Millwright Local Union No. 2484

MILLWRIGHT LOCAL UNION NO. 2484 541 Millwright Local Union No. 2484 and H. B. Clem, Financial Sec- retary, United Brotherhood of Carpenters and Joiners of America, A. F. L. and E. J. Harrison, An Individual, and in behalf of others. Case No. 39-CB-96. October 20,1955 DECISION AND ORDER On June 2911955, Trial Examiner Sidney L. Feiler issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they -cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner further found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the Respondents, but not the General Counsel, filed exceptions to the Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations 1 of "' the ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondents, Millwright Local Union No. 2484, United Brotherhood of Carpenters and Joiners of America, A. F. L., its officers, agents, successors, and assigns, and H. B. Clem, financial secretary of said Local, shall : 1. Cease and desist from : (a) Entering into, maintaining, or enforcing any agreement, understanding, or practice with W. S. Bellows Construction Corpora- tion, or any other employer within its territorial jurisdiction, which requires employees or prospective employees to be members of, or to obtain job referrals or clearances from, the Respondent Union as a 1In adopting the Trial Examiner 's recommendations , we do not adopt that part of The Remedy" section of the Intermediate Report dealing with the deduction and pay- ment of sums for deposit with State and Federal agencies on account of social -security and similar benefits. 2 The Trial Examiner found that the Respondents had not violated the Act by ( 1) certain provisions in the Union's bylaws; (2) the levying of an assessment against members; and (3) obtaining an affidavit from member S. W. Carlisle denying that he had authorized anyone to file a charge on his behalf. As no exceptions have been filed to these findings, we adopt them pro forma. 114 NLRB No. 101. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD condition of obtaining employment , except to the extent permitted under the proviso to Section 8 (a) (3) of the Act. (b) Causing or attempting to cause W. S. Bellows Construction Cor- poration, or any other employer within its territorial jurisdiction, to discriminate against employees or prospective employees in violation of Section 8 (a) (3) of the Act. (c) In any other manner restraining or coercing employees or prospective employees of W. S. Bellows Construction Corporation, or any other employer within its territorial jurisdiction , in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring member- ship 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) Post at the Respondent Union's main office and union hall at Orange, Texas, copies of the notice attached hereto and marked "Ap- pendix A." s Copies , of said notice , to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent Union's representative and Respondent Clem, be posted by the Respondents immediately upon receipt thereof, and maintained by them for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondents to in- sure that such notices are not altered, defaced, or covered by any other material. (b) Notify, in writing, W. S. Bellows Construction Corporation and E. J. Harrison , S. W. Carlisle, Thomas A. Gray, Dallas Roy, H. A. Doucet, R. D. Lisenby, D. B. Lisenby, and Rubin Thomas, that they have no objection to the hiring or continued employment of these em- ployees by the Company. 3. In addition , the Respondent Union shall take the following affirmative action which the Board finds will effectuate the policies of the Act : Make whole, E. J. Harrison, S. W. Carlisle, Thomas A. Gray, Dallas' Roy, H. A. Doucet, R. D. Lisenby, D. B. Lisenby, and Rubin Thomas for any loss of pay they may have suffered as a result of the discrimi- nation against them in the manner set forth in the section of the In= termediate Report entitled "The Remedy," as modified herein. 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." MILLWRIGHT LOCAL UNION NO. 2484 543. 4. The Respondents shall notify the Regional Director for the Six- teenth Region in writing, within ten (10) days from the date of this Order, what steps they have taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondents established and main- tained work rules as part of the Respondent Union's bylaws, levied an assessment against all working members, and coerced S . W. Carlisle into signing an affidavit, all in violation of the Act. APPENDIX A To ALL MEMBERS OF MILLWRIGHT LOCAL UNION No. 2484, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. L., AND TO ALL EMPLOYEES AND PROSPECTIVE EMPLOYEES OF W. S. BELLOWS CONSTRUCTION CORPORATION 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 enter into, maintain, or enforce any agreement, understanding, or practice with W. S. Bellows Construction Cor- poration, or any other employer within our territorial jurisdiction, which requires employees or prospective employees to obtain job referrals or clearances from us as a condition of obtaining employ- ment, except to the extent permitted under the proviso to Section 8 (a) (3) of the Act. WE WILL NOT cause or attempt to cause W. S. Bellows Construc- tion Corporation, or any other employer within our territorial jurisdiction, to discriminate against employees or prospective em- ployees in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees, or prospective employees of W. S. Bellows Construction Corpora- tion, or any other employer within our territorial jurisdiction,, in the exercise of the rights guaranteed in Section 7 of the Act,. except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL notify, in writing, W. S. Bellows Construction Corpo- ration, and E. J. Harrison, S. W. Carlisle, ' Thomas A. Gray, Dallas Roy, H. A. Doucet, R. D. Lisenby, D. B. Lisenby, and- Rubin Thomas, that we have no objection to the hiring or con- tinued employment of these employees by the Company. . 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE, the undersigned Union, will make whole the above-named employees for any losses suffered by them as a result of the dis- crimination practiced against them. MILLWRIGHT LOCAL UNION No. 2484, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. L., Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) (Signed) ----------------------------- (11. B. CLEM, Financial Secretary) This notice must remain posted for 60 days from the date hereof, and must root be altered, defaced, or covered by any other material,. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed by E. J. Harrison, an individual, the General Counsel of the National Labor Relations Board 1 by the Regional Director for the Sixteenth Region (Fort Worth, Texas), on May 3, 1955, issued a complaint against Millwright Local Union No. 2484, United Brotherhood of Carpenters and Joiners of America, A. F. L., herein referred to as the Union, and H. B. Clem, financial secretary of the Union (both are referred to collectively as the Respondents), alleging that the Respondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, 65 Stat. 601, herein called the Act. Copies of the charge, complaint, and notice of hearing were served upon the parties to the proceeding. With respect to unfair labor practices, the complaint alleges in substance that in violation of the Act: (1) Since October 1, 1954, the Union has been and is a party to an understanding, practice, or agreement with W. S. Bellows Construction Corpo- ration requiring that all millwright employees at a construction project of the Com- pany at Silsbee, Texas, have membership in, clearance, or referral by, the Union as a condition of employment; (2) the Union through its representatives and agents, in- cluding Clem, from on or about October 1 to 15, 1955, caused or attempted to cause the Company to fail to hire eight individuals because they lacked referrals or clear- ance from the Union: 2 (3) the Union coerced an individual to sign an affidavit which declared he had never authorized the filing of a charge with the Board in his behalf; and (4) the Union has coerced the named individuals and the entire membership of the Union by the denial or referrals, certain provisions of its bylaws, and also by requiring working assessments to be paid as a condition of employment. The Respondents, in their answer, dated May 11, 1955, admit certain jurisdic- tional allegations, but deny the commission of any unfair labor practices. Pursuant to notice a hearing was held at Orange, Texas, before the duly desig- nated Trial Examiner.3 All parties were represented at the hearing and were af- forded full opportunity to be heard and to examine and cross-examine witnesses. 'The term General. Counsel as used herein includes the attorney representing the General Counsel at the bearing ; the National Labor Relations Board is referred to as the Board. 2 The complaint included the name of a ninth individual , R. B. McElvain . On motion of the General Counsel during the hearing, the case was dismissed as to him. $ Simultaneously with the issuance of the complaint herein, the Regional Director issued an order consolidating this case with 2 other cases involving the same Respondents, 1 in- volving the same Company as here, Case No 39-CB-101, and 1 involving events at another company, Case No. 39-CB-95. All three cases were set for hearing on the same date At the hearing, the General Counsel requested that Case No. 39-CB-95 be tried sepa- rately and that there be a separate transcript. This application was granted without objection. After Case No. 39-CB-96 had been tried, the General Counsel moved for dis- MILLWRIGHT LOCAL UNION NO. 2484 545 At the close of the General Counsel's case-in=chief, the Respondents moved to dismiss the complaint for failure of proof. The motion was denied. It was re- newed at the conclusion of the presentation of all the evidence . This motion is disposed of by the findings and conclusions which follow. The General Counsel moved to conform the pleadings to the proof as to formal matters . This motion, to which there was no objection , was granted. All parties waived oral argument. Opportunity was also afforded for the filing of briefs and/or proposed findings of fact or conclusions of law, or both. A brief was received from the General Counsel. Upon the entire record, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY W. S. Bellows Construction Corporation is and has been since 1947 a Texas corpo- ration, having its principal office and place of business in Houston , Texas, where it is now and has been at all times continuously 'engaged in general, industrial, commer- cial, and heavy construction. The Company, during the calendar year 1954, completed construction projects in Arkansas, Oklahoma, New Mexico, and Texas, for which it received in excess of $15,000,000. Of this amount, in excess of $100,000 was received for work performed outside the State of Texas. During 1954 the Company also completed work on a contract with Kirby Lumber Company at Silsbee, Texas, the project involved in this proceeding, for which it received in excess of $12,000,000 . During the same period, it has performed substantial construction work for other large firms, including South- west Bell Telephone Company and U . S. Steel Company. Its purchases of materials originating outside the State of Texas has been approximately $2,000,000. The Trial Examiner finds that W . S. Bellows Construction Corporation at all times here relevant was and is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Millwright Local Union No. 2484, United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor , is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Millwright hiring practices at the Company The complaint alleges that since October 1 , 1954, the Union has been and is a party to and is giving effect or expression to, and enforcing an understanding , practice, or agreement with the Company, not authorized by the Act , requiring that all mill- wright employees at the Company's Kirby mill project at Silsbee , Texas, have mem- bership in, or clearance, approval, or referral by, the Union as a condition of em- ployment. There is no written contract between the Company and the Union . The General Counsel relies primarily on the contention that the bylaws of the Union were made part of the working conditions on the job and that thereby illegal restrictions were imposed on employees and applicants for employment . The more pertinent of these provisions are as follows: 12. The Foreman shall be in possession of the current quarterly working card and have the current month paid up at all times. 13. It is the duty of the foreman to direct each member to the steward before allowing said member to start to work, for the purpose of having the member's working card and referral slip checked before the member is eligible to work on his job. 20. It shall be the duty of all Foremen, as well as the Steward , to see that the Millwrights trade rules are upheld, violators being subject to a fine. 30. Any member reporting on any job for work must find the steward on that job and present his working card to him before assuming his duties. Failure to do so will constitute an offense and the member shall be fined not less than $1.00. missal of Case No. 39-CB-101. This motion was granted without objection. Under these circumstances, the Trial Examiner now severs the instant case from Case No. 39--CB-95 and is issuing a separate report in each case. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 38. All members must have current quarterly working card to work on job. The steward shall demand and examine the working cards and referral slips of all members coming to work on his job, and shall return referral slips to Business Agent each week-end. Every member violating the above paragraph shall be fined $10.00. 39. If a member fails to have his current quarterly working card and is known by other members on the job to have same he shall be allowed to work that day. He shall be required to show his quarterly working card to the steward before going to work for the following day. Failure to comply with the above member shall not be permitted to go to work. 40. Every member must receive a referral slip from the Business Agent be- fore going to work on any job. Any member violating this paragraph shall be fined $10.00 after due examination by the Executive Committee. 41. Any member soliciting or visiting any job thirty minutes before the regular schedule working hours of the job unless given permission by the Business Agent or Executive Committee shall be fined $10.00 after due examination by the Executive Committee. 53. It is the duty of the Stewards to inform their Foreman of any and all infractions of these Trade Rules and By-Laws, and give the Foremen the oppor- tunity to correct these infractions before the Business Representative or the Local Union is notified Should the Foremen then fail to act promptly and effectively, the Stewards shall be duty bound to proceed to take the necessary action. 56. Any member applying for a Maintenance or Operational job, must get permission'from the Local Union before going to work. A letter must be given to the Recording-Secretary, stating the wage, hours to be worked, overtime rate, etc., at the time the member asks for permission. David Moore has been millwright general foreman on the Kirby project since June 27, 1953. He was and is responsible for the hiring and firing of all millwrights, a matter which was left in his discretion by his superior, Walter D. Murphy, assistant superintendent. The millwright force in October 1954 consisted of 70 to 80 mill- wrights and 7 or 8 foremen. Murphy testified that this delegation was made to Moore from the time millwrights were first needed at the job-sometime in the latter part of June 1953. He also testified that at the time he made the delegation he knew that the Union was the source of supply for millwrights and that he knew Moore ran the project in accordance with Union rules. Moore, himself, has been a member of the Union since October 10, 1953, is familiar with the bylaws of the Local, and, according to his testimony, has tried to follow them to the best of his ability. He testified that the procedure he followed in all cases, when he was informed by Murphy that millwrights were needed, was to telephone H. B. Clem, business agent and financial secretary of the Union, and request him to send the number of millwrights needed.4 This system worked without apparent difficulty between the Company and the Union until October 1954. On October 4, Murphy informed Moore that about 12 or 14 additional millwrights would be needed and instructed him to hire them. Moore telephoned Clem and asked that five specific millwrights be sent to the job. This group included two individuals named in the complaint: S. W. Carlisle and D. B. Lisenby. Of the 5 requested, only 1, a Mr. Sarton, appeared at the project the next day. He was hired. On October 6, Moore obtained from his foreman the names of 20 millwrights whom they recommended for hiring. On October 7 he telephoned Clem, and, ac- cording to his credited testimony, asked Clem whether he was sending over the four men for whom Moore had previously called. Clem replied that he was not sending them. Moore then said he had a list of 10 additional men he wanted sent 4 Tillman N. Phillips, who was union steward at the job from October 1953 until February 1, 1955 , described the procedure after men were sent to the project. He would meet those referred at the project gate, check their union card, take them to the employ- ment office to be placed on the employment rolls, then 'take them to the general foreman, and finally 'to the foreman of the particular crew to which the man was assigned. He also checked the union referral slips of each new millwright employee and also the quarterly work cards of all millwrights on the job to ascertain they were in good standing in the Union . He was given the checks for all millwrights and, after noting down the amounts for each millwright, could give them to the lorenian He turned in this record to the Union. He further testified that all millwrights employed at the project were members of the Union and all, evcopt tot those individuals involved in this pioceedmg, presented union referral slips to him His testimony is credited. MILLWRIGHT LOCAL UNION NO. 2484 547 to the job and named them.5 Clem told him to call Carl Miller, president of the Union. Moore telephoned Miller and described his difficulties with Clem. Miller replied that it was not "right" to call for the referral of specific men. After some discus- sion over the rights of millwright foremen under the bylaws, the conversation ended when Miller said he would go to the union hall and try to straighten matters out. A few hours after these conversations, Clem and Miller went to the project and had a meeting with Murphy and Moore. Clem and Miller met Moore in the hall outside Murphy's office. Clem declared it was not right for Moore to ask for specific individuals and that he was not a good union man by doing so. Moore, on the other hand, maintained he was within his rights and was following the bylaws of -the Union. When the three met with Murphy, Clem and Miller voiced their objection to any company request for specific individuals, Moore insisted that he wanted the men he had called for, and Murphy declared he did not care how men were obtained lust so they were obtained.6 No decision was reached at this meeting. Later that same day, Murphy told Moore that since Clem had indicated during the meeting that he was not sure who the men were whom Moore wanted the latter should give the men something in writing to take to Clem so that there would be no misunderstanding. Moore accordingly told his foremen to inform the men he wanted to meet him outside the local courthouse on Saturday, October 9, for the purpose of giving them notes to be delivered to Clem. Moore met the men and gave the notes to them, including those individuals named in the complaint. All except E. J. Harrison received small handwritten slips of paper reading as follows: Oct. 11, 1954 Mr. H. B. Clem Please send _____________________________ to the saw mill job. Dave M. Moore Harrison was sent a letter to the same effect. Rubin Thomas received his slip on October 11 from one of the men who had been present. On October 8 a notice was posted at the union hall stating that at the direction of the president all work orders would come through the executive committee during the period of a certain strike (involving another union, but which affected the employment of members of this Union).7 According to Miller, he found that this notice had been torn down and he reposted it early in the morning of October 11. The men who had received slips from Moore attempted to secure referral from Clem on October 11. Some like S. W. Carlisle, E. J. Harrison, and Rubin Thomas 5 This group included the following men named in the complaint S Dallas Roy, R. D. Lisenby, H. A. Doucet, E J Hari ison, Thomas A Gray, and Rubin Thomas 9 The above findings are based on the testimony of all four participants who were in general agreement as to the trend of.the conversation Each of them added details in elaboration Murphy agreed with Cleni and Miller that they wanted to send men who had been out of work for a long period of time rather than the men Moore wanted Clem finally stated be would leave the referral up to executive council of the Union. Clem testified that on October 7 he explained to Moore the Union's policy to try to give work to members who were out of work the longest period, and pointed out that some of the men requested by Moore were actually working on other jobs and the Union's policy was not to "steal" men from other jobs. Moore, however, remained adamant and insisted on the men he had named When Clem, Moore, and Miller met with Murphy, the previous discussion was repeated without any change in position. Murphy, according to Clem, said he was not interested in how lie got men as long as lie got them. The only disagreement, Clem agreed in his testimony, was over calking for men by name. He further testified that Moore had asked for men many tunes before this incident and that they had been in agreement. When Moore asked for specific individuals, he went to the project to discuss the matter further According to Clem, the background leading to posting of the notice was as follows : Starting in April 1954 and continuing into October there had been a strike of hoisting engineers in the area . Members of the Union involved in this proceeding were out of work and other members were not observing its bylaws. When Clem brought this to the attention of the executive committee, it passed a resolution taking the issuance of re- ferrals out of Clem's hands and making it a matter for executive committee action. Clem fixed the date of the meeting as October 7 and the posting of notice to the member- ship on October 8. 387644--56 -vol. 111-36 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presented their notes to Clem but were told by him that matters were out of his hands; there was nothing he could do. D. ii. Lisenby had made an attempt to secure a referral slip from Clem on October 7 after two of his brothers, who were working on the project, relayed word from Moore that he should attempt to obtain one. Clem refused to issue one to him. Lisenby related to Moore what had happened and the latter urged him to make another attempt to secure a referral and if he were unsuccessful he would be em- ployed without one. Lisenby received a slip from Moore with other applicants on October 9. He presented it to Clem on the 11th who told him the matter was out of his hands and asked whether he wanted the note presented to the executive committee. Lisenby replied that the note was addressed to Clem and he wanted him to have it. Lisenby unsuccessfully attempted to secure a referral until he was hired on October 14. R. D. Lisenby, a brother of D. B. Lisenby, had sought referral from Clem on October 7 and 11. Clem's conversations with him were identical with those Clem had with D. B. Lisenby. Dallas Roy and H. A. Doucet together applied to Clem on October 7 or 8 and again on October 11 for referral to the project. Clem refused to send them on the first oc- casion. On the next occasion when they presented notes from Moore, Clem raised his hands in a gesture of futility and said the matter was out of his hands. Both also testified that while they were speaking with Clem, his secretary told him that Moore was on the telephone and that they heard Clem say he was not sending any men to the project. Rubin Thomas presented his slip to Clem on October 12, but the latter handed it back saying he could not do anything about it .8 None of these men showed up at the project on October 11. On Wednesday, October 13, Moore telephoned Clem and Clem agreed to refer two apprentice mill- wrights to the Company. They appeared and were hired.9 On October 12, Moore reported to Murphy that he had been unsuccessful in ob- taining from the Union the men he wanted and that he did not want the men the Union was willing to send. Murphy then instructed him to post a sign on the com- pany bulletin board reading: "Millwrights Wanted." This was done and word was passed to the foremen that men would be hired at the gate on October 14. All mill- wrights who appeared that morning at the company gate were hired that morning, including those named in the complaint.io Murphy, on October 14, received a telephone call from J. E. Flowers, business manager and financial secretary of the Beaumont Building & Construction Trades Council. Prior to making the call, Flowers, according to his credited testimony, had received a call from Clem in which the latter advised him that the Company, con- trary to area practice, had hired some men at the gate, the millwrights on the job and the executive board of the Union were dissatisfied, and there was a possibility of a picket line being placed on the job. Clem asked Flowers to telephone Murphy and see whether he could straighten things out. Flowers, in his conversation with Murphy, said he wanted to work out some agree- ment to prevent any work stoppage. Murphy replied that he did not think the Com- pany had done anything wrong when it had hired at the gate and he accepted Flowers' suggestion that he call Clem and have a further discussion." Murphy then called Clem. According to Murphy's credited testimony, Clem told him there would be a picket line at the job unless he straightened things out. When Murphy asked what he had done wrong, Clem replied that he had been wrong in hiring men at the gate, it was against the hiring practice, and could not be done. Murphy asked whether Clem was going to set up a picket line and, if so, when. Clem stated that was a matter for the executive committee of the Union. That ended the conversation. 8 Clem admitted telling the men named in the complaint that he could not send them to the project, but denied telling any of them or the Company that they could not go to work there. He denied threatening any of them or the Company with any action he might take if the men went to work for the Company. He testified he merely told the men that the matter of referrals was not in his hands and told them to see the executive committee. 9 Clem testified he referred the men after approval from two members of the executive committee. io E J. Harrison reported for work on the 19th and was hired. it Clem agreed that he called Flowers and asked his assistance with Murphy. He main- tained that he told Flowers that there was a possibility of an unauthorized work stoppage only. MILLWRIGHT LOCAL UNION NO. 2484 549 In fact, no picket line was established and the men hired as millwrights on October 14, 1954, continued to work as needed or until they quit voluntarily . However, they were sent notices that in accordance with certain provisions of the bylaws (dealing with the necessity of obtaining referral slips before going to work on a job and not visiting any job without permission of the business agent or executive committee) they had each been fined "$20.00 the first day that you reported for work without a referal [sic] slip and $ 10 00 for each day that you continue to work without a slip." No effort was made to collect the fines imposed. According to Clem the general pres- ident of the Brotherhood of Carpenters and Joiners ruled that the fines had not been imposed in accordance with the constitution of the organization and it was ordered that the fines be rescinded. A general representative read a letter of notification at a meeting of a General Council of Carpenters at Port Arthur, Texas. The fines were never collected . The General Counsel relies on this incident to substantiate his con- tention that bylaws of the Union were made part of the working conditions of the job and also to establish the existence of a discriminatory hiring system. B. The S. W. Carlisle affidavit The charge herein was filed by E. J. Harrison on behalf of himself and other named individuals, including S. W. Carlisle . Carlisle testified that he spoke with Harrison before the charge was filed, authorized the use of his name in the charge , and wanted to be included in this proceeding. However, on February 2, 1955, he signed an affi- davit stating that he had never authorized anyone to file a charge in his behalf against the Union or Clem and that it was not his intention to do so. Carlisle testified that the material in the affidavit was false and that he signed it under the following circumstances. On February 2, 1955 , Carlisle told Clem that he had a job opportunity as a millwright in Utah and wanted to "clear his book" so that he could deposit it with another local in Utah . Clem told him that some of the men had signed affidavits similar to the one mentioned above , told him he would have to sign one, gave him one, and told him he could take it to an adjoining office to a notary who would type the affidavit and witness his signature. This notary had no connection with the Union . Carlisle had such an affidavit prepared , returned it to Clem, and received the request clearance the next day. He testified it was his under- standing that he needed a clearance card before going to work on the job he thought was available in Utah or he would have to pay "foreign" dues. Clem maintained that Carlisle told him he had a job in Utah , wanted to clear his book, that he had not wanted to file a case against the Union , and wanted to clear matters up (charges were pending against him in the Union for failing to follow his remedies within the Union) and obtain his quarterly dues card . Clem showed him an affidavit executed by another member and told him he could execute a similar affidavit if he had not intended to file charges against the Union . Carlisle borrowed the affidavit and returned it to Clem together with his affidavit . Clem, after a dis- cussion with other officers, issued a clearance to Carlisle the next day , something he could not do for a member against whom charges were pending. Clem's testimony that he could not issue a clearance for a member against whom charges were pending was not challenged . At the time of the discussion between Clem and Carlisle, the latter was obviously most interested in removing any obstacle to his obtaining a position in Utah. The Trial Examiner found Clem's tes- timony as to the course of the discussion to be clear and detailed. The Trial Exam- iner credits his testimony. Contentions of the Parties; Conclusions 1. The hiring arrangement between the Union and the Company There was no written agreement between the Company and the Union govern- ing the hiring of millwrights. However, the General Counsel contends that the pattern of employment practices on the job including the delegation of hiring authority to Moore, Moore's testimony that he followed the directions of the bylaws of the Union on hiring procedure , the employment of only union members on the job, and the requirement of referral slips except for those employed on October 14, estab- lish a discriminatory hiring arrangement in violation of the Act. He maintains that this case is governed by Grove Shepherd Wilson & Kruge, Inc., 109 NLRB 209. In the Grove Shepherd'case the Board found that a carpenter foreman on a project who was a member of a carpenters' local had sole authority to hire and discharge carpenters. It further found that this foreman followed the practice of informing the union steward on the job when additional carpenters were needed . The steward in turn would notify the business agent of the union who would send the number of 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men needed. The steward would meet the men, check their union cards, and take them to the timekeeper's office to be signed up. The Board concluded that this evidence established that the foreman maintained an unlawful hiring practice at the project whereby only union members referred by the union were employed for carpentry work. As to the responsibility of the union for the activities of the foreman, Mattson, the Board said: Mattson's agency was of a dual character. He not only acted for Grove- Hendrickson in hiring and discharging carpenters under his jurisdiction, but he acted for the Union in his capacity as a foreman. Mattson, who was a mem- ber of the Union, testified that he abided by the Union's constitution, bylaws, and working rules. The Union's constitution provides that "Members who con- tract work or become foremen, must comply with Union rules and hire none but members of the United Brotherhood." The working rules require all fore- men to aid the job steward to check all carpenters' union dues books to insure that members are in good standing, they prescribe the manner in which nonunion job applicants may obtain membership, and they proscribe the employment of nonunion men with those belonging to the Union. By undertaking to police the Union's working rules under the authority delegated to him by the constitu- tion, Mattson assumed the status of an agent for the Union. His admission that he hired only those carpenters who had been referred by the Union, even if such action had not been specifically authorized by the Union, was manifestly within the scope of the general authority delegated to him by the constitution, bylaws, and working rules, and operated to bind the Union. In view of the foregoing, and the record as a whole, we find that the Union, by participating in an unlawful hiring practice, thereby caused Grove-Hendrickson to deny employment to Mayer. In doing so., we conclude that the Union violated Section 8 (b) (2) and (1) (A) of the Act. The facts in the present case are identical with that in the Grove Shepherd case so far as hiring practices are concerned. Moore, as foreman, was a member of the Union, as required by its bylaws. The foreman under these bylaws was under an obligation to uphold the Millwrights' trade rules (section 20). All members were required to have referral slips from business agent before going to work (section 40). The foreman was under the obligation to direct each member to the steward to have his working card and referral slip checked before going to work (section 13).. In fact, there was a discriminatory hiring practice followed on the job under which only union members were employed and except for the October 14 hirings, referrals from the Union were an additional condition imposed as a prerequisite for employ- ment in millwright positions. Under the Grove Shepherd case, the Union is re- sponsible for the activities of Foreman Moore in establishing and maintaining those conditions. The Union argues that the presumption of agency is rebutted by the fact that Moore got into a dispute with Clem over the referral of individuals to the job, refused in the meeting with Murphy, Clem, and Miller to follow the position of the latter two as to what the policy of the Union was oil job referrals, and finally hired men without referrals and in defiance of Clem and Miller. However, this incident does not dis- prove the existence of an unlawful hiring arrangement, but merely serves to emphasize that it was operative. Moore testified that he used the Union as his sole source of supply. Clem agreed that Moore had communicated with him many times request- ing referrals and that up until October 1954 there had been no serious difficulty be- tween them. The October hiring incidents actually were arguments over the powers and authority of foremen under the bylaws of the Union. Moore attempted to follow the referral system prescribed by the bylaws as he interpreted them. It was only after an impasse developed, that Moore and Murphy decided to hire men without referrals. All those men were union members. The Trial Examiner concludes that the Grove Shepherd case, supra, is applicable here and, it is further found, that the Union participated in an unlawful hiring practice in violation of Section 8 (b) (2) and (1) (A) of the Act.i2 2. The discrimination against the eight individuals named in the complaint The Company had work for and wanted to hire two of the individuals named in the complaint, S. W. Carlisle and D. B. Lisenby, on October 4. The other six were wanted on October 7. Telephone requests by Moore to Clem were refused by the "United Brotherhood of Carpenters and Joiners of America, Local #517, AFL (Gil Wynei Construction Company), 112 NLRB 714 MILLWRIGHT LOCAL UNION NO. 2484 551 latter. It is clear that these eight men would have been hired on the dates indicated absent the unlawful hiring arrangement which required prior referral from the Union as a condition of employment. Such conduct has been held violative of 8 (b) (2) and (1) (A) as an attempt to cause and the causing of an employer to dis- criminate against applicants for employment in violation of the Act. The Respondents point out that when the eight individuals came to the union hall personally to seek referrals they did not follow the procedure contained in the notice posted on the bulletin board. However, the discrimination took place on October 4 and 7 when the men were not put to work because of the existence of the discriminatory hiring arrangement. It was not necessary for them to follow the pro- cedure prescribed by the Union to implement its closed-shop arrangements. Nor is the discrimination against the eight individuals negatived by the fact that they kept on working for the Company without further trouble (except for the fine incident) even though they had not secured referrals from the Union. It does establish that as of the date of their hire, October 14, the efforts of the Re- spondents to cause the Company to fail or refuse to hire these particular men ceased. The Flowers and Clem conversations with Murphy on October 14 establish that ef- forts were made up to the very last to maintain a discriminatory hiring arrangement. In both conversations the threat of economic reprisals was made if the Company chose to proceed with open hirings. The Union, through Clem, had urged Flowers to make his call to Murphy and it is responsible for the open threat of a strike. This was a violation of the Act.13 Clem played the key role in the effort to maintain and enforce the discriminatory hiring arrangement and shares liability for it. 3. The legal effect of the bylaws and assessments of the Union The General Counsel contends that the very existence and enforcement of para- graphs numbered 13, 30, 38, 39, 40, 44, and 56 of the bylaws of the Union, quoted supra, are a restraint and coercion upon members of the Union and are vio- lative of the Act. However, it has been held that a union is free to adopt bylaws without violating the Act. It is only when those bylaws are used to establish dis- criminatory working conditions at a particular job that there is a violation of the Act. It has already been found that the Respondents maintained a discriminatory hiring arrangement with the Company by applying provisions of the bylaws to the project. The contention that the existence of the bylaws themselves were violative of the Act is rejected.14 During the period mentioned in the complaint, the Union, by vote of its member- ship, imposed an assessment against its employee members measured either by a percentage of their pay or, during another period, by a fixed amount. This assess- ment was imposed against all members, not just those working on the project. The General Counsel argues that since working cards were regularly checked by the steward and that such cards were only issued-to members who had paid all dues and assessments, the payment of the assessment was a condition of employment and its imposition and collection was violative of Section 8 (b) (1) (A) of the Act. A labor organization, under the proviso to Section 8 (b) (1) (A) has the right to prescribe its own rules for the acquisition and retention of membership. This includes the imposition of assessments. A violation occurs when under the provisions of Section 8 (b) (2) a labor organization attempts to cause an em- ployer to discriminate against an employee on some ground other than his failure to tender periodic dues and initiation fees. There is no proof of such attempted discrimination here. Accordingly, the Trial Examiner concludes that the imposi- tion of the assessment itself was not violative of the Act. 4. The Carlisle affidavit incident The Union, under the proviso to Section 8 (b) (1) (A) was free to prescribe conditions for the acquisition and retention of membership. It could provide conditions under which it would grant referalls to sister locals. This power un- doubtedly had an effect on Carlisle, who felt he needed the referral, but its exercise was not violative of the Act. The Trial Examiner has accepted Clem's version of what was said in his conversation with Carlisle and concludes that no violation of the Act has been established. 13 Local 595, International Association of Bridge, Structural, and Ornamental 'Iron Workers, et al. (Bechtel Corporation), 108 NLRB 1070. 14 Joliet Contractors Association v. N. L. R. B., 202 F 2d 606 (C A 7). 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations with the W. S. Bellows Construction Corporation, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to be unfair labor practices tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Union has been and is a party to an understanding, practice, or agreement with W. S. Bellows Construction Corporation requiring that all millwright employees at a construction project of the Company at Silsbee, Texas, have membership in and clearance or referral by the Union as a condition of employment. It will be recommended that the Respondent cease and desist from at- tempting to enforce any such understanding, practice, or agreement. It has also been found that the Respondents attempted to cause and did cause the Company to fail to hire eight individuals because they lacked referrals from the Union. It will be recommended that the Respondents cease and desist from such activity and, in addition it will be recommended that the Union 15 make whole the 8 individuals named in the complaint by payment to each of them of a sum of money equal to the amount he would have earned as wages from the dates of the discrimi- nation against them; October 4, 1954 (in the cases of S. W. Carlisle and D. B. Lisenby) and October 7 for the remaining 6 men, until October 14, 1954, the date the men were hired by the Company. The Respondent Union shall deduct from the amount due each discriminatee such sums, if any, as would normally have been deducted from his wages by the Employer for deposit with State and Federal agencies on account of social-security and other similar benefits and shall pay to the appropriate State and Federal agencies to the credit of each discriminatee and the Company a sum of money equal to the amount which, absent the discrimination would have been deposited to his credit by the above Employer, either as a tax upon the Employer or on account of deductions made from the wages of the discriminatees by the Company on account of social-security or other similar benefits. The existence of the paragraphs of the bylaws of the Union quoted in this report carries with it the distinct possibility that efforts will be made to extend these provisions and conditions to other work in the territorial jurisdiction of this Union., In order to make effective the preventive purposes of the Act it will be recom- mended that the remedial order apply to the Employer involved in this case and all employers within the territorial jurisdiction of the Union.16 Upon the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. W. S. Bellows Construction Corporation is engaged in commerce within the meaning of Section 2 (6) of the Act. 2. Millwright Local Union No. 2484, United Brotherhood of Carpenters and Joiners of America, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 3. By entering into and maintaining in effect an understanding, practice, or agree- ment between the Union and W. S. Bellows Construction Corporation conditioning the hiring of all millwright employees at a construction project of the Company at Silsbee, Texas, upon their membership in, and clearance from, the Union in the form of a referral slip, or otherwise, the Respondents have attempted to cause and have caused the Company to discriminate against their employees in violation of Section 8 (a) (3) of the Act, and thereby did engage in and are engaging in unfair labor practices in violation of Section 8 (b) (2) of the Act. 4. By threatening economic reprisals against the Company in an effort to force compliance by the Company with the above agreement, the Respondents have engaged in unfair labor practices in violation of Section 8 (b) (2) of the Act. ss Local 420, United Association of Journeymen and Apprentices of the Plumbrng. and Pipeftting Industry, etc. (J. J. White, Inc.), 111 NLRB 1126. 16 Grove Shepherd Wilson & Kruge, Inc., 109 NLRB 209, 217. MARLIN ROCKWELL CORPORATION 553 5. By causing the Company to discriminate against E. J. Harrison, S. W. Carlisle, Thomas A. Gray, Dallas Roy, H. A. Doucet, R. D. Lisenby, D. B. Lisenby, and Rubin Thomas in violation of Section 8 (a) (3) of the Act the Respondents have engaged in unfair labor practices in violation of Section 8 (b) (2) of the Act. 6. The Respondents, by the aforementioned acts, have restrained and coerced em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, and did there- by engage in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The Union has not violated the Act by maintaining its bylaws in effect, and imposing an assessment on all working members. Nor have the Respondents coerced S. W. Carlisle to furnish them with an affidavit, in violation of the Act. [Recommendations omitted from publication. ] Marlin Rockwell Corporation and Adam T. Raczkowski Marlin Rockwell Corporation and Arthur R. Wolfe Marlin Rockwell Corporation and John H. Turner International Union, United Automobile, Aircraft and Agricul- tural Implement Workers of America, CIO and Its Local 197 and Adam T. Raczkowski International Union, United Automobile, Aircraft and Agricul- 'tural Implement Workers of America, CIO and Its Local 197 and Arthur R. Wolfe International Union, United Automobile Aircraft and Agricul- tural Implement Workers of America, CIO and Its Local 197 and John H. Turner. Cases Nos. 1-CA-1596, 1-CA-1607, 1-CA- 1689, 1-CB-249, 1-CB-256, and 1-CB-272. October 920, 1955 DECISION AND ORDER On July 30, 1954, Trial Examiner Loren Laughlin issued his Inter- mediate Report in this proceeding, a copy of which is attached hereto, finding that the Respondent Unions had engaged in and were engag- ing in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action. The Trial Examiner also found that the Respondent Company had not engaged in unfair labor practices and recommended therefore that the complaint against the Company be dismissed. Thereafter, the Re- spondent Unions filed exceptions to the Intermediate Report and a supporting brief, and requested oral argument. The request for oral argument is hereby denied because the record and briefs, in our opinion, adequately present the issues and the positions of the parties. 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- 114 NLRB No. 94.