which required member-
ship in the Local as a condition of employment . If it had been shown, never-
theless, that Watson's action had interfered in any way with the Local's ability
to meet its contractual obligation with respect to the referral of applicants for
employment by the Respondent Company, it might be arguable, at least, that he
had not been exercising a privilege established or guaranteed by the Act, and
that the Respondent Company therefore had not interfered with, restrained, or
coerced him in the exercise of a protected right.° No such evidence, however,
has been adduced Upon the entire record the undersigned is constrained to,
conclude, and finds, that Watson's effort to avoid the impact of the Local rule
involved the exercise of a statutory right, and that the Respondent Company,
Watson which the Local appeared to regard as crucial , with respect to his right to retain-
membeiship status.
28 Although the General Counsel ' s representative argued orally, at one point , that the
Respondent Company' s action tended to discourage union membership, any conclusion
that its conduct was directed , explicitly or implicitly , to that end - would patently be
unsound
29 He testified , and the undersigned finds , that his action had been motivated by fear
that the application of the rule would involve hardship , insofar as it might be applied
to him.
"Cf. David Kairon, Inc, 25 NLRB 506, International Envelope Corp ., 34 NLRB 1277.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when it discharged or suspended him, interfered with, restrained and coerced its
employees in the exercise of that right.
F. Did the Respondent Unions commit unfair labor practices under section 8
(b) (1) or (2) by insisting that the Complainant ought not to be permitted
to retain the employment he secured by the avoidance of the union rule?
It has been found, elsewhere in this report, that the Respondent Company
did not, by its treatment of the Complainant, subject him to discrimination with
respect to the tenure of his employment to encourage membership in a labor
organization. It follows, without regard to any conclusion which the under-
signed may reach with respect to the responsibility of the Respondent Unions
for the conduct of Watson's employer, that the Respondent Unions cannot be
guilty of causing or attempting to cause an employer to discriminate against an
employee in violation of Section 8 (a) (3) of the statute. The undersigned
so finds.
As in the case of the Respondent Company, however, this conclusion does not
dispose of the case. The complaint, as in the case of the Respondent Company,
expressly alleges that the course of conduct attributable to the Respondent
Unions involved the restraint or coercion of employees in the exercise of rights
guaranteed by the Act. In the opinion of the undersigned, this allegation of
the complaint has been sustained-at least as to one of the union respondents
As noted, no valid agreements, binding upon the Respondent Company, required
Watson to be a member of the Respondent Unions as a condition of employment
Accordingly, he was entitled to exercise the right to engage in, or to refrain
from engaging in, all the activities enumerated in Section 7 of the Act without
restraint or coercion by the Respondent Unions; because he exercised the right,
guaranteed by this section of the statute, to refrain from engaging in such an
activity, one of the Respondent Unions-by the statement of an objection to his
continued employment, noted elsewhere in this report-caused the Respondent
Company to suspend or discharge him. This, in the opinion of the undersigned,
constituted restraint or coercion, within the meaning of the statute. It is so
found.
In the light of the position taken by Strickel and Pierce, the proviso which
limits the application of Section 8 (b) (1) (A) of the statute is clearly unavail-
able, as a defense, to the particular Respondent Union found responsible for the
illegal restraint and coercion. The proviso was intended to preserve the right
of a labor organization to prescribe its own rules with respect to the acquisition
or retention of membership; in the absence of any indication that acquiescence
in the operation of the Local's rule with respect to referrals and the issuance of
work orders was relied upon by the union as a condition precedent to the acquisi-
tion or retention of membership, the qualification of statutory liability which the
proviso permits must be regarded as irrelevant. There is no evidence that the
Local, clearly chargeable with primary responsibility for the implementation of
its own rule, had taken any action calculated to affect Watson's membership
status. The Local, in short, took no action against the Complainant as a matter
of internal union discipline. The only action which its agents took was cal-
culated to give operative effect to the union rule involved; instead of telling
Watson that his membership status might be forfeit, as a result of his conduct
in connection with the deposit of his withdrawal card, they insisted that lie was
obligated to abandon his employment and permit the effective operation of the
rule which he had sought to avoid In so doing, the Local exceeded the limits
AMERICAN PIPE AND STEEL CORPORATION 85 ,
of permissible union conduct under the 8 (b) (1) (A) proviso, previously
noted-and, since the conduct of its agents, attributable to it, was intended
primarily to compel the Complainant to forego one of the rights which Section 7
protects, it was, and is, subject to proscription under the Act 31 Upon the record,
the undersigned concludes and finds that the Local, by the statements of its
agents to the Complainant and to a supervisory official of the Respondent Com-
pany in his presence," and by causing the Respondent Company to interfere with,
restrain and coerce the Complainant and its other employees in the exercise of a
right guaranteed by the Act,33 itself restrained and coerced employees in the
exercise of rights guaranteed by Section 7 of the statute.3i
G. Did the Respondents conrnrrt an unfair labor practice when they executed
and gave effect to the agreement which governed their relationship at the
time of Watson's suspension or discharge?
The complaint in this case alleges that the Respondents, by their officers, agents
and employees "have entered into and are giving effect to an illegal and invalid
'collective bargaining agreement" which requires all employees of the Respondent
Company to be and remain Local members. It alleges that the Respondent Com-
pany, thereby, engaged and has continued to engage in an unfair labor practice
within the meaning of Section S (a) (1) of the Act, and that the Respondent
Unions engaged and have continued to engage in an unfair labor practice
within the meaning of Section S (b) (1) of the statute There is no specific
allegation that, by executing and giving effect to the aforesaid agreement, the
Respondent Company violated Section 8 (a) (3), or that the'Respondent Unions,
by their part in the execution or application of the agreement, violated Section
8 (b) (2) of the Act Nevertheless, at the hearing and in his brief, the General
Counsel's representative argued extensively that the execution and application
of the August 1848, Field Contract involved the Respondents in the commission
of unfair labor practices within the meaning of Sections 8 (a) (3) and S (b) (2)
of the Act, respectively. It was clearly the intention of the General Counsel to
litigate the validity of the union security clause in that agreement upon the
legal theory subsumed in these sections of the statute And the complaint does
allege, in its last two numbered paragraphs, that the Respondents, by the "afore-, .
said acts" ascribed to them, had committed unfair labor practices within the
meaning of the sections in question Despite the failure of the complaint, there-
fore, to follow the conventional pattern of Board pleadings, the undersigned
finds, hereby, that the Respondents were effectively put on notice that their
execution and application of the aforesaid trade agreement were alleged to
constitute unfair labor practices, as to each of them, under Sections 8 (a) (3)
and S (b) (2) of the statute. respectively
31 The liability of the Local for the conduct of Pierce, its president and assistant business
agent , is clear Its liability fm the statements and conduct of Strickel also rests upon
the status of the latter as its agent That status is esabllshed, in his case, by the acquies-
cence of Connor, the Local's acknowledged steward, and Tally, a union member, in Strickel's
statements in the name of the organization ; by Tally's identification of him as a Local
repi esentative , and by the action of Pierce in affirming the position lie had previously
taken, in the name of the union, with respect to the continuation of the Complainant's
service
33 H. Milton Newman, an individual d/b/a H M Newman, sepia
33 Clara -Val Packing Co , supra
The contention of the Respondent Unions that the statute, as applied, is unconstitu-
tional must be rejected, in conformity with settled Board policy. Rite-Form Corset Com-
pany, Inc., 75 NLRB 174
`86 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
Upon the record the undersigned' is satisfied, however, that the agreement of
the parties did not contain a union-security provision invalid on its face under
the terms of the 8 (a) (3) proviso, and that its execution, therefore, involved no
.unfair labor practice. The General Counsel's representative, in his brief, argues
-vigorously to the contrary; he contends that the union-security clause of the
contract with which this case is concerned is strikingly similar to the clause
which the Board found "illegal" in the Hawley & Hoops case.5 The under-
signed has compared the clauses ; they differ in a material respect which is
crucial in this connection. Even if it be assumed, for the purposes of argument,
that the Respondent Company's agreement to "notify" the Local as to the num-
ber of employees it required, and the classifications desired, is tantamount to
an agreement to "request" the referral of applicants so classified, the Respondent
Company is not subject in the present case, to a contractual requirement that
it defer any selection from other sources until the expiration of the period
within which the Union is bound to supply "the most competent workmen avail-
able" for employment. There is no basis, therefore, for the conclusion that the
clear effect of the contractual provisions is to give preferential treatment in the
hire of employees to those who are members of the contracting union." The
contractual provision which the Board found "illegal" in the Hawley & Hoops
case is distinguishable ; the conclusions of the Board, therefore, with respect to
the clear effect of its language have no application in the present instance, and
the undersigned so finds.
The General Counsel argues, nevertheless, that the "practice" of the Respond-
ents under their agreement involves a violation of the statute. The undersigned
is satisfied, however-and finds-that no conclusions with respect to an independ-
ent violation of the statute in this respect may properly be reached upon the
present record.
Initially, it should be noted that the complaint contains no allegation that
the Respondents committed an unfair labor practice by the improper adminis-
tration of an otherwise valid agreement-unless the allegation that the Respond-
ents "have entered into and are giving effect to an illegal and invalid collective
bargaining agreement" can be so construed. Upon the entire record, the under-
signed is satisfied that this allegation of the complaint was, in fact, insufficient to
put the Respondents on notice that their conduct in connection with the adminis-
tration of the agreement-as distinguished from their conduct in connection
with its execution-was being challenged as a separate unfair labor practice,
.generally, and apart from its alleged application in connection with the dis-
charge or suspension of Watson. The General Counsel's contention, in short,
was effectively pleaded, in the opinion of the undersigned, only to the extent
that it put the Respondents on notice that the alleged application of the agree-
ment in connection with the discharge or suspension of Watson was being
challenged under the law.
Nor can it be said, in the opinion of the undersigned, that the contentions
,of the General Counsel in this connection were litigated. When the examina-
tion of Vice-President Kilham, as an adverse witness, turned to the subject of
the Respondent Company's agreement with the Respondent Unions, the Respond-
ent Company's counsel offered a vigorous objection to testimony on that subject
as incompetent, irrelevant, and immaterial. The testimony thus challenged was
defended as material primarily because of the specific allegation that Watson's
8 Hawley & Hoops, Inc., 83 NLRB 371; 24 LRAM 1092.
se Cf. Hammond Lumber Company, 85 NLRB 1320, 24 LRRM 1555.
AMERICAN PIPE AND STEEL CORPORATION 87
termination had resulted from an application of the contract, and secondarily
because of the alleged unfair labor practice implicit in the effective existence
of a "closed-shop" agreement. On the basis of a statement by the General
Counsel's representative that he expected to prove that "this contract in the
way that it was interpreted and applied" was an illegal closed-shop contract, the
undersigned, at the time, overruled the objection of the Respondent Company's
counsel. Upon an appropriate request, however, the reiterated objections of
the company representatives, which counsel for the Respondent Unions joined,
were permitted to stand with respect to the entire line of examination. After
a study of the entire record, the undersigned is convinced, and now finds, that
no issue with respect'to the validity of the manner in which the Respondents
administered their agreement, generally, was raised in the presentation of the
General Counsel's case. The testimony of Vice-President Kilham in that con-
nection was received, as noted, over objection ; he was not cross-examined with
respect to its substantive features. In any event, the undersigned is satisfied
that his testimony, summarized elsewhere in this report, upon which the General
Counsel's representative exclusively relied, is insufficient to establish, prima
facie, that the administration of its agreement, generally, involved an unfair
labor practice. This was in fact effectively conceded by the General Counsel's
representative in the course of argument on the Respondent Company's motion to
dismiss, at the close of his presentation. In its final form, as the record shows,
the General Counsel's contention is reduced to one that the application of the
agreement as revealed in connection with the discharge of Watson involved an
unfair labor practice.
Thereafter, in the presentation of their respective cases, the Respondents
made no effort to adduce evidence with respect to their administration of the
agreement. The only evidence adduced in this connection was adduced at the
instance of the undersigned, again over the initial objection of the Respondent
Company's counsel.
After due consideration, the undersigned is convinced, therefore, that no
issue with respect to the validity of the Respondent Company's employment
practices, generally, under its Field Contract with the Respondent Unions is
raised by the complaint or the General Counsel's case; that the Respondents
were under no obligation to litigate, and did not litigate, this issue ; and that
it is not, therefore, properly before the undersigned." It is so found.
H. What is the responsibility of the International?
A question remains as to the responsibility of the International for the action
of the local, by its agents, as revealed in the present record. There is no indi-
cation, in the record, that the action of the Respondent Company and the Local
with respect to Watson was undertaken at the instance of the Local's parent
body. Nor is there any indication that Connor, Strickel or Pierce acted in the
name of the International. That organization appears as a responsible party
only in connection with the execution of the field contract in effect at the time
of the events with which this case is concerned. Since the execution of that
agreement is found not to have involved an unfair labor practice, it follows,
and the undersigned finds, that the International has not been involved, di-
rectly or vicariously, in the commission of any unfair labor practice within the
'T Cf. Chamberlain Corporation , 75 NLRB 1188 ; 1. F. Sales Company , 82 NLRB 137,
23 LRRM 1351.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of the Act as amended. It will be recommended that the complaint, in-
sofar as it involves that organization, be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Company and the Local , set forth in Section
III, above , occurring in connection with the operations of the Respondent Com-
pany set forth 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 comerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent Company and the Local have
engaged in unfair labor practices, it will be recommended that each of them
cease and desist therefrom and take certain affirmative action, including the
posting and distribution of appropriate notices, designed to effectuate the policies
of the Act.
The undersigned has found that the Respondent Company by its indefinite
suspension or discharge of Thomas Ray Watson. interfered with, restrained, and
coerced its employees in the exercise of their right to refrain from assisting
a labor organization and their right to refrain from engaging in other concerted
activities for the purpose of mutual aid or protection In the light of cases too
numerous to cite, it may now be taken as datum that the immediate and full
reinstatement of employees suspended or discharged under such circumstances,
to their former or substantially equivalent positions a without prejudice to their
seniority and other rights and privileges, is necessary to effectuate the policies
of the Act.39 It will be recommended, thei efore, that Watson be so reinstated.
It has also been found that the Local, by its insistence that Watson leave the
Cuyama Valley project, and by the subsequent insistence of its agents that he
had no right to such employment with the Respondent Company, restrained and
coerced employees in the exercise of their statutorily guaranteed right to refrain
from the activities already noted Accordingly, it will be recommended that
the Local notify Watson and the Respondent Company, in writing, that it has
withdi awn its objection to his employment, and that it request the Respondent
Company, also in writing, to offer him immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to his seniority
and other rights and privileges.
In the case of an employee subjected by an employer to interference, restraint,
and coercion which involves a loss of employment, it has long been the practice
of the Board to effectuate the policies of the Act by requiring that the employer
guilty of the unfair labor practice make whole the employee so interfered with,
restrained, and coerced, for any loss of pay he may have suffered. No compelling
reason appears to warrant the application of a different policy in this case.40
And in view of the legal responsibility with which the Local, in this case, is
as In accordance with the Board's consistent interpretation of the term, the expiession
"former or substantially equivalent position" is intended to mean "former position
wherever possible, but if such position is no longer in existence, then to a substantially
equivalent position " See The Chase National Bank of the City of New York, San Juan,
Puerto Rico Branch, 63 NLRB 827.
39 The fact that Watson did not, at the hearing, expressly state that he would accept
reinstatement is inimateiial Coopersville Cooperative Elevator Company, 77 NLRB 174.
40 See H Milton Newman, et al, 85 NLRB 725, 24 LRRM 1463, n 14, and the cases
therein cited.
AMERICAN PIPE AND STEEL CORPORATION 89
charged, both for the above-mentioned action of the Respondent Company in
regard to the employment of Watson, and for the insistence of its own agents
that Watson give effect to its rules and leave his employment, the undersigned
finds that the policies of the Act would be effectuated if the Local were called
upon, also, to assume a financial responsibility, equalling that of the Respondent
Company, to make Watson whole.
No legal barrier to this requirement is to be found in the fact that the Act
purportedly limits the Board's power to require back pay from a labor organi-
zation to cases in which it is found responsible for the "discrimination" suffered
by an employee.41 When the Act was amended, Congiess was fully aware of
the Board's practice under the original statute, already noted, whereby back
pay was awarded, if it would effectuate the policies of the Act, in cases of em-
ployer interference, restraint, or coercion involving a loss of employment. There
is no indication in the legislative history of the amendments that the first pro-
viso of Section 10 (c) was intended to limit the incidence of back-pay awards,
in the case of employer respondents, to cases involving "discrimination" within
the meaning of the Act. This being the case, no logical argument now apparent
to the undersigned would seem to compel the conclusion that the liability of labor
organizations is so limited. In short, whatever public policy may be revealed
or implicit in the legislative history of the amendments with respect to the scope
of the back-pay remedy, it is clear that the word "discrimination" in the first
proviso of Section 10 (c) is not to be understood as a limitation on the type
of statutory violation that must be found before a back-pay order may issue
against an employer or a labor organization.
The decision of the Board in the Colonial Hardwood Flooring Company case '
does not compel a contrary conclusion. While the Board held in that case that
it lacked the power to award back pay to employees as "damages" for a union's
interference with their ingress to a struck plant, it pointed out that such a
remedy was to be contrasted with back-pay awards intended to compensate
employees for losses in pay suffered because of severance or an interference
with the tenure or terms of the employment relationship between them and their
employer ; cases of the latter type, as the Board decision states, are cases to which
Section 10 (c) of the Act has been held for many years to refer. Such a case,
also, is present here.
It will therefoie be recommended that the Respondent Company and the
Local, jointly and severally, make Thomas Ray Watson -whole for any loss of
pay he may have suffered by reason of the interference, restraint, and corecion
directed against him, by the payment to him of a sum of money equal to the
amount he normally would have earned as wages in the employ of the Respondent
Company, from the date on which he was suspended indefinitely or discharged
to the date of the Respondent Company's offer of reinstatement, or to the date
on which the Respondent Company is notified that the Local has withdrawn its
objection to his employment, whichever is earlier, less his net earnings 43 during
such period In the event of a failure or refusal on the part of the Respondent
41 Section 10 (c), 61 Stat 136
4z United Furniture Workers of Aniersea, 010 et at. (Colonial Hardwood Flooring Com-
pany, Inc ), 84 NLRB 563 , 24 LRRJf 1302
43 See Crossett Lnmbei Company, 8 NLRB 440; Republic Steel Company v N L R B , 311
U. S 7 The apparent contention of the Respondent Company that Watson's receipt of
unemployment compensation benefits, after his separation, should be considered by the
Boaid in determining his eligibility for a back-pay award is clearly without merit.
N. L. R B v Marshall Field and Company, 129 F 2d 169 (C A 7) , affd per curiam 318
U S.,253.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company to offer reinstatement to Watson immediately upon the receipt of a
notice that the Local has withdrawn its objection to his employment and that
it requests his immediate and full reinstatement , it will be recommended that
the liability of the Local be abated , and that the Respondent Company only be
held responsible for any loss of pay suffered by the Complainant thereafter.
The specific unfair labor practices found involve a field employee and would
reasonably tend to affect all newly hired and present field employees ; it will,
therefore, be recommended that the Respondent Company take appropriate
steps to distribute copies of the notice recommended for posting in this Inter-
mediate Report to all field employees , and make it available for their inspection.
Since, finally , it has been found that the International was not responsible
for the improper administration of the agreement to which it was a party, on
the part of the Respondent Company or the Local , in the case of the Complainant,
it will be recommended that the complaint , insofar as it designates the Inter-
national as a party respondent , be dismissed.
CONCLUSIONS OF LAW
Upon these findings of fact , and upon the entire record in the case, the under-
signed makes the following conclusions of law :
1. The American Pipe and Steel Corporation is engaged in commerce and busi-
ness activities which affect commerce, within the meaning of Section 2 (6) and
(7) of the Act.
2. The International Brotherhood of Boilermakers , Iron Shipbuilders and
Helpers of America, A . F. L and its Local Union No. 92 are labor organizations
within the meaning of Section 2 ( 5) of the Act.
3. By, interfering with, restraining , and coercing its employees in the exercise
of a right guaranteed in Section 7 of the Act , the Respondent Company did en-
gage and has continued to engage in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act. '
4. By restraining and coercing employees in the exercise of a right guaranteed
in Section 7 of the Act , the Local did engage and has continued to engage in
unfair labor practices within the meaning of Section 8 ( b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 (6) and (7) of the Act.
6 The Respondent Company , in connection with its suspension or discharge
of Thomas Ray Watson , did not engage and is not now engaged in an unfair labor
practice within the meaning of Section 8 (a) (3) of the Act.
7 The Local , in connection with its insistence on the suspension or discharge
of Thomas Ray Watson , did not engage and is not now engaged in an unfair
labor practice within the meaning of Section 8 ( b) (2) of the Act.
8. The International did not engage and is not now engaged in any of the
unfair labor practices alleged in the consolidated complaint , within the meaning
of the Act.
[Recommended Order omitted from publication in this volume.]