M. B. Morgan Painting Contractor

M. B. MORGAN PAINTING CONTRACTOR 395 As the Petitioner's objections to the election do not raise substan- tial and material issues with respect to the conduct or the results of the election, they are hereby overruled. Local 119, United Farm Equipment and Metal Workers, UE, has won the election. We shall therefore certify it as bargaining repre- sentative of the employees in the appropriate unit. [The Board certified Local 119, United Farm Equipment and Metal Workers, UE, as the designated collective-bargaining representative of the employees of Allis-Chalmers Manufacturing Company, at its La Porte, Indiana, plant, in the appropriate unit.] MEMBER RODGERS took no part in the consideration of the above De- cision and Certification of Representatives. M. B. MORGAN, D/B /A M. B. MORGAN PAINTING CONTRACTOR and G. J. MCDANIELS BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERIIANGERS OF AMER- ICA, LOCAL 902, AFL and G. J. MCDANIELS. Cases Nos. 33-CA-,'30 and 33-CBI4. February 1, 1955 Decision and Order On October 13, 1953, Trial Examiner James R. Hemmingway issued his Intermediate 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 therefrom and take certain affirmative action, as set forth in the copy of the In- termediate Report attached hereto. Thereafter, the Respondent Union filed exceptions to the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the Respondent Union's exceptions, and the entire record in this case and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' Order Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National 1 After the close of the hearing in these cases, the Board received a stipulation by the parties that the Company, a painting contractor, performed over $50,000 in services out- side the State of New Mexico (where its headquarters are located) during 1953. We find that the Company is engaged in commerce and that it will effectuate the policies of the Act to assert jurisdiction herein. Jonesboro Grain Drying Cooperative, 110 NLRB 481'. 111 NLRB No. 66. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Board hereby orders that the Respondent M. B. Morgan, d/b/a M. B. Morgan Printing Contractor, his agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Encouraging membership in Brotherhood of Painters, Decora- tors and Paperhangers of America, Local 902, AFL, or in any other labor organization, by discriminating in regard to the hire and tenure of employment of any of his employees because he is not a member, or a member in good standing, of such labor organization, except to the extent authorized by Section 8 (a) (3) of the Act. (b) In any like or related manner interfering with, restraining, or coercing his employees in the exercise of the right of self-organization, of forming, joining, or assisting any labor organization, bargaining collectively through representatives of their own choosing, or engaging in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or of refraining from any or all such activi- ties, except to the extent that such right may be affected by a union- security 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) Jointly and severally with the Respondent Union, make whole G. J. McDaniels for any loss he may have suffered by reason of the discrimination against him, by paying to him a sum of money equal to that which he would have earned in Morgan's employ during the period between February 13 and April 10, inclusive, 1953, less his net earnings elsewhere during said period (see Crossett Lumber Com- pany, 8 NLRB 440), in accordance with the Board's established prac- tice (F. W. Woolworth Company, 90 NLRB 289). (b) Upon request, make available to the Board, or its agents, for examination or copying all payroll and other records necessary to analyze the amounts of back pay due. (c) Post at his principal place of business in Albuquerque, New Mexico, and at job sites within the jurisdiction of the Respondent Union where he may currently be engaged in work, copies of the notice attached to the Intermediate Report and marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region (Fort Worth, Texas), shall, after being duly signed by Morgan or his representative, be posted by Morgan immediately thereafter in conspicuous places, including all places where notices to employees are customarily posted, and be maintained for sixty (60) consecutive days thereafter. Reasonable steps shall be taken by Mor- 4 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" 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 "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." M. B. MORGAN PAINTING CONTRACTOR 397 gan to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Sixteenth Region, in writ- ing, within ten (10) days from the date of this Order what steps he has taken to comply herewith. II. The Respondent, Brotherhood of Painters, Decorators and Paperhangers of America, Local 902, AFL, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Executing, maintaining, or giving effect to any provision of an agreement or agreements between the Union and the Painting and Decorating Contractors of America or any member thereof which requires membership, or membership in good standing, in the Union as a condition of employment, except to the extent authorized in Sec- tion 8 (a) (3) of the Act. (b) Causing or attempting to cause M. B. Morgan, d/b/a M. B. Morgan Painting Contractor, his agents, successors, or assigns, to discriminate with respect to hire or tenure of employment of G. J. McDaniels or any other employee or prospective employee in viola- tion of Section 8 (a) (3) of the Act. (c) In any other manner restraining or coercing employees of M. B. Morgan, d/b/a M. B. Morgan Painting Contractor, his successors and assigns, or of any member of PDC of A, in their exercise of the right to engage in or refrain from engaging in any or all the activities guaranteed by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized 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) Notify G. J. McDaniels and the Respondent Company imme- diately in writing that it has no objection to McDaniels' employment. (b) Jointly and severally with Respondent Morgan, make whole G. J. McDaniels for any loss he may have suffered as a result of the discrimination against him by paying him a sum of money equal to that which he would have earned, during the period between Feb- ruary 13 and April 10, inclusive, 1953, as wages in Morgan's employ, less his net earnings elsewhere during said period, in accordance with the Board's established practice. (c) Post at its business office and meeting hall in El Paso, Texas, in conspicuous places, including all places where notices to members are customarily posted, copies of the notice attached to the Interme- diate Report and marked "Appendix B." I Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, 6 See footnote 4 for amendments to notice attached to Intermediate Report. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after being duly signed by the Respondent Union's representative, be posted by the Union immediately upon receipt thereof, and main- tained by it for sixty (60) consecutive days thereafter. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the Sixteenth Region signed copies of the said notice, in number to be specified by said Regional Director, for posting, Respondent Morgan willing, adjacent to the posted notices marked "Appendix A." (e) Notify the Regional Director for the Sixteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent Union has taken to comply herewith. Intermediate Report and Recommended Order STATEMENT OF THE CASE Pursuant to charges and an amended charge duly filed by G. J. McDaniels, the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, respectively, by the Regional Director for the Sixteenth Re- gion (Fort Worth, Texas), issued complaints against M. B. Morgan, d/b/a M. B. Morgan Painting Contractor, herein called Morgan, and against Brotherhood of Painters, Decorators and Paperhangers of America, Local 902, AFL, herein called the Union, except that, when referred to jointly, Morgan and the Union are called herein the Respondents. By order of the said Regional Director, the cases were consolidated for the purpose of hearing. The complaint against Morgan alleged violations of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.' The com- plaint against the Union alleged violations of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the Act. Copies of the charges, the respective complaints, order of consolidation, and notice of hearing were duly served on the Respondents. The complaints alleged in substance that the Respondents on or about November 1, 1952, had entered into an agreement which required that all employees employed by the Respondent be members in good standing of the Union or of local unions affiliated with the Union. The complaint against the Union also alleged that the Union had entered into a like agreement with the El Paso Chapter of Painting and Decorating Contractors of America, an organization of contractors including Mor- gan, on or about March 1, 1952, and February 28, 1953. The complaint against Morgan alleged that on or about February 12, 1953, Morgan had discharged G. J. McDaniels (the Charging Party) and thereafter, until April 13, 1953, failed and re- fused to reinstate him or employ him as an applicant because he was not a member in good standing of the Union or because he engaged in or refused to engage in con- certed activities with other employees for the purpose of collective bargaining or other mutual aid and protection, or both. The original discharge was also alleged to be for reasons other than McDaniels' failure to tender the periodic dues and initia- tion fees uniformly required by the Union. The complaint against the Union alleged that the Union on or about February 11, 1953, caused or attempted to cause Morgan to discriminate against McDaniels either as an employee or applicant for employ- ment or both and thereafter continued to cause Morgan to discriminate against Mc- Daniels for the same reasons as alleged for the discrimination by Morgan. The Re- spondents, in their respective answers, denied the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was held at El Paso, Texas, from July 21 to 24, 1953, before me, the duly designated Trial Examiner. The General Counsel and the Union were represented by Counsel. Morgan 2 and McDaniels appeared for themselves. McDaniels participated only as a witness. Full opportunity was afforded the parties to be heard, to examine and cross-examine witnesses, and to introduce evidence 1 The complaint incorrectly cites the Act as 61 Stat. 161. 2 Morgan stated his answer orally on the record. After testifying as a witness called by the General Counsel, Morgan left the hearing, expressing a lack of interest in the proceedings. M. B. MORGAN PAINTING CONTRACTOR 399 bearing upon the issues. Before the Union commenced its case, it moved to dismiss the complaint in its entirety. The motion was denied without prejudice to the Union's right to make a like motion at the close of the hearing. On the third day of the hear- ing, the General Counsel moved to amend the allegation of the complaint against the Union so as to modify the allegation with respect to the 1952 contract between the Union and the PDC of A so as to limit the allegation to maintenance and en- forcement of said contract during the period starting 6 months before the filing of the charge. The motion was granted. On the last day of the hearing, the Union moved to incorporate by reference the record in two related cases in which the Union was a respondent, Cases Nos. 33-CB-35 and 36, heard almost concurrently with the instant case. The motion was granted. At the close of the hearing, the Union moved to dismiss the complaint against it. Ruling was reserved and is ruled on herein. The parties waived oral argument but the General Counsel and the Union filed briefs with the Trial Examiner. The Union's brief included evidentiary matter intended to attack the credibility of McDaniels. Since inclusion in the brief was not the proper way to offer evidence after the close of the hearing, I have not examined the evidence. From my observation of the witnesses, and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF MORGAN Morgan has his principal place of business at Albuquerque, New Mexico, but dur- ing the 12-month period before the issuance of the complaint Morgan maintained offices and performed services in several States other than New Mexico. During that period, Morgan purchased raw materials, consisting principally of paint and related products, valued in excess of $100,000, of which amount more than 25 percent was shipped in interstate commerce to his various operations from points outside the State to which shipment was made. During the same period Morgan furnished goods and services to United States Army projects valued in excess of $50,000. The facts in the instant case occurred principally in connection with work being done by Morgan on the military reservation at White Sands, New Mexico. The parties do not con- test the Board's jurisdiction. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership , among others, em- ployees of Morgan. III. THE UNFAIR LABOR PRACTICES A. The contracts between the Union and the contractors' association The Union entered into a collective-bargaining agreement with the El Paso Chap- ter of PDC of A (Painting and Decorating Contractors of America) for the period from March 1, 1952, to February 28, 1953, and another agreement covering the period from March 1, 1953, to February 28, 1954. The General Counsel contends that these agreements (limiting the 1952 agreement to maintenance and enforce- ment for the period beginning 6 months before the filing of the charge) imposed cer- tain conditions of employment in violation of the Act independent of their effect on Morgan or McDaniels as well as in reference to the McDaniels case. As the agree- ments are not illegal on the face of them but only insofar as they require application of the Union's bylaws and working rules, the language of both must be considered. Article I of each agreement (disregarding typographical errors in the 1952 agree- ment) reads: This contract and agreement is made in accordance with and in deference to the existing Trade Rules and By-Laws of the Painters, Decorators and Paper Hangers of America, Local Union #902, as approved by the General Executive Board [of the Union] with changes and amendments. All provisions of this contract shall be [the word "be" is missing in the 1953 agreement] construed in deference to said rules and By-Laws in accordance therewith. The General Counsel contends that, by this paragraph, the contracts incorporated by reference the bylaws and working rules. The language used is not the conventional form of incorporation by reference. The use of the word "deference" suggests that contractors' recognition of the bylaws and working rules is merely a matter of courtesy and that no rules or bylaws are actually binding on employers. The phrase, "agreement is made in accordance with .. existing Trade Rules and By .Laws" would normally mean that the provisions of the contract are not in conflict with the 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said rules and bylaws. To interpret the phrase as meaning that the agreements "incorporate" the rules and bylaws is to give the words a special meaning which they normally do not have. If they are to be so construed here, the intent of the parties must be found outside the language of the agreement itself. An examination of the working rules discloses that some are designed to regulate only the conduct of members, as for example: "Sec. 10. No Member of the Local Union while employed by a Contractor shall solicit contract work for himself." Others might be read as a condition imposed on both contractors and union mem- bers, as for example: "Sec. 16A. A steward shall be maintained on every job as long as there are any journeymen employed on job. Also stewards can not be discharged except by permission of Business Agent or until after an investigation has been made by a grievance committee appointed by the Local. All Glaziers to be governed by Local Union No. 902 By-Laws. Steward shall see that all men have clean overalls on Monday morning." Other provisions appear to establish conditions for contractors alone, as for example: "Sec. 19. Any recognized con- tractor to be considered fair by this Local Union must employ Journeymen at all times when work is in progress [no punctuation] where there is more than one member in a firm, they must employ one journeyman for each member, if they handle tools." 3 The evidence indicates that a copy of the bylaws and working rules is submitted to the joint trade board (a body composed of 3 members of the contractors and 3 of the Union, which negotiates the agreement and handles griev- ances) for approval. Section 23 of the working rules provides: "Any Paint Con- tractor desiring to employ union men and be declared fair by this Local Union, must sign wage agreement, and to be taken up by Local Union at the next regular meeting." Frank Allen, the Union's business agent testified, "Years before these laws came along we used to call a fair contractor a man who had nothing but union labor, when not in violation of any law." But now "I would call a fair contractor, like a number we have, where I can go and leave the work several weeks at a time, never have to worry he is going to violate some working rule. . The working rules impose many restrictions and obligations on employers. The evidence indi- cates that the Union had mechanics for, and took steps to, compel compliance with working rules of the Union. In addition to negotiating agreements, the joint trade board acts in disputes between employers and the Union which involve noncom- pliance with the working rules. On all the evidence in the case, I conclude that the contracting parties intend that the members of the PDC of A shall be bound by the applicable working'rules as a part of their agreement. The General Counsel, in his brief to the Trial Examiner, has taken the position that there was a complete incorporation by reference of the bylaws and working rules in the contract, and he therefore points to a number of sections not only of the bylaws and working rules but also of the constitution of the Union's parent organization, hereinafter called the Brotherhood, which deal with restrictions upon a member's employment rights, as for example, the working card system. The con- stitution and bylaws are for the regular members of the Brotherhood and of the Union. Only to the extent that the contract might incorporate them can they be binding upon employers. On the evidence in this case, I am not convinced that the contract incorporates all such union laws. They may have to be referred to for the purpose of interpreting the working rules that are incorporated in the con- tract as being binding on employers, but it is only when there is something in the working rules incorporated in the contract which requires explanation that the constitution and bylaws can be considered in connection with the contract. If the Union exerts pressure on employers to assist in enforcing provisions of the constitu- tion and bylaws which are binding on members apart from the working rules in- corporated in the contract, any unfair labor practice arising therefrom would depend s Other provisions which apply either jointly to members and contractors or to con- tractors alone, include, among others, the following : Section 6, dealing with overtime rates and prohibiting work on Labor Day "Sec 7. The regular pay day shall be Friday of each week, not later than 5 : 30 p. in. Any contractor failing to comply with this sec- tion shall pay workmen overtime (time and one-half for time elapsed after 5: 30 p m.) not to exceed four (4) hours " "Sec 20 Contractors must furnish transportation to and from all nut-of-town jobs. . Any member furnishing this transportation must be paid at the regular transport rate for all Journeymen whom he may transport. All members to be paid straight time wages while en route to and from such jobs." Section 21, deal- ing with allowance of time during working hours to clean up Section 24, dealing with general contractors doing work normally subcontracted. M. B. MORGAN PAINTING CONTRACTOR 401 upon proof of specific instances. The mere maintenance of the contract would not require the commission of such unfair labor practices. An orderly determination of the issues involved requires that I first decide whether or not the maintenance of the contract itself was a violation of the Act. It may then be determined separately whether the Union engaged in any coercive practices independently of the contract. Section 2 of the working rules, extant before the revised rules were approved on June 24, 1953, reads: No member of this Local Union shall be permitted to work more than eight (8) hours with any workman working with painters' tools or on prepara- tory work, who has not a card in the Local Union, or with any non-union man who has not a permit for the current week. Violation of this section will be punished by a fine of not less than twenty-five dollars ($25.00). It is significant that this provision does not read: "No member shall work more than eight (8) hours with any workman . . . under penalty of a fine," etc. Rather it is that no member shall "be permitted" to work. The rule does not say who might do the permitting, but obviously a duty of enforcement of this provision is imposed on someone. Control of employee tenure primarily lies with the em- ployer. In the light of all the other evidence, I conclude that this provision became a part of the 1952 contract and imposed an obligation of compliance on the con- tracting employers as well as on the Union and members thereof. The permit re- quired in the foregoing working rule is explained by Section 12 of the Union's bylaws which reads: No permit pending initiation shall be issued until an application has been filled out and the applicant has signed an order on his employer for 25 percent per week of his earnings, this is to apply on his initiation. Under no circum- stances will a permit be issued until all past indebtedness is paid. And no permits shall be issued until all payed [sic] up members are employed. It is obvious that the foregoing working rule, as part of the contract, imposes dis- criminatory conditions of employment which do not meet the requirements of the proviso to Section 8 (a) (3) of the Act. The Union contends that no violation should be found, first because no unfair labor practice can be found in the execution, itself, of the 1952 contract, which pre- ceded by more than 6 months the filing of the charge and, the Union contends, no specific evidence of enforcement of such provisions was adduced; second, be- cause in October 1951 the Union passed a resolution in general terms invalidating illegal clauses in the bylaws and working rules.4 There is no evidence that the 1952 contract was ever rescinded; so it may be presumed that it continued in full force until the expiration of its term. The fact that the execution of the contract cannot be found to be an unfair labor practice does not mean that the continued mainte- nance of the contract within the period covered by the charges and amended com- plaint may not be found to be an unfair labor practice. On the contrary, the very continuance of the illegal preference clause in effect exerts a restraining influence on employees in the exercise of the rights guaranteed in Section 7 of the Act .5 The resolution referred to does not appear to have been furnished by the Union to the PDC of A and copies of the bylaws and rules continued in some instances to be distributed without a copy of the resolution. But even if it had been supplied to the PDC of A and to all union members, the effect thereof would not have rem- 4 The resolution reads : WHEREAS, the Legislature of the State of Texas has passed certain laws which render illegal some of the provisions and By Laws of this organization, and it is the desire of this organization to comply with all laws of the State of Texas and of the United States Now, THEREFORE, be it resolved that all provisions and By-Laws of this organiza- tion in violation of any federal law or law of the State of Texas be and hereby are repealed and declared ineffective and of no further force and effect. A copy of this resolution shall be furnished to all members to be attached to copies of By-Laws and Rules and become a part thereof, and no copy of By-Laws and Rules shall be official without this resolution being attached. IT IS FURTHER RESOLVED that no officer or representative of this organization shall ever be authorized to do any act contrary to this resolution. 6 Heating, Peping and Air Conditioning Contractors New York City Association, Inc., et al, 102 NLRB 1646, George D Auchter Oiompany, et al., 102 NLRB 881 ; Jandel Furs, 100 NLRB 1390. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD edied the situation. Couched in general terms; the resolution does not indicate what sections of the bylaws or rules were intended be repealed. It was therefore ineffec- tive to accomplish its avowed purpose.6 By maintaining such illegal provision in its 1952 contract, irrespective of whether or not it attempted actively to apply in spe- cific instances, the Union violated Section 8 (b) (1) (A) of the Act from September 30, 1952, to February 28, 1953.7 There is evidence of employment of nonmembers of the Union, from which it might be argued that the illegal provision of the con- tract was not enforced. Allen, the Union's business agent, testified that on the Morgan job it was the practice for members of the Union to work with nonmem- bers. Morgan was not a member of the PDC of A during the term of the 1952 contract and was not legally bound by that contract, although it will be a question for decision hereinafter as to whether or not he consented to be bound by the work- ing rules. However, the fact that nonunion men might have worked on that or other jobs does not necessarily mean that the Union treated the illegal provision as rescinded. It could mean that it did not seek to enforce it where it was im- practical to do so. That this was the case is fairly inferrible from Allen's testimony: "We have a hard enough job in this country, keeping big government jobs manned. That is why we don't try to enforce the closed shop." And again, "There was non- union blazers on that job. Never at no time did I try to stop those blazers for the reason I did not have sufficient blazers in this territory to man and operate that job that was union members." I conclude that the agreement remained in force to be given application when union members were available. As there is no evi- dence of suspension of such illegal provision by agreement of the Union and the PDC of A and as the PDC of A was not shown to have any reason to believe that its performance of the agreement was excused, I find that the Union also violated Section 8 (b) (2) of the Act.8 In his brief to the Trial Examiner the General Counsel contends that the 1953 contract should be found to incorporate the same discriminatory terms as the 1952 agreement despite the changes approved in the bylaws and working rules because of the retention of certain provisions in the bylaws and working rules of the Union and in the constitution of the Brotherhood. Because of the statement of the General Counsel on the second day of the hearing that no attack was being made upon the working rules after the revisions became effective on June 24, 1953, I refrain from considering the question of a violation after that date. Any provisions in the con- stitution and bylaws regulating members in their employment activities are not by themselves binding on employers. I have found that they are not part of the contract except to the extent that they are to be read in conjunction with working rules that are part of the contract. Any finding of an unfair labor practice growing out of an enforcement of the constitution or bylaws independently of the contract would depend upon evidence of the application of such union laws in specific instances. Section 2 of the working rules has been changed, in the new rules incorporated in the 1953 contract, to read: No member of the Local Union shall be permitted to work more than eight (8) hours with any workman working with painter's tools or on preparatory work, who is not a qualified journeyman or registered apprentice. Violation of this Section will be punished by a fine of not less than Twenty-five Dollars ($25.00). A qualified journeyman, as that term is used herein, means a person who has obtained a certificate of completion of apprenticeship in conformance with the National Apprenticeship and Training Standards for the Painting Industry, as recommended and published by the United States Department of Labor, Bureau of Apprenticeship, or a person who possesses at least the qualifications and skill required for such certificate of completion. A registered apprentice, as that term is used herein , means a person registered as an apprentice and in training pursuant to the requirement of the National Apprenticeship and Train- ing Standards for the Painting Industry, as recommended and published by the United States Department of Labor, Bureau of Apprenticeship. This provision as now written does not require membership in the Union or a permit from the Union as a condition of employment. I find that it is not in violation of 'New York State Employers Association, Inc., at at, 93 NLRB 127, enfd. 196 F 2d 75 (C. A. 2) ; Heating Piping and Air Conditioning Contractors, New York City Association, Inc, at al, supra; Jandel Furs, supra. 7 Poi t Chester Elect, ical Prod acts Corporation., 97 NLRB 354; Jandel Furs, supra; Gottfried Baking Company, Inc., 103 NLRB 227. 8 Childs Company, 93 NLRB 281. Cf Gottfried Baking Company, Inc, supra. M. B. MORGAN PAINTING CONTRACTOR 403 the Act. The only provision retained in the revised working rules which specifically requires membership in the Union is Section 17, which requires working foremen to be members of the Union. There is no evidence in this case to show whether or not a working foreman is a supervisor within the meaning of the Act. If he is, he would not be protected by the Act . It is impossible , therefore, on the evidence adduced, to decide whether or not this provision is in violation of Section 8 (b) (1) (A). I find, therefore, that by the execution of the 1953-54 contract, the Union intended no unlawful discrimination.9 Although the Union and the PDC of A approved the revised working rules at the time the new contract was signed on February 28, 1953, the new rules did not become effective until June 24, 1953, when they were approved by the Brother- hood. This raises the question of whether or not the old working rules were con- tinued in force and effect under the new contract up to June 24, 1953 . Before the execution of the new contract, the Union submitted its revised bylaws and working rules to the representatives of the PDC of A for approval. The normal inference to be drawn from this is that the revised rules were the ones that were going to apply to the new contract. Allen testified that the new rules could not be enforced until they were approved by the Brotherhood. At one point on cross-examination he testified that the earlier bylaws were not in force when the 1953 contract was signed, but later testified that the old bylaws remained in effect until the new ones were approved in June 1953 . But whatever Allen or the Union believed to be the status of the old rules under the new contract , evidence of a mutual understanding by the contracting parties thereon is lacking. So when the contracting parties approved the new rules , apparently intending that they should be the basis for the contract, the presumption is that they intended hereby to eliminate the illegal sections. I find, therefore, no illegality in the 1953 agreement. B. The alleged discrimination against McDaniels 1. Morgan's arrangement with the Union Morgan commenced work at White Sands, New Mexico, in November 1952. At this time he was a member of the Albuquerque and Santa Fe chapters of the PDC of A but not of the El Paso chapter. The Union had jurisdiction at White Sands. Morgan testified that the national organization of the PDC of A had an agreement with the Brotherhood of Painters , Decorators and Paperhangers but he did not testify as to its terms, and the agreement itself is not in evidence . Some years earlier Morgan had, himself, been a member of various locals of the Brotherhood but was no longer a member. Before he commenced work at White Sands, Morgan met Allen on the street in El Paso and asked if the Union had men available and what the rate was. At the time, the rate was $2.05 per hour with the employer paying transportation to out- of-town jobs. Morgan told Allen he would pay $2.25 per hour and let the men furnish their own transportation . Allen said he would take the matter up with the Union for approval, and thereafter the Union did approve. 2. McDaniels' employment by Morgan When Morgan was ready to start work at White Sands he telephoned Allen and told him to have two men report to the job. After receiving this call Allen went to White Sands and talked with Morgan 's foreman, Ben Ullom. Allen gave Ullom a booklet containing the Union's bylaws and working rules . The wage scale shown therein was no longer in effect, and Allen mentioned this to Ullom . Allen and Ullom ° The i evised rules still requne that "there shall be a shop steward for every job, under the jurisdiction of this Union . . . " It is also provided that the shop steward shall file weekly reports from his job with the business agent Although such provisions suggest that the Union might in the future attempt to control hiring , this appears to be specula- tive Any shop steward who would be obliged to file reports with the business agent would probably have to be a member of, or under control of, the Union But in the absence of mole specific language , I do not find the provision to be illegal on its face . The manner in which the Union might seek to enforce such provision could determine whether or not an unfair labor practice would be committed In the galley proof of the new rules, the provision against discharge of the steward without consent of the business agent was changed to provide that the steward could not be fined until an investigation had been held by the joint trade board. 344056-55-vol 111-27 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD both testified rather vaguely that Allen said other changes were being made in the working rules. Allen apparently did not point out any other ineffective rules but told Ullom that if there was any doubt about working rules, they were passed on by the joint trade board. Ullom tossed the booklet into his glove compartment without examining it. At the time Morgan's call for two men was received by Allen, G. J. McDaniels was at the union hall. He asked Allen where the call came from and Allen told him. McDaniels, commenting that he would work 1 day for a man who had just come in for help, asked Allen if he could go up to the White Sands job. Allen said there was no reason why he could not and asked McDaniels how he would get there. The lat- ter replied that he had a partner who had a car. McDaniels understood that Allen was going to meet him the next morning to show them where the job was. But if there was anything said about this, there must have been a misunderstanding about the meeting place because Allen did not meet McDaniels in El Paso where the latter was waiting. When the two men that Morgan called for did not show up on the morning they were wanted, Ullom telephoned Morgan in Albuquerque and so informed him. Mor- gan tried to reach Allen in El Paso but the latter was not there. While Morgan was waiting for Allen to call him back, a woman telephoned him and told him her hus- band could not find the job and asked directions. Morgan told her how to get there. McDaniels went to the job site with Earl Saylor and a man named Munoz. Ullom, assuming that they had been sent by Allen in response to Morgan's request, told McDaniels that he did not need 3 men but could use 2, and he hired McDaniels and Saylor. Allen called Ullom later and Ullom told him that the two men he sent were on the job. Allen asked who they were. Ullom told him and asked if he had not sent them. Allen said he had not, but it was all right and that Ullom should tell them to go ahead and work. According to the working rules, the first man on the job automatically becomes the steward until one is appointed. McDaniels became steward. 4. McDaniels' suspension and period of unemployment In the late summer or early fall of 1952 before he went to work for Morgan, McDaniels had been charged by the Union with violation of a working rule re- quiring time and a half pay for overtime work. As a result of a hearing at which McDaniels did not appear, he was fined $100. Claiming that he failed to receive notice of the hearing and that he had not been given a copy of the decision of the trial board and had thus been unable to appeal, McDaniels hired an attorney to rep- resent him. An appeal was filed. Until February 4, 1953, the Union took no steps to compel payment of the fine. Meanwhile, McDaniels had gone to work for Morgan and had become steward on the job. Among other duties, the steward was expected to see that all men com- ing on the job had a referral slip signed by the business agent, and he was required to make a weekly report listing the names of men working,'° the number of days each worked, the "condition of card," and the location of the job, in addition to the names of the contractor, the foreman, and the steward. The steward was also sup- posed to watch for violation of any working rules. On one occasion, the date of which I am unable to fix with certainty,ii but which occurred during the period of McDaniels' stewardship, Allen visited the Morgan job site and saw a man named Arthur Larrozola working there. Allen asked McDan- iels what right he had to put a man on without a referral slip. This led to an alter- cation which almost reached the point of blows. After that McDaniels performed his duties as expected. Allen also told Foreman Ullom that he should see that there was a referral slip signed by him, and, after that, Ullom did send one employee for a referral before he started work. On another occasion, about January 1953, Allen, while inspecting the Morgan job, noticed that spackle work had apparently been done after hours by laborers lather than by the painters and he also discovered that Morgan apparently intended 10 The form used for this report has a column for names which is headed "Members Name," but Allen testified that the steward was supposed to list all workmen, whether members or not. 11 The findings regarding this incident are based on the testimony of McDaniels, sub- stantiated by that of Ullom. McDaniels' testimony at first made it appear that the inci- dent occurred in November 1952 but later he testified it occurred on February 4, 1953. Other testimony indicates that it occurred before February 4, 1953 M. B. MORGAN PAINTING CONTRACTOR 405 to do spray-painting work in closets over the weekend . Allen concluded that Mor- gan was violating the Union's working rule regarding spray painting. McDaniels was unable to work Saturdays for lack of transportation and appar- ently did nothing to report weekend incidents . Allen blamed McDaniels for failure to enforce the working rules and took steps against both McDaniels and Morgan. He brought Morgan before the joint trade board with respect to the matter of spray painting. Morgan apparently protested that he was not a member of the PDC of A in El Paso, but he went before the joint trade board and , at the time the new agree- ment with the PDC of A was signed , Morgan became a member , and the dispute re- garding the spray-painting incident was settled. As a result of Allen's dissatisfaction with McDaniels' performance on his stew- ard's job, he brought the matter before the Union at a meeting on about February 4, 1953, asking the membership to support him and remove McDaniels as a steward. The membership voted to do so, and another man was named to take the steward's job. Despite this, McDaniels refused to relinquish the steward 's position, and work- men on the job continued to recognize McDaniels as steward . Allen testified that this resulted in contention on the job, that it slowed the work down , and that it caused the contractor to place the blame on him . But he also testified that neither Morgan nor Ullom said anything to him about McDaniels ' causing such trouble. 4. McDaniels' suspension and period of unemployment About February 4 McDaniels tendered his monthly dues to the financial secretary of the Union , but they were refused on the ground that he had not paid his fine. The Union at the meeting that night decided to require McDaniels to pay his fine.12 At a union meeting on February 11, McDaniels started to participate in the meeting when someone questioned his right to do so, and he was told that he had been sus- pended for nonpayment of the fine and should leave the room . As McDaniels was leaving the room, he stopped and spoke to Allen. The testimony concerning the exact words spoken in the ensuing conversation is in conflict.13 It is undisputed that McDaniels asked Allen a question concerning the effect of the suspension on McDan- iels' job and that Allen replied . McDaniels testified that he asked Allen if the latter was "going to stop me working on the White Sands job" and that Allen replied, "That's right That is what I intend to do. Tomorrow you are not working out on White Sands." Allen testified that McDaniels asked , "That means I can't work on the job?" and that he replied , "No, it doesn't mean you can't work, just that you are suspended." It is evident that more than this was said by each party, and others were talking in the meeting at the same time ; so it would not be surprising that neither remembered the precise words spoken. When Allen, as a witness at the hear- 1 McDaniels' appeal on the fine had been rejected and McDaniels filed additional grounds for appeal, but under the constitution of the Brotherhood the fine was not sus- pended pending appeal , although the money paid would be refunded if the appeal were successful There is no evidence that the decision of the trial board in this instance car- ried with it an order of expulsion , although that would have been possible under the con- stitution. 13 The credibility of both witnesses was attacked by opposing counsel on cross-exami- nation. Counsel for the Union attacked McDaniels' credibility by proof of false state- ments made not under oath. Counsel for the General Counsel attacked Allen's testimony by proof of a conviction of a felony 10 years before the hearing I am not disposed wholly to discredit either witness on the basis of such evidence . But there are parts of the testi- mony of each that I do not credit . McDaniels' credibility comes into question principally on facts not pertinent to the issues . On matter pertinent to the issues , his testimony appeared , in the main, to jibe with other evidence. Making allowances for normal diffi- culties of remembering words and events with exactness , I find that the substance of McDaniels' testimony on matters germane to the issues is reliable Although Allen's testi- mony did not impress me as intentionally inaccurate , I find cause for not relying on his testimony fully. In most of the instances where I have found Allen 's testimony not reli- able, it is because he appeared to give his testimony with mental reservations or rationali- zations and failed to relate all that he appeared capable of relating Although Bill Mc- Culley was called by the Union as a witness to corroborate Allen's version of the conver- sation related in the text above , be, of all the members present at the February 11 meet- ing, was the only corroborating witness called , and he was the union member who had been chosen to succeed McDaniels as steward and who was unable to serve because of McDaniels ' refusal to relinquish the job. His testimony cannot be given as much weight as if he had been disinterested . Furthermore , his memory was weak on every word spoken by McDaniels and Allen other than the few words that Allen testified to. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing, quoted his answer to McDaniels, he placed emphasis on the word "can't." This emphasis appeared to be one which Allen spontaneously repeated from memory of his answer as originally made and I so find, despite his later disavowal of intent to emphasize the word. Thus, Allen's answer, even if made in the exact words he tes- tified to, implies that McDaniels could work, but that if he did, the other union men would either be called off the job or, pursuant to prearrangement , walk off the job. But I find that Allen also informed McDaniels that he intended to take some action to insure that McDaniels would be unable to work. This conclusion is forti- fied by evidence of the prompt action which Allen did take immediately thereafter. About 11 p. in., after the meeting of February 11, Allen telephoned Ullom and asked if he were too sleepy to talk. When Ullom said , "No," Allen told him that McDaniels had just been suspended and that he (Allen) would probably write him (Ullom) a letter to that effect . Ullom replied , "All right." 14 Allen did not in fact write the letter. Asked why he should notify Ullom of McDaniels' suspension, Allen testified that Ullom was a member of another local of the Brotherhood and that it was his (Allen's ) practice to notify all members of a member's suspension so that they might encourage the suspended member to put himself in good standing. [his explanation is not convincing . If it was customary for Allen to notify members of the suspension of a member for the reason stated, I am convinced that there was an additional reason for Allen's notification of Ullom in this case. Allen's testi- mony fails to explain why the information was conveyed to Ullom in such haste, at 11 o'clock at night , at the risk of arousing Ullom from sleep . If the sole reason for Allen's notifying Ullom were the one Allen testified to, why should Allen add that he would probably send Ullom a letter about the suspension ? Even though Allen did not send the letter , the very mention of it implies that the notification was intended to be more than union gossip. I find that Allen intended the notification of Ullom that McDaniels had been suspended to affect McDaniels ' employee status; and that Ullom understood what the consequences were to be is evident from his later conversation with McDaniels.15 McDaniels did not report on the job the next day because, he testified, he knew that Morgan was a "strictly union contractor " and believed he would not permit him to work. He sent word by Saylor , the man who customarily drove him to the job site, that he would not be at work that day. Saylor gave this message to Ullom. That evening, February 12, McDaniels telephoned Ullom.is McDaniels asked Ullom about coming back to work. Ullom told McDaniels that he had had a tele- phone call from Allen notifying him that McDaniels had been suspended , that Allen was supposed to send a letter, and that McDaniels was not to go to work. Ullom 14 Only Allen and Ullom testified to this conversation . From the evidence of what Ullom told McDaniels later , there is reason to believe that they did not relate the conversation in full and that Allen told Ullom that McDamcls was not to be allowed to work I make no finding that lie did say so expressly , but I find that Allen intended to convey that mean- ing and that Ullom so understood. 15 Asked at the hearing whether it was customary for union members to refuse to work with a suspended member, Allen answered that it as not customary for them to refuse According to the constitution of the Brotherhood , a suspended member is not dropped from the rolls until 3 months after his suspension , in which time he may again put him- self in good standing A member may be suspended either for failure to pay a fine or for delinquency in dues Although I believe that Allen 's answer to this question was literally accurate , it might have been more accurate if he had answered that it would not be cus- tomary in all cases A violation of rules is a matter which arouses greater displeasure on the part of union members than does mere dues delinquency Allen testified at one point, in substance , that when a member violates rules, he might have a hard time finding a job, implying that other union membeis would not like it. I infer that where a union member is suspended because of a violation of rules or for failuie to pay a fine imposed because of such violation , the result might be that other members would not work with him Allen testified that this was the reason he helped McDaniels get a job in the fall of 1952 after the findings of the joint trade board on the charge of violations of rules by McDaniels were presented to the Union Apparently the business agent has some power to prevent reprisals against a member under such circumstances. 10 Both McDaniels and Ullom testified about the conversation Ullom was a reluctant witness, but lie admitted enough to corroborate McDaniels' testimony on the subject mat- ter of the conversation and I am satisfied that, if McDaniels did not quote Ullom with verbatim accuracy , his testimony was substantially correct In repeating portions of the -conversation in his testimony , McDaniels varied the quoted words to some extent. Where there are variations, I have based my findings on such portions as appeared to be the most spontaneous except where Ullom's testimony confirmed another portion. M. B. MORGAN PAINTING CONTRACTOR 407 further told McDaniels that he did not want to have trouble with the local, that he had to get the job done, and that it would be best that McDaniels get the matter straightened out and pay his fine. McDaniels said he could not do that. When Ullom asked him what he intended to do, McDaniels replied that he would go to an attorney. Ullom told McDaniels that he would be glad to have him back when he got his business clear and that McDaniels had best get a referral from the Union before he came back to work.17 McDaniels took his case to the office of the district attorney in El Paso under the Texas right-to-work law, and an assistant district attorney conducted an investi- gation up to the time when the charge was filed with the Board. On March 9, 1953, the assistant district attorney, Rutledge Isaacks, held a conference in his office, at- tended by Johnnie Hedrick, a representative of the State Department of Labor, McDaniels, and Allen. Allen's testimony regarding what was said at this conference was limited to denials. I received the impression that, although Allen was not falsely denying what he was asked by counsel, he believed that the form of the question justified a denial and that there was no reason to volunteer a variation. On all the evidence I find that at this conference, Isaacks and McDaniels asked Allen why he did not put McDanlels on anothei job, or why he did not let McDanlels go back to work, and that Allen said he could not do that (Isaacks testified that Allen took the position that he was powerless to put him back on the job) because it would cause trouble.18 During the course of the conference, Isaacks, at McDaniels' suggestion, had McDaniels put in a long-distance telephone call to Morgan. This was done. In the telephone conversation with Morgan, the latter told Isaacks that McDaniels had been prohibited from going to work by the Union,19 but that if he had come to work the day after his suspension Morgan would have employed him, as he was a good worker. Morgan also told Isaacks that there would have been a strike if he had employed McDaniels. He did not explain whether the last statement was based on information he had received or was a mere assumption. After the charge was filed, a representative of the Board suggested to Ullom that he call McDaniels and ask him when he intended to return to work. On Friday, April 10, Ullom did call McDaniels and asked him to return the next day. McDaniels told him he would think it over. He testified that Ullom sounded drunk and that he thought he should wait until later to check with Ullom. On Saturday, McDaniels consulted with a Board agent, who told him he should accept the offer. On Sunday McDaniels called Ullom, and Ullom told him to come in on Monday. As McDaniels admitted that he had no means of transportation for Saturday, I am not disposed 17 Ullom placed McDaniels' telephone call 2 or 3 days after February 12 He testi- fied that McDamels told him that he had some business in town and that he would be out for a few days. McDaniels did not testify to having said that he would be out for a few days. Saylor testified that on the morning of February 12 he gave Ullom the message that McDaniels would "be out for a few days " Ullom testified that Saylor said that McDamels would not be out "that day " On this evidence, it is difficult to find when, if at all, Ullom heard that McDaniels would not be at work for "a few days." If, as Ullom testified, McDaniels told him this in the telephone conversation, it is not clear at what point in the conversation such statement was made Ullom admitted that he and Mc- Daniels had tallied for a couple of minutes, yet when asked what he remembered of it, he volunteered only that McDaniels said "he would not be out to work for a few days, he had some business in town " Ullom admitted further portions of the conversation only on being prodded Considering all the evidence, I find that McDaniels was not, at least beyond the 1 day, February 12, absenting himself from work voluntarily is Evidence in this case as well as in the related case, Cases Nos. 33-CB-35 and 36, the record in which case was incorporated by reference herein, justifies the conclusion that, by "trouble," Allen meant a strike or concerted refusal by other employees to work with McDaniels 19 McDaniels spoke to Morgan first when Morgan answered the telephone. He testified that Morgan said that Allen had told him, "The best thing you can do is get him 1McDaniels] and Larrazola off the job." When Morgan was on the witness stand, counsel for the General Counsel asked, "Don't you recall that Mr. Allen told you you could fire Mr. Daniels and give some reason for it that would not get either one of you in trouble?" Morgan answered, "Possibly, but right now I don't remember " Morgan would not testify that Allen had not told him that-he was "not positive " Morgan did testify that Allen had spoken to him about McDaniels and told him "he had charges against him or some- thing, infraction of the rules." Morgan also conceded that he might possibly have talked to Allen about the Texas right-to-work law. I conclude that Allen had approached Mor- gan to induce him to terminate McDaniels' employment 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to credit his first reason for failing to accept the initial offer. McDaniels did return to work on Monday, April 14, and there is no contention that there was any dis- crimination thereafter. 5. Conclusions respecting the existence of an illegal contract between Morgan and the Union It is clear that Morgan was not a member of the El Paso chapter of the PDC of A before February 28, 1953. He would, therefore, not be bound by the terms of the 1952 contract unless he separately agreed with the Union to be bound by its terms. I find the evidence in this case insufficient to establish that he did so agree. The General Counsel contends that such evidence exists in agreement between Morgan and the Union on the wage rate established by the 1952 contract, and in efforts of Allen to have Morgan comply with the working rules and Morgan's acceptance of them. I do not agree. Although the rates proposed by Morgan were, perhaps, intended to equal the rate of wages plus transportation provided for in the contract, there was a variation between the proposal and the contract rates which the Union had to approve. The evidence indicates further that Morgan, rather than recognizing the spray-painting rule as binding on him, engaged in an argument with Allen, protesting that he was not a member of the El Paso chapter of the PDC of A and therefore not bound by the terms of its contract. The fact that Morgan consented to a submission of the matter to the joint trade board indicates no more than that Morgan was willing to have the dispute arbitrated. Morgan did not expressly enter into an agreement for hiring only union painters, and, although he was willing to hire union painters if the Union could supply them, I find no proof that he agreed to hire only union painters. In fact, there is evidence that he hired some nonunion painters when the Union failed to meet his requirements. Supposition that, if union painters were available, Morgan would have refused to employ a nonunion painter who applied for work when there was a vacancy cannot be indulged in, absent substantial evidence of that fact, which is lacking here. 6. Conclusions respecting discrimination against McDaniels The evidence does not establish that McDaniels was permanently discharged. Rather it indicates that McDaniels was laid off by Ullom until he put himself in good standing with the Union. Although Ullom did not expressly say that Mc- Daniels would be refused employment until he paid his fine and was restored to good standing, I find that what he did say was intended to convey that meaning. In his telephone conversation with the assistant district attorney, Morgan said that, if McDaniels had come to work the day after his suspension by the Union, he would have been employed. However, there is no evidence that Morgan gave Ullom instructions to put McDaniels to work if he showed up even if it meant a strike, and, to all appearances, only Ullom, in his capacity of foreman, took any part in informing McDaniels of Morgan's position in the matter. In telling Mc- Daniels that he should get cleared with the Union before returning to work, Ullom, although a member of the Brotherhood, was acting as Morgan's agent. Despite Morgan's personal views (that is, that he would have let McDaniels work even if it meant a strike), he is bound by Ullom's handling of the situation. The fact that when McDaniels did return to work there was no strike does not, in my opinion, prove that there would not have been a strike or other trouble if McDan- iels had worked on February 12, because, in the meantime, both the district attor- ney and the Board had taken an interest in the matter. On all the evidence, therefore, I find that on February 12, 1953, Morgan, at the Union's instance, discriminated against McDaniels in violation of Section 8 (a) (3) of the Act because McDaniels was not a member in good standing of the Union.20 This was not authorized by any valid union-shop contract. When McDaniels failed to report for work on February 12, 1953, he did so, according to his testimony, be- cause he took it for granted that he would not be permitted to work. In view of the answer which Ullom gave McDaniels on the evening of February 12, it is likely that he would have given the same answer on the morning of February 12. But be- fore Morgan can be held responsible for laying McDaniels off, it must appear that McDaniels was ready, able, and willing to work. On the record in this case, I am not satisfied that this was established before he telephoned Ullom on the evening of m "Membership," as used in Section 8 (a) (3) of the Act, has been interpreted to mean membership in good standing. N. L. R. B. v. Bell Aircraft Corporation, 206 F. 2d 235 (C. A. 2). M. B. MORGAN PAINTING CONTRACTOR 409 February 12. I find, therefore, that the discrimination occurred at the close of work- ing hours on February 12. By attempting to cause and causing Morgan so to discriminate against McDan- iels, the Union has violated Section 8 (b) (2) of the Act. By causing McDaniels to be denied employment by Morgan from February 13 to April 10, inclusive, 1953, because he was not a member in good standing, the Union restrained and coerced McDaniels in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8 (b) (1) (A) of the Act.21 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of Morgan described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in certain unfair labor prac- tices, I shall recommend that they cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. Although the Union has revised its working rules to eliminate the appearance of closed shop or discriminatory hiring conditions, such rules had not, at the time of the hearing, been printed or distributed. Under the circumstances I find that it would effectuate the policies of the Act to recommend that the Union cease and desist from executing, maintaining, or giving effect to any provision of an agreement or agree- ments with members of the PDC of A which requires membership, or membership in good standing, in the Union as a condition of employment, except to the extent authorized in Section 8 (a) (3) of the Act, and that it cease and desist from enforc- ing or attempting to enforce any unilaterally adopted rule providing for discrimina- tory hiring conditions upon such employers with whom it has no formal contract. Because of the scope of the violations of the Act by the Union, and the danger of the commission of unfair labor practices in the future, I shall recommend that the Union cease and desist from in any manner restraining or coercing employees in the exercise of the right to engage in or refrain from engaging in the activities guaran- teed by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8 (a) (3) of the Act. Although it is apparent that Morgan, through Ullom, was acting in self-interest to avoid a possible strike in informing McDaniels on February 12 that he was not to work and that, after getting cleared up with the Union, he was to get a referral before returning to work, the fact that he was not the initiating cause of the discrimina- tion is immaterial. I shall, therefore, recommend that Morgan and the Union jointly and severally make McDaniels whole for any loss he may have suffered by reason of the discrimination, by paying to him, in accordance with the Board's es- tablished policy, a sum equal to that which he would have earned from Morgan be- tween February 13 and April 10, inclusive, 1953, but for the discrimination against him, less his net earnings elsewhere, if any. 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. Morgan is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By maintaining and giving effect to a contract requiring discriminatory hiring and employment practices on the part of members of PDC of A, the Union has en- gaged in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 4. By discriminating in regard to the tenure of employment of G. J . McDaniels, Morgan has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. er Carpet, Linoleum, and Resilient Tile Layers, Local Union No. 419, Affiliated with Brotherhood of Painters, Decorators and Paperhangers of America, AFL (Lauren Burt, Inc, of Colorado), 105 NLRB 669. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By the conduct described in paragraph numbered 4, above, Morgan has inter- fered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the mean- ing of Section 8 (a) (1) of the Act. 6. By causing Morgan to discriminate against G. J. McDaniels in violation of Sec- tion 8 (a) (3) of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 7. By the conduct described in paragraph numbered 6, above, the Union has re- strained and coerced McDaniels in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 8. 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.] Appendix A NOTICE TO ALL EMPLOYEES 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, I hereby notify you that: I WILL NOT encourage membership in Brotherhood of Painters, Decorators and Paperhangers of America, Local 902, AFL, or in any other labor organiza- tion of my employees by discriminating in regard to hire or tenure of employ- ment of any employee because he is not a member, or a member in good standing, of the aforesaid Union, or any other labor organization, except to the extent authorized in Section 8 (a) (3) of said Act. I WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form, join, or assist the aforesaid Union or any other labor organization, to bargain collec- tively through representatives of their own choosing, or to engage in concerted activities for their mutual aid or protection, or the right to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization, as authorized in Sec- tion 8 (a) (3) of said Act. I WILL make G. J. McDaniels whole for any loss of pay suffered by reason of the discrimination against him. All my employees are free to become, remain, or refrain from becoming or remaining members of the above-named labor organization or of any other labor organization, except to the extent that such right may be affected by an agreement executed in conformity with Section 8 (a) (3) of the Act. M. B. MORGAN, D/B/A M. B. MORGAN PAINTING CONTRACTOR, 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 MEMBERS OF BROTHERHOOD OF PAINTERS, DECORATORS AND PAPER- HANGERS OF AMERICA, LOCAL 902, AFL 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 execute, maintain, or give effect to any provision of an agree- ment or agreements with the PDC of A (Painting and Decorating Contractors of America) or any member thereof which requires membership, or member- ship in good standing, in this Union as a condition of employment, except to the extent authorized by Section 8 (a) (3) of the National Labor Relations Act, as amended. ALUMINUM WORKERS INTERNATIONAL UNION 411 WE WILL NOT cause or attempt to cause M. B. Morgan, his agents, suc- cessors, or assigns, or any member of the PDC of A to discriminate in regard to the hire or tenure of employment of G. J. McDaniels or any other employee or prospective employee in violation of Section 8 (a) (3) of the said Act. WE WILL NOT in any manner restrain or coerce employees of M B. Morgan, d/b/a M. B. Morgan Painting Contractor, his successors and assigns , in their exercise of the right to self-organization , to form labor organizations , to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection , or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL make G. J. McDaniels whole for any loss of pay suffered by reason of the discrimination against him. BROTHERHOOD OF PAINTERS , DECORATORS AND PAPERHANGERS OF AMERICA , LOCAL 902, 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. ALUMINUM WORKERS INTERNATIONAL UNION, LOCAL No. 135, AFL and LEONA H. BONESS. Case No. 13-CB-303. February 1, 1955 Decision and Order On August 5, 1954, Trial Examiner Ralph Winkler issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act and recom- mending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. However, the Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case and hereby reverses the Trial Examiner for the reasons hereinafter noted. The Trial Examiner found that the Respondent did not violate Section 8 (b) (1) (A) and (2) of the Act by wrongfully causing the discharge of Boness, the complainant. In reversing the Trial Exam- iner, we do so solely on the ground that Boness, on September 9, 1953, made a proper tender of dues which was rejected by the Respondent. As we deem it unnecessary to consider the various grounds upon which the Trial Examiner based his finding of no unfair labor practice, we do not adopt his Intermediate Report other than that portion which relates to the facts surrounding the discharge. 111 NLRB No. 63.