W. Hawley & Co.

National Labor Relations Board - Board Decisions

Apr 3, 1951

93 N.L.R.B. 1126 (N.L.R.B. 1951)

1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merely those which any more experienced employee would naturally
give to those less experienced. We find that they are not supervisors
and shall include them in the unit.
We find that all office and clerical employees 8 at the Employer's
place of business in Rochester, New York, excluding checkers and su-
pervisors 9 as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
8 Including David Wildman and Winnie Sanow.
9 Including Alice Yount.
S. J. HAWLEY AND J . H. PATRIDGE D/B/A W. HAWLEY & COMPANY and
CHARLES C . COMBS AND NELSON L. ELLIS LOCAL 22, BRIDGE STRUC-
TURAL AND ORNAMENTAL IRONWORKERS Or IND IANAPOLIS , AFL and
CHARLES C . COMBS AND NELSON L. ELLIS. Cases Nos. 35-CA-136,
35-CA-138, 35-CB-23 , and 35-CB-31. April 3, 1951
Decision and Order
On November 15, 1950, Trial Examiner John Lewis issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents 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 Interme-
diate Report attached hereto. Thereafter, the Respondent Company
filed timely exceptions to the Intermediate Report and a supporting
brief."
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Houston, Murdock, and Styles].
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 Interme-
diate Report, the Respondent Company's exceptions and brief, and
the entire record in the case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner, with the inodifi-
cations and additions set forth below:
I At the request of the Respondent Union, the Board extended the "date for receipt
of exceptions and briefs in Washington " to Deceinbei 18, 1950 No exceptions in behalf
of the Respondent Union were received within the time allowed . On December 21, 1950,
the Board received exceptions from the Respondent Union, which were rejected as
untimely . These exceptions have not been considered because they were not timely filed.
The Ann Arbor Press, 91 NLRB 1291 The motion for reconsideration of the Board's
action in rejecting the untimely exceptions is hereby denied.
93 NLRB No. 181.
W. HAWLEY & COMPANY 1127
1. The events leading up to the discharge of the complainants are
fully described in the Intermediate Report. The Trial Examiner
found, and we agree, that the Respondent Company, by the discrim-
inatory discharge of the complainants at the request of the Respondent
Union, violated Section 8 (a) (3) and 8 (a) (1) of the Act, and fur-
ther that the Respondent Union, by its insistent demand, caused the
Respondent Company to discriminate against the complainants, and
thereby violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. Our
concurrence in the Trial Examiner's conclusions with respect to the
violation by the Respondent Union is, however, not based upon the
Trial Examiner's analysis of the relevant provisions of the Act. We
rely instead upon the Board's rationale set forth in the Sub Grade
Engineering case. 2 In that case the Board expounded its reasons for
concluding that where, as here, a union which possesses the potential
economic power to deprive an employer of his labor market seeks a
discriminatory discharge, and the discharge actually results, the union
"caused" the discharge within the meaning of Section 8 (b) (2) of the
Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that :
1. The Respondent, S. J. Hawley and J. H. Patridge d/b/a W.
Hawley & Company, its officers, agents, successors, and assigns, shall :
(a) Cease and desist from :
(1) Encouraging membership in Local 22, Bridge, Structural and
Ornamental Ironworkers of Indianapolis, AFL, or any other labor or-
ganization of its employees, or discouraging membership in Local
Union 60 and Local Union 758, United Brotherhood of Carpenters
and Joiners of America, AFL, or any other labor organization of its
employees, by discriminatorily discharging any of its employees or
discriminating in any manner in regard to their hire or tenure of em-
ployment, or any terms or conditions of employment.
(2) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed to,
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 or-
2 Sub Gi ade ]Engineering Company, 93 NLRB 406. Member Murdock, who dissented
from the decision in the Sub Grade Engineering case , is of the opinion that the 8 (b) (2)
finding herein may be justified without resorting to the rationale of the majority decision
in Sub Grade Thus, whereas here, an illegal closed -shop agreement exists and a union,
seeks to invoke a claimed contractual obligation , it may be said that it does more than
express a view, argument , or opinion-which is all that Section 8 (c) protects. In any
event, of course , Member Murdock would be bound by the majority decision in Sub,
Grade Engineering.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganization as a condition of employment as authorized in 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) Upon request, make available to the 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 to -analyze the amounts of back pay due under the
terms of this Order.
(2) Post at its office in Detroit, Michigan, copies of the notice
attached hereto and marked Appendix A.3 Copies of said notice,
to be furnished by the Regional Director for the Ninth Region, shall,
after being duly signed by the Respondent Company's representative,
be posted by the Respondent Company immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees and applicants for employment are customarily posted. Rea-
sonable steps shall be taken by the Respondent Company to insure
that said notices are not altered, defaced, or covered by any other
material.
(3) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
2. The Respondent, Local 22, Bridge, Structural and Ornamental
Ironworkers of Indianapolis, AFL, its officers, representatives, and
agents, shall :
(a) Cease and desist from:
(1) Causing or attempting to cause W. Hawley & Company, its
'Oficers, agents, successors, or assigns, to discharge or discriminate in
any other manner against employees because they are not members
in good standing in Local 22, Bridge, Structural and Ornamental
Ironworkers of Indianapolis, AFL, except in accordance with Sec-
tion 8 (a) (3) of the Act.
(2) Restraining or coercing in any other manner the employees of
W. Hawley & Company in the exercise of their right to engage in or
to refrain from engaging in any and all of the concerted activities
guaranteed to them by Section 7, except .to the extent that such right
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 :
I In the event that 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."
W. HAWLEY & COMPANY 1129
(1) Post at its office and union hall in Indianapolis , Indiana, and
wherever notices to members are customarily posted, copies of the
notice attached hereto as Appendix B. 4 Copies of said notice, to be
furnished by the Regional Director for the Ninth Region, shall, after
being duly signed by the Respondent Union's representative , be posted
by it immediately upon receipt thereof, and be maintained by it for
a period of at least sixty ( 60) consecutive days thereafter in con-
spicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the Respon-
dent Union to insure that such notices are not altered , defaced, or
covered by any other material;
(2) Notify the Regional Director for the Ninth Region in writing
ten (10 ) days from the date of this Order, what steps have been taken
to comply herewith.
3. S. J. Hawley and J . H. Patridge d/b/a W . Hawley & Company,,
its officers , agents , successors , and assigns , and Local 22, Bridge, Struc-
tural and Ornamental Ironworkers of Indianapolis , AFL, its officers,
representatives , agents, successors and assigns shall jointly - and sev-
erally make whole Charles C. Combs and Nelson L. Ellis for any loss
of pay each may have suffered because of the discrimination against
him, in the manner provided in the section of the Intermediate Report,
entitled "The Remedy."
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, we hereby notify our employees that:
WE WILL NOT encourage membership in LOCAL 22, BRIDGE, STRUC-
TURAL AND ORNAMENTAL IRONWORKERS OF INDIANAPOLIS, AFL,
or in any other labor organization of our employees, or discourage
membership in any labor organization of our employees, by dis-
criminatorily discharging any of our employees or by discrimi-
nating in any manner in regard to their hire or tenure of employ-
ment, or any terms or conditions of employment.
WE WILL NOT in any like- or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guar-
anteed to 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 organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act.
WE WILL make Charles C. Combs and Nelson L. Ellis whole for
any'loss of pay suffered as a result of the discrimination against
them.
4 See footnote 3.
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain, or to refrain from be-
coming or remaining, members in good standing 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.
S. J. HAWLEY and J. H. PATRIDGE d/b/a
W. HAWLEY & COMPANY,
Employer.
By -----------------------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other•material.
Appendix B
NOTICE TO ALL MEMBERS OF LOCAL 22, BRIDGE, STRUCTURAL AND ORNA-
MENTAL IRONWORKERS OF INDIANAPOLIS, AFL and TO ALL EM-
PLOYEES OF, AND APPLICANTS FOR EMPLOYMENT WITH, W. HAWLEY &
COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT cause or attempt to cause W. HAWLEY & COMPANY,
its officers, agents, successors, or assigns, to discharge or to dis-
,criminate. against employees in any other manner because of non-
membership in this organization, except,in accordance with an
agreement authorized under Section 8 (a) (3) of the Act.
AVE WILL NOT in any manner restrain or coerce the employees of
W. HAWLEY & COMPANY, its successors or assigns, in the exercise of
their right to engage in or to refrain from engaging in any or all
,of the concerted activities guaranteed to them by Section 7 of the
Act.
WE WILL make Charles C. Combs and Nelson L. Ellis whole for
any loss of pay they may have suffered because of the discrimina-
tion against them.
LOCAL 22, BRIDGE, STRUCTURAL AND ORNAMENTAL
IRONWORKERS OF INDIANAPOLIS, AFL,
Labor Organization.
By -------------------------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
W. HAWLEY & COMPANY 1131
Intermediate Report and Recommended Order
Mr. Harold V Cai y, for the General Counsel.
Mr. Robert D. Malarney, of Indianapolis, Ind, for the Respondent Union.
Mr. George Rose, of Indianapolis, Ind., for the Respondent Company.
Messrs. Nelson L. Ellis and Charles C. Combs, of Indianapolis, Ind., pro se.
STATEMENT OF TIIE CASE
Upon charges duly filed by Charles C. Combs and Nelson L. Ellis, the General
Counsel of the National Labor Relations Board, herein called respectively, the
General Counsel' and the Board, by the Regional Director for the Ninth Region
(Cincinnati, Ohio), issued his consolidated complaint dated July 20, 1950,
against S. J. Hawley and J. H Patridge d/b/a W Hawley & Company, herein
called the Respondent Company, and Local 22, Bridge, Structural and Orna-
mental Ironworkers of Indianapolis, AFL, herein called the Respondent Union
and on occasion the Ironworkers, alleging that the Respondents had engaged
in and were engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and (3), and Section 8 (b) (1) (A) and (2), re-
spectively, and Section 2 (6) and (7) of the National Labor Relations Act, as
amended (61 Stat. 136), herein called the Act. Copies of the consolidated com-
plaint, the charges, order consolidating cases, and notice of bearing were duly_
served upon the Respondents and the charging parties.
With respect to the unfair labor practices, the complaint alleged in substance:
(1) That on or about September 12, 1949, the Respondent Company discharged
Charles C Combs and Nelson L. Ellis and has since that time failed and refused
to reinstate them to their former positions for the purpose of discouraging
membership in Local Union 60 and Local Union 758, United Brotherhood of
Carpenters and Joiners of America, AFL, of which unions Combs and Ellis were
respectively members, for the purpose of discouraging membership in said Car-
penters Union and encouraging membership in the Respondent Union; (2) that
on or about September 12, 1949, the Respondent Union attempted to cause and
did cause the Respondent Company to discharge the above-named employees and
to refuse to hire or reinstate them for the purpose of discouraging membership
in the Carpenters Union and encouraging membership in the Respondent Union;
(3) that by reason of the aforesaid discharge of said employees the Respondent
Company discriminated against its employees and is now discriminating against
them ; interfered with, restrained, and coerced and is now interfering with, re-
straining, and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, and did thereby engage in and is now engaging in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, and
(4) that by reason of its conduct as set forth above, the Respondent Union did
engage in and is now engaging in unfair labor practices within the meaning of
Section 8 (b) (1) (A) and (2) of the Act The Respondents duly filed their
separate answers in which they denied commission of any of the unfair labor
practices attributed to them.
Pursuant to notice, a hearing was held at Indianapolis, Indiana, on September
12, 1950, before John Lewis, the undersigned Trial Examiner, duly designated
by the Chief Trial Examiner. The General Counsel, the Union, and the Com-
pany were represented by counsel and participated in the hearing. Full op-
portunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. At the conclusion of
the hearing the undersigned granted a motion by the General Counsel to con-
'The attorney representing the General Counsel at the hearing is also referred to
herein as the General Counsel.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form the pleadings to the proof as to dates, names, and other formal matters. Op-
portunity was afforded all parties to argue orally before the undersigned and to•
file briefs or proposed findings of fact and conclusions of law, or both. The
parties waived oral arguments. Briefs have been received since the close of
the hearing from the Respondent Company and from the Respondent Union.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Respondent, W. Hawley & Company, is a partnership engaged in the con-
struction business, with its main office and place of business in Detroit, Michigan.
In the year 1949 its purchases of equipment and supplies amounted to $250,000,
of which 75 percent was shipped to the Company directly from points outside
the State of Michigan. During the same period the Company rendered construc-
tion services in excess of $250,000 , of which a substantial portion was performed
on projects in States other than the State of Michigan and for firms which
themselves were engaged in interstate commerce . In 1949 the Company's prin-
cipal contract was in connection with the installation of steam generating equip-
ment at the plant of the Western Electric Company at Indianapolis , Indiana.
The total value of the entire project of the Western Electric Company at Indian-
apolis was in excess of $10,000,000. The amount of the Company's contract on
this project was in excess of $300,000 . The materials purchased by the Com-
pany to be used on the project were in excess of $200,000 , of which substantially
all were shipped to the Company at its project in Indianapolis, Indiana, from
points outside the State of Indiana . The Company concedes and the under-
signed finds that at all times material herein the Company was engaged in
commerce within the meaning of the Act 2
II. THE ORGANIZATIONS INVOLVED
Local 22, Bridge, Structural and Ornamental Ironworkers of Indianapolis,
AFL; and Local Union 60 and Local Union 758 , United Brotherhood of Car-
penters and Joiners of America, AFL, are each labor organizations within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and hiring practices
Between July 1949 and January 1950 the Respondent Company was engaged
in the installation of three automatic stokers at the plant being constructed
for the Western Electric Company in Indianapolis , Indiana. The main con-
struction work in connection with the erection of the plant was performed under
the supervision of the firm of Huber, Hunt and Nichols, as general contractor.
The Respondent Company's part of the work was performed under direct con-
tract with the Western Electric Company. The general contractor was a member
of the Building Contractors Association of Indianapolis, which represents a
number of building contractors in the Indianapolis area in collective bargaining
with the various A. F. of L. craft unions in the construction industry, and most
2 The above findings are based on facts stipulated by the General Counsel and the
Company. The Union did not join in such stipulation , for the reason that it was without
personal knowledge of the facts regarding the Company 's business . It stated , however,
that it had no objection to the receipt of the stipulation in evidence and did not desire
to cross -examine witnesses with respect to the interstate aspects of the Company's business.-
W. HAWLEY & COMPANY 1133
,of the work performed under its supervision conformed to the requirements of
existing contracts with the building trades unions. The Respondent Company,
as a Detroit firm, was not a member of the Contractors Association of Indian-
apolis and was not a party to these agreements however, it was the usual
practice for outside contractors coming into the Indianapolis area to ascertain
from the Association what the requirements of existing contracts were and to
voluntarily comply therewith.
Prior to starting work under its contract with Western Electric, the Respond-
ent Company's Detroit office secured information from the Building Contractors
Association of Indianapolis as to existing practices in the Indianapolis area
through the Power Plant Contractors Association of which it is a member. In
addition, the Company's superintendent on the job, John W. Seaver, upon ar-
riving in Indianapolis around July 5, 1949, communicated with the business
agents of the various building trades unions whose crafts would be involved in
the installation of the stokers According to Seaver, the Power Plant Associ-
ation advises its members to communicate with the business agents of the unions
in the local area where they are performing a job and advises its members to
abide by existing practices. Seaver, having previously worked on several jobs
in this area, was familiar with existing practices and knew the business agents
of the various unions.
Among the business agents with whom Seaver communicated was William
Hazelwood of the Respondent Union, Local 22 Ironworkers Seaver received
from Hazelwood a booklet containing the working rules of the Ironworkers In-
ternational Union and orally agreed to abide by these rules.' The booklet,
which is entitled "General Working Rules of the International Association of
Bridge, Structural and Ornamental Ironworkers," contains the following pro-
visions pertinent to this proceeding :
Jurisdiction of Work
Section 1. This organization claims for its members the following work:
The fabrication, erection and construction of all iron and steel, ornamental
lead, bronze, brass, copper, and aluminum reinforced concrete structures
or parts thereof ; . . stokers . . .
s e a
Employment of Members
Section 3. The conditions governing the employment of members of this
Union on all of the work outlined in Section 1 shall be as follows: [Follow-
ing this section there appear a number of sections relating to hours of work,
shifts, holidays, over-time, and other provisions not pertinent to this pro-
ceeding.]
Supplying Members to Employer
Section 13 Only members who ale in good standing in the International
Association, or those who have declared their intention of becoming mem-
a The above finding is based on the uncontradicted and credited testimony of Seaver
who testified
Q Did you have an undeistandmg or agreement orally with Mr Hazelwood that
you would work under the conditions as set forth in the book''
A. Yes, I did It is an oral agreement, but the agreement I had with Mr. Hazelwood
would differ none from the same I would have with the bricklayers, boilermakers,
carpenters, electricians, or whatever the trade may be
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bers shall be employed. In the event the local union is unable to supply
the required number of men to the employer within forty-eight (48) hours,
he may employ such men as may qualify and who agree to become members
after meeting the requirements of the local union. [Emphasis supplied.]
Employment of Local and Outside 'Membership
Section 27. On all jobs in the jurisdiction of the Local Union not less
than fifty per cent of the members of the local union must be at all times
employed unless the required number of qualified members are not available.
This permits employers to employ fifty per cent of the members from other
local unions of our International Association on each job.
Permits for Members
Section 28. A member of the International Association in good standing
in some other local union shall be entitled to full working privileges after
first notifying the Financial Secretary, Business Agent or proper officer of
the local union in accordance with the provisions of the International Con-
stitution governing issuance of permits and transfers. A member of another
local union who is in arrears may secure International working permit after
applying to and receiving approval of the Executive Boaid of this local union
and such member shall be required to pay $2.00 per day for every day he
works to apply upon his ledger account until he is placed in good standing-
Permits for Non-'Members
Paragraph A. A man qualified may secure a permit to work from the
Business Representative and shall appear at the first meeting of the Examin-
ing Board who shall direct and instruct him relative to membership and
payment of initiation fee and such permit will be recognized by all Stewards
according to the provisions thereon.
*
Employers Assured Men as Needed
Section 30. In the event the union is unable to supply the required number
of needed men the employer may employ such men as are available. These
men shall be issued a working permit by the Business Representative as pro-
vided in Section covering permits. provided that such permit men who possess
necessary qualifications shall become members of the union and shall, after
passing examination, be considered as though members of the union.
Job Steward Duties
Section 34. There shall be a Steward on each job who shall be a member
in good standing of this Local Union, and he shall be appointed by the Busi-
ness Representative or elected by men on the job, subject to the approval of
the Business Representative. The steward shall see that every man on the
job is in good standing with this Union, or see the proper credentials which
shall permit him to work on the job. . . .
The existing collective bargaining agreement between the Building Contrac-
tors Association of Indianapolis and Local 22, which is dated June 6, 1949,
embodies verbatim all the working rules of the Ironworkers International Union,
including those set forth above The agreement also contains a supplement,
W. HAWLEY & COMPANY 1135
likewise dated June 6, 1949, which recites that the "parties have this day
entered into an Agreement embodying the `General Working Rules of the In-
ternational Association of Bridge, Structural, and Ornamental Ironworkers',
as the basis of working conditions and wages for the parties thereto and their
several members," and which purports to cover "local interpretations, practices
and principles" not covered by the main agreement. Among the pertinent
provisions of the supplemental agreement are the following:
(A-5) The employer is at liberty to employ and discharge whomsoever
lie sees fit, provided however, that no employee shall be discharged or dis-
criminated against because of the performance of duties in connection with
his union membership.
* * k *4.
(B-1) The first party [the employer association] agrees as set out in
Sec. 30 of original agreement, to employ only members of the International
Association of Bridge, Structural and Ornamental Ironworkers to perform
such work as comes under the proper jurisdiction of this Union within the
territory specified under this agreement and at the wages herein stipu-
lated, and further agrees to provide in all sub-contracts for work coining
under the jurisdiction of Local No. 22, but that the sub-contractor shall
conform to the text of these agreements. [Emphasis supplied ]
(C-2) The second party [the union] agrees that its members shall not
refuse to work for any members of the first party because of the employment
of nonunion men by any owner for whom the first pasty is erecting a build-
ing or any part of a building, provided the first party shall employ members
of the International Association of Bridge; Structural and Ornamental Iron-
workers, to perform all of the work coming under its proper jurisdiction
which the first party shall have under contract. [Emphasis supplied.]
It does not appear whether Seaver ever received from Hazelwood, or saw, a
copy of the collective bargaining agreement, aside from the working rules which
Hazelwood gave him and which are embodied in the main agreement. Pre-
sumably, the Company's office in Detroit was familiar with this and other
agreements by virtue of the information which it secured from the Contractors
Association.
B The hip ing and discharge of Combs and Ellis
Work under the Company's contract with Western Electric started around
July 15, 1949. Thereafter, as the job progressed, the Company employed various
categories of employees, including carpenters, ironworkers, boilermakers, brick-
layers, and laborers. These employees were all obtained through the business
agents of their respective unions During the early part of September, the Com-
pany employed a number of ironworkers in erecting the steel sections of the
stokers and the work had reached the point where it was necessary to install
and align the drive shafts for the stokers. The foreman of the ironworkers'
crew, Noah Adams, informed Seaver that the services of two millwrights were
required to install and align the shafts. Adams was not a member of the
Respondent Union, Local 22, but belonged to Local 25 of the Ironworkers Union
in Detroit, and had received permission from Business Agent Hazelwood to act
as foreman on this job In the Detroit area, according to Adams, the installation
and aligning of the drive shaft is normally performed by millwrights and it was
for that reason that he suggested to Seaver that the millwrights be hired In
accordance with the usual practice of hiring employees through their union,
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seaver telephoned the business agent of the Carpenters Union, Locals 60 and
758, and asked for two millwrights. The following day, September 8, 1949,
Combs and Ellis, members of Locals 60 and 758, respectively, of the Carpenters
Union, were given referral cards by their business agent and reported to work
at the construction site. They received instructions as to what was required
of them by a Mr. Bille, a representative of the Detroit Stoker Company from
which Respondent had purchased the stokers and who was assisting in the
installation thereof.
Shortly after they started work, George Ehl, steward of Local 22 on the job,
complained to Foreman Adams and to Superintendent Seaver that the work
being performed by Combs and Ellis fell within the jurisdiction of the Iron-
workers and not the Carpenters." Thereafter, Seaver himself informed Combs
and Ellis of the complaint of the Ironworkers' steward and suggested that they
ask their business agent to come to see him, stating that he had also sent for
the Ironworkers' business agent. About a half hour later, Ehl, the Ironworker's
steward, also spoke to Combs, who was acting as steward for the two carpenters,
and advised him that the work he and Ellis were performing fell under the juris-
diction of the Ironworkers Union 6
Both Combs and Ellis continued to work without further interruption on
Thursday, September 8, and Friday, September 9. No work was performed on
the project during the week end of September 10 and 11. Both men again re-
ported for work on Monday, September 12. According to Combs, when he
started work that morning, Bille told him that the Ironworkers' steward had
informed him Hazelwood, the business agent of the Ironworkers, would be out
"to run us off the job that day." Combs and Ellis nevertheless, continued work-
ing. Later in the morning, Hazelwood came out on the job and spoke to Seaver
about the employment of the two millwrights. Hazelwood called Seaver's at-
tention to the fact that under the book of working rules which Seaver had
received, the work which Combs and Ellis were performing in connection with
the installation of the stokers fell within the jurisdiction of the Ironworkers
Union. Although there is no direct evidence that Hazelwood made any threats
or that he specifically requested the discharge of Combs and Ellis, the testimony
discloses that Hazelwood claimed the work which they were performing and
made it clear that he wanted it to be assigned to members of the Ironworkers
Union! There is no evidence that the Carpenters' business agent came to see
4 Accoidmg to Adams, Ehl told him, "You will have to let those two millwrights go ;
Dutch [Hazelwood] told me there's no miliwiights allowed on this job" Ehl, although
admitting that lie told Adams and Seaver that the two men were doing work which
belonged to the Ironworkers, denied asking that they be discharged, claiming that he
would be exceeding his authoiity to have made such a request. It may be noted, in this
connection, that the working rules require the steward to "see that every man on the
job is in good standing with this Union , or see the proper credentials which shall permit
him to work on the job " For purposes of the conclusions hereinafter reached, it is
unnecessary to determine whether Ehl specifically told Adams to let the men go
e According to Combs, Ehl stated that the lionworkers' business agent was coming
out "to run you off the job." Ehl denied making any such threats For purposes of
the conclusions hereinafter reached, the undersigned finds it unnecessary to resolve this
conflict in the testimony.
The above finding is based on the credited testimony of Seaver who, on the whole,
impressed the undersigned favorably while on the witness stand, despite his obvious
reluctance to give testimony which might be harmful to the Union Hazelwood, in his
testimony, attempted to give the impression that he had not requested or suggesed the
discharge of the two millwrights but that Seaver himself had volunteered the information
that he was going to let the men go at the end of the day. Hazelwood impressed the
undersigned as an unreliable witness, who was either deliberately withholding information
or coloring his testimony , or at best, had a faulty recollection regarding the events in
issue The reliability of his testimony may be gauged from the fact that in an affidavit
W, HAWLEY & COMPANY 1137
Seaver, as requested by the latter, although Combs testified he talked to his
business agent and the latter advised him it was their work.
Around noon on September 12 when Combs went to Seaver's office to get some
tools, Seaver stopped him and, according to Combs, told him he was going to
have to let both Combs and Ellis go as "Mr. Hazelwood had been out and told
him to get us off the job." Around 2 o'clock that afternoon Seaver came out
to Combs and Ellis and handed them their checks. According to Combs' testi-
mony, which was substantially corroborated by Ellis, Seaver told them he was
sorry to let them go as their work was satisfactory, but that he had no alterna-
tive since Hazelwood had informed him he was going to "pull his ironworkers
off the job" if Seaver did not let the two millwrights go. Both men left the job
and did not return thereafter. Seaver attempted to reach Combs and Ellis,
through a member of their Union, in December in order to offer them work but
did not succeed in reaching them. He wrote to both of them in January to come
to work, but both declined.
C. Contentions and conclusions
1. As to the Respondent Company
The Company's position, as set forth in its brief, seems to be that since under
decisions of the Supreme Court z an employer has the basic right to choose his
employees, and since the Company could have originally assigned the work in.
question to ironworkers instead of millwrights on the basis of the former's
assumed superior qualifications for this work, the fact that it mistakenly hired
these employees and later discharged them under pressure from the Union can-
not make illegal what would have been legal if the Company, acting without
pressure, had initially chosen ironworkers to perform the work. Respondent
also stresses the fact that there is no claim it was guilty of antiunion animus,
and points out that it was merely trying to follow jurisdictional lines of the
building trades unions in order to get the work done quickly and effectively
without getting involved "in a purposeless wrangle with all the unions."
There is no question of the fundamental right of an employer to choose his
employees. However, that right is subject to the limitation that his choice in
hiring or discharging employees may not be governed by considerations of the
employee's membership or nonmembership in any labor organization (except
insofar as Section 8 (a) (3) permits an employer to condition employment on
membership in a labor organization). The fact that an employer may not have
any antiunion animus in the generic sense but is merely trying to recognize the
jurisdictional claims of one union over another does not prevent his action from
coming within the proscription of Section 8 (a) (3). The Supreme Court, in
addition to upholding the employer's fundamental right to hire and fire his em-
ployees has also recognized that a discharge "in order to favor one union over
another, would discriminate in regard to the `tenure' or `condition' of their em-
ployment in violation of the Act." 9 Section 8 (a) (3) of the Act envisages not
only conduct motivated by the antiunion animus of the employer, but also con-
which he executed for a Board field examiner investigating the case, Hazelwood stated
that he had no knowledge of the hiring of the millwrights, never spoke to Seaver about
the matter, and that his first knowledge about the matter was when he received a letter
from the Board informing him of the filing of the charges by Combs and Ellis. At the
hearing lie at least conceded speaking to Seaver about the matter, albeit he attempted
to minimize his part in the discharges.
' N. L. R. B v Jones & Laughlin Steel Corporation, 301 U. S. 1 ; N. L if. B. v.
Associated Press, 301 U. S 103.
IN. L. if. B. v. Waterman Steamship Corporation, 309 U. S. 206.
943 7 32-31-73
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct which involves the encouragement of membership in one labor organization,
rather than another! Granted that the Respondent would initially have had a
right to hire ironworkers on the basis of their assumed superior qualifications
to perform this work and, similarly, to discharge them upon discovering their lack
of qualification, the evidence here is nevertheless clear and unmistakable that
Combs and Ellis were not discharged because of their lack of qualifications but
because of their nonmembership in the Respondent Union Seaver specifically
testified that : "I did not lay them off because of their ability. Their workman-
ship was excellent." The record is also clear, and the undersigned so finds, that
Combs and Ellis were laid off because they were not members of the Respondent
Union which laid claim to the work they were performing, and that but for that
fact they would not have been laid off on September 12
As previously mentioned, Respondent alludes to the difficult position in which
an employer is placed when confronted with conflicting jurisdictional claims.
However, as Respondent itself recognizes from the cases cited in its brief, the
Board has consistently held that the fact a discharge is made as a result of
pressure from a union does not remove the employer's action from the proscrip-
tion of Section 8 (a) (3).10 This principle has been recognized by the Board
as being equally applicable under the present Act as it was under the Wagner
Act." Respondent suggests in its brief that the position taken by the Board
is unrealistic and that "it pictures the efforts made by the employer to keep
the business operating. as something selfish " It is not within the province of
'the undersigned to pass upon the wisdom of the Board's well-established posi-
tion in this type of case. It may be observed, however, that the Board has not
imputed any evil motives to the employer and -has not been unmindful of the
difficult choice confronting him in this situation, but has felt unable to reach
any other conclusion in view of the plain wording of the statute. 12 The fact
that the Board's position has been upheld by at least four separate circuits of
the Court of Appeals should suggest to Respondent that it is not based on the
doctrinaire concepts of an administrative agency la As suggested by the Court
in two of these cases, Respondent's argument `should be directed to the Con-
gress and not to the Board." The Board has already been admonished not to
attempt to change the plain meaning of legislation by administrative interpreta-
tion in order to achieve a practical solution. 15
The undersigned finds that the Respondent Company discharged Combs and
Ellis on September 12, 1949, at the request of the Respondent Union. because
they were nonmembers in that Union, and that by thus discriminating in re-
ON L. R. B v American Car & Foundry Company , 161 F. 2d 501 (C. A. 7).
10 Star Publishing Company, 4 NLRB 498, 505, enf 97 F 2d 465 (C. A. 9) ; Cape Cod
Trawling Corporation, 23 NLRB 208, Hudson Motor Car Company, 34 NLRB 815, 826,
enf 128 F. 2d 528 (C A. 6) , Gluck Brewing Company, 47 NLRB 1079, 1094 , enf as mod.
144 F 2d 847 (C. A. 8).
u Lloyd A . Fry Roofing Company , 89 NLRB 854 ; Acme Mattress Company, Inc.,
91 NLRB 1010.
12 See Star Publishing Company , supra, in which the Board stated : "We realize that
the respondent was placed in an unenviable position by the Teamsters ' ultimatum, but
the violation of the Act is unmistakable "
Ii N. L R B v Star Publishing Company, supra (C A 9) ; N. L. It. B. v. Hudson
Motor Car Company , supra ( C. A 6) , and N . L. R B. v Gluck Brewing Company, supra
(C. A 8) ; N. L. R. B v. American Car c Foundry Company, supra (C. A. 7).
14 In the Hudson Motor Car Company case the court of appeals stated : "We think such
an argument should be submitted to the Congress and not to us " In the Star Publishing
Company case the court of appeals similarly stated : "Respondent 's contention, in the
last analysis. is that it is subjected to great hardship, which should also have been dealt
with by Congress. We think that such an argument should be submitted to Congress
but not to as "
15 Colgate -Palmolive-Peet Company v. N L R B ., 338 U S 355.
W. HAWLEY & COMPANY 1139
gard to the hire and tenure of employment of Combs and Ellis it encouraged
membership in the Respondent Union, in violation of Section 8 (a) (3) of
the Act. It is further found that by such action the Respondent Company
likewise interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act in violation of Section 8 (a)
(1) n The evidence also discloses that the request of the Union that Combs
and Ellis be discharged was made pursuant to a closed-shop arrangement agreed
to by Respondent's Superintendent Seaver with Hazelwood, the business agent
of Local 22. However, since the complaint does not allege that the Company
violated the Act by entering into such an arrangement, the undersigned finds
it unnecessary to determine whether by such conduct the Respondent Coin-
pany restrained and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act, in violation of Section 2 (a) (1).17
2. As to the Respondent Union
The Respondent Union, in its brief, claims that all it did was to advise' the
Employer that the work being performed by Combs and Ellis "was properly
the work of the Ironworkers." By implication, the Union seems to suggest that
there was no actual request by it that they be discharged. The Union also
directs attention to the fact that the record fails to establish any threat of a
work stoppage by the Union, except inferentially.
The undersigned is satisfied from the testimony as a whole that Combs and
Ellis were discharged on September 12, 1949, at the request of the Respondent
Union. Whether the Union specifically requested their discharge, or merely in-
sisted that the work being performed by them be assigned to members of the
Ironworkers Union, is a matter of semantic hair splitting since the necessary re-
sult and effect of the Union's insistence that such work be assigned to its mem-
bers would be to cause the removal of Combs and Ellis from this work and
the consequent termination of their employment.
With regard to whether the request to discharge Combs and Ellis was accom-
panied by any threat of economic action on the part of the Union, the under-
signed agrees that the evidence fails to establish any direct threat of such action.
Both Combs and Ellis testified that when Seaver handed them their checks he
stated that he was, letting them go because Hazelwood had said, "he is going to
pull his iron workers off the job." However, Seaver denied in his testimony
that he was under any duress or threat from union officials in making the dis-
charge. Hazelwood likewise denied making any threat to call a strike or to
picket the job. The under signed is unable to make any finding of a threat of
economic action based on the hearsay testimony of Combs and Ellis as to what
Seaver told them Hazelwood had said. There was also testimony by Combs that
after his discharge, as he was leaving the job, Foreman Adams told him that he
(Adams) had advised Seaver to let the men go because Hazelwood "put the pres-
sure on him." There was no indication in the record as to what form this "pres-
sure" took and, specifically, that it involved any threat of economic action."
16Llogd A. Fry Roofing Company, supra, Clara-Val Packing Company, 87 NLRB 703;
Union Starch & Refining Company, 87 NLRB 779.
17 See, however, Julius Resnick, Inc, 86 NLRB 38; Clara-Val Packing Company, supra.
The fact that such an agreement was oral and not in writing would not remove it from
the restiictions placed on such agreements by Section 8 (a) (3) of the Act. See Von's
Grocery Company, 91 NLRB 504, N L R B. v Scientific Nutrition Corporation, 180 F.
2d 447, 449 (C A 9) ; cf. Conway's F,.apres7, 87 NLRB 972
18 According to Adams ' testimony , Hazelwood told him the work which Combs and Ellis
were doing belonged to the Ironworkers Union and that he should "have them ironworkers
over here " However, there was no testimony by Adams of any threat having been made
to him by Hazelwood.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, irrespective of whether there was any direct threat of economic
action, it is the opinion of the undersigned that the request by a union for the
discharge of employees under the circumstances here present violates Section
8 (b) (2) of the Act, without regard to whether such request is accompanied by
the threat of economic action. The Board has held that the mere execution of
a closed-shop agreement with the intention of enforcing it is an attempt to cause
an employer to discriminate against employees in violation of Section 8 (a) (3)
of the Act , thereby violating Section 8 ( b) (2) thereof . 19 A. fortiori , the actual
discharge pursuant to such an illegal agreement would be a violation of Section
8 (b) (2). As previously indicated , the exidence discloses that there was in ef-
fect an illegal closed-shop arrangement between the Union and the Company.
While no finding of violation can be based on the actual execution of the agree-
ment since the complaint contains no,such allegation , there is nothing to prevent
a finding of violation of Section 8 (b) (2) based on the actual discharge of these
employees which took place in the frame of reference of such an illegal agree-
ment. Moreover , the Board has in a number of cases held Section 8 ( b) (2) to
have been violated by a union which requests an employer with whom it has a
closed-shop arrangement to discharge an employee for nonmembership in the
union or for reasons other than those permitted under Section 8 (a) (3) of the
Act, despite the absence of any evidence of threats of economic action 20 In at
least one case the Board has found a union which secured the discharge of em-
ployees to have violated Section 8 ( b) (2) even though it did not appear from the
record that the union had a closed-shop agreement with the employer or accom-
panied its action by any threats against the employer .
21 It is true that the Board
indicated in the Henry Shore and Juneau Spruce Corporation cases 22 that under
some circumstances a request to discriminate , unaccompanied by threats of eco-
nomic action , does not violate Section 8 (b) (2) of the Act. However , both of
these cases involved attempts to cause discrimination by a union which did not
maintain bargaining relations with the employer , had no agreement of any kind
with him, and did not even represent any of his employees . The principle of
these cases is not, in the opinion of the undersigned , applicable to a case such as
the instant case where the Union has a closed -shop arrangement with the Em-
ployer and is the recognized bargaining agent of a group of his employees.
Although , as indicated in the Henry Shore case , the legislative history of Sec-
tion 8 ( b) (2) suggests that something more than an "attempt to persuade" is
necessary in order to constitute a violation of Section 8 (b) (2), that something,
in the opinion of the undersigned , need not reach the proportions of an actual
threat to strike but may be found to exist where a union, which occupies vis-a-vis
the employer an economic relationship placing it in a position to force com-
pliance with its demands , firmly insists that the employer take action to dispense
with the services of an employee who is not a member of the union . Viewed in
the light of economic realities , the possibility of economic action should the
employer fail to comply with the request is recognized by the parties as im-
is Acme Mattress Company, Inc , 91 NLRB 1010 , Pacific American Shipowners
Association ( National Union of Marine Cooks and Stewards ), 90 NLRB 1099 ; Waterfront
Employers Association of the Pacific Coast ( International Longshoremen 's and Ware-
housemen's Union ), 90 NLRB 1021.
R0 Kingston Cake Company, Inc., 91 NLRB 447; New York Shipbuilding Corporation,
S9 NLRB 1446 ; Pen and Pencil Workers Union , Local 19593, AFL (Wslhelmina Becker),
91 NLRB 883.
10Air Products , Incorporated, 91 NLRB No. 212.
22 Denver Building Construction Trades Council ( Henry Shore), 90 NLRB 1768 ; Inter-
national Longshoremen 's and Warehousemen 's Union, Local No. 16 (Juneau Spruce
Corporation), 90 NLRB 1753.
W. HAWLEY _ & 'COMPANY 1141
plicit in such a situation, even though the actual word "strike" or some similar
language is never uttered. Thus, the evidence here shows that the entire
construction project at the Western Electric plant was being manned primarily
by union employees ; that the Respondent Company's part of the job was being
performed in accordance with the established union practices in the area; that
the Company had specifically agreed with the Respondent Union to abide by
the union working rules which provided that only members of the Union should
be employed on work falling within its jurisdiction; and that both the union
steward and business agent had insisted that the Company abide by these working
rules and employ only members of that organization to perform the actual
installation work. To say that the Union's request under such circumstances
was mere "persuasion" is to ignore the facts of life. It is clear from Seaver's
testimony that irrespective of whether any specific threat was voiced at the
time the requests were made, it was his natural and reasonable fear of economic
action on the part of the Union that motivated his decision to let Combs and
Ellis go.22
From the record as a whole the undersigned finds that by causing the Respond-
ent Company to discharge Combs and Ellis because they were not members of
the Respondent Union, the Union caused the Company to discriminate against
Combs and Ellis in violation of Section 8 (a) (3) of the Act, thereby violating
Section 8 (b) (2) thereof, and that by causing the discharge of Combs and Ellis
the Union restrained and coerced the employees in the exercise of the rights
guaranteed by Section 7 of the Act, thereby also violating Section 8 (b) (1) (A)
thereof.24 As previously indicated, since the complaint does not allege the exe-
cution of the closed-shop agreement, which has been found to exist here, as a
violation of the Act, no finding of violation will be based thereon.26
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring
in connection with the activities of the Respondent Company described in Section
I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in ,and are engaging in
certain unfair labor practices, it will be recommended that they cease and desist
therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
Although it is customary to recommend the reinstatement of employees who
have been discriminatorily discharged, no such recommendation will be made
23 Seaver testified that in employing members of the different crafts on the job he
felt "bound by the jurisdictional lines which are established in that particular area."
He stated that although the work could probably have been done with laborers, he would
not consider doing so since if he had "the business agents of the other unions would
have rained down on me like a cloud " Although somewhat reluctant to admit that it
was the fear of strike action which motivated his decision to let Combs and Ellis go,
Seaver, after testifying that lie did so in order to "keep harmony on the job" and to
prevent "differences of opinion" finally conceded that he was worried about a "work
stoppage" if "I continued on with the millwrights."
24 Clara-Val Packing Company, supra, Union Starch & Refining Company, supra.
26 See , however, Acme Mattress Company, Inc, 91 NLRB 1010; Pacific American Ship-
owners Association , 90 NLRB 1099; Waterfront Employers Association of the Pacific
Coast, 90 NLRB 1021.
I
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
here in view of the fact that the Respondent Company's contract for the installa-
tion of the stokers was completed on January 15, 1950 However, since it has
been found that both the Respondent Company and the Respondent Union are
responsible for the discrimination suffered by Combs and Ellis, it will be recom-
mended that they jointly and severally make the discriminatees whole for any
loss of pay they may have suffered by reason of the discrimination against them.
A problem is presented in delimiting the period for which Combs and Ellis are
entitled to'be compensated for loss of earnings. In no event could it extend
beyond January 3, 1950, in the case of Combs, and January 6, 1950, in the case
of Ellis, when they received offers of reinstatement. However, the specific dis-
crimination charged in the complaint is their discharge at the request of the
Respondent Union. The evidence shows that no ironworkers were employed on
the job after October 23, 1949, except for 1 week in December 26 This would
therefore fix the outside limit of Respondents' potential liability for loss of
earnings. However, according to Seaver's credited testimony, Combs and Ellis
were not hired to work for the entire period when the ironworkers were em-
ployed but were hired only for the installation and aligning of the shafts on
the stokers, which would ordinarily take about a day and a half per stoker or
41/ days for the three stokers Combs testified that he was under the impres-
sion he and Ellis would have 2 to 4 months' work on the project but admitted
that he had received this impression from what his business agent had said and
not from Seaver.27 Although Combs claimed that there was other work on the
project which he could have performed and although Seaver admitted that most
of the work connected with the installation of the stokers could have been per-
formed by laborers under Belle's supervision, the evidence is clear that these
employees were hired by the Company in September only to work on the in-
stallation of the shafts and that their discharge at the request of the Respondent
Union resulted only because of their engagement in that work. While there
might have been some basis for the filing of further charges if the Respondent
Company had terminated their services at the end of 41/2 days because the juris-
dictional claims of the Ironworkers or some other union prevented their being
assigned to other work which they were qualified to do, such possible discrimi-
nation is too speculative and has no reasonable relationship to the charges and
complaint herein. It will therefore be recommended that Respondents' responsi-
bility for loss of earnings be limited to the period it would have taken to complete
the installation and aligning of the drive shafts in all the stokers, and that
Respondents pay Combs and Ellis the balance of the amount they would have
received had they worked the full period, less any net earnings received in other
employment during the balance of the period.
In view of the fact that the evidence discloses it to be the established policy
of the Respondent Union to insist on the maintenance of closed -shop conditions
26 The Company's payroll records starting with the week ending September 18, 1949
(the last week in which Combs and Ellis worked ), shows the employment of ironworkers
as follows :
September 18-12 journeymen and 1 foreman.
September 25-9 journeymen and 1 foreman
October 2-5 journeymen and 1 foreman.
October 9-3 journeymen and 1 foreman.
October 16-4 journeymen and 1 foreman.
October 23-0 journeymen and 1 foreman.
December 18-1 journeyman and 1 foreman.
21 There was some mention by Seaver at the time they were hired about having other
work for them at some indefinite date in the future in connection with the installation
of a turbine , but there is no evidence that the discrimination resulting from the request
of the Ironworkers had anything to do with Combs and Ellis not being hired for that work.
W. HAWLEY & COMPANY 1143
on any job on which its members are. employed in the area and because there
is danger of the commission of other unfair labor practices to be anticipated
from the Respondent Union's conduct in the past, the undersigned is of the
-opinion that the issuance of a broad cease and desist order against the Respond-
ent Union is necessary in order to effectuate the policies of the Act. It will there-
fore be recommended that the Respondent Union cease and desist from causing
or attempting to cause the Respondent Company or any other employer to dis-
criminate against Combs and Ellis or any other employee because of nonmem-
bership in the Respondent Union, except to the extent permitted by Section 8
(a) (3) of the Act, or in any other manner to cause or attempt to cause the Re-
spondent Company or any other employer to discriminate against any employee in
violation of Section 8 (a) (3) of the Act. It will be further recommended that
the Respondent Union cease and desist from restraining and coercing employees
of the Respondent Company or any other employer in the exercise of their right
to engage in or to refrain from engaging in any and all of the concerted activities
guaranteed by Section 7 of the Act. The undersigned will not recommend a
broad order that the Respondent Company cease and desist in any manner from
infringing upon the rights guaranteed to employees by Section 7 of the Act in
view of the fact that the discharges were impelled by the Respondent Union and
there is no evidence of independent violation of Section 8 (a) (1) of the Act.
The order recommended will be limited to the violation herein and like or related
conduct.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned-makes the following:
CONCLUSIONS of LAW
1. Local 22, Bridge, Structural and Ornamental Ironworkers of Indianapolis,
AFL; Local Union 60 and Local Union 758, United Brotherhood of Carpenters
and Joiners of America, AFL, are labor organizations within the meaning of
Section 2 (5) of the Act
2 By discriminating in regard to the hire and tenure of employment of Charles
,C. Combs and Nelson L Ellis, thereby encouraging membership in the Respondent
Union and discouraging membership in the Carpenters Union, the Respondent
Company, W. Hawley & Company, has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent Company has
engaged in and is engaging in unfair labor practices within the meaning of
section 8 (a) (1) of the Act.
4. By causing and attempting to cause the Respondent Company to discrimi-
nate against Charles C. Combs and Nelson L. Ellis in violation of Section 8 (a)
(3) of the Act, the Respondent Union has engaged in and is engaging in.unfair
labor practices within the meaning of Section 8 (b) (2) of the Act.
5. By restraining and coercing employees in the exercise of their rights guar-
anteed by Section 7 of the Act, Respondent Union has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act.'
6. The aforesaid unfair labor- practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended order omitted from publicationlication in this volume.]