United Brotherhood of Carpenters and Joiners

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We shall therefore set aside the election of February 10, 1955, and direct that a new election be held. [The Board set aside the election held on February 10, 1955.] [Text of Direction of Election omitted from publication.] MEMBER LEEDOM took no part in the consideration of the above De- cision, Order, and Direction of Election. United Brotherhood of Carpenters and Joiners of America, Local #517, AFL and Ambroise Desjardins and Gil Wyner Construc- tion Company, Party to the Contract. Case No. 1-CB-283. May 12,1955 DECISION AND ORDER On December 10, 1954, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Interme- diate Report attached hereto. Thereafter, the Respondent filed ex- ceptions 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. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications and additions noted below. 1. We agree with the Trial Examiner that the Respondent violated Section 8 (b) (1) (A) and (2) of the Act by including in its contract with Gil Wyner Construction Company the clauses quoted in the Inter- mediate Report which plainly exceed the limited form of union secu- rity permitted by Section 8 (a) (3) of the Act. Although the Re- spondent does not dispute the Trial Examiner's finding that the clauses in question do not satisfy the statutory requirements, it contends that they were not presently operative but were to take effect in the future when permitted by Federal law and therefore may not be found to be violative of the Act. We find no merit in this contention. Despite the language of the purported deferral provision in the con- tract, the evidence establishes that the parties never intended to post- pone the application of the union-security provisions to some indeter- minate future time. Thus, during the course of his testimony, Vanier, 112 NLRB No. 95. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 715 the Respondent's financial secretary and business agent, identified Gil Wyner Construction Company as a union contractor and defined a union contractor as one who "agrees to employ union men if the same can be had." Indeed, as discussed in the Intermediate Report, the parties actually pursued a discriminatory hiring practice reasonably contemplated by the clauses in question whereby employment was con- ditioned on union membership or clearance. Further indicating the parties' intention that the hiring provisions of the contract were to be immediately operative is the requirement in another section of the con- tract (article IV), to which the purported deferral clause is clearly not applicable, that specified work was reserved for members of the Re- spondent.t As we are persuaded by the evidence in this case that the inclusion of the unlawful union-security provisions in the contract was designed to create present discriminatory conditions of employment, we find that the Respondent thereby violated Section 8 (b) (1) (A) and (2) of the Act.' 2. We agree with the Trial Examiner that the Respondent was re- sponsible for Foreman Ablonc's conduct in maintaining a discrimina- tory hiring practice whereby employment at the Portland bridge con- struction site of Gil Wyner Construction Company was conditioned upon union membership or clearance and that the Respondent thereby violated Section 8 (b) (1) (A) and (2) of the Act. In addition to the evidence relied upon by the Trial Examiner, the existence of this unlaw- ful hiring practice is dramatically demonstrated by Ablondi' s instruc- tion to the Charging Party, Desjardins, to secure a clearance from the Respondent before reporting for work the following Monday. Sig- nificantly, Vanier, the Respondent's financial secretary and business agent, not only refused to give Desjardins a clearance because of his failure to pay the balance of a fine previously imposed upon him, but did not even disavow that a clearance was necessary in order to work on the job. There is also other evidence of a prevailing discriminatory hiring practice in Foreman Ablondi's testimony at the hearing con- cerning the custom of new employees reporting to the steward before being put to work. In reply to a question as to what would happen if the steward, whose function it was to check the union membership of 1 See United Association of Journeymen and Apprentices of the Plumbing and Pipeftti ng Industry , etc (Philadelphia Association ), 108 NLRB 186 , where the Board has held that a conti actual reservation of woi k to members of a labor organization violated the Act The contract also has a clause ( article V fl. section 2) which provides that the company agrees that no carpenter member of the Respondent will be assigned, expected , or required to work on any job on which any person is or will perform any work "within the luus- dnction of any craft unions , A F L , if said worker on person is not a member of the particular craft union within whose juiisdnctnon the wok lies" The facts in the present ease are distinguishable from those in the cases relied upon by the Respondent where the Board held that a contract containing an inoperative unlawful union-security provision barred a representation election Unlike here, those cases did not involve inconsistent conduct by the contracting parties o other evidence showing that the operation of the union-security piovnsion was not intended to he deferred 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD new employees, determined that an employee was not in good standing, Ablondi testified, "It was up to the business agent to decide." More- over, Vanier's testimony, mentioned above, admitting that Gil Wyner Construction Company was a union contractor which "agrees to employ union men if the same can be had," also reveals the existence of an un- lawful hiring practice. The Respondent denies that Foreman Ablondi was its agent for whose acts it was responsible. We find, however, as did the Trial Examiner, that, in maintaining the unlawful hiring practice, Ablondi acted as the Respondent's agent within the scope of the authority and duty vested in him by the Respondent's constitution. The relevant constitutional provision required foremen members to "comply with Union rules and hire none but members of the United Brotherhood" (section 42, paragraph U). We therefore find that the Respondent is responsible for the discriminatory conditions of employment main- tained by Foreman Ablondi at the construction site.' 3. We also find, in agreement with the Trial Examiner, that Des- jardins was discriminatorily denied employment by reason of the Re- spondent's refusal to give him clearance, which Foreman Ablondi, as its agent, required as a condition of employment.4 ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the Respondent, United Brotherhood of Carpenters and Joiners of America, Local #517, AFL, Portland, Maine, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Executing, maintaining, renewing, or enforcing any provision of any collective-bargaining agreement, or maintaining any practice 3C-rove Shepherd Wilson & Kruge, Inc, et al, 109 NLRB 209; Anderson-IVestfall Com- pany, 102 NLRB 1408; see also Restatement of Agency, section 15 4In accordance with Board policy, we shall also require the Respondent to give Desjardins the sane written notification which the Trial Examiner recommended that the Respondent be required to give to Gil Wyner Construction Company that it has no objection to the employment of Desjardms The Respondent shall he obligated to icunburse Desjardins for the loss of back pay, as provided in the Intermediate Report, except that such liability shall terminate 5 days after giving such notice to Gil Wyner Construction Company and Desjardms or the date of completion of the Portland bridge project involved in this case, whichever event shall first occur Cf. The Lane Construction Corporation, Ill NLRB 952 In addition to computing the back pay due Desjaidins in accordance with the Woolworth formula, as provided in the Intermediate Report, the Respondent shall deduct from the amount payable to Desjardins such sums as would normally have been deducted from his wages for deposit with State and Federal agencies on account of social security and other similar benefits The Respondent shall pay to the appropriate State and Fedeial agencies, to the credit of Dejarduis and Gil wyner Construction Company, a sum of money equal to the amount which, absent discrimination, would have been deposited to such credit by the Company, either as a tax upon the Company or on account of deductions made from Desjardins ' wages by the Company , on account of such social security or other similar benefits. Pen and Pencil IVoikers Union Local 19593, AFL (Becker), 91 NLRB 883. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 717 -with Gil Wyner Construction Company or any other employer, which requires membership in, or clearance by, the Respondent as a condition of employment, except as authorized by Section 8 (a) (3) of the Act. (b) Causing or attempting to cause Gil Wyner Construction Com- pany or any other employer to refuse employment to employees or applicants for employment because they are not members in, or have not received clearance from, the Respondent or in any other manner to discriminate against them in violation of Section 8 (a) (3) of the Act. (c) In any other manner restraining or coercing employees of, or applicants for employment with, the above-named or any other em- ployer in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agree- inent requiring membership in a labor organization as a condition of -employment, as authorized by 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 Gil Wyner Construction Company and Ambroise Desjardins, in writing, that it withdraws objection to the employment of Ambroise Desjardins and, if the Portland bridge project has not been completed, that it requests the Company to offer him immediate Kind full employment. (b) Make Ambroise Desjardins whole for any loss of pay he may have suffered by reason of the discrimination against him, in the ,manner set forth in "The Remedy" section of the Intermediate Report as modified ii i the Board's decision herein. (c) Post at its offices and meeting halls in Portland, Maine, copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and main- tained by it for sixty (60) consecutive clays thereafter in conspicuous places, including, all places where notices to its members are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the First Region signed copies of the notice attached hereto marked "Appendix," for posting, the Company willing, on the Portland bridge job, for sixty (60) consecu- tive days, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent's 5In the event that this Oider is enfoiced by deciee of a United States Count of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the voids Pursuant to a Deci ce of the United States Court of Appeals, Enforcing an Order " 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative, be forthwith returned to said Regional Director for such posting. (e) Notify the Regional Director for the First Region, in writing, within ten (10) days from the date of this Order as to what steps it has taken to comply herewith. MEMBER LEEDOM took no part in the consideration of the above Decision and Order. APPENDIX NOTICE To ALL MEMBERS OF UNITED BP.OTIIEni-IOOD OF CARPENTERS AND JOINERS OF AMERTCA, LOCAL # 5 71, AND EMPLOYEES OF GIL WYNER CONSTRUCTION COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT execute, maintain, renew, or enforce any provision of any agreement or maintain any practice with Gil Wyner Con- struction Company or any other employer, which requires mem- bership in, or clearance by, our organization as a condition of em- ployment, except as authorized by Section 8 (a) (3) of the Act. WE WILL NOT cause or attempt to cause Gil Wyner Construction Company or any other employer to refuse employment to em- employees or applicants for employment because they are not members in, or have not received clearance from, our organization or in any other manner to discriminate against them in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees of, or applicants for employment with, the above-named or any other employer in the exercise of their rights guaranteed in Sec- tion 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, except as authorized by Sec- tion 8 (a) (3) of the Act. WE WILL make Ambroise Desjardins whole for any loss of pay suffered as a result of the discrimination against him. UNITED BROTITERIIOOD OF CARPENTERS AND JOINERS or AMERICA, LOCAL #517, 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. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 719 INTERMEDIATE REPORT AND RECOMMENDED ORDER The complaint herein alleges that the Union has violated Section 8 (b) (1) (A) and (2) of the National Labor Relations Act, as amended, 61 Stat. 136, by executing, maintaining, and enforcing a written agreement which required membership in or clearance from the Union as a condition of employment, compelling the Company to ,employ only members or persons who have been cleared by the Union, and causing the Company to discriminate against Desjardins because of his union status or the Union's refusal to clear him. The answer denies the allegations of unfair labor practices. A hearing was held before me at Portland, Maine, on November 4 and 5, 1954. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was stipulated and I find that the Company, a Massachusetts corporation with principal office in Malden, Massachusetts, is engaged in the building and con- struction business in the States of Massachusetts, Maine, and New York among others; that during the 12-month period preceding the hearing the Company engaged in building and construction projects in the States of Maine and New York, its services on such projects being valued at more than $500,000; that during said period the Company has provided services directly related to national defense pursuant to United States Government contracts in an amount exceeding $100,000, including construction work in an amount exceeding $100,000 at the United States Naval Air Base at Brunswick, Maine, under a contract with the United States Navy ,or its agent for such work; and that the Company is engaged in commerce within the meaning of the Act. It was admitted and I find that the Union is a labor organization within the meaning of the Act II THE UNFAIR LABOR PRACTICES A. The contracts The record shows that there has been a series of 1-year contracts to which the Union is a party, the first effective April 16, 1952, and the third effective April 16, 1954, and now in effect, and that the Company "automatically" abides thereby. For present purposes it is regarded and accepted, as it was at the hearing, that the Company is and has been a party to such contracts. Article VII of the contracts includes the following: Section 3. If at any time, during the life of this agreement, it shall become permissible and legal, under Federal Law, for the following Sections herewith designated, Sections 3 (a) and 3 (b), to be incorporated as part of this contract, it is hereby agreed that from that time or until the expiration of this agreement, these sections shall automatically become effective and in force as part of this agreement, to wit; Section 3 (a). The EMPLOYER agrees to employ carpenters who are mem- bers of the UNION to do all carpenter work within the UNION'S jurisdiction as long as the UNION is able to supply the EMPLOYER with reliable, competent and otherwise acceptable workmen in sufficient numbers to meet the EM- PLOYER'S requirements. The UNION agrees that if after twenty-four (24) hours notice it has not furnished a sufficient number of Journeymen to the EMPLOYER giving such notice, then the EMPLOYER may employ such men as he can obtain to perform the work until such time as the UNION can supply men to the EMPLOYER to replace these men. The EMPLOYER agrees that when he employs men in the manner described above that he will give notice of such employment to the UNION containing the names and addresses of these men within forty-eight (48) hours, providing that they are qualified carpenters. Section 3 (b). The UNION agrees to give preference in furnishing workmen to the EMPLOYER, and the EMPLOYER agrees to give preference in the employing of workmen to members of the UNION. The EMPLOYER agrees that any carpenters who are not members of the UNION shall within forty-eight (48) hours apply to the UNION for membership, and that they will continue in employment as long as they are members of the UNION. Leaving for later consideration the question whether the parties followed the -practices outlined in the contracts or any unlawful practices, I find that the last 2 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the 3 sections quoted are violative of the Act, and that the first or deferral clause does not exculpate either the Company or the Union.' Whatever the technical dis- tinction between conditions precedent and conditions subsequent, it would not be recognized by employees: the effect on them is readily seen in either situation Noi. as far as the Company is concerned, and as will be seen in the next subsection, does it appear that any difference in phraseology prompted different action. Neither, re- gardless of the practices followed, is there evidence that employees (within the meaning of the Act, both actual and prospective) were notified of any deferral 2 Counsel for the Company argues that only provisions which are legal are binding But such a statement cannot be accepted to bar a finding that inclusion of illegal provisions constitutes a violation of the Act Violation is found with respect to the last or current contract in its execution, maintenance, and enforcement. With respect to the one which immediately pre- ceded the current contract, violation is found in its maintenance and enforcement, its execution falling outside the statutory 6-month limitation. B. The general practices followed Aside from any finding of violation because of the recognition of the unlawful contract, we should consider the practices actually followed, which further indicate violation of the Act.3 In this connection, we must first determine an issue of agency It appears that Desjardins, the Charging Party herein, was twice hired at the Bruns- wick Naval Air Base, and then on the Portland bridge job, by Ablondi, who was carpenter foreman for the Company. Further, it was stipulated that Ablondi was a supervisor within the meaning of the Act, although not that he had the authority to hire. He selected men for transfer to another job, permitted some to continue, and laid off others. Thereafter, he did hire carpenters when the weather permitted, although he testified that he has done very little hiring. While declaring that he abides by the constitution and laws of the International Union, United Brotherhood of Carpenters and Joiners of America, Ablondi pleaded ignorance of various provisions He stated that he was given "special instructions" by the Company not to ask applicants whether they were union or nonunion men, and that he has never checked anyone's union book; nor does he send new men to the union steward for that purpose although, as a matter of practice, they do go to the steward. He testified that the practice on the Portland job was to clear applicants with the Union to see whether they were members in good standing Then, denying that union approval was sought before men were hired, he explained that after he hired a man and approval was obtained from the company official, the steward would check his book, after which Ablondi would put him to work That only union men were employed on the Portland bridge job is thus quite understandable. The Company's responsibility for that situation is clear its representative, the foreman, vicariously complied with the union provision that he hire only union members as new employees were checked by the steward before the foremen put them to work. The Company's acceptance, via its supervisor, of the international's con- stitution and bylaws as a basis for conducting its operations had the effect of impos- ing on employees the requirement of membership in or clearance by the Union as a condition of employment. Aside from this evidence of practice which indicates dis- crimination by the Company in violation of Section 8 (a) (3) of the Act, such dis- crimination would also appear, as a foundation for the Union's violation, from the testimony of Vanier, financial secretary and business representative of the Union, that contractors must abide by the established rules and regulations.4 Turning now to the question of the Union's liability for Ablondi's acts, he testified as noted that he abides by union regulations although he has not himself lived up to their terms. As he put it, he "guessed" that he did carry out the required practice as well as he could. Reluctant as he was to admit any practice which favored union members, he testified to "an interest to see that union men are employed before non- union men" since he is himself a member of the Carpenters Union. This explains why Ablondi acted on behalf of the Union, it does not justify what was done. With introduction of the International's constitution and laws which govern the Local Union, it appears that the foreman is in fact its agent since it is provided that "Mem- INeiu Yort State Employe) Association, Inc, 93 NLRB 127, at 127-128. .Jaiidel Fin 100 NLRB 1390, 1391 Gottfried Bating Company, Inc, 103 NLRB 227, 228 2Jandel Furs, supra Cf. N L R B v Kingston Cake Company, Inc , 191 F 2d 563 (C A 3) Cf The Laminas Company, 101 NLRP. 1628, 1630 UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 721 bers who contract work or become foremen, must comply with Union rules and hire none but members of the United Brotherhood." As a member (by permit) of the Union and one who "abided" by the International constitution which governs its activities, Ablondl fell within its design and "within the scope of the general authority delegated to him by the constitution, bylaws, and working rules, and operated to bind the Union." 5 Further authority on the issue of the Union's responsibility can be found in the Cement Masons case.6 There the Union's "working rules imposed upon the . foreman, who was required to be a member under the rules, the responsibility for their enforcement . . . Included in these rules, was one prohibiting, with certain unimportant exceptions, members from working with nonmembers . . . In these circumstances, it is clear that (the fore- man's) removal of (the employee) from the job because of his suspension from union membership, fell within the contemplated scope of the authority and responsibility the (union) thus placed in him." The finding of the union's responsibility in the case cited covered a greater exercise of authority by the foreman than occuired in the instant case. The evidence which thus indicates that Ablondi was a representative of both the Company and the Union and that both are bound by his acts and statements has also disclosed first, that unlawful practices were required and second, that such practices were in fact followed Nor is the existence of practices overcome by Vanier's testi- mony that he did not tell Ablondi or the Company generally to discriminate 7 Fur- ther evidence of violation of the Act is found in Ablondi's prehearing affidavit: "In the Union bylaws, a person must be a member in good standing to hold a job. I as foreman would not check the books but the steward on the job would." This state- ment by the carpenter foreman is admissible against both the Company and the Union on the issue of practice maintained.8 In the interest of clear understanding it should be pointed out that the affidavit is but one element of proof 9 In the Grove Shepherd case other elements were cited by the Board to support its findings, even as the Trial Examiner had previously cited other proof in making his findings on a different credibility resolution Received in evidence, the prior statement in Grove Shepherd was at no time relied upon as alone determinative of the issue Here the record shows by Ablondi's oral testimony, his own interest and also that while applicants were first hired, the steward checked their union book before they went to work (Ablondi did know that all of the men on the Portland bridge job were union members.) Ablondi's affidavit, received in evidence as an admission against interest binding on both the General Counsel and the Union since his agency had been established, confirmed this oral testimony of prac- tices maintained in violation of Section 8 (b) (1) (A) and (2) of the Act. This finding is consistent with the testimony that only union men were employed on the Portland job,1i and that it was the Company's practice to call the Union for men. The evidence heretofore noted indicates the Union's responsibility for these circumstances and warrants a finding of violation. s Grove Sliephei d Wilson if Kruge, Inc, et at., 109 NLRB 209. 6 Cement Masons Local No 555, 102 NLRB 1408, at 1408-1409 7 Consolidated Western Steel Corporation, 94 NLRB 1590, 1,593 8 Grove Shepherd Wilson 6 Kruge, Inc , et al, supra U The Union argues that, despite Ablondi's testimony that he abides by the constitution and himself sought and obtained a peimrt from the Union, he did not in fact police the contract as the constitution required, leaving such matters to the steward on the job; and that he thus (lid not recognize his agency Whether or not his reliance on the steward indicates "i ecognition," the test, where the question is the alleged principal's liability, appears rather to be whether the principal authorized the agency Failure of the agent to i ecog ize it may lead to inaction , but where he has acted within what would otherwise be recognized as the apparent scope of his authority, it is not properly to be urged that lie did not formally accept or recognize his own authority It is the principal who recognizes the agent's status and is bound by his acts On the other hand, the General Counsel, recognizing the distinction between proof of practice and an admission, appears to iely on the Grove Shepherd case as authority not only for such distinction but also for accept- ance of the admission as itself supporting a finding of violation regardless of other evidence on the point lint here lie claims more for that case than it held The admission is itself only evidentiary and pioof of a practice, which is to be consideied with othci pioof (This is not to say that an admission cannot be accepted as sufficient proof where no other proof is available ) 10 It was testified that nonunion nien also were employed at the air base Different conclusions could be drawn from the fact that reports made to the Union referred to the number of membei s on that job without mention of any nonunion men '722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Desjardins Desjardins had been a member of another local union of the Carpenters Inter- national He went to work for the Company on January 6, 1953, and joined this Union on January 19. On or about February 2, charges were filed against him in the Union, alleging that he had gone to work for the Company in January 1953 while a dispute was pending between the Company and the Union and while members of the Union were "waiting to go to work." At a meeting on July 6, 1953, the Union fined him $100, half of which he paid on August 17. The balance of the fine re- mains unpaid, although his dues were paid until January 1954. He was suspended from the Union on June 30, 1954, and turned his union book in on August 6. It was stipulated that the Union commonly suspends a man when he is in arrears for 6 months. Desjardins further testified without contradiction except by Vanier that he tendered his dues to the Union for the months of January through April 1954. In the meantime, by letter dated September 10, 1953, he had appealed to the International, apparently from imposition of the fine On September 15, the Inter- national replied, directing him to send the receipt for the $50 which he had paid on account of the fine He testified that he had sent the receipt with his fist letter, and that about a month after receiving the reply he so advised the International On March 6, 1954, he again wrote to the International, recalling to it that he had previously sent the receipt. (To the extent that this letter is self-serving, it repeats and corroborates his oral testimony He had been questioned on cross-examination concerning what he said in that letter.) On April 1, the International replied to this letter, advising him that he had not complied with the provisions of the constitu- tion concerning appeals, and returned his dues book and the money order. Much was made at the hearing, pro and con, of Desjardins' efforts or failure to obtain satisfaction from the Union herein or the International. Whatever sugges- tion there may be that he did not vigorously pursue his rights (and I make no such finding, the result of the approach which he made to the International was not encouraging), certainly the evidence does not show that he failed to seek action looking to his clearance for employment or that he otherwise exculpated the Union from any responsibility for violating the Act. Aside from Vanier's denial that he had insisted on payment of the full fine, it is nowhere suggested that the refusal to accept the dues was modified by any change in the Union's policy in this respect." Unlike the issue in the Bloomingdale case, which revolved around the alleged tender and refusal to accept dues, I find that Desjardins did in fact tender his dues and that he was told that they would not be accepted until he paid the balance of the fine imposed on him, as he testified But this still leaves the question of the alleged refusal to employ him. The preliminary but normally essential elements having been determined, we come now to the question whether, as alleged, the Union did in fact and by specific acts pointed to him interfere with Desjardins' employment and cause the Company to deny employment to him. Here I find the issue much closer. Although the ,natter of the Union's liability for Ablondi's acts has posed little difficulty, there remains for evaluation the statements which he made to Desjardins and on which a finding on behalf of the latter must rest, when such statements are considered in conjunction with Vanier's. Desjardrns had worked under Ablondi on the Portland bridge job from November 1953 until January 1954, when weather forced a layoff. He testified that on or about April 1, 1954, at that job, he asked Ablondi for work, and that the latter said they were starting to work again, and that Desjardins should get a working permit from the Union and come back the following Monday; that the same day he went to the union office, told Vanier that he had a job and wanted a work permit, but that Vanier told him as he had several times before that he could not get such a permit until the balance of the fine and the back dues were paid, Desjardins replying that he would pay the back dues but not the rest of the fine. Ablondi, himself a member of another local of the International, got a permit from the Union herein when he started to work for the Company early in 1953 He testified that he was not hiring on the day that Desjardins came to see him in April; the cold weather had not yet cleared to the point where hiring could be com- menced for the job; he did not seek out the men, but when the weather broke, they came around. He testified further that he had heard of Desjardrns' trouble and asked how he was doing with the Union. Declaring that he did not recall all of the conversation, he testified that he told Desjardins he would be hiring shortly when 11 Cf N L R B v Local 3, Blooinuuldale District 65, Retail, Wholesaled Deliai tnaent Stoic Uiuon, CIO, 216 F 2d 285 (C A 2), revg 107 NLRB 191. See also Biscuit and Cracker Workers Local Union No. 405, tPL, 109 NLRB 985 UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 723 the weather permitted. While he did not at first recall telling Desjardins to go to the Union concerning the fine and then report for work the following Monday, he did recall, after his recollection had been refreshed, that he had asked Desjardins why he didn't get straightened up and come back to work; he may have added, with respect to coming to work, "Next Monday," but of this he wasn't sure. Vanier denied that he ever refused to accept Desjardins' dues while the fine remained unpaid. He also denied that Desjardins ever offered to pay the arrears in dues. I do not credit these denials. There is no other explanation for the Union's instructions to Vanier on March 15, when Desjardins was several months in arrears, that he not accept the dues until the fine was paid. Vanier testified that he was not so instructed by the Union. When shown the minutes of the union meeting of March 15, 1954, which indicated that such instructions were given him, he testified that he had not heard them and was now surprised. Vanier clearly sought to "win his case," and I was not impressed by his reliability on the stand. He was less than frank in pointing out that the Company was not a party to a contract received in evidence, although he then acknowledged that it agreed to and abided by the contract. He even denied that he had received a subpena. Crediting 12 Desjardins' testimony that earlier and again on or about April 1 he offered to pay his dues, I accept his further testimony that at that time he asked for and Vanier denied him a working permit With the finding that the Union insisted on payment of the fine as a condition for Desjardins' employment, I cannot accept Ablondi's characterization of his part in the conversation with Desjardins as a matter of friendly conversation and advice; nor his testimony that there was no connection between this advice and Desjardins' request for work. The control over employment and the unlawful condition imposed are clear; but for such, Desjardins would have gone to work on the Monday after these con- versations of "on or about April 1," or apparently on April 5, 1954. Whether the latter date is correct can be determined on compliance by reference to the date when additional men were first called back.13 III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union set forth in section II, above, occurring in connec- tion with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the sev- eral States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. IV. THE REMEDY Having found that the Union has engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It has been found that the Union has violated Section 8 (b) (1) (A) and (2) of the Act by executing and maintaining contracts which required membership in or clearance from the Union as a condition of employment, compelling the Company to employ on the Portland bridge job only persons who have been cleared by the Union, and causing the Company to discriminate against Desjardins be- cause of the Union's refusal to clear him for employment. I shall therefore recom- mend that the Union cease and desist from maintaining such practice or enforcing or giving effect to any agreement therefor I shall further recommend that the Union make Desjardins whole for any loss of pay he may have suffered by reason of the discriminatory action aforementioned by payment to him of a sum of money equal to that which he would normally have earned less his net earnings,14 which sum shall be computed 15 on a quarterly I"I have not overlooked Deslardins' momentary denial that he tendered the back dues. Whether he did not understand "tender," or whatever the reason, he clearly and repeatedly asseverated that he offered to pay several times His iceollection of his correspondence with the International nas good, although he did not recall one letter until it was shown to him (The correspondence was nowhere inconsistent with his claim herein or his testi- mony ) While he testified that, when Vanier refused to accept his dues, lie said th 't he was suspended, Deslardins was correct in declaring that lie had not been suspended as noted. lie was not suspended until June 30, 1954. 13 Cf The Cummins Company, 101 NLRP. 1628, 1632 " Crossett Lumber Company, 8 NLRB 440. See also Republic Steel Cor poration v N L R B,311U.S 7 15 F W lVoolv,orth Company, 90 NLRB 289, 291-294. 369028-56-vol 112-47 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD basis from the date of the discriminatory refusal to employ him to the date of completion of the project or the date on which the Union serves upon the Company the written notice, as set forth in section 2 (a) of the Board's Order, whichever shall first occur. The violations of the Act which the Union has committed are persuasively related to other unfair labor practices proscribed by the Act, and the danger of their com- mission in the future is to be anticipated from the Union's conduct in the past The preventive purposes of the Act will be thwarted unless the order is coexten- sive with the threat. In order, therefore, to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, I shall recommend that the Union be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act 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. United Brotherhood of Carpenters and Joiners of America, Local #517, AFL, is a labor organization within the meaning of Section 2 (5) of the Act 2. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (I) (A) of the Act 3. By causing Gil Wyner Construction Company to discriminate in regard to hire, tenure , terms, and conditions of employment in violation of Section 8 (a) (3) of the Act, the Union has engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Rugcroffters of Puerto Rico, Inc. and Unidad General De Traba- jadores De Puerto Rico . Case No. 24-CA-386. May 12,1955 DECISION AND ORDER On July 28, 1954, Trial Examiner Eugene E. Dixon issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and supporting brief. The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was conunitted. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in the case tool hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only insofar as they are consistent with the Decision and Order herein. 1. We agree with the Trial Examiner that the Respondent inde- pendently violated Section S (a) (1) of the Act in the manner set forth in the Intermediate Report. 112 NLRB No. 97.