George D. Auchter Co.

GEORGE D. AUCHTER COMPANY 881 ment employees, parking lot attendants, motorcycle drivers and porters, and service department clerk, but excluding front office clerical employees, new and used car salesmen, plant guards, service sales representative, and all supervisors as defined in the Act, consti- tute 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.] GEORGE D. AUCHTER COMPANY AND NORTHEASTERN FLORIDA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA and INTER- NATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE 112 CARPENTERS DISTRICT COUNCIL OF JACKSONVILLE AND VICINITY AND UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA and INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE 112. Cases Nos. 10-C.4-1251 and 10-CB-104. February 2, 1953 Decision and Order On March 21,1952, Trial Examiner Alba B. Martin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents, George D. Auchter Company, Northeastern Florida Chapter of the Associated General Contractors of America, and Car- penters District Council of Jacksonville and Vicinity, had engaged in and were engaging in certain unfair labor practices, and recom- mending that they cease and desist therefrom and take certain af- firmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the complaint was improperly issued under the proviso to Section 10 (b) of the Act as to a fourth Respondent, United Brotherhood of Carpenters and Joiners of America, and he recommended that the complaint be dis- missed as to this Respondent.'- Thereafter joint exceptions and a joint brief were filed by the Respondents George D. Auchter Com- pany, Northeastern Florida Chapter of the Associated General Con- tractors of America, and Carpenters District Council of Jacksonville and Vicinity.2 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 1 As no exceptions have been taken to the Trial Examiner's fiuding and recommendation concerning the Brotherhood, we shall adopt them. 2 Unless otherwise indicated the term "Respondents" when used below refers to these three Respondents jointly. 102 NLRB No. 79. 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, the brief, and the entire record in the case,3 and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner insofar as they are consistent with this Decision and Order. 1. We find no merit in the Respondent Company's contention that the record fails to establish that it is engaged in commerce within the meaning of the Act. The Respondent Company's presi- dent, George D. Auchter, conceded at the hearing that during the calendar year 1950 the Company rendered construction services valued at more than $5,000,000 to other employers located within the State of Florida, and that approximately $108,000 of this amount represented services rendered the National Container Corporation at Jacksonville, Florida. The Company contends, nevertheless, that the General Counsel has failed to establish the Board's jurisdiction because it was not proved at the hearing that the project immedi- ately involved in this proceeding affected interstate commerce. We cannot accept this contention. The Board has heretofore deter- mined to assert jurisdiction, without regard to other factors, when an employer whose operations are confined to one State annually furnishes services valued at $50,000 in the aggregate to other em- ployers engaged in interstate commerce who annually ship at least $25,000 worth of products out of the State .4 We have previously found, as noted by the Trial Examiner, that the National Container Corporation at Jacksonville is engaged in commerce within the meaning of the Act. It follows therefore that the Respondent Com- pany is so engaged and that the assertion of jurisdiction here will effectuate the policies of the Act.5 2. The Trial Examiner has found that by executing the agreement of September 27, 1950, the Respondent Association and the Respond- ent Company violated Section 8 (a) (1) and (3) of the Act, and that Respondent District Council violated Section 8 (b) (1) (A) and 8 (b) (2).3 Like the Trial Examiner we find that that contract was unlawful because it contained a preferential hiring provision which, when viewed in the light of the interpretation placed upon it by the $ The joint request for oral argument made by the Respondents is hereby denied as the record, including the exceptions and brief, adequately presents the issues and positions of the parties. 4 Hollow Tree Lumber Company, 91 NLRB 635. R See Denver Building and Construction Trades Council ( Gould d Preisner), 81 NLRB 1195, affd. 341 U. S. 675. 6 The contract clause here in issue provides : NOW, THEREFORE, the contractors do agree to give the Local [ the Council] the first opportunity to supply their skilled mechanics for carpenter work provided that if such labor requirements are not supplied within forty-eight ( 48) hours after request, or if the men furnished on request are not qualified to perform their duties in the opinion of the Contractors, then the Contractors shall be free to obtain their labor requirements otherwise. GEORGE D . AUCHTER COMPANY 883 Respondents, was clearly violative of the Act.' However, we are precluded by reason of the 6-month period of limitation provided in Section 10 ( b) of the Act from finding that the execution of this agreement was unlawful. The record shows that that agreement was executed more than 6 months before the filing of the original charges on April 23, 1951, and the service of the charges on April 24, 1951. Accordingly, the prohibition of Section 10 (b) applies so far as the execution of the contract is concerned.' However, the record establishes that the unlawful agreement of September 27, 1950, continued in effect up to the time of the hearing herein and was enforced, as noted below , by the Respondent Com- pany and the Respondent District Council against George W. Kirby within the statutory 6-month period . Accordingly, we find that by enforcing and giving effect to the unlawful agreement of September 27, 1950, Respondent Company violated Section 8 (a) (1) and (3) of the Act, and the Respondent District Council violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act. We further find, for the reasons stated by the Trial Examiner in his Intermediate Report, that although the evidence in the record does not show that the Respondent Association was affirmatively associated with any particu- lar act of discrimination directed against a job applicant , as a par- ticipant in a common enterprise with the Respondent Company it has violated Section 8 (a) (1) and (3) of the Act by giving continued effect within the statutory 6-month period to the agreement of Septem- ber 27, 1950. Accordingly, we shall order that each of these Respond- ents cease enforcing or giving effect to their unlawful contract of September 27, 1950. 3. We agree with the Trial Examiner's findings that the Respondent District Council violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act by refusing to clear George W. Kirby for referral to a job with the Respondent Company at Fernandina, Florida. We further 4 See Utah Construction Co., 95 NLRB 196. 8 The Respondents challenge the validity of the complaint on the ground that the original charge herein was not filed and served within 6 months of the first alleged act of discrim- ination. The complaint alleges that on or about October 25, 1950, George W. Kirby was discriminatorily refused a job referral by the Respondent District Council, and at the same time was discriminatorily denied employment by the Respondent Company. The first charges alleging discriminatory conduct by the Company and the District Council were filed with the Board on April 23, 1951. The record establishes that copies of these charges were sent to the Company and the District Council by registered mail, return receipt re- quested, on April 24 , 1951 . The Respondents contend that because the District Council and the Company did not receive their copies until April 25 and April 26, respectively, the charges were not filed and served within the 6 -month period of limitation prescribed by Section 10 (b) of the Act. We cannot accept this contention . Section 102 .86 of our Rules and Regulations , Series 6, which was in effect at the time of the service of the charges, provides "in computing any period of time prescribed or allowed by these rules, the date of the act, event, or default after which the designated period of time begins to run, is not to be included ." It is apparent therefore that the original charges herein were actually received by both the Respondent Company and the Respondent District Council within the 6-month statutory period. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agree with the Trial Examiner's findings that the Respondent Com- pany violated Section 8 (a) (1) and (3) of the Act by refusing Kirby a job on the ground that he had not been cleared for employment by the Respondent District Council. However, unlike the Trial Exam- iner, we find, for the reasons noted below, that the Respondent As- sociation cannot be held responsible for the discrimination against Kirby. The record establishes, as the Trial Examiner has found, that on October 25, 1950, Kirby, who had been employed at the Respondent Company's Fernandina construction project until July 8, 1950, applied to A. A. Pittman, the Respondent District Council's business repre- sentative, for a job referral to that project. Pittman refused the re- quest because Kirby, in addition to his membership in United Brother- hood of Carpenters and Joiners of America, also carried a member- ship card in the International Association of Machinists. During their conversation Pittman told Kirby in effect that he could no noth- ing for him so long as Kirby carried two cards .9 On the following day Kirby spoke to Marshall Sides, the Respond- ent Company's job superintendent at the Fernandina project, and stated that he understood that Sides had asked for a referral for him. Sides stated that he had, and Kirby told him that he was sorry but Pittman would not grant the referral. Sides told Kirby that he would be glad to hire him if he could get straightened out with the Carpen- ters. However, when Kirby offered to go to work on his card from the International Association of Machinists, Sides replied that if he took Kirby on that basis the Carpenter's local union would "pull their men off the job." Thereafter, as correctly reported by the Trial Examiner, Kirby made several efforts to secure a job referral from Pittman but was refused clearance because of his continued membership in the International Association of Machinists. Kirby also made several other job ap- plications to the Respondent Company but was told on each occasion that although the Company had work available it could not employ him until he secured clearance from the Respondent District Council. Kirby last asked the Company for employment on March 23, 1951. Although the contract of September 27, 1950, contains no specific requirement that job applicants be members in good standing of a constituent member of the District Council or have a work permit from the Council, it is clear from the record that the Respondents 9 The record reveals that in actual practice job referrals are made by the constituent locals of the Respondent District Council and not by the Council itself. However, mem- bers of Carpenters' locals which are outside of the jurisdiction of the Council are required to secure clearance to member locals through the Council, and it was this clearance which Pittman refused Kirby because of the latter's membership in the International Association of Machinists. Without clearance Kirby could not be referred to any job within the geographical jurisdiction of the Council. GEORGE B. , AUCHT&H . COMPANY, ' 885 so construed and' enforced, the contract , provision which required that, the Council be g^iiven. "the ,first opportunity to supply their skilled mechanics for tourpentry work (emphasis supplied)." Thus Pittman conceded: at,tlw hearing that Kirby , was ineligible for a job referral until he gave up 'his membership in th e International As- sociation of Machinists and was cleared by the District Council. Fur- ther, the record establishes that the Respondent Company knew that Kirby; was being denied clearance by the Council because of his mem- bership in the International Association of M&ehbx st , but never- thelese 'refused to hire him until he was cleared by the Council. The Respondents contend thk t their "treatment of Kirby was not unlawful because the Act does not,require a labor organization to renderassistance to one who is not a member . ' Generally this proposi- tion is correct. However, when a labor organization undertakes to supply an employer with workmen, it violates Section 8 (b) (1) (A) and 8 (b) (2) of the Act unless it carries out this undertaking on a nondiscriminatory basis? ' This the'Respondent Council has not done. Similarly when, as in ths case, an employer condones such conduct and refuses to employ a job applicant whom it knows. has been dis- criminatorily denied a' job referral, that employer violates Section 8 (a) (1) and (3) of the Act" Unlike the Trial Examiner we do not find that the Association can be held liable for the Respondent Company's refusal to employ Kirby. The Association was first named as a party respondent in the first amended charfe in Case No. 10-CA-1251, which was filed on' September 25, 1951, and served September 26, 1951. Kirby last applied to the Respondent Company for employment on March 23, 1951, or more than 6 months before the filing and service of the first charge against the Association. Accordingly, a finding that the Asso- ciation is liable for the discriminatory refusal to employ Kirby is barred by the 6-month period of limitation contained in Section 10 (b) of the Act. We shall therefore dismiss the complaint insofar as it alleges that the Respondent Association has unlawfully discriminated against Kirby. The Remedy Because it has been found that the Respondent Company, the Respondent Association, and the Respondent District Council have engaged in certain unfair labor practices, it will be ordered that they cease and'desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. However, we have been admin- 16 Utah Construction Co., supra; National Maritime Union of America, at al., 78 NLRB 971, enfd. 175 F. 2d 686, cert. den. 338 U. S. 954. ' u See the cases cited in footnote 10, supra. 250983-vol. 102-53-57 '886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD istratively advised that' after the conclusion of the, hearing herein the Respondent District Council notified the Respondent Company that it had no objection to the employment of George W. Kirby, and the Respondent Company thereafter offered him immediate em- ployment. In the -circumstances it would serve no worthwhile pur- pose to order his, reinstatement at this time. Nevertheless, as - the practices of the Respondent District Council;, and the Respondent Company prevented Kirby from being employed at the Fernandina project from October 26, 1950, the date of his original application for employment, until employment was offered him by Respondent Company, we shall order that these Respondents jointly and severally make him whole, in the manner prescribed in the section of the Inter- mediate Report entitled "The Remedy," for any loss he might have suffered during' this period. Order Upon the entire record in this 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, George D. Auchter Company, Jacksonville, Florida, its officers, agents, successors, and assigns, shall : (a) Cease and desist from: (1) The practice of conditioning the hire of applicants for employment in carpentry or millwright positions at its project at Fernandina., Florida, upon clearance by Carpenters District Council of Jacksonville and Vicinity, or any other labor organization, except under a nondiscriminatory arrangement permitted by Section 8 (a) (3) of the Act, as amended. (2) Performing, enforcing, or giving effect to its contract of Sep- tember 27, 1950, with Carpenters District Council, of Jacksonville and Vicinity, or entering into or enforcing any extension, renewal, modification, or supplement thereof, or any superseding agreement -with said Council, or any other labor organization, containing union- security provisions except as authorized by Section 8 (a) (3) of the Act. (3) In any other manner interfering with, restraining, or coercing .employees in the exercise of the right to self-organization, to form labor organizations, to join or assist District Lodge 112 of Inter- national Association of Machinists, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employ- ment, as authorized by Section 8 (a) (3) of the Act. GEORGE D. AUCHTER COMPANY 887 (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act. (1) Make whole George W. Kirby for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in the section herein entitled "The Remedy." (2) Post at each construction site in the jurisdiction covered by the Respondent District Council, in conspicuous places including all places where notices to employees or prospective employees are customarily posted, copies of the notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Regional Direc- tor for the Tenth Region, shall, after having been duly signed by the Respondent Company's representative, be posted by it immediately upon receipt thereof and be maintained by it for sixty (60) con- secutive days thereafter. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (3) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of this Order what steps the Respondent Company has taken to comply herewith. 2. The Northeastern Florida Chapter of the Associated General Contractors of America, its officers, agents, successors, and assigns, shall : (a) Cease and desist from : (1) Enforcing or giving effect to any agreement between itself or George D. Auchter Company on the one hand and Respondent District Council or any of its affiliated local unions or any other labor organization on the other hand, which conditions the hire of appli- cants for employment upon clearance by Carpenters District Council of Jacksonville and Vicinity, or any other labor organization, except under a nondiscriminatory arrangement permitted by Section 8 (a) (3) of the Act, as amended. (2) In any other manner interfering with, restraining, or coerc- ing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist District Lodge 112 of International Association of Machinists, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employ- ment, as authorized by Section 8 (a) (3) of the Act. (b) Take the following affirmative action which the Boards finds will effectuate the policies of the Act : (1) Post at each construction site of George D. Auchter Company within the jurisdiction of Respondent District Council, in conspic- 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uous places including all places where notices to employees or pros- pective employees are customarily posted, copies of the notice attached hereto and marked "Appendix B." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after having been duly signed by the Respondent Association's represent- ative, be posted by it immediately upon receipt thereof, and be maintained by it for sixty (60) consecutive days thereafter. Reason- able steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (2) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of the receipt of this Order what steps Respondent Association has taken to comply herewith. 3. The Respondent Carpenters District Council of Jacksonville and Vicinity, its officers, representatives, agents, successors, and assigns shall : (a) Cease and desist from : (1) Performing or giving effect to its contract of September 27, 1950, with George D. Auchter Company or Northeastern Florida Chapter of the Associated General Contractors of America, or enter- ing into or enforcing any extension, renewal, modification, or supple- ment thereof, which conditions the hire of applicants for employment upon clearance by the Council, or any other labor organization, except under a nondiscriminatory arrangement permitted by Section 8 (a) (3) of the Act, as amended. (2) In any other manner causing or attempting to cause Respondent Company, Respondent Association, or any other employer to discrimi- nate against any employee or prospective employee in violation of Section 8 (a) (3) of the Act. (3) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist District Lodge 112 of Interna- tional Association of Machinists, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor 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) Make whole George W. Kirby for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in the section herein entitled "The Remedy." (2) Post at its office in Jacksonville, Florida, and at each con. struction site of Respondent George D. Auchter Company within the GEORGE D. AUCHTER COMPANY 889 jurisdiction of Respondent District Council, in conspicuous places including all places where notices to employees or prospective em- ployees are customarily posted, copies of the notice attached hereto and marked "Appendix C." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after having been duly signed by the Respondent District Council's representative, be posted by it immediately upon receipt thereof, and be maintained by it for sixty (60) consecutive days thereafter. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (3) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of the receipt of this Order what steps Respondent District Council has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be and it hereby is dis- missed insofar as it alleges (1) that the United Brotherhood of Car- penters and Joiners of America has engaged in any unfair labor prac- tices; (2) that the execution of the contract of September 27, 1950, by George D. Auchter Company, Northeastern Florida Chapter of the Associated General Contractors of America, and Carpenters District Council of Jacksonville and Vicinity constituted an unfair labor practice; and (3) that Northeastern Florida Chapter of the Asso- ciated General Contractors of America has unlawfully discriminated against George W. Kirby. MEMBERS STYLES and PETERSON took no part in the consideration of the above Decision and Order. Appendix A 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 and prospective employees that : WE WILL NOT maintain, give effect to, renew, or enforce any agreement between CARPENTERS DISTRICT COUNCIL OF JACKSON- VILLE AND VICINITY or any labor organization, and ourselves or Northeastern Florida Chapter of the Associated General Con- tractors of America, which requires job applicants to be members in good standing of any labor organization or to secure a work permit from any labor organization, nor will we maintain, re- new, or enforce any agreement which contains union-security provisions except as authorized by Section 8 (a) (3) of the Na- tional Labor Relations Act, as amended. WE WILL NOT interfere with, restrain, or coerce our employees or prospective employees in the exercise of the right to self- 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization, to form labor organizations, to join or assist DIS- TRICT LODGE 112, INTERNATIONAL ASSOCIATION OF MACH INISTS, or any other labor Organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities ex- cept to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL make whole George W. Kirby for any loss of pay suf- fered by him as a result of the discrimination against him. All our employees and prospective employees are free to become, to remain, or to refrain from becoming or remaining members of DISTRICT LODGE 112, INTERNATIONAL ASSOCIATION OF MACHINISTS, 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. GEORGE D. AUCHTER 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 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 the employees and pros- pective employees of George D. Auchter Company that : WE WILL NOT maintain, give effect to, renew, or enforce any agreement between CARPENTERS DISTRICT COUNCIL OF JACKSON- VILLE AND VICINITY, or any labor organization, and ourselves or George D. Auchter Company, which requires job applicants to be members in good standing of any labor organization or to secure a work permit from any labor organization, nor will we maintain, renew, or enforce any agreement which contains union-security provisions except as authorized by Section 8 (a) (3) of the National Labor Relations Act, as amended. WE WILL NOT interfere with, restrain, or coerce the employees or prospective employees of George D. Auchter Company in the exercise of the right to self-organization, to form labor organiza- GEORGE D. AUCHTER C©EiPANY 891 tions, to join or assist DISTRICT LODGE 112,3NTERNATWWNAL Asso- cIATION or MACHINISTS, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining^or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8 (a) (3) of the Act. I , All of the employees and prospective employees of George D. Auch- ter Company are free to become, to remain, or to refrain from becom- ing or remaining members of DISTRICT LODGE 112, INTERNATIONAL ASSOCIATION OF MACHINISTS, or any other labor organization, except to the extent that this right may be affected by an agreement in con- formity with Section 8 (a) (3) of the Act. NORTHEASTERN FLORIDA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, Employer Association. By --------------------------------------------- Dated -------------------- ( Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix C Pursuant to it 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 the employees and prospective employees of GEORGE D. AUCHTER CosPANY that : WE WILL NOT maintain, give effect to, renew, enforce or attempt to enforce any agreement between ourselves, and NORTHEASTERN FLORIDA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA OR GEORGE D. AUCHTER COMPANY, which requires job applicants to be members in good standing of any labor organiza- tion or to secure a work permit from any labor organization, nor will we maintain, renew, or enforce any agreement which con- tains union-security provisions except as authorized by Section 8 (a) (3) of the National Labor Relations Anti as amended. WE WILL NOT cause or attempt to cause GEORGE D. AucHTEIt COMPANY or NORTHEASTERN FLORIDA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, or any other employer, to dis- criminate against any employee or prospective employee in viola- tion of Section 8 (a) (3) of the Act. ' 892 DECISIONS' € P NA' ZONAL' LABOR ` RELATIONS BOARD WE WILL make whole George W. Kirby for any loss of pay suf- fered by him as a result of the discrimination against him. GCAlWBNTERS DIsmior COUNCIL of JACKSONVILLE AND VICINITX, Labor Organization. By ------------------------------------- (Representative) ( Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not bq altered , defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon charges filed April 23, 1951 , May 16, 1951 , and September 25, 1951, by International Association of Machinists , District Lodge No. 112, herein called the Machinists, the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board , by the Regional Director for the Tenth Region ( Atlanta, Georgia ), issued his complaint dated September 28, 1951, against George D . Auchter Company ( herein called Respondent Company), Northeastern Florida Chapter of the Associated General Contractors of America (herein called Respondent Association), Carpenters District Council of Jack- sonville and Vicinity, ( herein called Respondent District Council or the District Council ), and United Brotherhood of Carpenters and Joiners of America (herein called United Brotherhood),' alleging that Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3), Section 8 (b) (1) (A ) and (2 ), and Section 2 (6) and (7) of the National Labor Relations Act as amended, 61 Stat. 136, herein called the Act. Copies of the charges and complaint , together with an order consolidat- ing the cases and notice of hearing, were duly served upon the parties. With respect to the unfair labor practices , the complaint as amended at the hearing alleged, in substance, that on or about September 27, 1950, Respondent Association and Respondent Unions entered into a contract under which Respond- ent Association, in hiring employees for carpentry work , was required to give first preference to employees referred by Respondent Unions; that at all times since then Respondent Company has given effect to this contract and in practice has given such preference ; that at all times since Respondent Unions have fol- lowed the practice of, referring to the Respondent Company only employees who are members of, or who have secured working permits from, Respondent Unions; that on or about October 25 , 1950, and at all times thereafter, because of the contract and practices described above and because of his membership in the Machinists , Respondent Unions refused to refer to Respondent Company for employment one G . W. Kirby , and Respondent Company refused to employ said Kirby as a carpenter because of the contract and practices described and because Kirby was not referred by Respondent Unions. In their answers Respondents denied the commission of any unfair labor practices. Pursuant to notice a hearing was held October 16, 17, 18, 1951 , in Jacksonville, Florida, before Alba B. Martin, the undersigned Trial Examiner duly designated ' Respondent District Council and United Brotherhood are sometimes referred to jointly as Respondent Unions. GEORGE D. AUCHTER COMPANY $93, by the Chief Trial Examiner. All parties were represented by counsel ,and par- ticipated in the hearing. Furl opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the hearing Respondent United Brotherhood filed a special appearance and moved to set aside the service of process on it and to dismiss the complaint as to it. It also made certain subsidiary motions. Decision on these motions was reserved, and Respondent United Brotherhood permitted to participate in the hearing fully without waiving the point for 'which it appeared specially. Deci- sion on these motions is hereby made in accordance with the findings and con- clusions made herein. The General Counsel's' motion for summary judgment against the United Brotherhood' was denied. Denied also was Respondents' mo-' tion for dismissal of the complaint for want of proof, made at the con"ion of the General Counsel's case-in,chief. This motion was renewed at the conclu- sion of rebuttal testimony, at which time decision was reserved. Decision on this motion is hereby made in accordance with the findings and.couclusions made herein. At the conclusion of the hearing, counsel for Respondent Association, Respondent Auchter Company, and Respondent District Council moved, in effect, that the case involving those Respondents be severed from the case involving the United Brotherhood ; and on this motion decision was reserved. la view of the findings and conclusions herein this motion is hereby denied . At the conclu- sion of the taking of evidence the General Counsel presented oral argument. Counsel for Respondent Association, Respondent Aucllter Company, and Respond- ent District Council waived oral argument and filed a brief. Upon the entire record in the case and from observation of the witnesses, I make the following: FINDfNGS OF FACT 1. THE EUSINUSS OF RESPONDENT George D. Auchter Company, a Florida corporation with its principal place of business in Jacksonville, Florida, is engaged in business as it general con- tractor in the building and construction industry. During the calendar year 1950, which period is representative of all times material herein, it performed services of a value in excess of $5,000,000 for customers within the State of Florida, including services for National Container Corporation, Jacksonville, (Florida, valued in excess of $108,000. The Board has held both of National Container Corporation's plants in Jacksonville to be engaged in commerce within the meaning of the Act' It is held that Respondent George D. Auchter Company is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to exercise jurisdiction.' II. THE ORGANIZATIONS INVOLVED United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Jacksonville and Vicinity, and International Association of Machinists, District Lodge No. 112, are organisations in which employees participate and which exist for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, Wages, rates of pay, hours of employment, or conditions of work. They are, therefore, labor organizations within the meaning of the Act. 275 NLRB 770, 87 NLRB 1065. • Hollow Tree Lumber Company, 91 NLRB 895. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Associated General Contractors of America, and the Northeastern Florida Chapter thereof, is an unincorporated association of firms engaged in the general contracting business. HI. THE UNFAIR LABOR PRACTICES A. Unfair labor practices committed by Respondent Association, Respondent Company, and Respondent District Council 1. The contracts On September 27, 1950, Respondent District Council and Respondent Associa- tion entered into a written contract, referred to herein as the 1950 contract containing the following pertinent clauses : THIS AGREEMENT, Made this 27 day of September A. D. 1950, by and between the NORTHEASTERN FLORIDA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, hereinafter called the Contractors and the CARPEN- TER'S DISTRICT COUNCIL OF JACKSONVILLE AND VICINITY, hereinafter called the Local. WHEREAS, the Contractors wish to employ workmen best suited to their operations and WHEREAS, the Local maintains an employment service and has available an ample Supply of skilled workmen and WHEREAS, the Contractors desire to avail themselves of such employment service. Now, THEREFORE, the Contractors do agree to give the Local the first oppor- tunity to supply their skilled mechanics for carpentry work provided that if such labor requirements are not supplied within forty-eight (48) hours after request, or if the men furnished on request are not qualified to perform their duties in the opinion of the Contractors, then the Contractors shall be free to obtain their labor requirements otherwise. The contract then provided for wages, holidays, overtime pay, no prohibition on the use of labor-saving equipment, and contained a no-strike clause. The closing phrase read as follows : IN WITNESS WHEREOF , the above parties have executed this agreement as of the date above written. The contract was then signed for Respondent Association by its president and for Respondent District Council by both its president and its business represent- ative, A. A. Pittman. This 1950 contract was negotiated for its members by Respondent Association, although according to the testimony of George D. Auchter, president of Respond- ent Company, it was understood that the contract was to be binding upon only those members of Respondent Association who ratified it. In fact, according to Auchter, of the member-firms some 20 including Respondent Company' ratified ' George D. Auchter testified that at the time the 1950 contract was negotiated Re- spondent Company was a member of Respondent Association , that he then considered Respondent Company as bound by the terms of the contract "by virtue of our member- ship and our acceptance or ratification ." Asked if Respondent Company ratified that instrument, Auchter replied, "I believe we did . It was our intention to do so either in writing or orally with no mental reservations." He stated also that in any case Re- spondent Company undertook to abide by that agreement and has done so "to the best of our ability " Respondent Company does not deny its responsibility under the 1950 con- tract. It is held that Respondent Company ratified this contract and is responsible for the execution and enforcement of it. GEORGE D. AUCHTER COMPANY 895 and accepted the contract and some 5 or 6 did not "because they were not engaged in building construction or they were operating open shop." A similar "first opportunity" preferential hiring clause appeared in a contract dated May 12, 1947, referred to herein as the 1947 contract. According to the uncontradicted and credited testimony of George D. Auchter this contract con- tinued in effect, as modified from time to time by oral agreement or exchange of letters, until the execution of the 1950 contract. It is not claimed that the 1947 contract is still in effect. It is held that the 1947 contract, which contained con- tinuation clause until canceled by either party, was canceled at the time of the execution of the 1950 contract. George D. Auchter testified also that he has always considered the 1950 con- tract to be an amendment of the 1947 contract. Although the real parties in interest to the 2 contracts may have been the same, this was not clearly proven to be the fact, and on their faces the 2 contracts are between completely different parties. The 1947 agreement was between 3 individuals , representing certain (un- designated ) contracting firms, and 3 other individuals , representing certain (undesignated) labor organizations in the construction industry. The 1950 contract, as stated above, was negotiated and executed by Respondent Associa- tion and Respondent District Council. Further, the 1950 contract, as received in evidence, was a complete instrument in itself, and it made no reference to the 1947 agreement or to itself as being an amendment to any previous contract. In the light of the entire record it is held that the 1950 contract was a new con- tract and was not merely an amendment of the 1947 contract. Insofar as the record discloses, no election was ever held under Section 9 (e) (1) of the Act prior to its amendment following the hearing in this case. 2. Clearance, referral, and hiring practices under the 1950 contract a. In the ease of George W. Kirby (1) Background George W. Kirby was employed by Respondent Company from January 1949 until July 8, 1950 (except for several layoffs), as a millwright on a job it was performing in Fernandina , Florida ( referred to herein as the Fernandina job), which geography and craft were within the jurisdiction covered by Local 627. The latter local was the largest local union affiliated with Respondent District Council. During this period Kirby was a member of Local 1778 of the United Brotherhood, Columbia, South Carolina, and also of Local Lodge 731 of the Machinists , Jacksonville, Florida. During at least 6 of these months, including the last, he worked under special working permits for which he paid a fee monthly to the job steward. The money was received by Local 627 and not returned to Kirby. On July 8, 1950, Kirby quit his employment in protest against paying, in addition to the permit fee, an added assessment to support a strike in Jacksonville. When he told the superintendent that he was quitting as a millwright, he offered to go to work immediately as a machinist , which offer was not accepted. (2) The facts On October 25, 1950,° Kirby called on A. A. Pittman , business representative of Respondent District Council, at the latter' s office in Jacksonville. During the 5 This date is accepted because it ties in with a precisely ascertainable date , the date of a Board hearing. Kirby testified that the same day he talked with Pittman , which was October 25, he spoke with Paul Chipman , a representative of the International Associa- tion of Machinists, at the Machinists' hall in Jacksonville, Florida. D. W. Milian, business representative of District Lodge 112 of the Machinists, testified that Chipman 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversation, according to the uncontradicted testimony of Kirby, the latter asked Pittman for a referral to the job at Fernandina so that Kirby could go back to work for Respondent Company. Pittman refused the request, giving as the reason that Kirby was carrying a Machinists' card and that Pittman would not represent Kirby while the latter was carrying two cards. Pittman added that he would forget about the strike assessment that Kirby had not paid. Kirby told Pittman that he was not going to drop his Machinists' card, that there was nothing in the constitution of the United Brotherhood which prevented him from carrying two cards. The following day, October 26, 1950, Kirby spoke with Marshall Sides, Re- spondent Company's job superintendent on the job at Fernandina. According to his uncontradicted testimony Kirby told Sides that he understood Sides had asked for a referral for Kirby, and Sides confirmed that he had. Kirby expressed the thought that he was sorry he could not come to work for Sides, because Pittman had refused to refer him over. Sides replied that he would be glad to hire Kirby if the latter could get straight with the Carpenters' union. Kirby then offered to go to work for Sides on his Machinists' card. Sides replied that if he hired Kirby on his Machinists' card, he would get in trouble with the Carpenters' local union, that "they would pull all the men off the job." At a disputed date, in either early November or late December 1950 or early January 1951, Kirby had a further conversation with A. A. Pittman, at the site where the latter was building a new home near Callahan, Florida. Kirby had sought for Pittman at Pittman's office in Jacksonville, where he had learned Pittman was then in Callahan, a town not far distant. On this occasion Kirby again asked Pittman to give him a referral to go to work on the Fernandina job. According to the testimony of Kirby, which is credited, Pittman maintained his position that he could not represent Kirby when Kirby was carrying two cards, and stated that unless Kirby dropped his Machinists' card, Pittman would not give him a permit to work. In his testimony Pittman admitted that he asked Kirby "if he still carried the two cards," and Kirby replied that he did. Pittman told Kirby that he was on vacation and out of his office for 2 weeks, and that Kirby could take the matter up with him after that. In his testimony Pittman did not specifically deny that on this occasion he told Kirby that unless Kirby dropped his Machinists' card, Pittman would not give him a permit to work. On about October 25, 1950, according to Kirby, during November 1950 ac- cording to Pittman, Marshall Sides telephoned Pittman that Kirby had been in to see him about a job as a millwright. According to Pittman' s testimony (Sides although still employed by Respondent Company did not testify), Pittman asked Sides if Kirby had presented to Sides a work card or a dues book showing that he was a member of the (United) Brotherhood. To Sides' was in Jacksonville on October 25 when Millan conferred with him about what positions they should take at a hearing in Palatka, Florida, involving Hudson Pulp & Paper Cor- poration, which hearing was to take place the following day. The transcript of testimony in Hudson Pulp tf Paper Corporation, 94 NLRB 1018, indicates that the hearing in that case took place in Palatka on October 26 and 27, 1950, and that Millan and Chipman appeared at the hearing each day on behalf of one of the petitioners. A. A. Pittman testified that he was not in his office on October 25, that his office diary or journal indicated that he spent all of that day on a matter in the outskirts of Jacksonville. Pittman's entire testimony indicated to me that he had no independent recollection of when he talked with Kirby or what he did on October 25, 1950, and that his testimony was based upon the entry in his journal. As the testimony showed, the journal did not accurately account for all of Pittman's movements and whereabouts. Pittman's best recollection was that the date of his conversation with Kirby was October 23. Kirby's date of October 25, 1950, is credited. GEORGE D. AUCHTER COMPANY 897 negative reply Pittman then asked what local Kirby belonged to. Sides replied again that he did not know, that he had not asked Kirby for a card or a book or anything. Pittman then said "Up until now, I don't know Mr. Kirby even belongs to an organization. He claims to belong to one in North Carolina or South Carolina or some place.... He'd not eligible to work because he don't have a clearance, he don't have a work card or a paid foreign dues." Whereupon Sides replied, "Well, just forget the matter." March 12 or 13, 1951, Kirby again asked Sides on the job at Fernandina If Sides could use him. Sides replied, according to Kirby's uncontradicted testi- mony, that "he could very well and would like mighty well to have me If I could get straight with" the Carpenters local union in Jacksonville. Sides added that they had quite a bit of work then and that they needed Kirby on the job, that he was going to "call for some men the next morning and . . . he was going to call for me...." The next day Kirby called on Pittman's office, told the latter that Sides had said he was going to ask for Kirby, and again asked Pittman for a referral to the Fernandina job. Pittman again talked of Kirby 's dropping his Machinists' card and stated that he would not give Kirby a permit to work unless he would drop his Machinists' card or sign an affidavit that he would do so. Pittman observed that there was a notary public there in the office who could notarize the affidavit. Kirby replied in effect that even if he wanted to get out of the Machinists, to do so in an honorable way would require a little time. During the conversation Pittman placed a long distance telephone call to the office of the United Brotherhood in Indianapolis , Indiana, to seek an interpretation of a clause in the United Brotherhood's constitution reading as follows : No member of the United Brotherhood can remain in or become a mem- ber of more than one Local Union, or any other organization of carpenters or joiners or any mixed union of building tradesmen, under the penalty of expulsion. . . . Pittman testified that he believed he talked with John R. Stevenson, executive secretary of the United Brotherhood, but that it might have been Mr. Steven- son's secretary ; that Pittman related that Kirby claimed to be a member of both a Carpenters' local and a Machinists' local. Pittman then asked for an inter- pretation of the above clause and received the reply that it was written in plain English language and spoke for itself. Upon hanging up, Pittman told Kirby that he would have to comply with that language of the constitution, that (according to Pittman) if Kirby did not wish to comply with the constitution, he should be "on his merry way." The following day Kirby went to the job again and told Sides he was sorry that he could not come to work for him, that "they wouldn't give me a referral over there to go to work." Sides said that he, too, was sorry. On March 17, 1951, according to Kirby's chronology, after making a telephone appointment, Kirby and D. W. Milian, business representative of District Lodge No. 112 of the Machinists, called at the office of Respondent Company in Jackson- ville and talked with James T. Monahan, its executive vice president. Kirby related the date of this conversation to his conversations in March with Sides and Pittman, set forth just above. Milian "believe (d) " the date was March 31, but this date was not related to any other date or event and Milian was not asked the basis of his belief . Kirby's date is accepted. Milian reviewed with Monahan the difficulties Kirby had been having with the "carpenters' union," told Monahan that Kirby was contemplating filing a charge and that he preferred not including the company in the charge. Mohanan replied that 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Company had a contract to call the Carpenters' union for employees, and that there was nothing much he could do about it ; however that he would look into the matter and if Kirby would get in touch with him in a few days Monahan would tell Kirby if there was anything he could do about it. The following Friday, March 23, 1951, Kirby again called on Monahan, who told Kirby that "it seemed to him that the thing to do would be to take a with- drawal from the Machinists' Union," that if Monahan put him to work it would have to be on some kind of machine, such as a lathe or boring mill, etc. Kirby replied that he was a general machinist and that Monahan could hire him as an erecting machinist. Monahan did not hire him. Since Friday, March 23, 1951, Kirby has made no further effort to obtain a referral or to go to work for Respondent Company. On the above evidence it is held that on October 26, 1950, and again on March 12 or 13, 1951, Kirby applied for work with Respondent Company at its job in Fernandina, Florida, at a time when Respondent Company had work for him as millwright on that job. Respondent Company's contention that because Kirby filed no application in writing on these occasions, he in fact did not apply for work, is not accepted. b. Generally As the statement of James T. Monahan to Millan and Kirby indicated, Re- spondent Company considered itself bound under the 1950 contract to "call the union for employees," just which union-whether the District Council or Local 627-not being specified. The question arises as to how and by whom the "first opportunity" clause of the 1950 contract was carried out on the union side. At all times herein pertinent the District Council carried on its activities under the constitution and laws of the United Brotherhood and under its own laws not inconsistent with those of the United. The United's constitution and laws were received in evidence ; the District Council's were not offered. The District Council was composed of approximately 30 delegates from some 8 local unions in the construction trades in the Jacksonville area. All of the local unions were chartered by the United Brotherhood, whose constitution au- thorized it to charter district councils also. Representation on the District Council being according to the size of the local, the largest local, Local 627, had approximately 10 members on the District Council, including A. A. Pittman. John Maxim was financial secretary of Local 627 and secretary and treasurer of the District Council. The president of Local 627 was also president of the District Council. The office of the District Council was in the building owned by Local 627. The general laws of the United Brotherhood provided for a system of clear- ance cards when a member of one local left that local's jurisdiction and wished to work in the jurisdiction of another local. Under this system the member in good standing received a clearance card from his own local, and presented it at the office of the District Council in the new jurisdiction "before securing work." "He shall pay the prevailing charge for a Working Permit in the jurisdiction where he goes to work." Under the heading "Miscellaneous," the United Brother- hood's constitution included this language until it was eliminated when the con- stitution was amended as of January 1, 1951: "Resolved, That we recommend to all District Councils . . . to establish and maintain an employment office that will afford the employer the opportunity to apply to for help and our members to apply to when in search of work." As found above, during at least 6 of the months he worked for Respondent from January 1949 until July 8, 1950, including the last, Kirby worked under GEORGE D. AUCH.TER COMPANY 899 special working permits for which he paid a•monthly fee. The "special working permit" was a printed card the size of an ordinary calling card, which bears all the earmarks of having been printed for the District Council and issued with its authority. John Maxim testified that these cards were furnished to the affiliated local unions by the District Council "in order to have a uniform card." No reason was shown why the affiliated locals could not each have purchased a supply of identical cards from a given printer. In large letters across the top of the face of the cards were printed the words "CARPENTERS DISTRICT COUNCIL," under which followed the words "of Jacksonville, Fla., and Vicinity, United Brotherhood of Carpenters' and Joiners of America." The words, "Special Working Permit," in largest type with extra space between each letter , appeared on three lines superimposed upon the rest of the printing, spaced to cover most of the face of the card . On the back side of the card were the names of the "Carpenters' locals affiliated With" the Dis- trict Council. The printed form provided space on the front of the card for the name of the recipient and for the expiration date of the card . It also provided space above a line for a signature and under the line, in print, the word "Secre- tary." The words "John Maxim" in handwriting appeared on this line above the word "Secretary," on the last such card received by Kirby , expiring July 7, 1950. At that time Maxim was secretary of the District Council and, insofar as the evidence discloses, secretary of no local union affiliated with the District Council. Under the handwritten words "John Maxim" appeared in handwriting the words "W. H. Majors." At the time this card was issued to Kirby , Majors was business agent of Local 627 . John Maxim testified that he himself did not sign this card, that his signature was placed there by either Lois Grimsley, a clerk employed by Local 627, or by Majors. It is concluded that the authorized signature of the secretary of the District Council was necessary in order to validate the card. The receipts Kirby received when he handed over the money for the special working permits though on their face bearing the name of Local 627 and space for the signature of its financial secretary ,' on the reverse side purported to quote from the constitution and bylaws of the District Council. John Maxim testified that from about 1936 or 1937 until A. A. Pittman took office as business representative of the District Council on July 1 , 1949, the Dis- trict Council maintained an employment service and issued referral tickets, that when Pittman took office he "stopped the practice of issuing referrals by the Council," that thereafter "the jobs were filled by each business agent of the local unions. . . ." Neither Pittman nor Maxim testified, however , in what way, if any, authority of the District Council's business representative to refer men to jobs was then reduced . Pittman testified to the conclusion that it is not within the scope of his duties as business representative of the District Council to refer applicants to jobs, but he did not testify by what acts of the United Brotherhood , under whose constitution and laws the District Council operated, or by what acts of the District Council itself, or by what acts of the local union affiliates of the District Council, the power and authority to make references which inhered in the position during the incumbency of his predecessors had changed during his term of office. If in fact Pittman had no authority over the filling of jobs, it seems highly probable to me that sometime during the 0-month period that Kirby was trying Kirby's last receipt bore the written words "John Maxim" on this signature line, and the words were put there, according to Maxim, by Loie Grimsley. Maxim was then financial secretary of Local 627. ittivi DECISIONS OF NATIONAL LABOR RELATIONS BOARD to get a job, Pittman would have expressed this limitation of his authority to 'either Kirby or Sides, would have told them they were dealing with the wrong man and referred them to the business agent of the appropriate local, Local Union 627. There is no proof that he ever did so. If in fact Pittman had nothing to do with the filling of jobs, it seems highly improbable to me that Sides, the superintendent on the job who presumably was responsible for the hiring and therefore familiar with the channels for hiring, would have wasted his time contacting Pittman on the Kirby matter. That Sides contacted Pitt- man rather than the business agent of Local 627 suggests that he knew that he could learn from Pittman whether he could safely hire Kirby without incurring a strike and that the ultimate control over the situation lay in Pittman. As stated above, during Kirby's efforts to secure work in 1950 the lUnited's constitution contemplated and recommended the maintenan ce of an employment office by the District Council, and at all times material herein it was compulsory under the United's constitution for a visiting member, such as Kirby, to present his clearance card from his own local to Respondent District Council "before securing work." There was nothing in the constitution and laws of the United which deprived the District Council or Pittman of the power and authority to refer men to jobs, and Pittman's doing so was in no conflict with said constitu- tion and laws. On the record as a whole I conclude that at all times material herein the Dis- trict Council and Pittman had and exercised authority to grant or withhold a referral of Kirby and others for employment, and that Pittman's actions and statements in the Kirby matter, as outlined above, were made in the exercise of this authority. Regardless of whether Pittman or the business agents of the locals sent spe- cific individuals to fill specific jobs, the testimony is uncontradicted that members of locals beyond the jurisdiction of Respondent District Council who wished to work within that jurisdiction had to have the approval of the District Council before they could be referred to a job. Also uncontradicted was Pittman's testimony with respect to persons who were not members of any Carpenters' local but who nevertheless wished to work as carpenters within the jurisdiction of the District Council : Pittman would not grant them clearance to an affiliated local for referral to a job. That Respondent Company knew that all carpenters supplied it by the Dis- trict Council were and had to be members of some Carpenters' local and approved for employment by the District Council, cannot be doubted on this record, the practice having been going on at all times since 1936 or 1937. If it had not known of this practice before, it learned it in the conversations between Sides and Pittman over the Kirby matter. Thus, on October 25, 1950, as found above, 'Pittman asked Sides if Kirby had shown Sides a work card or dues book show- ;ing that Kirby was a member of the United, and told him in effect that Kirby could not work unless- he was. It becomes clear and it is concluded that as mutually interpreted and admin- istered by Respondent District Council and Respondent Company, the 1950 con- 'tract required Respondent Company to hire through the District Council, clearance by the District Council being conditioned upon membership in some local of the United Brotherhood and in addition approved for employment by the District Council. In the case of Kirby, a member of a local , this approval for employment was conditioned upon his withdrawing from the International Association of Machinists and his paying a strike assessment. GEORGE D. AUCHTER COMPANY 901 3. Conclusions As interpreted and administered by the parties the preferential hiring clauses of the 1950 contract amounted to a closed-shop arrangement no longer permitted under the Act. By entering into this contract Respondent Association and Respondent Company violated Section 8 (a) (3) and 8 (a) (1) and Respondent District Council violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act 7 By enforcing and giving effect to these unlawful clauses in the 1950 contract Respondent Company violated Section 8 (a) (3) and 8 (a) (1) of the Act, and Respondent District Council violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. It is held that on October 26, 1950, and again on March 14 or 15, 1951, Re- spondent Company refused to hire George W. Kirby because he was not cleared for employment by Respondent District Council. By such refusal to employ Kirby and its failure to employ him at any time since those dates, Respondent Company has violated Section 8 ( a) (3) and 8 (a) (1) of the Act 8 It is held that Respondent Company's refusal to employ George W. Kirby was caused by Respondent District Council's enforcement of its illegal contract to prevent Kirby from being employed unless he obtained clearance from Respondent District Council, paid monthly for a special working permit, paid a strike assess- ment, and withdrew his membership in the International Association of Machin- ists. By causing Respondent Company to refuse to employ Kirby, as found above, Respondent District Council violated Section 8 (b) (2) of the Act and also Section 8 (b) (1) (A) In executing the 1950 agreement, the Respondent Association necessarily con- templated that its affiliated contracting firms would give effect to the unlawful provisions in it. The relationship between Respondent Association on the one hand, and Respondent Company and other members of the Association on the other, was, therefore, that of cosponsors of the illegal agreement and practices under it. Such cosponsorship, under well-established legal and equitable prin- ciples, carries with it the responsibility of joint participants in a common enter- prise for one another's acts performed in furtherance of the enterprise. Accord- ingly, although the evidence in the record does not show that Respondent Association was affirmatively associated with the events leading to Respondent Company's unlawful discriminatory refusal to hire George W. Kirby, or to its enforcement of the contract generally, I find that because of its participation in a common enterprise with the Respondent Company, the latter's conduct is to be imputed to Respondent Association, and the Company's liability becomes the liability of Respondent Association. Paul W. Speer, An Individual, Paul W. Speer, Inc., 98 NLRB 212. Osterink Construction Company, 82 NLRB 228. Re- spondent Association, therefore, being responsible for the enforcement of the illegal contract generally and for the refusal to hire Kirby, it is held that by these acts Respondent Association violated Section 8 (a) (3) and 8 (a) (1) of the Act. 7New York State Employers Association, Inc. et at., 93 NLRB 127; Utah Construction CO. et at., 95 NLRB 196. "Respondents contend there was no violation because Kirby was not an employee within the meaning of Section 8 (b) (2). The Board has recently refhsed to accept such a con- tention. Utah Construction Co., et at., supra. See National Maritime Union of Amerroa, et al., 78 NLRB 971. "Local 57, International Union of Operating Engineers, et al., 97 NLRB 386. Del B. Webb Construction Company et al., 95 NLRB 75. International Brotherhood of Boiler- makers, et al., 94 NLRB 1590. 250983-vol. 102-53-58 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Alleged unfair labor practices committed by the United Brotherhood 1. The charges In all, three charges were filed against Respondent Unions in this case, the original charge filed April 23, 1951, a first amended charge filed May 16, 1951, and a second amended charge filed September 25, 1951 . The original charge was brought against "United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of Jacksonville, Florida and vicinity, and its busi- ness agent, A. A. Pittman" and alleged in the singular that "the said labor organization and its agents" committed certain unfair labor practices. The charging party immediately addressed a single copy of this charge to the Union and Pittman exactly as named above , with the comma but no "and" after "Amer- ica" and with the "its" business agent . The Board's Regional Office immediately served a copy upon the Union exactly as named above and a separate copy to "A. A. Pittman, Bus. Agt. United Bro. of Carpenters and Joiners of America, Carpenters' District Council of Jacksonville, Florida and Vicinity." Pittman was then business representative of the District Council and he held no office with the United Brotherhood. Both the charging party and the Regional Office addressed the copies to 920 Main Street, Jacksonville, Florida, where the office of the District Council is located. The principal office of the United Brother- hood is in Indianapolis , Indiana. No copy of this original charge was sent to the United Brotherhood at either Jacksonville or Indianapolis. On this evidence it is held that the original charge was not intended to and did not name the United Brotherhood as a party respondent. The first amended charge was brought against the same parties as the original, the District Council and his business agent, A. A. Pittman, but not against the United Brotherhood. The record does not disclose whether the charging party served a copy of this charge upon the "person against whom" the charge was made. The Board's Regional Office sent 3 copies to 920 Main Street , Jacksonville, Florida, in separate envelopes: 1 to the United Brotherhood, 1 to the District Council, and 1 to A. A. Pittman. As the charge did not name the United Brotherhood as a party respondent , sending a copy to it did not make it a party respondent. The second amended charge clearly named the United Brotherhood as well as the District Council as a party respondent, and dropped Pittman. The Regional Office served separate copies upon the United Brotherhood and the District Council, each copy being addressed to 920 Main Street, Jacksonville, Florida. United Brotherhood contends that serving it in Jacksonville was not proper service upon it, in view of the fact that its principal office is in Indianap- olis-although it admitted that this charge together with the complaint , notice of hearing, and other charges, was forwarded to it in Indianapolis and received by it some 14 days before the hearing. In view of the holdings below it is not necessary to resolve this question. 2. Impact of the Section 10 (b) proviso The proviso to Section 10 (b) of the Act prohibits the issuance of a com- plaint based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. No question con- cerning this proviso arises as to the original and first amended charges since, as found above, they did not name United Brotherhood as a party respondent. The second amended charge, which for the first time named United Brother- hood as a party respondent, was filed with the Board 's Regional Office on GEORGE D. AUCHTER COMPANY 903 September 25, 1951, and was served upon the United Brotherhood in Jackson- ville, Florida, on October 1, 1951. As has been seen above in this Intermediate Report, the evidence in the record discloses no act by the United Brotherhood during the 6-month period prior to either September 25 or October 1, 1951. Any responsibility attaching to it must be based, therefore, upon some act or acts which, though they oc- curred prior to the 6-month period, were in the nature of continuing acts which carried into or through the 6-month period. The 1950 contract or the continu- ing to refuse a referral to Kirby could be considered to be such continuing acts. As is reflected above in this report the United Brotherhood did not, itself, sign the 1947 or the 1950 contracts; and insofar as the record shows it took no part in the negotiation of either of those contracts." Nothing in the evidence or in the constitution and laws of the United Brotherhood indicates that the 1950 contract was ever ratified by the United or that United reserved the right to do so before the contract became valid. The United cannot, therefore, be held responsible for the contract as a cosponsor of it with the District Council. In oral argument the General Counsel suggested that the relationship between the United Brotherhood and the District Council was so close, their working relationship was so integrated, that the United should be held responsible for the illegal acts of the District Council. Such responsibility would presumably rest upon the conception that the District Council was a mere administrative arm or agent of the United and that it did not have sufficient autonomy to be solely responsible for its illegal acts. The United Brotherhood's constitution and laws in operation at the time of the events herein provided, among other things, that the organization should be known as the United Brotherhood of Carpenters and Joiners of America, and should "consist of an unlimited number of Local Unions and members sub- ject to its laws and usages...." It provided that one of the "objects" of the United Brotherhood was "to assist each other to secure employment." Under the heading "Jurisdiction" the constitution provided that the power to establish and charter "Subordinate Local . . . Unions" and District Councils should be vested in the "International Body" of the United Brotherhood, and that its "mandates must be observed and obeyed at all times." The right was reserved in the "International Body" to "regulate and determine all matters pertaining to fellowship in its various branches and kindred trades." To subordinate local unions and district councils the right was conceded to make all necessary laws for themselves "which do not conflict with the laws of the International Body." The right was reserved for the United Brotherhood to "establish jurisdiction" over any local unions or district councils "whose affairs are conducted in such a manner as to be a menace to the welfare of the Inter- national Body." The constitution provided further that "The United Brother- hood shall enact and enforce laws for its government and that of Subordinate Locals and District . . . Councils and members thereof." It provided that the charter of a local union remains at all times the property of the United Brotherhood, that any local or district council could be suspended for "will- fully or directly" violating the "Constitution, Laws or principles" of the United Brotherhood or acts "in antagonism to its welfare." The United retained power, in certain circumstances, to order the consolidation of two or more locals. The constitution gave the general president of the United Brotherhood power to take possession, for examination purposes, and summarily when he deems 12 Cf. Chicago Newspaper Publishers et at ., 8,6 NLRB 1,041, 1045-1048. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it necessary, of all books, papers, and financial accounts of any local or dis- trict council, permitting a representative of the local or district council to be present during the examination. The general president had power to "decide all points of law, appeals and grievances, except death and disability claims. . . ." When a local or district council "asked the assistance of the General Office," the general president had power, "with the consent of the General Executive Board," to "make settlement with employers, and the said . . . Local Union, or District Council . . . must accept the same." The constitution provided, further, that "Whenever, in the judgment of the General President, subordinate bodies of the members thereof are working against the best interests of the United Brotherhood or are not in harmony with the Consti- tution and Laws of the United Brotherhood, the General President shall have power to order said body to disband under penalty of suspension." The general executive board of the United Brotherhood, consisting of 7 members elected from each of 7 geographical divisions throughout the country, was given power to "make agreements with employers covering our juris- diction ; provided such agreements require employers to conform with the trade rules of the district where the work is located." It was given power, also, to "order strikes in any locality, regardless of agreements that may have been entered into by any Subordinate Union, District . . . Councils, unless such agreements have been approved by the General President." The general laws of the United Brotherhood, under the heading "Jurisdiction of District Councils," provided that where there were 2 or more local unions located in 1 city they "must be represented in a Carpenters' District Council, composed exclusively of delegates from Local Unions of the United Brotherhood, and they shall he governed by such Laws and Trade Rules as shall be adopted by the District Council and approved by the Local Unions and the First General Vice-President. The General President shall have power to order such Local Unions, as he may deem in his wisdom for the best interests of the organization at large, to affiliate with such D. C., as in his judgment they should, agree to settle the lines of jurisdiction of such D. C., subject to appeal." District councils were given the power to make and enforce bylaws, working and trade rules for the government of local unions and members of the United Brotherhood working in their districts, "which shall in no way conflict with the Constitution and the International Laws of the United Brotherhood, and must be adopted by refer- endum vote of the members and approved by the First General Vice-President before becoming law. . . ." The general laws provided further that bylaws and trade rules "for the government of the District Council and Local Unions must be submitted by the District Council to the Local Unions represented in said district, and must be adopted by a majority of members voting, at a special meeting called therefor, and shall in no way conflict with the Constitution and International Laws of the United Brotherhood." The trades rules of Respondent District Council provided among other things that: When a member goes on a job he must ascertain through proper inquiry if it is a union job ; if the job is not union and he works on same, he shall be fined. A member must notify the Steward and sign the report card before going to work, or be subject to fine of $5.00. The trade rules provided also that "Every member under the jurisdiction of this Council shall quit work when requested to do so by the legally authorized party or parties." GEORGE D. AUCHTER COMPANY 905 3. Conclusions From the above previsions of the constitution and laws, and from all the other testimony in the case, emerges a picture of the Respondent District Council with powers somewhat as follows : It had power to make its own laws, so long as they did not conflict with the laws of the United and were approved by its constituent locals and the first vice president of the United . It had power to and did nego- tiate the terms of and execute collective-bargaining contracts to be binding upon its constituent locals, which contracts were not subject to the ratification of the United Brotherhood before they became binding. There was no restriction upon its power to negotiate the settlement of grievances or disputes with em- ployers unless it requested the assistance of the United. It had and exercised authority to grant or withhold permits to work. Nothing in the constitution and laws of the United required the District Council to negotiate and enter into the illegal 1950 contract, without whose color of legality Pittman would not have been able to bar Kirby from employment as found above. Although United Brotherhood had considerable authority under its constitu- tion and laws to make Respondent District Council adhere to the constitution, laws, and principles of the United, the District Council was otherwise left a large amount of autonomy in the running of its affairs and the affairs of its con- stituent locals ; and it had a large amount of freedom in dealing with employers within its geographical jurisdiction. On the record as a whole it is held that the United Brotherhood lacked that right of control over all the activities of Respondent District Council which would be necessary for a finding that the District Council was a mere adminis- trative arm or agent of the United.u Rather it is held that the District Council had sufficient autonomy to be considered a separate entity and to be solely responsible for its own illegal acts. It is held, therefore, that the United Brotherhood was not responsible for the illegal 1950 contract or for causing dis- crimination against Kirby. Therefore I find that the complaint against the United Brotherhood was improperly issued under the proviso to Section 10 (b) and should be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the operations of Respondent George D. Auchter 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 Because it has been found that the Respondent Company, Respondent Asso- ciation, and Respondent District Council have engaged 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. As the practices of the District Council and Respondent Company, as well as Respond- ent Association, prevented Kirby from being employed on the Fernandina job, it will be recommended that they jointly and severally make him whole for any loss he may have suffered as a result thereof by paying to said Kirby an amount equal to that which he would have earned as a millwright from October 26, 'u Cf. Rock Hill Printing and Finishing Company, 82 NLRB 932; F. Strauss and Son, Inc., 80 NLRB 26. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1950, the date he applied for work as a millwright and Respondent Company had work for him as a millwright, until the date when, pursuant to the recom- mendations herein contained, Respondent Company shall offer Kirby employ- ment as a millwright, less Kirby's net earnings during said period. 12 Loss of pay shall be determined by deducting from a sum equal to that which Kirby would normally have earned for each quarter or portion thereof, his net earn- ings, if any, in other employment during that period. Earnings in one par- ticular quarter shall have no effect upon the back-pay liability for any other quarter. The quarterly periods described herein shall begin with the first day of January, April, July, and October."' It is recommended further that Respond- ent Auchter Company make available to the Board upon request payroll and other records, in order to facilitate the checking of the amount of back pay due.' Because of the Respondents' unlawful conduct and its underlying purpose and tendency, I find that the unfair labor practices found are persuasively related to other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the Respondents' conduct in the past'' The preventative purpose of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby to minimize industrial strike which burdens and obstructs commerce, and thus effectuate the policies of the Act, I will recommend that Respondents cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. George D. Auchter Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act 2. Carpenters District Council of Jacksonville and Vicinity is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 3. By executing and enforcing the unlawful provisions of the 1950 contract, and by discriminating in regard to the hire and tenure of employment of George W. Kirby, Respondent Company and Respondent Association have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By the conduct stated in paragraph numbered 3, above, Respondents Com- pany and Association have interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8 (a) (1) of the Act. 5. By executing and enforcing the unlawful provisions of the 1950 contract, and by causing Respondent Auchter Company to discriminate against George W. Kirby in the hire and tenure of his employment, Respondent District Council has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) and Section 8 (b) (1) (A) of the Act. 12 Crossett Lumber Company, 8 NLRB 440, 497--8 ; Republic Steel Corporation Y. N. L. R. B., 311 U. S. 7. 18 F. W. Woolworth Company, 90 NLRB 289. 14 F. W. Woolworth Company, supra. 15 N. L. R. B. v. Express Publishing Co., 312 U. S. 426. INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 907 6. The aforesaid unfair labor practices are unfair. labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. '[Recommendations olritted:from publication in this volume.] INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LooAL 10, ILWU, and TRUE KNOWLEDGE . Case No. 00-CB-216. Febru- ary 0,1953 Decision and Order On June 16, 1952, Trial- Examiner David F. Doyle issued his Inter- mediate Report in • the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings, with the exception noted below, are hereby affirmed., The Board has considered the Intermediate Report, the exceptions, and brief, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following additions and modifications. 1. We agree with the Trial Examiner that the Respondent Union violated Section 8 (b) (1) (A) and (2) of the Act, but for different reasons. The pertinent facts, as more fully set forth in the Inter- mediate Report, are as follows : The Pacific Maritime Association, referred to herein as the PMA, representing various shipping, stevedoring, and terminal companies, and the Respondent Union established many years ago a hiring hall on the San Francisco waterfront. At present; there are 2 groups of personnel working as longshoremen on the waterfront-about 2,500 are dispatched via the hiring hall in gangs and about the same number 1 At the hearing and in his Intermediate Report the Trial Examiner indicated that he took judicial notice of certain findings of fact in a prior proceeding before the Board in- volving True Knowledge and the Respondent Union. (International Longshoremen's and Warehousemen 's Union et al., 90 NLRB 1021.) However, at the hearing the Trial Exam- iner stated that these findings having been litigated were conclusive upon the Respondent Union and it would not have the right to rebut the facts. The Trial Examiner was in error in this regard. The Board has held that a Trial Examiner can take official notice of proceedings before the Board in other cases, provided that fact is stated on the record by the Trial Examiner or in his Intermediate Report, and the parties are given an oppor- tunity to show to the contrary. J. S. Abercrombie Company, 83 NLRB 524. However, as we have not relied on these facts in arriving at our decision herein, the Respondent Union was not prejudiced thereby. 102 NLRB No. 87.