Operative Plastererers' and Cement Finishers, Ect.

OPERATIVE PLASTERERS' AND CEMENT FINISHERS, ETC. 279 Nor do we find any merit in the Employer's contention that the election should be set aside because another employee was threatened by a fellow employee with imprisonment if he did not vote for the Petitioner. In accord with Board precedent, we find that such threats, coming from a rank-and-file employee with no evidence of any authority, are not enough to create an atmosphere of confusion and fear of reprisal sufficient to constitute interference that would justify setting aside the election 3 Accordingly, as the tally of ballots shows that a majority of the valid votes have been cast for the Petitioner, the Board will certify it as the collective-bargaining representative of the employees in the appropriate unit.' [The Board certified United Brick and Clay Workers of America, AFL, as the designated collective-bargaining representative of the employees of the Employer in the unit found to be appropriate.] CHAIRMAN FARMER and MEMBER MURDOCK took no part in the consideration of the above Supplemental Decision and Certification of Representatives. 5 J. J. Newberry Company, 100 NLRB 84. We find inapposite the decision cited by the Employer to sustain this exception, Dia- mond State Poultry Co., Inc., 107 NLRB 3. In that case, the Board found that the elec- tion was held in such a general atmosphere of confusion and fear of reprisal as to render impossible the rational , uncoerced selection of a bargaining representative. Therefore, the Board did not find it necessary to decide whether certain conduct could be attributed to the unions involved. * We also find no merit in the Employer's other exceptions , as they are either too vague, or repetitious, or no evidence was submitted to sustain them. Nor do we feel that any useful purpose would be served in ordering a formal hearing in this case , as contended by the Employer OPERATIVE PLASTERERS' AND CEMENT FINISHERS INTERNATIONAL ASSO- CIATION OF THE UNITED STATES AND CANADA, AFL, LOCAL 511; INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL, LOCALS 17, 17A AND 17B; INTERNATIONAL ASSOCIATION OF BRIDGE, STRUC- TURAL AND ORNAMENTAL IRON WORKERS, AFL, LOCAL #6; BUILD- ING AND CONSTRUCTION TRADES COUNCIL OF BUFFALO AND VICINITY, AFL ; CARPENTERS DISTRICT COUNCIL OF BUFFALO AND VICINITY and EARL V. JOHNSON ( NATIONAL GUNITE CORPORATION). Case No. 3-CB-200. October 11, 1954 Decision and Order On June 11, 1954, Trial Examiner Ralph Winkler issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from acid take certain affirmative action, as set forth in the copy of 110 NLRB No. 38. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Intermediate Report attached hereto. Thereafter, 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 Respondents' exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. 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 the Respondents, Operative Plas- terers' and Cement Finishers International Association of the United States and Canada, AFL, Local 511; International Union of Oper- ating Engineers, AFL, Locals 17, 17A and 17B; International Asso- ciation of Bridge, Structural and Ornamental Iron Workers, AFL, Local #6; Building and Construction Trades Council of Buffalo and Vicinity, AFL; and Carpenters District Council of Buffalo and Vicinity, all located in Buffalo, New York, their respective officers. representatives, and agents, shall : 1. Cease and desist from : (a) Entering into, maintaining, and performing any unlawful union-security arrangement or agreement or otherwise causing or attempting to cause, in any manner, any employer engaged in com- merce within the meaning of the Act to discriminate against employees in violation of Section 8 (a) (3) of the Act. (b) In any other manner restraining or coercing employees in the exercise of rights guaranteed in Section 7 of the Act, except as such rights may be affected by an agreement authorized under Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Make whole William Marlowe, Richard Gardner, John Fitz- patrick, and Edward McGilvary in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Post in conspicuous places at their respective offices and meet- ing halls in Buffalo, New York, including all places where notices to members are customarily posted, copies of the notice attached to the Intermediate Report and marked "Appendix," l with each notice con- i This notice, however, shall be and it hereby is amended by striking from the first para- graph thereof the words "Recommendations of a Trial Examiner " and substituting in lieu thereof the words "A Decision and Order " In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pur- suant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." OPERATIVE PLASTERERS' AND CEMENT FINISHERS, ETC. 281 taining the name of the labor organization involved. Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by an official representative of each Respondent Union, be posted by Respondents immediately upon receipt thereof and maintained by them for at least sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to their members are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for the Third Region signed copies of the notice attached to the Intermediate Report and marked "Appendix" for posting, National Gunite Corporation willing, at said corporation's offices at Boston, Massachusetts, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed as provided in paragraph (b), above, be returned forthwith to the Regional Director for such posting. (d) Notify the Regional Director for the Third Region, in writing, within ten (10) days from the date of this Order, what steps they have taken to comply herewith. MEMBER MURDOCK took no part in the consideration of the abevA Decision and Order. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges filed in behalf of National Gunite Corporation, herein called the Company, the General Counsel for the National Labor Relations Board issued a complaint on April 29, 1954, against the Respondent labor organizations named above, alleging that the Respondents have violated Section 8 (b) (1) (A) and (2) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint and charges were served upon the Respondents; and the Respondents, in turn, filed answers denying the commission of the unfair labor prac- tices alleged. Pursuant to notice, a hearing was held in Buffalo, New York, on May 17, 1954, before the duly designated Trial Examiner. All parties were represented at the hear- ing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The parties presented oral argument at the close of the hearing and they were also granted permission to file briefs and proposed findings of fact and conclusions of law. Motions by the Respond- ents to dismiss the complaint are disposed of in accordance with the following find- ings of fact and conclusions of law. Upon the entire record in the case, and upon observation of the demeanor of witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY National Gunite Corporation is a Massachusetts concern with its principal office in Boston, Massachusetts; it does pressure concrete repair and construction work. In 1953, the Company performed such work in 8 States under 63 contracts amount- ing to approximately $330,000, of which amount $200,000 was for work performed outside Massachusetts. Between 10 and 15 percent of the materials used by the 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company on its various projects came from States other than where the projects were located. The project where the alleged unfair labor practices occurred in this case was on the Black Rock Canal in Buffalo, New York, where in 1954 the Company per- formed repair work on the walls of the canal locks under contract with the United States Army Corps of Engineers . The amount of this contract was $55,000. Black Rock Canal connects Lake Erie with the Niagara River, and all ships moving between these two bodies must pass through the locks in question. During 1953, a representa- tive year, the freight passing through the canal was 4,491,704 net tons. I find that the Company is engaged in commerce within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES The complaint alleges that the Respondents and the Company have been parties to and performed an agreement or understanding under which employees were required to be members of or to be cleared or referred by the Respondents and/or by Laborers Local 210 (Local Union 210, International Hod Carriers', Building & Com- mon Laborers Union of America, AFL) as a condition of employment and that Respondent Unions acting in concert with Laborers ' Local 210 caused the Company to discriminate against four named employees because these employees lacked such membership and/or clearance or referral. The first phase of the Company's repair operations on the canal project was to remove disintegrated concrete , apply wire mesh, and to build staging or scaffolding for the men working on the canal walls. The water is 15 feet deep in the canal at that point and the walls rise 22 feet above the water line. The scaffolding descends 17 feet from the top of the canal. On or about December 29, 1953, the Company's labor superintendent , Frank Foti , began constructing the scaffolding with three com- pany laborers from Boston; this entailed cutting the lumber to size, putting it together, etc. These three employees were Dominic Santasky , Dick Gardner, and William Marlowe. Santasky was a member of the Providence Laborers ' local, a sister organi- zation of Laborers Local 210; the two other men were not union members. On or about December 31, several days after staging operations were begun, the business representative of Laborers Local 210, Samuel Bongiovanni , went to the job site and inquired of Foti concerning the number of men on the job and how many of them were union members. Foti informed Bongiovanni that 1 was a union mem- ber and 2 were not, but that they wanted to join Laborers Local 210. Bongiovanni replied that his local would not accept new members because too many members of Local 210 were out of work and he also rejected Foti's suggestion that Marlowe and Gardner join a laborers' local in Boston and show Bongiovanni their paid-up union receipts in order to work on the project. On or about January 4, 1954, Foti added two more laborers to his laborers' crew, Herman Shepperd and John Fitzpatrick ; both were company employees from Boston and, of the two, only Shepperd was a union member, belonging to a Providence Laborers' local. Another company laborer from Boston , Edward McGilvary, came to work on January 5 , making six laborers on the job at the time . McGilvary was not a union member. On or about January 4, Foti called John G. Malone, business agent of Respondent Iron Workers , and he asked Malone to send 2 men to the job on January 5. Malone said he would, and 2 iron workers did report on January 5 and continued on the job through its completion . Also on January 4, Foti called Francis Cuffe, who is business agent of Respondent Operating Engineers Local 17 , 17A and 17B and also an officer of Respondent Building and Construction Trades Council . Foti asked Cuffe to send an engineer to the job, which Cuffe said he would do. When an engineer failed to appear the next day, Foti inquired of Cuffe concerning the delay and Cuffe advised Foti that he was not sending a man because of Foti 's "trouble" with Laborers' Local 210. Cuffe further stated that he would visit the job site that afternoon with Michal J. Rossiter, president and business agent of Laborers' Local 210. Cuffe and Rossiter accordingly came to the project that afternoon and, according to Foti 's credible testi- mony, Rossiter "asked me [Foti] what was I doing with all those Boston laborers, and I told him they were all company employees and I was putting them to work. And he [Rossiter] said-he asked me if I was trying to' put something over on the Laborers' Local. I says no, and then Mr. Cuffe and Mr. Rossiter told me that there was going to be a meeting at the Labor Temple January the 6th about 10 . 00 a. m., and he would like to have someone from my company with authority to be there." Foti informed Rossiter and Cuffe that he , Foti, did not have such authority but that he would ask the Company's Boston office to send an authorized person to the meeting. Foti then called William R . Kelly in Boston , an officer of the Company, and advised Kelly of his conversation with Cuffe and Rossiter . Kelly had other arrange- OPERATIVE PLASTERERS ' AND CEMENT FINISHERS, ETC. 283 ments in Boston for January 6 (Wednesday ) and he called the offices of both Rossiter and Cuffe. Neither Rossiter nor Cuffe was available and Kelly left word at their offices that he would be in Buffalo later that week and to call back if that was not satisfactory. Kelly received no return messages and he thereupon assumed, so he testified, that the alternative meeting date would be satisfactory. On January 6, Herman Bodewes, business agent of Respondent Carpenters , visited the job site and asked who had erected the staging. Foti informed Bodewes that the laborers had, and Bodewes left without anything more. Kelly made a rush trip from Boston to Buffalo, arriving Thursday morning, January 7, and he and Company Superintendent William O'Brien went directly to Rossiter's office in Carpenters' hall, where most of the other AFL Building Trades Unions also have their offices. Within a few minutes, present in Rossiter's office with Kelly and O'Brien were Rossiter, Cuffe, Bodewes, Malone, Bongiovanni, and Joseph Picogna (business representative of Respondent Cement Finishers). Cuffe, acting as chair- man of the meeting, first identified himself as an officer of the Building and Con- struction Trades Council and announced that he was representing the Council. (The other party Respondents are members of the Council .) According to Kelly's credible testimony, Cuffe went on to say that "it was customary that whenever a project was started in the Buffalo area that representatives of the company and the various union organizations that were to be involved in the project meet and sit down and discuss- well, you might say, the planning of the job ... how you were going to run it, who was going to do what at work, and that was to be done in this case ." Then Kelly discussed the project with each of the union representatives , including the trade union requirements insofar as the respective trades were concerned. President Rossiter of Laborers' Local 210 was the first to speak, and he asked Kelly how many laborers the Company intended to use on the project and how many of them Kelly intended to bring from Boston and how many he would draw from the Buffalo area. Kelly said he expected to have between 5 and 8 company men from Boston and 4 or 5 from Buffalo . Rossiter then said that Kelly would have to use all Buffalo men , whereupon Kelly asked whether the Company might not use 2 or 3 Boston men in key positions. Kelly's request was not resolved at that time. Cuffe spoke in behalf of Respondent Operating Engineers . Kelly and Cuffe agreed that two operators were necessary and there was no further discussion along that line. Picogna spoke for the Cement Finishers Local . (As of that time no cement finish- ing work had been done on the project.) He asked how many nozzlemen the Com- pany planned to use, and when Kelly stated that the Company intended to use two company nozzlemen , Picogna said he could provide any nozzlemen needed on the project. Picogna then agreed that the Company could use one of its own nozzlemen but stated that his union "would" supply any other nozzlemen or cement finishers for the job. About the time that Malone of the Iron Workers Local began to speak, Cuffe advised the other union representatives at the meeting, according to Kelly's credible testimony, that he (Cuffe ) "was responsible for not notifying Mr. Malone that the National Gunite Corporation and the other unions were not in agreement , and that Mr. Malone's sending the two iron workers to the job [as hereinbefore mentioned] was not his [Malone's] fault." Cuffe made this explanation when the question arose between the various union representatives concerning Malone's sending the men to the job while the Company "was in disagreement with the other Unions." There was no material discussion between Malone and Kelly. Bodewes, of the Respondent Carpenters, took up his union's interests with Kelly. First, he told Kelly that Carpenter Union members would not work on any staging built "by forces other than the Carpenters Union" and that they would not work on any staging the lumber for which came from a "non-union yard." Bodewes then asked Kelly for the name of the Company's lumber supplier . Kelly agreed with Bodewes at the time that staging was carpenters' work, and Bodewes stated that Kelly would have to dismantle the staging, "throw it into the river , burn it up . but get it out of there"; Bodewes then said that the Company should dismantle the staging, pull out the nails, and repile the lumber in the form it was when first delivered to the job. At the end of the discussion Kelly was given a book of safety regulations. No one at the meeting or at any other time , including the occasion of Bodewes' visit to the project on January 6, advised Kelly or Foti or any other company representa- tive that the scaffolding fell short of any of the aforementioned safety regulations. Bodewes and Rossiter also stated that the Company would have to get rid of the Boston men who had worked on the staging as "they were either non-union men because they didn't carry books, or they were men that were not in good standing because they had not cleared with the Union ." Bodewes further declared that when 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kelly would advise Bodewes that the staging was dismantled, the lumber repiled, and the Boston men sent home, Bodewes would then inspect the job site and only if he were satisfied, would he then send men to the job site to start work over again. Bodewes and Cuffe both declared "definitely" at the meeting that, unless the Com- pany accepted and satisfied the requirements of all interested unions, no union would supply men for the project. Kelly did accept all such terms. Kelly left the meeting for the job site and instructed Foti to dismantle the scaffold- ing, almost a third of it being completed at the time, and to send the laborers to Boston. Later that day Kelly again asked Rossiter whether the Company would use 2 or 3 of its own men in key positions, and Rossiter gave his "permission" on condition that the men "carried [union] books." Foti carried out Kelly's instructions; and, in accordance with Rossiter's "permission," he retained Shepperd and Santasky, the only 2 laborers who were union members; the other 4 laborers he sent to Boston on January 8. On January 11, Santasky and Shepperd transferred their union membership to Laborers Local 210, and on the same occasion Rossiter told Foti that all laborers would have to be hired through Local 210 and not at the gate. On or about January 24, Kelly called Rossiter's office to inquire whether the Company could recall the nonunion laborers who had returned to Boston and whether the Company could hire laborers at the gate instead of calling Laborers Local 210 each time. Bongiovanni advised Kelly that the Company could hire at the gate and could recall the Boston men providing they were members in good standing in a Laborers local. Accordingly, on or about January 28, Gardner, Marlowe, and Fitzpatrick returned to the project after having meanwhile joined other Laborers' locals in Massachusetts; and three other laborers, having also joined a Laborers' local, also came from Boston. These six men went to Laborers Local 210's offices immediately upon their arrival in Buffalo, and the following day Bongiovanni inspected their union receipts at the project and advised Foti that "it was all right for . . . them to go to work." After dismantling the staging, the Company obtained carpenters from Respondent Carpenters Union. These carpenters began this job again, and the Company there- after obtained and continued to employ workmen from the other Respondent Unions in accordance with the conditions heretofore set forth. The project was completed on or About April 1, 1954. Further Findings, Contentions, and Conclusions Respondent Carpenters asserts that its requirement of carpenters rather than labor- ers for staging work was merely a safety measure, and in this connection it shows that the canal work was particularly hazardous because of the severe wintry conditions- ice, snow, and wind-in the Buffalo area. Respondent Carpenters also asserts that, in requiring the scaffolding to be constructed by the Carpenters, it was only insisting upon compliance with wage schedules under provisions of the Davis-Bacon Act pre- vailing in that area: Its argument is to the effect that carpenter wages are higher than laborer wages; that the erection of scaffolding is carpenters', not laborers', work; and that the Company by employing men at laborers' pay for the staging work thus attempted to undercut the obligations of the Davis-Bacon Act. The Company, on the other hand, claims that its own experienced laborers were fully competent to construct staging; and, while Kelly admitted at the January 7 meeting and at the hearing as well, that the construction of scaffolding is carpenters' rather than laborers' work, Kelly further explained that such delineation of tasks by trades applies only in a jurisdictional context involving unions of these two trades. Whether or not the Davis-Bacon Act requires scaffolding to be erected at carpenters' pay and whether or not such work is traditionally given to members of the Carpenters Union rather than to members of the Laborers Union, the record clearly shows that Respondent Carpenters required that such work be performed by union carpenters with lumber from a union lumberyard. The record further shows that Laborers Local 210 also required that laborers be members of a Laborers' local. The record as to the January 7 meeting, including circumstances in which it was convened, establishes that the unions whose representatives attended the meeting were acting in concert and that they unmistakably advised the Company that none of the unions would supply men to the Company or otherwise cooperate with the Com- pany on the project unless Kelly would agree to comply with the requirements of all the organizations involved. As the agreement or arrangement between the Company and all Respondent Unions made union membership a condition of employment for carpenter and laborer jobs, these Unions violated Section 8 (b) (1) (A) and (2) of the Act by entering into and maintaining such agreement or arrangement and by the performance of such terms as well; and as the four named laborers were termi- nated at the project because they were not union members, and as this action resulted OPERATIVE PLASTERERS' AND CEMENT FINISHERS, ETC. 285 from the aforementioned agreement or arrangement, I further find that the participat- ing unions thereby caused the Company to take such discriminatory action and such unions accordingly violated Section 8 (b) (1) (A) and (2) of the Act. Consolidated Western Steel Corporation, et at., 108 NLRB 1041; Seabright Construction Company, 108 NLRB 8; McGraw Construction Co., Inc., 107 NLRB 1043. Although the Company was the immediate instrument by which the discrimination was effected in this case and although charges, if filed against the Company, would have been entertained with the Company in the position of a joint tort-feasor as to the conduct in question, the absence of charges against the Company does not mitigate the Unions' own wrongdoing. N. L. R. B. v. Radio Officers' Union of the Commercial Telegraphers Union, AFL, 347 U. S. 17, 54. Nor is it of any legal or equitable con- sequence, particularly where the record shows the Company to have been forced to accept the labor organizations' unlawful demands, that the Company itself filed or caused the charges to be filed in this matter or that the Company, as Kelly testified, intended to have a "union" project. Cf. Local 595, International Association of Bridge, Structural, and Ornamental Iron Workers, AFL (Bechtel Corporation), 108 NLRB 1070. This leaves, therefore, the question as to which unions are responsible in this action for the unlawful conduct in question. Laborers Local 210 is excluded, by necessity, for no charges were filed and therefore no complaint could have been issued against it as a party Respondent. (The General Counsel explained that he is proceeding against this labor organization in a contempt action involving a decree of the Court of Appeals for the Second Circuit.) Respondent Iron Workers asserts that it is guilty of no wrongdoing because it supplied two men to the job before the January 7 meet- ing and that these men continued their employment throughout the project. Respond- ent Operating Engineers Locals 17, 17A, and 17B assert that the complaint cannot be sustained as to them because the evidence fails to show which of them was repre- sented by Cuffe at the January 7 meeting. And the Building and Construction Trades Council asserts that the record does not show that anyone at the January 7 meeting or in connection with any other material incident was in fact representing the Council. (Cuffe, it is recalled, was not only an officer of the Council but a business representa- tive of Respondent Operating Engineers as well.) And Respondent Cement Finishers contends that the Company had not called for any of their men by the time of the January 7 meeting. The Iron Workers Local #6 participated in the meeting of January 7 and the fact that its men continued to work is not decisive; the record shows the circum- stances under which Malone sent the men to the project and contains Cuffe's explana- tion of his failure to notify Malone of the Company's "trouble" with the other in- terested unions. Moreover, the record establishes that Kelly at this meeting agreed with all unions to meet the various unions' aforementioned demands, and the per- formance of such agreement was an obvious condition for these ironworkers remain- ing on the job. Similarly, as to the Cement Finishers Local 511; as a party to the agreement or arrangement they furnished workmen on condition that the Company fulfill the requirements of all interested unions. Although the record does not show ,that the Cement Finishers, for example, required that employees doing this work must be union members-even though supplied by Local 511-a labor organization also violates the Act if it causes an employer to discriminate on the basis of member- ship or the lack of it in any other union. As to Respondent Operating Engineers Locals 17, 17A, and 17B-tne record shows that all three locals are located in Buffalo, New York, and that Cuffe, who attended the January 7 meeting, is business agent of each in circumstances such as these, I find that Cuffe spoke and otherwise represented all 3 locals, and I find that these 3 locals acted in concert with the other labor organizations involved. As to Respondent Building and Construction Trades Council the record shows that Cuffe is an officer of the Council, that he purported to represent the Council at the January 7 meeting, and that the other named Respond- ents are members of the Council. The Council was a party to the arrangement or agreement with the Company and it occupies the same position in that respect as do the other Respondent Unions. Whether or not the Council was itself a separate party to the arrangement, as I have found it was, it was at the least an agent of the other participating unions in respect to the arrangement. As an agent it is also properly named a party Respondent against which the complaint is sustained. I find, therefore, that all Respondents acted in concert in respect to the unfair labor practices found above. 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 the Company described in section I, above, have a 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. IV. THE REMEDY It has been found that each of the Respondents has engaged in certain unfair labor practices. It will be recommended that such Respondents cease and desist therefrom, and take certain affirmative action to effectuate the policies of the Act. I shall further recommend that the Respondents, jointly and severally, make whole Gardner, Fitzpatrick, Marlowe, and McGilvary for any loss of pay suffered by reason of the discrimination against these employees, during the period from January 8 to 28, 1954, as to Gardner, Fitzpatrick, and Marlowe, and to the end of the project as to McGilvary. Back pay shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289. CONCLUSIONS OF LAW Operative Plasterers' and Cement Finishers International Association of the United States and Canada, AFL, Local 511; International Union of Operating Engineers, AFL, Locals 17, 17A and 17B; International Association of Bridge, Structural and Ornamental Iron Workers, AFL, Local #6; Building and Construction Trades Council of Buffalo and Vicinity, AFL; and Carpenters District Council of Buffalo and Vicinity have engaged in unfair labor practices within the meaning of Section 8 (b) <1) (A) and (2) and Section 2 (6) and (7) of the Act by entering into, maintain- ing, and performing an unlawful employment arrangement requiring union mem- bership as a condition of employment for stated classes of employees of National ,Gunite Corporation and by also attempting to cause and causing said corporation ,to discriminate against the aforementioned four employees. [Recommendations omitted from publication.] Appendix NOTICE TO ALL OUR MEMBERS Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause National Gunite Corporation or any other employer to discriminate against employees or applicants for employment in violation of Section 8 (a) (3) of the Act. WE WILL NOT enter into, maintain, or perform any employment arrangement requiring membership in any union except as authorized in Section 8 (a) (3) of the Act. WE WILL make whole the following employees for the discrimination caused against them: William Marlowe John Fitzpatrick Richard Gardner Edward McGilvary OPERATIVE PLASTERERS' AND CEMENT FINISHERS INTERNATIONAL ASSOCIATION OF THE UNITED STATES AND CANADA, AFL, LOCAL 511; INTER- NATIONAL UNION OF OPERATING ENGINEERS, AFL, LOCALS 17, 17A AND 17B; INTERNATIONAL ASSOCIA- TION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL, LOCAL #6; BUILDING AND CONSTRUCTION TRADES COUNCIL OF BUFFALO AND VICINITY, AFL; CARPENTERS DISTRICT COUNCIL OF BUFFALO AND VICINITY, 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.