Grove Shepherd Wilson & Kruge, Inc.

GROVE SHEPHERD WILSON & KRUGE, INC. 2O9 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 Respondent has refused to bargain with- the Union by sponsoring and promoting among its employees in an appropriate unit, a petition for the withdrawal of union-shop authority; by dealing with them directly and individually in matters that constituted the subject matter of collective bargaining, and by refusing the Union's request for certain wage data, it will be recommended that the Respond- ent forthwith furnish to the Union the name, classification, hours worked, and wage rate of each employee in the appropriate unit, and cease and, desist from other- practices found to constitute a refusal to bargain. Upon the basis of the above findings of fact, and upon the entire. record'in the case, I make the following: CONCLUSIONS OF LAW 1. Retail Clerks Union, Local 1167, AFL, is a labor organization within-the mean- ing of Section 2 (5) of the Act. 2. All employees of F. W. Woolworth Co., at its San Bernardino, California, store, including order or merchandise girls, lunch or fountain department employees, trainees, and employees working at least 8 hours a week as regular part-time em- ployees, but excluding the manager, assistant manager, assistant manager-in charge of lunch or fountain department, personnel supervisor, office supervisor, stockroom supervisor, floor supervisors, and all other supervisors as defined- in Section 2 (11) of - the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. At all times since March 22, 1951, the Union has been the, exclusive repre- sentative for purposes of collective bargaining of all the employees in the aforesaid appropriate unit, within the meaning of Section 9 (a) of the Act. 4. By refusing to provide the Union with information as to (1) the name, classification, hours worked, and wage rate of each employee in the appropriate unit; (2) by dealing directly and individually with employees in the appropriate unit concerning matters that constituted the subject matter of collective bargaining; and (3) by sponsoring and promoting among employees in the appropriate unit a petition for withdrawal of union-shop authority under Section 9 (e) of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (5) and 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] GROVE SHEPHERD WILSON & KRUGE, INC., AND HENDRICKSON BROS., INC., SEVERALLY AND AS A JOINT VENTURE KNOWN AS GROVE-HEN- DRICKSON; AND THE NASSAU & SUFFOLK CONTRACTORS ASSOCIATION, INC. and ALFRED WILLIAM MAYER and SUFFOLK COUNTY DISTRICT COUNCIL, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, PARTY TO THE CONTRACT LOCAL 1483 AND SUFFOLK COUNTY D I S T R I C T COUNCIL, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL and ALFRED WILLIAM MAYER and THE NASSAU & SUFFOLK CONTRACTORS ASSOCIATION, INC., AND ITS MEMBERS LISTED ON APPENDIX F, AT- TACHED HERETO, PARTIES TO THE CONTRACT. Cases Nos. 2-CA-2984 and 2-CB-867. July 00,1954 Decision and Order On December 10, 1953, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the 109 NLRB No. 21. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents 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 Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed in that respect. Thereafter, the General Counsel and the Respondents filed exceptions to the Intermediate Report and supporting briefs.' The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner with the following modifications. 1. The General Counsel excepted to the Trial Examiner's finding that Grove, Hendrickson, and Grove-Hendrickson did not violate sec- tion 8 (a) (3) and (1) of the Act by failing to hire Mayer, the Charg- ing Party, and that the Suffolk County District Council and Local 1483, herein called the Union, did not violate Section 8 (b) (2) and (1) (A) of the Act by causing or attempting to cause Grove, Hen- drickson, and Grove-Hendrickson to deny employment to Mayer be- cause he had not been referred by the Union. While we agree with the Trial Examiner that the record does not support a finding that Grove and Hendrickson violated the Act with respect to Mayer, we otherwise find merit in the General Counsel's exceptions. Briefly stated, the pertinent facts giving rise to the refusal to employ Mayer are these : Sometime during 1952, and under the sponsorship of Grove, Grove and Hendrickson formed a joint venture, herein called Grove-Hen- drickson, for the purpose of bidding on the Calverton project. Pur- suant to the joint venture agreement, Grove-Hendrickson became the sole employer of the carpenters here involved. In October 1952, Grove-Hendrickson was awarded the construction contract for the project, and it immediately commenced to hire the necessary comple- ment of carpenters. The record discloses that Mattson, who was a member of the Union, was selected by Grove-Hendrickson as a car- penter foreman and was accordingly delegated the sole authority to hire and discharge carpenters under his jurisdiction. Between October 14, 1952, the date on which Mattson assumed his duties, and October 29, the date on which Mayer sought employment, ' The Respondents' request for oral argument is hereby denied as the record , the excep- tions , and the briefs adequately present the issues and the positions of the parties. 2 The Trial Examiner found that Grove Shepherd Wilson & Kruge , Inc. and Grove- Hendrickson did not "maintain in effect and enforce the terms of a collective bargaining agreement" with the Union which contained illegal union-security provisions , and therefore did not violate Section 8 ( a) (3) of the Act in this connection . As no exceptions have been taken to this finding, we adopt it pro forma. GROVE SHEPHERD WILSON & KRUGE, INC. 211 Mattson employed approximately 52 carpenters for work on the proj- ect. With respect to the procurement of carpenters , Mattson testified at the hearing that applicants for jobs presented themselves at the morning "shape-up" and, if qualified, were hired regardless of union affiliation. When the workload required additional carpenters, these were obtained by notifying the shop steward, Jendral, to be on the alert for such men, or by notifying other carpenters on the project to inform qualified friends of the job vacancies. In some instances, Mattson asserted that he obtained carpenters through personal con- tact with men with whom he had worked at other construction sites. However, of the 52 carpenters hired prior to October 29, it appears that only 3 were directly solicited by Mattson , 1 of whom was the president of Mattson's Local, while approximately 3 others were "re- quested" by Mattson from an unknown source. Of the remaining carpenters , Mattson was unable to state how many appeared; at the project at the inivitation of Shop Steward Jendral, "one of my best sources of contact," or through the solicitation of other carpenters on the project. Moreover, of all the carpenters hired by Mattson, it appears that only one was not a member of the Union at the time of his employment. With respect to this individual, Mattson testified that he was a "bit surprised" when Jendral informed him of this Jact, but was assured by Jendral that the individual had applied for;mem- bership. The record reveals that this carpenter was admitted to membership within 5 days after his employment, at the next regularly scheduled meeting of the Union. On the morning of October 29, Mayer, who was a member of the Union, visited the project between the hours of 9 and 11 a. m. in search of employment as a carpenter. Mayer, who stated that he was aware that no jobs could be obtained in the locality unless the Union referred the applicant , was informed by Mattson that all necessary carpenters had been hired at the regular 8 a. in. "shape-up" and that no jobs were available . Apparently at Mayer's insistence, Mattson took Mayer's name and telephone number for future reference, ex- plaining at the hearing that he does this as a matter of courtesy for all applicants who request it. At no time thereafter did Mayer visit the project for employment or did Mattson telephone Mayer. The record discloses that the book in which Mattson entered Mayer's name and telephone number contained the names of other carpenters, some of whom were called by Mattson. The record further reveals, and the Trial Examiner noted, that carpenters have on occasion been hired after the regular "shape-up" time. According to Mattson's testimony, Mattson informed Shop Steward Jendral on October 28 that 14 carpenters would be needed the follow- ing day. The requisite number of carpenters appeared at the shapeup 334811-55-vol. 109-15 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the morning of October 29 and were hired. Because of a shortage of materials, Mattson testified that only nine were taken on that day and the remainder were instructed to report for work on October 30. Approximately five other carpenters were hired subsequent to October 30. During his examination, Mattson averred that he had never been instructed to hire only those carpenters who had obtained a referral from the Union. Meinertz, the Union's business agent, testified that the Union did not maintain a practice of referring members for jobs, although he furnished "leads" to union members. However, the Gen- eral Counsel introduced into evidence, as an admission against inter- est, a signed, sworn statement by Mattson which was made to a Board field examiner in January 1953. In this sworn statement, Mattson related that, with respect to the hiring of carpenters, I customarily tell my shop steward, Leo Jendral, of the [Union], the number of carpenters I need. He calls up the business agent. Iver Meinertz, and Meinertz sends the carpenters or apprentices down. There have been carpenters coming around looking for jobs, but I haven't hired anyone freelance-off the lot-they all come through the union by my contacting Jendral. That's the way hiring is generally done. . . . I hire through the shop steward, or otherwise there might be a squabble between me and the business agent. . . . One of the main reasons I request the shop steward for carpenters is that the union is more familiar with men who are capable of doing form work, and I am sure of getting capable men, which I may not get capable men if I hire off the streets. I believe the union would raise the devil with me if I hired out-of-towners or non-union men; that is my un- derstanding of what probably would happen. With respect to Mayer's application for employment, Mattson fur- ther averred in his statement that The reason I have not hired Mayer or any other carpenter off the street is that I always hire by asking Jendral for carpenters. The Union has always been able to supply carpenters. If the union had sent Mayer down in one of the groups I hired, I would have hired him. Finally, with respect to the procurement of carpenters on October 29, Mattson stated : On that day, in the morning, about 8 A.M., I hired 8 carpenters ; I had asked Jendral to send down about 14 men the day before. On Oct. 30, 1952, I hired about 7 more carpenters sent down by the union. The shop steward always checks the carpenters' union cards before I hire them; Jendral then takes the men if he feels GROVE SHEPHERD WILSON & KRUGE, INC. 213 they are satisfactory into the timekeeper's office to be signed up for the payroll. After they are signed up I assign them to crews or foremen. During further examination, Mattson sought to repudiate this state- ment. He first contended that his reason for signing the statement was because the field examiner had "scared" him into it. He then admitted that he was not physically frightened, but signed it because he wanted to spare the field examiner the inconvenience of having to make another trip to the project. He finally contended that the hour was so late and it was so dark when the statement was drawn up that he could not read the document properly before signing. However, Mattson conceded that the foregoing statements were read to him be- fore he signed the document, and did not deny the truth of the state- ments so made. The Trial Examiner properly accepted Mattson's admission as posi- tive evidence respecting the manner in which carpenters were employed at the project 3 In appraising the probative value of the admission, however, the Trial Examiner concluded that while he was "not quite satisfied with his [Mattson's] attempt to avoid responsibility for the statement, which he signed, it stands alone in contradiction to other reliable evidence concerning hiring practices" at the project. He there- fore did "not rely on Mattson's statement as proof of the, violation alleged." This "other evidence" upon which the Trial Examiner ap- parently did rely consisted of the testimony of Bower, the project manager, that he informed Mattson that Grove's hiring policies were to be put into effect; Business Agent Meinertz' testimony that the Union had no office in the area and therefore any referral system would be "impractical if not impossible" of operation; and, Mattson's testimony at the hearing regarding the manner in which he procured carpenters and the fact that no jobs were available when Mayer applied for employment. An analysis of all the evidence convinces us that the Trial Examiner failed to accord proper weight to Mattson's admission in resolving the issue as to whether a practice was maintained at the Calverton proj- ect respecting union referrals. The record discloses that Grove's hir- ing policy, as enunciated by Grove's president and communicated to Bower and Mattson, provided that carpenters should be hired who "are efficient and capable of carrying out the work in the proper manner," and contained no specific direction to hire regardless of union membership, as the Trial Examiner observed. Moreover, Busi- ness Agent Meinertz, while testifying that the Union had no office in the area, acknowledged that he was available at his home telephone at the end of the working day for the transaction of union business, 3 See Reeder Motor Company, 96 NLRB 831, 835. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he visited the projects under his jurisdiction, and that he fur- nished telephonic "leads" to carpenters seeking employment. In con- trast to this evidence is the signed, sworn statement, elicited from Mattson within 2 months after the Mayer incident, and after Mattson became aware that Mayer had filed a charge with the Board, in which Mattson related with positive clarity that he "customarily" informs his shop steward of his employment needs, that the steward then tele- phones the business agent regarding job vacancies, that the business agent dispatches the necessary number of carpenters, and that the "shop steward always checks the carpenters' union cards before I hire them." Mattson further related that he had requested 14 carpenters from Jendral on October 28 but only the 8 whom he hired on October 29 appeared at the project, and that on October 30, the day after Mayer applied for employment, and when jobs were available, Mattson hired an additional 7 who had been "sent down by the union." Finally, Mattson stated that "If the union had sent Mayer down in one of the groups I hired, I would have hired him." Viewing Mattson's admission in this posture, we conclude that the evidence set forth in the statement preponderates in favor of a finding that Mattson maintained an unlawful hiring practice at the project whereby only union members referred by the Union were employed for carpentry work. We find that Mayer was refused employment as a carpenter as a result of this practice and not because jobs were then unavailable. Accordingly, the parties who maintained this unlawful practice are responsible for Mayer's failure to obtain employment. The complaint alleged that Grove, Hendrickson, and Grove-Hen- drickson violated Section 8 (a) (3) and (1) of the Act by refusing to employ Mayer because he had not been referred by the Union under the unlawful hiring practice. The record reveals that, for the purpose of undertaking the Calverton project, Grove and Hendrickson sub- merged their identity in Grove-Hendrickson. The latter thereupon assumed the proportions of a separate entity, became the sole employer of the carpenters here involved, maintained a separate bank account, separate withholding and social-security tax accounts, as well as sepa- rate books of account. In view of these circumstances, we find that Grove-Hendrickson, and not Grove or Hendrickson, constituted the "Employer" at the project 4 and that any violation of the Act in con- nection with the refusal to employ Mayer is attributable solely to Grove-Hendrickson. We shall therefore dismiss the complaint inso- far as it alleges that Grove and Hendrickson violated the Act with re- spect to Mayer. We now turn to the basic question raised by the General Counsel's exceptions, namely, whether Mattson's admission that an unlawful 4 see Willamette National Lumber Company, '107 NLRB 1141; Wallcoa' Construction Co, Inc., 87 NLRB 371. GROVE SHEPHERD WILSON & KRUGE, INC. 215 referral system was maintained at the project, and that Mayer was denied employment because he had not been so referred, binds Grove- Hendrickson and/or the Union, and thus attributes to them a course of conduct which is violative of Section 8 (a) (3) and (1) and 8 (b) (2) and (1) (A) of the Act, respectively. An admission against interest, made by an agent who is acting with- in the actual or apparent scope of authority vested in him by his prin- cipal, is admissible against and binding upon that principal.5 In the instant case, it is undisputed that when Mattson was employed, Grove- Hendrickson delegated to him the sole authority to hire and discharge carpenters under his jurisdiction, and therefore clothed him with agency powers to act in that general area on its behalf. In doing so, Mattson's authority to hire was limited only by Grove-Hendrickson's injunction to hire those carpenters who "are efficient and capable of carrying out the work in the proper manner." When, as Mattson admitted, he hired only capable carpenters, the sole limitation upon his agency powers was satisfied. By conditioning employment upon a prior union referral, which, as indicated above, involved the rejection of applicants not acceptable to the Union, Mattson was nonetheless acting within the general area of authority delegated to him by Grove- Hendrickson to hire carpenters for work on the project. His admis- sion against interest, that he maintained the above referral practice, and that Mayer was denied employment because he had not been re- ferred under the arrangement by the Union, therefore bound his prin- cipal, Grove-Hendrickson. Accordingly, we find, contrary to the Trial Examiner, that, by denying employment to Mayer pursuant to an un- lawful hiring practice, Grove-Hendrickson violated Section 8 (a) (3) and (1) of the Act. Mattson's agency was of a dual character. He not only acted for Grove-Hendrickson in hiring and discharging carpenters under his jurisdiction, but he acted for the Union in his capacity as a foreman. Mattson, who was a member of the Union, testified that he abided by the Union's constitution, bylaws, and working rules. The Union's constitution provides that "Members who contract work or become foremen, must comply with Union rules and hire none but members of the United Brotherhood." The working rules require all foremen to aid the job steward to check all carpenters' union dues books to in- sure that members are in good standing, they prescribe the manner in which nonunion job applicants may obtain membership, and they proscribe the employment of nonunion men with those belonging to the Union. By undertaking to police the Union's working rules under the authority delegated to him by the constitution, Mattson assumed 5 See Wtigmore, On Evidence, Sec. 1078. 6 See Cement Masons Local No. 555,102 NLRB 1408. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the status of an agent for the Union.' His admission that he hired only those carpenters who had been referred by the Union, even if such action had not been specifically authorized by the Union," was mani- festly within the scope of the general authority delegated to him by the constitution, bylaws, and working rules, and operated to bind the Union.' In view of the foregoing, and the record as a whole, we find that the Union, by participating in an unlawful hiring practice, there- by caused Grove-Hendrickson to deny employment to Mayer. In doing so, we conclude that the Union violated Section 8 (b) (2) and (1) (A) of the Act. 2. In its exceptions to the Intermediate Report, the Union objected to the Trial Examiner's findings that Hendrickson and the Association violated Section 8 (a) (3) and (1), and the Union violated Section 8 (b) (2) and (1) (A) of the Act, by maintaining the illegal union- security clauses in a contract to which they were parties.10 The Union contends that the record is barren of any evidence that Hendrickson and the Association 11 had any employees against whom the illegal clauses could expend their discriminatory force, and that the Trial Examiner erred in concluding that any of the employees of Hendrick- son or the Association were restrained in the exercise of their rights under Section 7 of the Act, as the complaint alleged. The complaint alleged, and the Trial Examiner found, that Hen- drickson was and has continuously been actively engaged in the con- struction of industrial structures and other buildings. The contract between the Union and the Association, to which Hendrickson was a party, and which contained the unlawful union-security provisions, speaks in terms of the duties and obligations of the parties governing their respective employees. These facts, in our opinion, afford a proper basis for drawing the inference that Hendrickson has em- ployees against whom the illegal clauses operated to restrain them in the exercise of their rights under Section 7 of the Act. The Union's exceptions are therefore overruled. THE REMEDY In view of the foregoing, we shall supplement the remedial recom- mendations of the Trial Examiner as follows : 7 See Cement Masons Local No 555, supra ; Howland Dry Goods Company, 85 NLRB 1037, enfd. 199 F. 2d 709 (C. A. 2) ; Sunset Line and Twine Co., 79 NLRB 1487. 8 See Sunset Lane and Twine Co, supra. 9 See footnote 6, supra. 10 In their "Brief in Support of Intermediate Report and Recommended Order of the Trial Examiner," Hendrickson and the Association have indicated their willingness to abide by the Trial Examiner's findings in this connection , and to comply with the Trial Examiner's recommendations based thereon ll While the Association, as such, would not normally employ any employees in the construction field, its action in signing the contract is that of an agent signing on behalf of its constituent principals . Therefore , its maintenance of the illegal provisions would operate to restrain the exercise of protected rights of any employees of its principal, Hendrickson. GROVE SHEPHERD WILSON & KRUGE, INC. 217 We shall order the Respondent, Grove-Hendrickson, a joint venture, to offer to Alfred William Mayer immediate employment as a car- penter, or a position substantially equivalent-12 to that for which, he applied, without prejudice to his seniority or other rights and privi- leges. We shall also order Grove-Hendrickson and the Union, jointly and severally, to make Alfred William Mayer whole for any loss of pay suffered as a result of the discrimination practiced against him, by payment to him of a sum equal to the amount he would normally have earned as wages from October 30, 1952, to the date of a proper offer of employment, less his net earnings during such period. Back pay shall be computed in a manner consistent with the Board's policy set forth in F. W. Woolworth Co.'s In accordance with our usual practice,14 the period from the date of the Intermediate Report herein to the date of this Decision and Order will be excluded in computing the amount of back pay to which Mayer is entitled from Grove-Hendrickson and the Union, as the Trial Examiner recommended that the complaint, insofar as it alleged that Grove-Hendrickson and the Union violated the Act by practic- ing discrimination against Mayer, be dismissed. We shall also order Grove-Hendrickson to make available to the Board, upon request, payroll and other records to facilitate the check- ing of the amount of back pay due. Further, we shall provide that upon notification by Local 1483 and Suffolk County District Council, United Brotherhood of Carpenters and Joiners of America, AFL, to Grove-Hendrickson, and to Mayer himself, that they have no objec- tion to the employment of Mayer, they shall not be liable for any back pay accruing after 5 days from the giving of such notice. We are persuaded that the Union's unfair labor practices found above are potentially related to similar unfair labor practices and that danger of future commissions of such unlawful acts may be anticipated from the past course of conduct. The preventive purposes of the Act will be thwarted unless the Board's Order is coextensive with the threat. Accordingly, we shall issue a broad cease and desist Order against the Union, encompassing all employers within its terri- torial jurisdiction. Order Upon the basis of the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : I. The Respondent, Hendrickson Bros., Inc., Valley Stream, New York, its officers, agents, successors, and assigns, shall : ' See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. F. W. Woolworth Co., 90 NLRB 289 u See Salant & Salant, Incorpor ated, 92 NLRB 343. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Cease and desist from : (1) Encouraging membership in the constituent locals of Suffolk County District Council, United Brotherhood of Carpenters and Joiners of America, AFL, or in any other labor organization, by maintaining, renewing, or enforcing the clauses of any agreement with said Council, or any other labor organization, which require its em- ployees to join, or maintain their membership in, such labor organiza- tions as a condition of employment, unless such agreement has been authorized as provided in Section 8 (a) (3) of the Act. (2) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8 (a) (3) of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Post at its office in Valley Stream, New York, and in each of its places of employment in Nassau and Suffolk Counties, copies of the notices attached hereto and marked "Appendixes A, B, D, and E." 15 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the respective representatives, be posted by Hendrickson immediately after receipt thereof, and be maintained by it for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Hendrickson to insure that said notices are not altered, defaced, or covered by any other material. (2) Notify the Regional Director for the Second Region, in writ- ing, within ten (10) days from the date of this Order, what steps it had taken to comply herewith. II. The Respondent, The Nassau & Suffolk Contractors Associa- tion, Inc., Minneola, New York, its officers, agents, successors, and as- signs, shall : (a) Cease and desist from : (1) Encouraging membership in the constituent locals of Suffolk County District Council, United Brotherhood of Carpenters and Joiners of America, AFL, or in any other labor organization, by 351n the event that this Order is enforced by a decree of the United States Couit of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words, "Pursuant to a Decree of the United States Court of Appeals, Enfoi crag an Order " GROVE SHEPHERD WILSON & KRUGE, INC. 219 maintaining, renewing, or enforcing the clauses of any agreement with said Council or any other labor organization, which requires employees to join, or maintain their membership in, such labor organi- zations as a condition of employment, unless such agreement has been authorized as provided in Section 8 (a) (3) of the Act. (2) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist labor organizations, to bargain collectively through representatives .of their own choosing, and to engage in other 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 organiza- tion 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) Mail to the Regional Director for the Second Region signed copies of the notice attached hereto and marked "Appendix B," 113 for posting by Hendrickson Bros., Inc. Copies of said notice, to be furnished by the Regional Director for the Second Region shall, after being duly signed by the Association's representative, be forthwith returned to said Regional Director for such posting. (2) Mail to each member of the Association, a list of whom appears in "Appendix F" attached hereto, a copy of "Appendix B" hereto attached, with the request that said members post such notice imme- diately upon receipt thereof, and maintain it for sixty (60) consecu- tive days thereafter, in conspicuous places where notices to their employees are customarily posted, and further request that said mem- bers take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (3) Notify the Regional Director for the Second Region, in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. III. The Respondent, Grove-Hendrickson, a Joint Venture, in Calverton, New York, its officers, agents, successors, and assigns, shall : (a) Cease and desist from: (1) Entering into, maintaining, or enforcing any agreement or arrangement requiring membership in a labor organization as a con- dition of employment, unless such agreement or arrangement is au- thorized in Section 8 (a) (3) of the Act. '° In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words, "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Discriminating against Alfred William Mayer, or any other employee, in violation of Section 8 (a) (3) of the Act, at the request or instigation of Local 1483 and Suffolk County District Council, United Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organization. (3) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to bargain collectively through repre- sentatives of their owit choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of 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 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) Offer to Alfred William Mayer immediate employment as a carpenter, or other employment substantially equivalent to that for which he applied, without prejudice to his seniority or other rights and privileges. (2) Upon request, make available to the Board or its agents for examination or copying all payroll records, social-security payment records, timecards, personnel records and reports, and all other rec- ords necessary to analyze the amounts of back pay due under the terms of this Decision and Order. (3) Post in conspicuous places at its Calverton, New York, project, copies of the notice attached hereto and marked "Appendix C." 17 Copies of said notice, to be furnished by the Regional Director foi the Second Region, shall, after being duly signed by Grove-Hendrick- son's representative, be posted by it immediately upon receipt thereof, and maintained by it for a period of sixty (60) consecutive days there- after in conspicuous places, including all places where notices to the employees are customarily posted. Reasonable steps shall be taken by Grove-Hendrickson to insure that said notices shall not be altered, defaced, or covered by other material. (4) Notify the Regional Director for the Second Region, in writ- ing, within ten (10) days from the date of this Order what steps it has taken to comply herewith. IV. The Respondent, Local 1483, United Brotherhood of Carpen- ters and Joiners of America, AFL, Patchogue, New York, its officers, agents, successors, and assigns, shall : 17 In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words, "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." GROVE SHEPHERD WILSON & KRUGE, INC. 221 (a) Cease and desist from: (1) Entering into, maintaining, and performing any agreement or arrangement requiring membership in a labor organization as a condition of employment except as authorized in Section 8 (a) (3) of the Act. (2) Causing or attempting to cause Grove-Hendrickson, or any other employer within its territorial jurisdiction, to discriminate against employees in violation of Section 8 (a) (3) of the Act. (3) Directly or through the Council, maintaining, renewing, or enforcing the clauses of any agreement with The Nassau & Suffolk Contractors Association, Inc., or any other employer within its ter- ritorial jurisdiction, which require employees to join, or maintain their membership in Local 1483 or any other labor organization as a condition of employment, unless such agreement has been authorized as provided in Section 8 (a) (3) of the Act. (4) In any like or related manner causing or attempting to cause any member of the Association or any other employer within its ter- ritorial jurisdiction to discriminate against employees in violation of Section 8 (a) (3) of the Act. (5) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Immediately write Grove-Hendrickson, and send a copy to Al- fred William Mayer, R. F. D. #1, Medford Station, New York, stat- ing that it has no objection to the employment of Mayer by Grove- Hendrickson with the same rights and privileges granted to all employees. (2) Post at its office, if any, copies of the notice attached hereto and marked "Appendix D" and "Appendix E.11:111 Copies of said notice, to be furnished by the Regional Director for the Second Re- gion, shall, after being duly signed by the respective representatives, be posted by Local 1483, upon receipt thereof, and be maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, in- cluding all places where notices to its members are customarily posted. Reasonable steps shall be taken by Local 1483 to insure that said no- tices are not altered, defaced, or covered by any other material. (3) Mail to the Regional Director for the Second Region, in writ- ing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. (4) Mail to the Regional Director for the Second Region signed copies of the notice attached hereto and marked "Appendix D," for 28 In the event that this Order is enforced by a Decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words, "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the posting by Grove-Hendrickson, Hendrickson Bros., Inc., and The Nassau & Suffolk Contractors Association, Inc. Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the representative of Local 1483, be forth- with returned to said Regional Director for such posting. (5) Notify the Regional Director for the Second Region, in writ- ing, within ten (10) days from the date of this Order what steps it has taken to comply herewith. V. The Respondent, Suffolk County District Council, United Brotherhood of Carpenters and Joiners of America, AFL, West Say- ville, New York, its officers, agents, successors, and assigns, shall : (a) Cease and desist from : (1) Entering into, maintaining, and performing any agreement or arrangement requiring membership in a labor organization as a con- dition of employment except as authorized in Section 8 (a) (3) of the Act, or causing or attempting to cause Grove-Hendrickson, or any other employer within its territorial jurisdiction, to discriminate against employees in violation of Section 8 (a) (3) of the Act. (2) Maintaining, renewing, or enforcing the clauses of any agree- ment with The Nassau & Suffolk Contractors Association, Inc., or any other employer within its territorial jurisdiction, which require em- ployees to join, or maintain their membership in, the constituent lo- cals of the Council, or in any other labor organization, as a condition of employment, unless such agreement has been authorized as pro- vided in Section 8 (a) (3) of the Act. (3) In any like or related manner causing or attempting to cause any member of the Association or any other employer within its terri- torial jurisdiction to discriminate against employees in violation of Section 8 (a) (3) of the Act. (4) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Immediately write Grove-Hendrickson, and send a copy to Alfred William Mayer, R.F.D. #1, Medford Station, New York, stat- ing that it has no objections to the employment of Mayer by Grove- Hendrickson with the same rights and privileges granted to all employees. (2) Mail to the Reegional Director for the Second Region signed copies of the notice attached hereto and marked "Appendix E" 13 for posting `by Hendrickson Bros., Inc., Grove-Hendrickson, The Nassau & Suffolk Contractors Association, Inc., and Local 1483. Copies of 19In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words, "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." GROVE SHEPHERD WILSON & KRUGE, INC. 223 said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Counsel's representative, be forthwith returned to said Regional Director for such posting. (3) Mail to each of its constituent locals a copy of "Appendix E" attached hereto, with the request that said locals post such notice im- mediately upon receipt thereof, and maintain it for sixty (60) con- secutive days thereafter, in a conspicuous place where notices to their members are customarily posted ; and further request that said mem- bers of the Council take reasonable steps to insure that said notices are not altered, defaced, or covered by any other material. (4) Notify the Regional Director for the Second Region, in writ- ing, within ten (10) days from the date of this Order what steps it has taken to comply herewith. VI. The Respondents, Grove-Hendrickson, Local 1483, and Suffolk County District Council, United Brotherhood of Carpenters and Joiners of America, AFL, their officers, agents, representatives, suc- cessors, and assigns, shall, in addition to the respective action above ordered, take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole Alfred William Mayer for any loss of pay he may have suffered by reason of the discrimination practiced against him in the manner set forth in "The Remedy" herein. (b) Mail to Alfred William Mayer copies of the notice attached hereto and marked "Appendixes C, D, and E." (c) Notify the Regional Director for the Second Region, in writ- ing, within ten (10) days from the date of this Order what steps they have taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that (1) Grove Shepherd Wilson & Kruge, Inc. and Grove-Hendrickson violated Section 8 (a) (3) and (1) of the Act by maintaining illegal - union-security clauses, and (2) Hendrickson Bros., Inc., and Grove Shepherd Wilson & Kruge, Inc. violated Section 8 (a) (3) and (1) of the Act with respect to Mayer, be, and it hereby is, dismissed. Appendix A NOTICE TO ALL E3IPLOYEIIS Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT maintain, renew, or enforce the clauses of any agreement with Suffolk County District Council, United Brother- hood of Carpenters and Joiners of America, AFL, or any other labor organization, which require our employees to join, or main- tain their membership in, such labor organization as a condition 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment, unless such agreement has been authorized as pro- vided in the National Labor Relations Act, as amended. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist the constituent locals of Suffolk County District Council, United Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except 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. All our employees are free to become, remain, or to refrain from becoming or remaining, members in good standing in Local 1483 or the constituent locals of Suffolk County District Council, United Brother- hood of Carpenters and Joiners of America, AFL, 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. HENDRICKSON BROS., INC., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT maintain, renew , or enforce the clauses of any agreement with Suffolk County District Council, United Broth- erhood of Carpenters and Joiners of America , AFL, or any other labor organization , which require employees to join, or maintain their membership in, such labor organization as a condition of employment, unless such agreement has been authorized as pro- vided in the National Labor Relations Act, as amended. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of the right to self- organization, to form labor organizations, to join or assist the constituent locals of Suffolk County District Council, United GROVE SHEPHERD WILSON & KRUGE, INC. 225 Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing and to engage in concerted activ- ities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except 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. All employees are free to become, remain, or to refrain from be- coming or remaining, members in good standing in Local 1483 or the constituent locals of Suffolk County District Council, United Broth- erhood of Carpenters and Joiners of America, AFL, 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. THE NASSAU & SUFFOLK CONTRACTORS ASSOCIATION, INC., Employer. Dated---------------- By----------------------- -•------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material. Appendix C NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT enter into, maintain, or enforce any agreement or arrangement requiring membership in a labor organization as a condition of employment, unless such agreement or arrangement is authorized by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist the constituent locals of Suffolk County District Council, United Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted ac- tivities 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 agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discriminate against Alfred William Mayer, or any other employee, in violation of Section 8 (a) (3) of the Act, at the request or instigation of Local 1483 and Suffolk County District Council, United Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organization. WE WILL make whole Alfred William Mayer for any loss of pay suffered as a result of our discrimination against him. All our employees are free to become, remain, or to refrain from be- coming or remaining, members in good standing of Local 1483 or the constituent locals of Suffolk County District Council, United Brother- hood of Carpenters and Joiners of America, AFL, 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. GROVE-HENDRICKSON, A JOINT VENTURE, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix D NOTICE TO ALL MEMBERS 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 members that: WE WILL NOT enter into, maintain, and perform any agreement or arrangement requiring membership in a labor organization as a condition of employment except as authorized in Section 8 (a) (3) of the Act. WE WILL NOT cause or attempt to cause Grove-Hendrickson, or any other employer within our territorial jurisdiction to dis- criminate against employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT maintain, renew, or enforce the clauses of any agreement with The Nassau & Suffolk Contractors Association, Inc., or any other employer within our territorial jurisdiction, which require employees to join or maintain their membership in this or any other labor organization as a condition of employ- ment, unless such agreement has been authorized as provided in the National Labor Relations Act, as amended. WE WILL NOT in any like or related manner cause or attempt to cause any member of The Nassau & Suffolk Contractors Asso- GROVE SHEPHERD WILSON & KRUGE, INC. 227 ciation, Inc., or any other employer within our territorial juris- diction, to discriminate against employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL make whole Alfred William Mayer for any loss of pay suffered as a result of our discrimination against him. WE WILL notify Grove-Hendrickson, in writing, and furnish a copy of such notification to Alfred William Mayer, that we have no objection to his employment by said Company. LOCAL 1483, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix E NOTICE TO ALL MEMBERS 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 members that : WE WILL NOT enter into, maintain, and perform any agree- ment or arrangement requiring membership in a labor organiza; tion as a condition of employment except as authorized in Section 8 (a) (3) of the Act. WE WILL NOT cause or attempt to cause Grove-Hendrickson, or any other employer within our territorial jurisdiction, to dis- criminate against employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT maintain, renew, or enforce the clauses of any agreement with The Nassau & Suffolk Contractors Association, Inc., or any other employer within our territorial jurisdiction, which require employees to join or maintain their membership in this or any other labor organization as a condition of employ- ment, unless such agreement has been authorized as provided in the National Labor Relations Act, as amended. WE WILL NOT in any like or related manner cause or attempt to cause any member of The Nassau & Suffolk Contractors Associa- tion, Inc., or any other employer within our territorial jurisdic- 334811-55-vol 109-16 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, to discriminate against employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL make whole Alfred William Mayer for any loss of pay suffered as a result of our discrimination against him. WE WILL notify Grove-Hendrickson, in writing, and furnish a copy of such notification to Alfred William Mayer, that we have no objection to his employment by said Company. SUFFOLK COUNTY DISTRICT COUNCIL, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix F A. G. Bancker & Co., Inc., 67 Orchard Street, Manhasset Crampton Bros., Inc., E. Shore Road, Great Neck Davis Construction Company, Charlotte Avenue, Hicksville Ted Fatscher, 17 Emerson Place, Valley Stream Gifford Construction Co., Inc., 45 Middle Neck Road, Great Neck Good Roads Engineering & Construction Co., Burns Avenue, Wantagh Grant Park Construction Co., 65 Prospect Avenue, Lynbrook William H. Greene, Grand Boulevard, Westbury R. B. Hamilton Contracting Co., Railroad Avenue, Roslyn Hendrickson Bros., Inc., 63 No. Central Avenue, Valley Stream J. J. Haggerty, Inc., Westhampton Beach, New York Hinkle & Finlayson, Inc., Sea Cliff Avenue, Glen Cove Horn Construction Co., Inc., 6 Miller Avenue, Merrick Johnson, Drake & Piper, Inc., 86 Trinity Place, New York Karlson & Reed, Inc., W. Barclay Street, Hicksville Vincent Provenzano Construction Co., 157 Franklin Place, Woodmere John C. Peterson Construction Corp., 958 Church Street, Baldwin Radory Construction Corp., 750 Hempstead Turnpike, Franklin Square Rusciano & Son Corp., Sunrise Highway, Rockville Centre Slattery Contracting Co., Inc., 72-02 51st Road, Woodside Standard Bitulithic Co., Woodside Avenue, Baldwin Switzer Contracting Co., Inc., 57 Glen Street, Glen Cove GROVE SHEPHERD WILSON & KRUGE, INC. 229 Intermediate Report and Recommended Order STATEMENT OF THE CASE The consolidated complaint herein alleges that Grove Shepherd Wilson & Kruge, Inc., and Hendrickson Bros., Inc., severally and as a Joint Venture known 1 as Grove-Hendrickson, have violated Section 8 (a) (3) and (1) of the National Labor Relations Act, as amended, 61 Stat. 136, by refusing to hire Alfred William Mayer on or about October 29, 1952, because Suffolk County District Council and Local 1483, United Brotherhood of Carpenters and Joiners of America, AFL, had not referred him for employment, and that said Respondents and The Nassau & Suffolk Contractors Association, Inc., have violated said Sections by maintaining since August 26, 1952, and enforcing a collective-bargaining agreement with the Coun- cil, which agreement contains union-security clauses not in compliance with Section 8 (a) (3) of the Act; and that Local 1483 and the Council have violated Section 8 (a) (2) of the Act by causing and attempting to cause Grove Shepherd and Hendrickson, individually and as the Joint Venture, to refuse as above noted, that the Council2 further violated said Section by maintaining and enforcing the afore- mentioned collective-bargaining agreement, and that by said acts Local 1483 and the Council have violated Section 8 (b) (1) I (A) of the Act. There is no issue concerning the refusal to hire Mayer, but the answers deny the allegations of unfair labor practices. A hearing was held before me at New York, New York, on October 12, 19, and 20, 1953. Pursuant to leave granted to all parties, and the time therefore hav- ing been extended, briefs were thereafter filed by all of the Respondents. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANIES AND THE ASSOCIATION AND THE LABOR ORGANIZATIONS INVOLVED It was admitted and stipulated and I find that Grove Shepherd, Hendrickson, and the Association are New York corporations; that Grove Shepherd and Hend- rickson are and have been engaged in the construction of industrial structures and other buildings; that at all times material hereto the Joint Venture was engaged in construction at Calverton, New York, for Grumman Aircraft Corporation at a con- tract price of more than $13;000,000, the structure so completed being for the manufacture for the Department of Defense of the United States of military air- craft and component parts which are essential for the national defense; that the Association exists for the purpose of representing in labor negotiations employers in the construction industry in Nassau and Suffolk Counties in the State of New York, and that the members of the Association, listed in Appendix A attached hereto, at all times material hereto purchased materials and equipment valued at more than $500,000 and shipped to places within the State of New York from places outside said State; and that Grove Shepherd, Hendrickson, the Joint Venture, and the Association are and at all times material hereto have been engaged in interstate commerce within the meaning of the Act. It was admitted and stipulated and I find that Local 1483 and the Council are labor organizations within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. The collective-bargaining agreement and general violative practices On January 25, 1951, the Association (for Fits members) and the Council (which includes Local 1483) entered into a collective-bargaining agreement which has been continued in effect between the parties and those whom they represent. The agree- ment includes the following provisions among others: SECOND: The Contractor shall employ carpenters who are members in good standing of the Local Unions affiliated with the Suffolk County District Council of the United Brotherhood of Carpenters and Joiners of America when pos- sible. All foremen must be members of the United Brotherhood of Carpen- ters and Joiners of America. There shall be a Foreman Carpenter on all jobs 2 As amended at the hearing with respect to caption, allegations, and all proceedings. s Although Local 1483 is not named in this allegation, it Is one of the local unions for which the Council acted. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where four or more carpenters are employed. All Foremen, except the first one, must be members of this District Council. ELEVENTH. In order to assure an adequate force of skilled mechanics, each Contractor shall be allowed one (1) apprentice to every six (6) journeymen carpenters in his employ. No apprentice shall be employed however, unless he is a member of the United Brotherhood of Carpenters and Joiners of America. . . SEVENTEENTH: If the Courts should decide that any part of this Agreement is unconstitutional or illegal or should any clause or part of this Agreement be found contrary to present or future Laws, it shall not invalidate the other portions of this Agreement, it being the sole interest and purpose of this Agree- ment to promote peace and harmony in the craft along lawful lines. Hendrickson is a member of the Association; Grove Shepherd is not. The General Counsel attempted to show the relationship of the two in this joint venture, to bring Grove Shepherd and the Joint Venture within the terms of or the responsibility for the collective-bargaining agreement, aside from the issue of the practices followed. The testimony, however, indicates that Grove Shepherd, as sponsor of the Joint Venture, established the policies and working conditions on this job; that the policy committee, which is composed of designees of both Companies, delegated matters of policy and gave power of attorney to Grove Shepherd officers; that Grove Shepherd policies here relevant call for hiring regardless of union membership, and that instructions concerning such policies are transmitted to those who hire. While the Joint Venture followed or paralleled the provisions of the collective-bargaining agreement or the prevailing practice with respect to wages, overtime, welfare fund payments, and holidays, that fact does not warrant the conclusion that either Grove Shepherd or the Joint Venture adopted the agreement and is liable for those provi- sions which the evidence does not show that they followed (not to mention those provisions which they were shown not to have followed). Any liability because of the agreement must therefore be limited to the Association, Hendrickson, the Council, and Local 1483. Turning now to the agreement, it may be noted first that the purported nullity clause, "Seventeenth," cannot prevent a finding of unfair labor practice based on any of the other provisions of the agreement .3 To the extent that it accords a preference to union members, "Article Second" on its face violates the Act.' As for apprentices, we have only the testimony by the Council's business agent, Meinertz, that apprentice training was given to non- members, but not that such nonmembers were given jobs. While it appears that one apprentice was employed on this job although he was not a member of the Brotherhood, the evidence adduced is not sufficient to indicate that the practice with respect to employment of apprentices generally differed from the violative provisions of the agreement. Nor is there proof of exculpating practice in employ- ment of carpenters on jobs other than this one as they are covered by the agreement. (I have not overlooked the conclusion by Meinertz, cited by counsel for the Employers, which he declared when an attempt was made to pierce his reluctance to acknowledge that the agreement is in effect. In contrast to this witness' readiness to state a conclusion which he was neither qualified nor authorized to declare, was his unwillingness to identify the Brotherhood's constitution and bylaws now in effect and his expressed belief that several changes had been made since adoption of the copy offered although it was later stipulated to be in force and without amendments. I would not rely on Meinertz's testimony to find that whatever violations appear in the agreement "were not in effect and, accordingly, were not in force.") Viola- tion of Section 8 (a) (3) and (1) on the one hand and 8 (b) (2) on the other is found in connection with the agreement. In any event, and regardless of the practice followed, the restraint inherent in the provisions noted, in the absence of clear notice to all who might be affected thereby, continued in violation of Section 8 (a) (1) and 8 (b) (1) (A) respectively.5 Also to be considered (to the extent that they are shown to have been applied, since union provisions standing alone, as distinguished from an agreement with an employer, have not been deemed proscribed by the Act) are the fact that foremen 3 New York'State Employers Association, Ine, et at, 93 NLRB 127 4 Ibid. The explanations or seasons offered at the various levels in that case (Trial Examiner, Board, and circuit court of appeals) indicate that the decision does not require that action be taken against employees, or, as contended by counsel for the Unions herein, that it be "related to actual employment situations " In fact, the Union and Council were there absolved of liability for any discharge , their liability was limited to the agreement 5 Monolith Portland Cement Company, 94 NLRB 1358; Jandel Furs, 100 NLRB 1390_ GROVE SHEPHERD WILSON & KRUGE, INC. 231 are members of the Brotherhood , the provisid n in the Brotherhood 's constitution and bylaws ( section 42 , U) that "Members who contract work or become foremen, must comply with union rules and hire none but members of the United Brother- hood," and sections 1, 2 (e), and 10 (b) of the Council's working rules, which govern procedure on employment of union men and nonunion men. (The restrictive nature of these provisions is clear, and they need not be here set forth ; there is no issue in that respect .) But on the issue of discrimination by an employer and a union's causing an employer so to discriminate , the hiring practice actually followed is material ; 6 and this is especially true, as we consider this job, with respect to Grove Shepherd and the Joint Venture , whose liability if any is not based on the agreement , as noted. While Mattson, the foreman to whom Mayer applied, testified that he abides by the Brotherhood's bylaws, that conclusion is overcome by his specific testimony that he is not concerned over the union membership or lack of membership of his carpenters, he has never inquired concerning their union status when hiring men, and he has never been told to restrict hiring to union members. ( For the reasons noted supra, we are here concerned with the practice on this job, not with the provi- sions of the agreement as such. ) Ahneman , another foreman , or assistant super- intendent, and Bauer, the project manager, also testified to the practice of hiring without discrimination. Not only was this testimony not countered , but it is clear that nonunion employees were in fact hired, this being in accord with Grove Shepherd's policies as testified to and with the instructions allegedly transmitted to Mattson . The evidence does not show general violative practices on this job. B. Mayer On October 29, 1952,' Mayer, a member of the Brotherhood, applied for work to Mattson, a carpenter foreman on the job. Mattson replied that he had hired many men that morning and was not hiring any more, and, at Mayer's suggestion,8 took his name, address, and telephone number, saying that he would call Mayer if he needed him. Mayer did not thereafter reapply.° He testified that there is no shapeup on such jobs, and that there is no custom of hiring before 8 a. in., when the workday begins. I credit the testimony of various witnesses that applicants do shapeup and that selection is made from among them; and that only in case of exceptional need is a man hired later in the day. Further, regardless of custom or the general practice in the industry, the evidence clearly indicates the practice on this job. There does not appear to have been any exceptional need when Mayer applied on the 29th. Having concededly declared that he had hired many men that morning, Mattson testified that some started to work that day while others were told to report the follow- ing morning as certain necessary material was not yet available. He testified also that he had hired 5 or 6 carpenters since October 29,10 when Mayer applied. The dates and circumstances of such later hirings do not appear, nor any reason why Mattson did not call Mayer. It is to be noted that of the 14 engaged on October 29 or who started to work on that and the following day, all were laid off between November 11 and December 3. Whether the 5 or 6 most recently hired replaced any of these is again not shown. While there is open a wide area for speculation, there is no reasonable basis for inferring that Mattson did not call Mayer because 8 Jandel Furs, supra 7 Mayer testified that lie spoke with Mattson about 9 or 9 • 30 a. in. The latter testified that it was after 10 8 Mayer related the events several times, on each occasion but one failing to state who suggested that Mattson take his name, addiess, and telephone number The latter clearly declared that Mayer asked him to do this, and explained that he would not refuse such a request 8 The futility theory mentioned by the General Counsel depends not only on discrimination but also, as stated by him, on the applicant's knowledge of it On the latter score, Mayer did not appear to expect or recognize discrimination when he applied nor has it been shown that he would have applied again but for something which then or thereafter occurred As for the failure to call Mayer, it has not been shown that he was "needed " Under these circumstances, the taking of his name did not relieve Mayer of the burden of applying and place on Mattson the duty to call him That this was Mayer's own appraisal is to he seen in his testimony that he may have but did not think that he ieturned on the following day, lie did not indicate that he thought it unnecessaiy to reapply. 10 Fifty-two wen e hired before that day 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the latter had no union referral." The record shows that union referrals were not called for on employment, and the issue of referral does not appear to have arisen in any of the 70-odd hirings described. Suspicion or surmise cannot substitute for evidence. The unfair labor practices found supra in connection with the collective-bargaining agreement do not indicate discrimination against Mayer, the issue in his case being union referral, not union membership, and the agreement having been found violative because of its provisions with respect to union membership. As for the "union members only" provision of the Brotherhood's constitution and bylaws, there is no warrant to extend "the spirit . . . of the regulations," as requested by the General Counsel, to cover referrals in the absence of proof that referrals were made. It is neither my function, my purpose, nor my intention to suggest to Mayer what procedure he should follow in seeking employment. But the defense could readily have been tested had he applied before 8 a. in. on several occasions, including times when carpenters were employed. Had he then been passed over, even if allegedly because of personal preference wholly unconnected with union affairs, the issue would at least have been more clearly defined and a basis provided for a finding of discrimination. The evidence here, however, is far from proving that he was in fact discriminated against and that any such discrimination was connected with absence of referral from Local 1483 or the Council. We cannot substitute Mayer's conviction, however firm, for proof to support it. I find no violation in the Act in the refusal to hire Mayer. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section II, above, occurring in con- nection with the operations of Hendrickson and the Association described in sec- tion 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. IV. THE REMEDY Since it has been found that certain of the Respondents have engaged in and are engaging in certain untair labor practices affecting commerce, I shall recommend, that they cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It has been found that Hendrickson and the Association violated Section 8 (a) (1) and (3), and that Local 1483 and the Council violated Section 8 (b) (1) (A) and (2) by maintaining the illegal union-security clauses in their agreement and by restricting employment to union members. I shall therefore recommend that such Respondents cease and desist from such or any like or related conduct, and from 11 A 7-page statement , signed by Mattson , was received in evidence . The General Counsel points out that in it he declared that he would have hired Mayer had the Iattei been referred by the Union , that lie hired through the shop steward , and that carpenters generally were hired through the Union . But the first of these remarks is actually the last and appears at the very end of the statement It is clear that Mattson was here relating what he would have done had player been refereed earlier (not had Mayer been referred ), since in the statement he had already clearly explained that when Mayer applied there was no longer any need In any event , Mattson testified that his statement did not correctly set forth his remarks to the Board representative who wrote it, and he referred to expressions which were not his While I am not quite satisfied with his attempt to avoid responsibility for the statement , which lie signed, it stands alone in contradiction to other and reliable evidence concerning hiring practices , noted supra Only here is there reference to the potency of a referral in obtaining employment In the absence of evidence ( cf N L R B v Constiuction Specialties Co., 208 F. 2d 170 (C A. 10)), of a single oral or written referral or other evidence to show that such a practice was followed on this fob , and in view of the testimony that there were no referrals and further that the union setup in the county made it impractical if not impossible to follow a referral system , I do not rely on Mattson's statement as proof of the violation alleged Mayer's remarks suggested not so much the absence of a referral as a positive act of blacklisting ; but here again we have no proof beyond that which has been noted in connection with the charge that a referral system existed (The Respondents construe Mayer's complaint to be that there was not maintained a iefeiral system adequate to insure a job for him ) GROVE SHEPHERD WILSON & KRUGE, INC. 233 giving effect to the clauses of the agreement 12 which violate the Act, or similar clauses of any extension or renewal thereof. In addition to the notices to be signed by Hendrickson and Local 1483, and posted, I shall recommend that the Association and the Council sign appropriate notices for posting by Hendrickson and at the office of Local 1483, if any, respec- tively. Notices to be posted by Hendrickson shall be posted at its office and in each of its places of employment in Nassau and Suffolk Counties.19 It will serve no useful purpose to direct posting at the Association's office or at the Council's office, if any. Because we have no jurisdiction herein over members of the Associa- tion other than Hendrickson, I shall further recommend only that the Association send copies of its notice to such other members and request them to post the same. Similarly, because we have no jurisdiction over constituent locals of the Council other than Local 1483, I shall further recommend only that the Council send copies of its notice to such other locals and request them to post the same. I shall not recommend that the Board issue a broad cease and desist order since it is not reasonably to be apprehended that the Respondents will commit unfair labor practices different from and not related to those found herein. The order will not, however, be limited to agreements among the various Respondents herein since the unfair labor practices found indicate a desire and intent to commit the same vis-a-vis other employers and labor organizations." For the reasons stated in the subsection entitled "B. Mayer," I shall recommend that the complaint be dismissed insofar as it alleges the discriminatory refusal to hire Mayer; for said reasons and for the reasons stated in the subsection entitled "The collective bargaining agreement and general violative practices" I shall recommend that the complaint be dismissed against the Respondents Grove Shepherd and the Joint Venture. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 1483, United Brotherhood of Carpenters and Joiners of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Suffolk County District Council, United Brotherhood of Carpenters and Joiners of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Nassau & Suffolk Contractors Association, Inc., is an employer within the meaning of Section 2 (2) of the Act. 4. By discriminating in regard to the hire and tenure of employment of its em- ployees, thereby encouraging membership in labor organizations, Hendrickson Bros., Inc., has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 5. By discriminating in regard to the hire and tenure of employment of employees of its members, thereby encouraging membership in labor organizations, The Nassau & Suffolk Contractors Association, Inc., has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Hendrickson Bros., Inc., has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)• of the Act. 7. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, The Nassau & Suffolk Contractors Associa- tion, Inc., has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (1) of the Act. 8. By causing the Association and its members to discriminate in regard to hire and tenure of employment in violation of Section 8 (a) (3) of the Act, the Council has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (b) (2) of the Act. 9. By causing the Association and its members to discriminate in regard to hire and tenure of employment in violation of Section 8 (a) (3) of the Act, Local 1483 has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. "There is neither allegation nor evidence attacking the majority status of Local 1483 or the other constituent locals in the Council. It will therefoie not be recommended that the agreement be set aside in its entirety. 11 The Lummus Ccm pang, 101 NLRB 1628 14 See New York State Employers A,socsattion, Imc., at al, 93 NLRB 127 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 10. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Council has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 11. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Local 1483 has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 12. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. 13. The Respondents have not engaged in unfair labor practices within the mean- ing of the Act with respect to Alfred William Mayer. 14. Grove Shepherd Wilson & Kruge, Inc., has not engaged in unfair labor prac- tices within the meaning of Section 8 (a) (1) or (3) of the Act. 15. The Joint Venture of Grove Shepherd Wilson & Kruge, Inc., and Hendrickson Bros., Inc., has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) or (3) of the Act. [Recommendations omitted from publication.] ARTHUR H. SUMNER, D/B/A ATECO PRODUCTS and INTERNATIONAL AS- SOCIATION OF MACHINISTS, AFL. Case No. 2-CA-2944. July 20, 1954 Decision and Order On January 21, 1954, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent has not engaged in and is not engaging in certain unfair labor practices alleged and recommending that the complaint be dis- missed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel and the Charging Union, International Association of Machinists, AFL, filed exceptions to the Intermediate Report, and briefs were filed by the General Counsel, Union, and Respondent. The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications indicated below.' We agree with the conclusion of the Trial Examiner that the Re- spondent did not violate Section 8 (a) (3) by refusing to reinstate the seven employees who struck on December 4,1952.2 i The Trial Examiner found that the Respondent's attorney privately interrogated some of the employees after the filing of the charge, but that the questioning was not a violation because it was privileged. The record contains no evidence of such an interrogation. Therefore, we correct the Trial Examiner's finding of fact. In view of the absence of any evidence as to unlawful interrogation, we find no violation in this respect. We agree with the Trial Examiner's conclusion that Sumner's reported conversations with Davey and Elwertowski, even if improper, were isolated incidents which do not require a remedial order. Accordingly, it is unnecessary to pass upon, and we do not adopt, his prior conclusion that Sumner did not exceed the bounds of propriety in such circumstances. 2 Elwertowski, Lake, Lazore, Prinzi, A. Sanchez, L. Sanchez, and M. Sanchez. 109 NLRB No. 37.