Local No. 1400

126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local No. 1400, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Los Angeles County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Clarence A. Dowdall Local 1046, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and San Bernardino and Riverside Counties District Council of Carpenters 1 and Clarence Dowdall. Cases Nos. 01-CB-518 and 21-CB-600. January 20,1956 DECISION AND ORDER On April 29, 1955, Trial Examiner Maurice M. Miller issued his Intermediate Report in the above-entitled proceedings, 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. Thereafter, the Respond- ents filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the modifications and exceptions noted below. Case No. 21-CB-548 1. We agree with the Trial Examiner that Respondents Local' 1400 and Los Angeles District Council violated Section 8 (b) (2) and (1) (A) of the Act. We do so, however, solely on the ground that these Respondents, which had the exclusive contractual right to refer applicants for employment to the contracting employers on a nondis- criminatory basis, required Dowdall and Dockery to obtain a tempo- rary working card for a fee from the District Council in order to qualify for registration on Local 1400's "Out-of-Work" list and for re- ferral to a job, while not requiring members of Local 1400 and other locals affiliated with the District Council to pay a similar fee for utiliz- ing the same registration and referral facilities. This disparate treat- -rnent, which'Dowdall and Dockery could have avoided only by trans- ferring their membership into Local 1400, is a form of discrimination in employment that necessarily encourages membership in a labor or- 3 The AFL and CIO having-merged , we are amending the identification of the Respond- ents accordingly. 115 NLRB No. 22. LOCAL NO.11400 127 ganization within the meaning of Section 8 (a) (3) of the Act. As the Respondents were responsible for imposing this discriminatory con- dition of employment upon Dowdall and Dockery, we find that the Respondents thereby caused or attempted to cause employer discrimi- nation against them in violation of Section 8 (a) (3) of the Act and that the Respondents therefore violated Section 8 (b) (2) of the Act and restrained and coerced employees in violation of Section 8 (b) (1) (A) of the Act 2 2. We, however, do not agree with the Trial Examiner that the Respondents' failure to advise Dowdall and Dockery as to the report- ing and Tuesday reregistration procedures, "whether wilful or negli- gent," was also violative of Section 8 (b) (2) and (1) (A) of the Act. As indicated in the Intermediate Report, the Trial Examiner also found that the evidence was insufficient to establish that the Respond- ents intended to mislead Dowdall and Dockery by not explaining these procedures to them. In these circumstances, we find that whatever discrimination might have resulted from the Respondents' omission was not motivated by union membership or other union considerations and therefore was not such discrimination as encourages or discourages membership in a labor organization within the meaning of Section 8 (a) (3) of the Act. As the Supreme Court observed in the Radio Officers' Union case,3 this section does not "outlaw discrimination in employment as such; only such discrimination as encourages or dis- courages membership in a labor organization is proscribed." For this reason we find that the Respondents' unintentional failure to advise Dowdall and Dockery as to the reporting and reregistration procedures did not violate the Act. 3. We also do not adopt the Trial Examiner's further finding that the Respondents were "discriminatorily motivated" in refusing to honor Pardee's requests for Dowdall's and, Dockery's referral after Dowdall and Dockery had secured working permits, although the Re- spondents honored other employer requests for nonpriority job regis- trants. The Trial Examiner alluded to Dockery's referral to the Zoss job on the basis of Zoss' request as a case in point. The record, how- ever, fails to disclose any other instance in which the Respondents honored requests for nonpriority employees. Nor is there any evidence of discriminatory motivation on the part of the Respondents. Indeed, as- indicated above, the Trial Examiner was unable to find sufficient evidence that Dowdall's and Dockery's failure to secure a referral from ,9 See, for example , N. L. R B. v George D. Avchter Co., 209 F. 2d 273 (C. A. 5 ), enfg. 102 NLRB 881 . In view of this determination , we find it unnecessary to consider whether the imposition of the fee in question was also discriminatory because persons, who were not members of any local of United Brotherhood of Carpenters and Joiners of America, were not required to pay this fee to qualify for registration and referral. ON. L. R. B. v. Radio Officers' Union of the Commercial Telegraphers Union, APL, 347 U. S. 17, 42-43. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the "Out-of-Work" list was due to any intentional act of the Respond- ents. In these circumstances, we are not persuaded that the evidence establishes that the Respondents refused to honor Pardee's request for Dowdall's and Dockery's referral for discriminatory reasons. Case No. 21-CB-600 We agree with the Trial Examiner that Respondents Local 1046 and San Bernardino and Riverside District Council which, like the Re- spondents in Case No. 21-CB-548, also had the exclusive contractual right to refer employment applicants to the contracting employers in their jurisdiction, violated Section 8 (b) (1) (A) and (2) of the Act by not making Local 1046's registration and referral facilities available to members and nonmembers on the same terms and conditions.4 In so doing, we rely on the admissions of Business Representative Adams and the credited testimony of other witnesses that job applicants, who were not members of Local 1046 or other local unions affiliated with the San Bernardino and Riverside District Council, could not register for employment on Local 1046's "Out-of-Work" list unless they paid a fee for a temporary working card which members of these organiza- tions were not required to pay in order to enable them to use the reg- istration and referral facilities. Moreover, the credited testimony shows that Adams told Dowdall that he could not work in the area without transferring his membership into Local 1046. Such require- ments, based as they are on union membership and considerations, created discriminatory conditions of employment prohibited by Sec- tion 8 (b) (1) (A) and (2) of the Act. We agree further with the Trial Examiner that the two instant Respondents violated Section 8 (b) (1) (A) of the Act by requiring Dowdall to procure a temporary working card for a fee as a condition for registering on the "Out-of-Work" list. However, in so finding we rely only on the following considerations : As found by the Trial Examiner, when Dowdall applied to a State agency for unemployment compensation, he was told that as a union member he would have to register for work with a Carpenters' local, and obtain evidence of such registration from the local's business agent before he could file a claim for unemployment compensation. When Dowdall accordingly sought to register with Respondent Local 1046, its business agent, Adams, although notified that Dowdall's sole purpose was to qualify for unemployment compensation, would not accept his registration because he was not a member of Local 1046, relenting only when Dowdall agreed to pay a $5 fee for a temporary 4 We find no merit in the Respondents' contention that Section 10 (b) barred amend- ment of the complaint to allege that the conduct originally alleged to be violative of Section 8 (b) (1) (A) was also violative of Section 8 (b) (2). Cf. N. L. R. B. v. Radio Officers' Union etc., supra, footnote 30. LOCAL NO. 1400 129, working card. Accordingly, as Dowdall was not in fact seeking work through the Respondents, the refusal of Adams to accept his regis- tration unless he paid a fee could not have violated Section 8 (b) (2) and we therefore, contrary to the Trial Examiner, find no violation of that subsection in this incident. However, we do find therein a violation of Section 8 (b) (1) (A), -which makes it an unfair labor practice for a union to restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. Section 7 guarantees to employees the right, inter alia, to refrain from assisting labor organizations and from engaging in concerted activities generally. We find that essentially what happened here is that Local 1046 co- erced Dowdall, under pain of forfeiting his right to unemploynient compensation, into contributing financial support to Local 1046 in the form of a fee for a working card. The Board has repeatedly held that the exaction through economic coercion of financial contributions to a union from union members in the form of dues, assessments, or- fines, which are not sanctioned by a valid union-security contract, con- stitutes a violation of Section 8 (b) (1) (A).5 The payment of such contributions to a union clearly constitutes assistance to a union. In principle, it is impossible to distinguish the exaction of the $5 fee from Dowdall in the instant case from the conduct found violative of Sec- tion 8 (b) (1) (A) in the foregoing cases. Moreover, apart from coercing Dowdall in the exercise of his right to refrain from contributing to its support, Local 1046 and the San Bernardino and Riverside District Council violated Section 8 (b) (1) (A) also by coercing Dowdall in the exercise of his right not to join Local 1046. Had he been a member of 1046, instead of the sister local to which he belonged, he could have been permitted to register and thereby qualify for unemployment compensation without paying the $5 fee. The imposition of the fee as a condition of entitlement to un- employment compensation was thus in effect a penalty for membership. in a sister local of 1046 rather than in 1046. We do not consider Local 1046's conduct to be sanctioned by the proviso to Section 8 (b) (1) (A) of the Act. That proviso states that- the proscription of Section 8 (b) (1) (A) shall not impair "the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein." In introducing the proviso on the floor of the Senate, Senator Holland made it clear that his purpose was to protect "that part of the internal administration [of a union] which has to do with the admission or expulsion of mem- bers," and to safeguard "the right of a labor organization to prescribe 6 Namm's Inc., 102 NLRB 466; The Great Atlantic & Pacific Tea Company ( Pittsburgh Bakery ), 110 NLRB 918, 922; Murphy's Motor Freight, Inc., 113 NLRB 524. 390609--56-vol. 115-10 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,its own rules of membership either with respect to beginning or termi- nating membership." 6 In the instant case, it is clear that the $5 fee was exacted from Dowdall , not as a condition of acquiring or re- taining membership in Local 1046, but merely as a condition of regis- tering for unemployment compensation. Moreover, even if it were necessary to find here , as the dissent herein suggests, that Dowdall was threatened with the deprivation of some benefit peculiar to the employment relation unless he paid the $5 fee, it appears to us that Dowdall 's right to unemployment compensa- tion was such a benefit, even though a collateral one.' Unemployment .compensation 'arises from, and is proportioned to the duration of, the .prior employment of the claimant . It is financed wholly by employer .contributions, which are measured by a percentage of payroll. Ac- cordingly, we believe that if a union threatens an employee with deprivation of his right to unemployment compensation unless he con- tributes to its treasury , such a threat goes beyond conduct which may reasonably be deemed to be protected by the proviso to Section 8 (b) (1) (A). The Remedy As we have found that the imposition of the permit fee in Case No. 21-CB-548 was violative of the Act, we adopt the Trial Examiner's recommendation that Respondents Local 1400 and Los Angeles Dis- trict Council be directed to reimburse Dowdall and Dockery for the permit fees paid by them. However, as we have found that the Re- spondents' unintentional failure to inform Dowdall and Dockery as to the reporting and reregistration procedures was not violative of the Act, we do not adopt the Trial Examiner's recommendation to reimburse them for their alleged loss of employment. In Case No. 21-CB-600, we also shall direct Respondents Local 1046 and San Bernardino and Riverside District Council to refund the permit fee paid by Dowdall because we have found that the exaction of such fee violated Section 8 (b) (1) (A) of the Act. Finally, we shall also restrict that portion of the cease and desist provisions of the Trial Examiner's recommended order which pro- hibits the Respondents from causing "any other employer" to dis- criminate and from restraining or coercing the employees of "any other employer" so as to apply only to any other employer over whom the Board would assert jurisdiction.8 0 2 Leg. Hist. of LDIRA 1139, 1141. 7 See Gullett Gin Company, Inc. v. N. L. R. B., 340 U. S. 361. 8 Sterling Furniture Company, 105 NLRB 653, on remand from N. L. R. B. v. Sterling Furniture Company, 202 F. 2d 41, 44-45 (C. A. 9) ; Daugherty Company, Inc.. 112 NLRB 986. The Board's prevailing standards for the assertion of jurisdiction are set forth in Jonesboro Grain Drying Cooperative, 110 NLRB 481, and other reported decisions. LOCAL NO. 1400 _ 131 ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. Respondents Local No. 1400, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Los Angeles County District Council of Carpenters, United Brotherhood of Carpenters and Join- ers of America, AFL-CIO, their officers, representatives, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause Pardee Construction Company, or any other employer over whom the Board would assert jurisdiction, to discriminate against employees or applicants for employment in violation of Section 8 (a) (3) of the Act, by conditioning the eligibil- ity of such employees or applicants for employment to register for work and receive work orders under a contractually established, exclu- sive employment referral system upon the payment of a fee for a tem- porary working card, which members of local unions affiliated with the Respondent Council are not required to pay, except to the extent permitted by Section 8 (a) (3) of the Act. (b) In any like or related manner causing or attempting to cause Pardee Construction Company, or any other employer over whom the Board would assert jurisdiction, to discriminate against employees -or applicants for employment in violation of Section 8 (a) (3) of the Act, except to the extent permitted by Section 8 (a) (3) of the Act. (c) In any like or related manner restraining or coercing employees of, or applicants for employment with, Pardee Construction Company, or any other employer over whom the Board would assert jurisdic- tion, 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 agreement requiring membership in a labor organization as a condition of em- ployment, 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) Refund to Clarence A. Dowdall and Johnny H. Dockery the fees which they were required to pay in order to register for work and be referred to employment under the contractually established, ex- clusive employment referral system maintained by the Respondents. (b) Post at their respective business offices, meeting halls, and other places -prescribed in the section of the Intermediate Report entitled "The Remedy," copies of the notice attached hereto marked _"Appendix A." 9 Copies of said notice, to be furnished by the Re- 0 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." 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gional Director for the Twenty-first Region, shall, after being duly signed by representatives of the respective Respondents, be posted by them immediately upon receipt thereof, and maintained by them for sixty (60) consecutive days thereafter in conspicuous places, includ- ing all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondents to insure that such notices are not altered, defaced, or covered by any other material. (c) Respondent Los Angeles County District Council of Carpen- ters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, shall also publish the notice attached hereto marked "Appendix A," in a newspaper of general circulation in Los Angeles County, California. (d) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, as to what steps the Respondents have taken to comply herewith. B. Respondents Local 1046, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and San Bernardino and Riverside. Counties District Council of Carpenters, their officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause any employer over whom the Board would assert jurisdiction to discriminate against employees or applicants for employment in violation of Section 8 (a) (3) of the Act, by conditioning the eligibility of such employees or applicants for employment to register for work and receive work orders. under a contractually established, exclusive employment referral sys- tem upon the payment of a fee for a temporary working card, which members of local unions affiliated with the Respondent Council are not required to pay, except to the extent permitted by Section 8 (a) (3) of the Act. (b) In any like or related manner ca'ising or attempting to cause any employer over whom the Board would assert jurisdiction to dis- criminate against employees or applicants for employment in violation of Section 8 (a) (3) of the Act, except to the extent permitted by Section 8 (a) (3) of the Act. (c) In any like or related manner restraining or coercing employees of, or applicants for employment with, any employer over whom the Board would assert jurisdiction in the exercise of their rights guar- anteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment , as authorized by Section a (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : LOCAL NO. 1400 133 (a) Refund to Clarence A. Dowdall the permit fees he was required to pay in order to register for work on the said Respondents' "Out-of- Work" list. (b) Post at their respective business offices, meeting halls, and other places prescribed in the section of the Intermediate Report en- titled "The Remedy," copies of the notice attached hereto marked "Appendix B." 10 Copies of said notice, to be furnished by the Re- gional Director for the Twenty-first Region, shall, after being duly signed by representatives of the respective Respondents, be posted by them 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. Reason- able steps shall be taken by the Respondents to insure that such notices are not altered, defaced, or covered by any other material. (c) Respondent San Bernardino and Riverside Counties District Council of Carpenters shall also publish the notice attached hereto marked "Appendix B," in a newspaper of general circulation in San Bernardino and Riverside Counties, California. (d) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, as to what steps the Respondents have taken to comply herewith. MEMBER PETERSON, dissenting in part : I disagree with the majority's decision insofar as it finds in Case No. 21-CB-600 that Respondents Local 1046 and San Bernardino and Riverside District Council violated Section 8 (b) (1) (A) of the Act by requiring Dowdall to procure a temporary working card for a fee as a condition for registering on their "Out-of-Work" list. As the Respondents contend and the majority concedes, Dowdall's purpose in registering was to qualify for unemployment insurance and not for employment. Indeed, Dowdall, according to his own testi- mony, told Business Representative Adams at he time he registered that as far as employment was concerned he would secure it through his own efforts, which he in fact later did. Although the Respondents' imposition of a fee to enable a person to register so as to qualify for unemployment compensation may have been a breach of a duty owing to the State,1' I am not convinced that in the circumstances of this case, where the registrant admittedly registered for the purpose of secur- ing unemployment insurance and not employment, that the Respond- ents restrained and coerced the registrant in the exercise of his self- organizational rights guaranteed by Section 7 of the Act. 10 See footnote 9, supra. It appears that at all material times Local 1046 was acting as a certifying agent for the State of California in connection with applications for State unemployment -compensation. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The majority has unfortunately fallen into the error of assuming that Section 8 (b) (1) (A) of the Act imposes on a labor organization the absolute obligation to treat all persons with whom it deals in a nondisparate manner. It is too well settled to require extensive cita- tion of authority that under Section 8 (b) (1) (A) a union restrains and coerces employees in the exercise of their statutory right to re- frain from joining or assisting a labor organization only when it threatens to deprive them of a term or condition of employment unless they do so.12 In the present case, admittedly no term or condition of employment with respect to Dowdall was involved because at the time when the Respondents imposed the permit requirement Dowdall was neither em- ployed nor seeking employment through the Respondents' referral fa- cilities. Nor was the permit fee exacted as a condition of employment. Simply stated, the Respondents required Dowdall to pay a permit fee in order to obtain evidence that he was out of work and thus qualify for State unemployment compensation. Had he been seeking work through the Respondents' referral facilities, an altogether different question would have been presented, as the Board's unanimous findings with respect to other violations by the Respondents show. But as Dowdall was not an employee or applicant for employment, and the fee requirement did not relate to a condition of employment as to him, it cannot be said that he was restrained or coerced in the exercise of any right guaranteed him by Section 7 of the Act.13 Accordingly, I dissent from the majority's contrary findings. MEMBERS MURDOCK and BEAN took no part in the consideration of the above Decision and Order. u ,?V. L. R. B. v. Amalgamated Local 286, International Union, United Automobile Workers of America, AFL, 222 F. 2d 95, 98 (C. A. 7 ) ; American Newspaper Publishers Association v. N. L. R. B., 193 F. 2d 782, 800 (C. A. 7). Even this right to refrain from joining or assisting a labor organization is qualified by the requirements of Section 8 (a) (3). 11 Inasmuch as the cases cited by the majority involved impositions placed upon em- ployees as conditions of employment , they are plainly inapposite here. Indeed, the theory of the majority was considered and rejected by the court in the American Newspaper case, supra. APPENDIX A NOTICE TO ALL EMPLOYERS OF THE BUILDING AND CONSTRUCTION INDUS- TRY IN Los ANGELES COUNTY, CALIFORNIA, THEIR CARPENTER EM- PLOYEES, AND ALL MEMBERS OF LOCAL 1400 AND OTHER LOCALS AFFILIATED WITH THE Los ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO 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 : LOCAL NO. 1400 135 WE WILL NOT cause or attempt to cause Pardee Construction Company, or any other employer over whom the Board would assert jurisdiction, to discriminate against their employees or applicants for employment, by conditioning their right to register for work and receive work orders under a contractually estab- lished, exclusive employment referral system upon the payment of a fee for a temporary working card, which members of local unions affiliated with the Los Angeles County District Council of Carpenters are not required to pay, or by discriminating against them in any like or related manner, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT' in any like or related manner restrain or coerce employees of, or applicants for employment with, Pardee Con- struction Company, or any other employer over whom the Board would assert jurisdiction, in the exercise of their rights guaran- teed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Sec- tion 8 (a) (3) of the Act. WE WILL refund to Clarence A. Dowdall and Johnny H. Dock- ery the fees collected from them for the issuance of temporary working cards, entitling them to register for work and receive work orders under our contractually established, exclusive referral system. LOCAL No. 1400, UNITED BROTHERHOOD OF CAR- PENTERS AND JOINERS OF AMERICA, AFL- CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) Los ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS, UNITED BROTHERHOOD OF CAR- PENTERS AND JOINERS OF AMERICA, AFL- CIO, 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. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE TO ALL EMPLOYERS IN THE BUILDING AND CONSTRUCTION IN- DUSTRY IN SAN BERNARDINO AND RIVERSIDE COUNTIES, CALIFORNIA, THEIR CARPENTER EMPLOYEES, AND ALL MEMBERS OF LOCAL 1046 AND OTHER LOCALS AFFILIATED WITH THE SAN BERNARDINO AND RIVER- SIDE COUNTY DISTRICT COUNCIL OF CARPENTERS, UNITED BROTHER- HOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO 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 cause or attempt to cause any employer over whom the Board would assert jurisdiction to discriminate against their employees or applicants for employment, by conditioning their right to register for work and receive work orders under a contrac- tually established, exclusive employment referral system upon the payment of a fee for a temporary working card, which mem- bers of local unions affiliated with the San Bernardino and River- side Counties District Council of Carpenters are not required to pay, or by discriminating against them in any like or related manner, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce em- ployees of, or applicants for employment with, any employer over whom the Board would assert jurisdiction, 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 agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL refund to Clarence A. Dowdall the fees collected from him for the issuance of a temporary working card, entitling him to register for work on our "Out-of-Wc:rk" list. LOCAL 1046, UNITED BROTHERHOOD OF CAR- PENTERS AND JOINERS OF AMERICA, AFL- CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) SAN BERNARDINO AND RIVERSIDE COUNTIES DISTRICT COUNCIL OF CARPENTERS, 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. LOCAL NO. 1400 137 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Introduction Upon a charge and amended charge duly filed and served, the General Counsel of the National Labor Relations Board, in the name of the Board, caused the Regional Director of its Twenty-first Region (Los Angeles, California) to issue a complaint and notice of hearing on March 31, 1954, in Case No. 21-CB-548 , against Local No. 1400, United Brotherhood of Carpenters and Joiners of America, AFL, and Los Angeles County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL, under Section 10 (b) of the National Labor Relations Act, as amended, 61 Stat. 136. These organizations were charged with unfair labor practices under Section 8 (b) (1) and (2) of the statute. Copies of the complaint, the notice of hearing, and the amended charge were duly served upon the Respondent organizations and the complainant in the case, Clarence A. Dowdall, an individual. And thereafter, in due course, a joint answer was filed on behalf of the Respondent organizations named, denying the commission of the unfair labor practices charged. Subsequently, upon a second charge by Clarence A. Dowdall, duly filed and served, the Regional Director previously designated on behalf of the General Counsel issued another complaint and notice of hearing dated as of May 28, 1954, in Case No. 21-CB-600, against Local 1046, United Brotherhood of Carpenters and Joiners of America, AFL and San Bernardino and Riverside Counties District Council of Carpenters, under Section 10 (b) of the National Labor Relations Act, as amended. These organizations, in their turn, were charged originally with the commission of an unfair labor practice under Section 8 (b) (1) (A) of the statute. Copies of the complaint, the notice of hearing, and the charge were again duly served upon the Respondent organizations and the complainant. In due course, thereafter, the Respondent organizations, in their turn, filed a joint answer denying the commis- sion of the unfair labor practice charged. Prior to the submission of the-joint answer filed on behalf of the respondent organizations named in Case No. 21-CB-600, on June 3, 1954, the Regional Director had issued an order consolidating cases and postponing hearing in these two matters. Several orders were entered thereafter, extending the time within which the respondent organizations named in case No. 21-CB-600 might file an answer or answers. When their joint answer was received, it was accompanied by a motion to make complaint more specific and certain. The motion was referred to me for disposition, as the Trial Examiner duly designated, and by an appropriate order, issued thereafter, it was granted in part and denied in part. The First Case The complaint in Case No. 21-CB-548 contained extensive jurisdictional allega- tions with respect to a business enterprise identified as Pardee Construction Com- pany-a partnership-to be designated as Pardee in this report, and Pardee Con- struction Company No. 2-a successor partnership-to be designated as Pardee No. 2 whenever necessary. These enterprises, designated jointly as the Company, were alleged to have been members of the Building Contractors Association of Cali- fornia, Inc., a trade association designated as BCA in this report at all material times. The complaint went on to assert that business enterprises with membership in BCA received goods in the 1953 calendar year which had originated outside of the State. Goods valued in excess of $500,000, it is alleged, were received directly in that year from out-of-State sources; and goods valued in excess of $1,000,000 which had originated outside of the State, it is alleged, were received from California vendors. Various Nevada enterprises owned or dominated by the Pardee partners were also identified; the complaint alleged that the Pardee partnerships and the various Nevada enterprises named were administered "centrally" from a Los Angeles, California, place of business. On these grounds, and each of them, it was alleged that the Pardee partnerships are engaged in commerce within the meaning of the statute. The joint answer of the Respondent organizations-to be designated in this report as Local 1400 and the Los Angeles District Council, individually, and as the Respondent Unions, collectively-denied generally each of these jurisdictional allegations, and specifically denied that the Pardee partnerships had ever been BCA members. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Substantively, the complaint alleged, and the joint answer, as filed, denied, that: (1) The Pardee partnerships through a superintendent, R. G. Lancaster, offered employment to Dowdall and J. H. Dockery on or about December 2, 1953, condi- tioned on their receipt of Local 1400 clearances or work orders; (2) the men were denied such clearances by Recording Secretary Savage of Local 1400 until they secured work permits from the Los Angeles District Council; (3) Dowdall and Dockery secured temporary working cards from the Los Angeles District Council by the payment of a $3 fee for 1 month's registration; (4) the men were then informed they would not be given clearances by Local 1400, but would be per- mitted to register for work on a list maintained by that organization and would be called for work when their names were reached; and (5) Dowdall and Dockery registered but were never called for work, although their names were reached, since they had not been informed that their appearance at the union hall every morning and reregistration once each week would be prerequisites in connection with any active consideration for an employment referral. The complaint also alleged, and the joint answer denied, that there was in effect at the time, between Local 1400 and the Los Angeles District Council on the one hand, and BCA and the Pardee partnerships on the other, a collective-bargaining agreement which re- quired the latter not to hire employees without Local 1400 clearances. Under the circumstances, it was charged, the conduct attributable to Local 1400 and the Los Angeles District Council, as described, caused the Pardee partnerships to discrimi- nate against Dowdall and Dockery in violation of Section 8 (a) (3) of the statute, and thus involved unfair labor practices on the part of the Respondent Unions under Section 8 (b) (1) and (2) of the Act, as amended. The Respondent Unions, in addition to their general denial that any unfair labor practice had been committed, presented certain affirmative defenses-i. e. (1) that the complaint, as filed, failed to state a cause of action; (2) that the statutory provi- sions allegedly violated by them were and are unconstitutional; (3) that the Board /had and has no jurisdiction in the premises, since none of the acts attributed to the Respondent Unions in the complaint affect commerce; (4) that the complaint should be considered a nullity under Section 10 (b) of the statute, since no charge with respect to the acts cited in it had been filed within 6 months after their alleged commission; and (5) that the course of conduct attributable to Dowdall and Dockery was feigned, fraudulent, and undertaken pursuant to a "scheme and con- sniracy" to intimidate, coerce, exact money, malign, and defraud the Respondent Unions, since the men had never made a bona fide employment application, never received a bona fide job offer, never made a bona fide application for clearance, and, in fact, could have entered upon employment without a clearance of any kind if they had so desired. The Second Case The complaint in Case No. 21-CB-600 alleged that the Respondent organizations therein-to be designated in this report as Local 1046 and the San Bernardino and Riverside Counties District Council, individually, and as the Respondent Unions, collectively-are bound individually, and through the Building and Construction Trades Council of San Bernardino and Riverside Counties, to certain collective- bargaining agreements with BCA and the Associated General Contractors, Southern California Chapter, otherwise to be designated as the AGC in this report. The employer members of BCA and AGC, thus contractually bound, are alleged to be engaged, collectively, in commerce. When engaged in construction activity within the territorial jurisdiction of the Respondent Unions they are allegedly bound, by the collective-bargaining agreements in question, to hire only such carpenters as hold membership in the Respondent Unions or working cards issued by them. Since January 7, 1954, it is alleged, the Respondent Unions have restrained and coerced nonmember employees and applicants for employment by the exaction of a payment for the issuance and renewal of temporary working cards under threat of fine or expulsion from the United Brotherhood of Carpenters and Joiners of America and denial of any employment opportunities. This course of conduct on the part of the Respondent Unions was alleged to constitute an unfair labor practice under Section 8 (b) (1) (A) of the statute. In the course of the General Counsel's presentation , his representative moved to amend the complaint in this case to allege that the course of conduct attributed to the Respondent Unions therein constituted an unfair labor practice under Section 8 (b) (2) of the Act, as well. Over objection, the motion was granted. These allegations of the complaint in question were generally denied by the Respondent Unions; they presented , in addition , a series of affirmative defenses substantially identical with those urged in behalf of the Respondent Unions in the Los Angeles County case, previously noted. LOCAL NO. 1400 139 Procedure Pursuant to the notices and orders previously served, and an order resetting hear- ing, duly served, the consolidated hearing in these cases opened before Trial Ex- aminer Howard Myers, duly designated, at Los Angeles, California, on August 16, 1954. After sessions on August 16, 17, and 18, respectively, the hearing was recessed, during which time the Associate Chief Trial Examiner of the Board, at San Francisco, California, pursuant to the powers vested in him under Section 102.34 of the Board's Rules and Regulations, Series 6, as amended, designated me to take the place of Trial Examiner Myers. On September 28, 1954, the con- solidated hearing reconvened. Sessions were held thereafter, pursuant to due notice, on various dates up to and including November 4, 1954. The General Counsel and the Respondent Unions were represented by counsel; the complainant appeared in his own behalf. All of the parties were afforded a full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings and conclusions. At the outset of the proceedings, various motions presented by the General Counsel's representative and the Respondent Unions with respect to the pleadings were argued and, after argument, denied. At the close of the General Counsel's case, counsel for the Respondent Unions moved the dismissal of the complaints, paragraph by paragraph and in their entirety, and moved for a severance of the cases. The motions were denied. At the close of the testimony, the dismis- sal motions were renewed; my decisions were reserved, however, and my disposition of the issues involved will be indicated in this report. An oral argument on behalf of the General Counsel was presented at the close of the testimony and the Respond- ent Unions have submitted a brief. Upon the entire record in the case, the arguments presented, and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION A. The issues 1. The first case In Case No. 21-CB-548 the General Counsel has contended, apparently, that the assertion of jurisdiction by this Agency under the Act, as amended, is both permissible and warranted on two grounds. First, on the ground that the two Pardee partnerships previously designated are themselves engaged in commerce or business activities affecting commerce within the meaning of the statute. Secondly, on the ground that the Pardee partnerships hold membership in an employer's association, the members of which, collectively, are engaged in business activities which involve or affect commerce. The Respondent Unions challenge each of these contentions. Their arguments in this connection may be summarized as follows: With respect to the Pardee partnerships, it is argued that the record contains no evidence with respect to the interstate shipment of goods or materials on behalf of either enterprise. Specifically, it is pointed out that the partnerships were engaged, at all material" times, in the construction of residential housing; that the origin of the materials used by them, in the course of their construction activity, has not been established; and that there is no evidence that any of it originated outside of California, the State in which the construction activity occurred, or that any shipments to points outside of the State were made. The Respondent Unions also argue that the relationship established by the evidence between the individual Pardee partners and several designated con- struction and development enterprises currently active in Nevada cannot be con- sidered sufficient to warrant a conclusion that the Pardee partnerships, as such, are engaged in commerce or activities which affect commerce as 'part of a multistate enterprise. With respect to the asserted BCA membership of the partnerships, the Respondent Unions assert that the available evidence in regard to their status is sufficient to create nothing more than a "suspicion" of association membership, at best. Alternatively, and upon the assumption that Pardee's membership in the BCA may be considered established, it is argued that the available evidence with respect to the construction activity in which other BCA members engage-which allegedly involves or affects commerce-is of a "hearsay" character, uncorroborated and insufficient to sustain a conclusion with respect to the jurisdictional issue. The Respondent Unions also argue that no testimony was adduced to show that any 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the construction work done by other BCA members went into any product which later found its way into interstate commerce, and that affirmative proof of any con- nection between the construction work in question and the activity in commerce of the firms which contracted for it cannot be found in the record. These opposed contentions pose the initial issue presented for consideration in the Los Angeles County case. They will be considered elsewhere in this report. 2. The second case In Case No. 21-CB-600 the General Counsel contends, in substance , that the unfair labor practices involved affect the administration by the Respondent Unions, within their territorial jurisdiction , of certain trade agreements negotiated and executed in their behalf with AGC, BCA, and their respective contractor-members. The employer-members of each association, thus contractually bound, are alleged to be engaged, collectively, in commerce. The Respondent Unions, in reply, argue that the only evidence offered with re- spect to the trade ' association membership of specifically designated contractors in - volves "hearsay" testimony, and that the available evidence with respect to the busi- ness activity of these contractors must be characterized as similarly vulnerable. With respect to AGC, the only evidence offered in support of the contention that the association members, in the aggregate, are engaged in business activities with a suffi- cient impact on commerce to warrant the assertion of this Agency 's jurisdiction dealt with the activities of a joint venture allegedly involving several AGC mem- bers engaged in construction on a military project at Twentynine Palms, California; the Respondent Unions, however, argue that none of the evidence connects them with the military project or the employers involved. The Respondent Unions point to an alleged failure of the evidence as to whether construction work on the military project had been undertaken in conformity with the requirements of any union contract . They also point to the absence of proof that any employer for whom the complainant worked was an association member. These contentions pose relatively minor questions. In the context of the entire record, and in the light of my conclusions, as set forth elsewhere in this report , they are found to be without merit. Upon these grounds, the Respondent Unions assert that the record contains insuffi- cient evidence to warrant the exercise of this Agency 's jurisdiction in the Palm Springs case, under its "assertable jurisdictional standards " as recently established. B. Analysis 1. The Pardee enterprises Before June 6, 1952, and for an unspecified period, the Pardee Construction Com- pany had been engaged in business as a general contracting enterprise with its prin- cipal office in Los Angeles County; the Company was organized, I find, as a part- nership which included George M. Pardee, Sr., and his three sons, George M. Pardee, Jr., Hoyt S. Pardee, and J. Douglas Pardee. As a general contracting enter- prise, with a license from the Contractor's State L;:,ense Board of the Department of Professional and Vocational Standards of the State of California, the firm had been engaged primarily in residential construction. Between July 1, 1950, and June 30, 1951, it held State license No. 112514 as a general contractor. Throughout the 1951-52 fiscal year, also, it was similarly licensed. The record is silent, however, with respect to its status as a licensee thereafter; no State license, issued in the 1952-53 fiscal year for the Pardee Construction Company, as such, has been produced. Some time prior to October 1951, certain lands in Pacific Palisades, a Los Angeles County geographical division, had been purchased for residential development by a business entity known as the Pardee-Phillips Construction Company. This organ- ization, then, appears to have functioned as the "builder" or "developer" of the resi- dential construction initiated, shortly thereafter, on the property. Pursuant to con- tract, Pardee Construction Company was engaged as the project's general con- tractor; construction activity on the first "unit" of the homes involved began ap- proximately in October 1951. Additional land was subsequently purchased in sev- eral parcels; the last land purchased, to accommodate the fourth "unit" of the project, was acquired early in 1953, I find, by the Pardee-Phillips Construction Company. The Pardee Construction Company had been engaged by written agreement, as previously noted, to perform the necessary construction; it had been similarly en- gaged, I find, on previous "units" of the property since October 1951, when home LOCAL NO. 1400 141 construction in the first unit, as noted, began. In December of 1953, the significant period in this case, it was so engaged. In the meantime however, on June 6, 1952, George M. Pardee, Sr., had died. Under applicable State law, the Pardee Construction Company had to terminate its business, except for the completion of existing contracts, and to undertake liquida- tion. For the balance of 1952, and throughout the next calendar year, its activity as a general contractor for Pardee-Phillips Construction Company, at Pacific Pali- sades, was being conducted, I find, to satisfy its existing contractual commitments only. The firm became "inactive" upon the completion of the Pacific Palisades development in April 1954; as of the date on which this case. was heard it was still receiving income, but had ceased to engage in any other business activity. Pardee Construction Company No. 2 had been formed, I find, shortly after the death of George M. Pardee, Sr. It, too, functioned as a partnership, the partners being George M. Pardee Jr., Hoyt S. Pardee, and J. Douglas Pardee, the sons of the deceased. The partnership was licensed to engage in business as a general building contractor and is presently active; there is no indication in the record, how- ever, that any of its business was acquired from the Pardee Construction Com- pany, by transfer or otherwise. For the 1953-54 fiscal year, this organization held State license No. 132894 as a general building contractor. And for the 1954-55 fiscal year, I find, it was similarly licensed. The record, as previously noted, is silent with respect to its status as a licensee in the 1952-53 period. Each of these enterprises, I find, forms part of a "web" of business entities cur- rently dominated and controlled by the three Pardee partners. Their business ac- tivities also appear to have been carried on, in part, by the George M. Pardee Sr. Construction Company, a California corporation, in which George M. Pardee, Jr., Hoyt S. Pardee, and J. Douglas Pardee are the only stockholders. Insofar as the record shows, this corporation is engaged in a building project under its own name for the benefit of a joint venture in which one Gifford Phillips is personally interested. The joint venture indicated may be the Pardee-Phillips Construction Company previ- ously noted; the record, however, is silent on the point. The sons of George M. Pardee, Sr., previously named, also constitute the only stockholders of the Pardee Building Corporation, Pardee Building Corporation No. 2, and Pardee Building Corporation No. 3, all identified as California corporations, engaged in joint ventures and partnership enterprises devoted to Los Angeles County building and development projects. In addition, I find, the Pardee partners are currently engaged in extensive Nevada business activity. Their interests include three Nevada corporations-Hoyt S. Pardee of Las Vegas, Inc., George M. Pardee Jr., of Las Vegas, Inc., and J. Douglas Pardee of Las Vegas, Inc-in each of which the Pardee partner indicated by name holds a sole stock interest. Insofar as the record shows, however, these Nevada corporations were formed and exist merely to hold partnership interests in two enter- prises. The first of these, Pardee-Phillips of Las Vegas is a partnership organized in October 1953 to function as a residential builder; separate one-sixth interests in the enterprise are held by the three Nevada corporations, and a one-half interest by Gifford Phillips Wood Products, Inc., a California corporation, licensed to do Nevada business. The second enterprise in the Nevada business complex now under consideration has been identified as the Pardee Construction Company of Las Vegas, a partnership organized in October 1953 also, to serve as the general contractor for Pardee-Phillips of Las Vegas. Separate one-sixth interests in this enterprise are also currently held by the three Nevada corporations previously noted. Gifford Phillips, as an individual, holds a one-fourth interest. The remaining quarter interest is held by Ronald F. Maroney, another individual.' . Three other corporations have also been organized by the Pardee partners. The record is silent as to their state of incorporation. It establishes, however, that Wesley Pardee, Inc., functions with Hoyt S. Pardee as its sole stockholder; that James Pardee, Inc., is wholly owned by George M. Pardee Jr.; and the John Pardee, Inc., is similarly held by J. Douglas Pardee. Insofar as the record shows, however, these corporations were formed and exist only to hold specific partnership interests in Pardee-Phillips of Nevada, a partnership organized early in 1954 to function as a residential building and development enterprise. The three corporations last named hold separate one- sixth interests in this recently formed partnership; a one-fourth interest is held by 1 There is testimony, which I credit, that the Pardee partners devote more time to the day-by-day management of these enterprises than any of the other parties privy to the partnerships involved. I find that the Pardee partners, in practice, actively direct and dominate these enterprises and others to be noted. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Flower of Nevada, Inc.; and a one-fourth interest is held by Maroney of Nevada, Inc. As of the date on which this case was heard, a building project sponsored by Pardee-Phillips of Nevada was under construction. The Pardee Construction Com- pany of Las Vegas, previously noted, was serving as the general contractor on the project. Finally, the three Pardee partners have associated themselves anew, under the name and style of Parphil of North Las Vegas, to engage in another subdivision project; the record contains no further information, however, with respect to this portion of their business activity. The record indicates, without dispute, that this web of partnership and, corporate enterprise was developed to facilitate tax savings and to limit the liabilities of the Pardee partners. I so find. During 1952, 1953, and 1954 the Pardee Construction Company engaged in busi- ness as a general contractor, and received income of $3,710,213.43, which was, in turn, charged off as "construction cost" by the various "builders" associated with the Pacific Palisades residential development. Comparable information with respect to Pardee Construction Company No. 2 since its organization in 1952, however, has not been made available. Between October 1953, when Pardee-Phillips of Las Vegas initiated construction on its Francisco Park subdivision in Las Vegas, Nevada, and the end of June 1954, when the project was substantially completed, Pardee Construction Company of Las Vegas, as the general contractor involved, received $2,042,189.22 under its con- struction contracts. Its construction activity at another subdivision in North Las Vegas, on behalf of Pardee-Phillips of Nevada, resulted in the payment of $846,395.16 to it by the latter, from the inception of the project early in 1954 to August 15 in that year-at which time the project was not yet complete. Each and every one of these enterprises-even those active in Las Vegas, Nevada, insofar as the record shows-maintains a principal office and place of business in Los Angeles, California, at a "headquarters" owned and operated by the Pardee Construc- tion Company, previously noted. In addition to its provision of office space, that firm employs, directly, the office and clerical personnel required to maintain the books and records of the various business entities named. Their services are provided to each of the indicated enterprises, I find, under written office and facility contracts to which the Pardee Construction Company is a party. 2. The Building Contractors Association of California, Inc. The Building Contractors Association of California, Inc., is a trade association which admits to membership firms engaged in general building and other construc- tion work throughout the State. The record indicates, and I find, that it is engaged in the representation of its member firms, and the promotion of their interests, in the fields of legislation, public relations, and labor relations. As a part of its service for members in the labor relations field, BCA has, for many years, negotiated and subscribed trade agreements with various building and construction trades unions, particularly in the 12 southern California counties. In 1953, Oltmans Construction Company, a general contractor, held BCA mem- bership. As of June 22, 1953, if not earlier, it had given evidence-in a manner to be discussed at length elsewhere in this report-of its desire to become a party to the collective-bargaining agreement then current, as hereinafter found, between BCA and the various building and construction trades councils in the southern Cali- fornia counties. The available evidence, which I credit, establishes that the firm has provided construction services in the Los Angeles area, over a period of "many" years, for various rubber companies-Firestone, Goodrich, U. S. Rubber, and Goodyear-and various automobile and aircraft manufacturers. The 1953 busi- ness activity of the firm included new construction and alteration work for the Firestone Tire and Rubber Company, for which it received $100,000 approximately, and construction, repair, and alteration work for the Hughes Aircraft Company, for which it received $75,000. In 1952 and 1953 the firm was also engaged in the con- struction of certain additions to the Los Angeles tire plant of the B. F. Goodrich Company, and certain alteration work within the plant. For services performed in 1952, it received $212,453.32; for services performed in 1953 it received $745,869.17 from the company indicated? R The Los Angeles plant of the B. F. Goodrich Company, I find, manufactures tires, tubes, tank lines, camelback (retread material), and cement. In 1953, shipments of these goods valued in excess of $5,000,000 were made from the plant to various States of the United States other than California, as well as Hawaii and the Philippines. LOCAL NO. 1400 143 As of July 23, 1954, approximately 524 BCA members were officially listed by that association as signatory to the trade agreement then current, as hereinafter found , with various building and construction trades unions. The record suggests that most, if not all, of these BCA members had held themselves out as bound by such an agreement, or a predecessor agreement , during the 1953 calendar year. The General Counsel, however, made no effort to adduce detailed information with respect to the 1953 activities of any BCA member other than Oltmans Construc- tion Company, as noted . His representative did attempt to adduce certain informa- tion with respect to the 1953 business activity of a contractor identified as W. D. "Bill" Wright, a general contractor and BCA member, also represented as a signa- tory to the trade agreement then current between the various association members and building and construction trades unions in the 12 southern California counties. For reasons to be noted elsewhere in this report, however, this presentation was in- complete; I have, therefore , made no effort to report it in detail. 3. The Associated General Contractors, Southern California Chapter The Associated General Contractors , Southern California Chapter, is a trade asso- ciation which admits to active membership firms engaged in construction activity, as general or specialty contractors, in 12 southern California counties . It also admits to affiliate membership various firms engaged in the manufacture or sale of equipment, material, or supplies utilized in the construction industry . Through the agency of a board of directors , officers, staff members, and board committees, AGC engages in various activities on behalf of its membership ; among other things, it pro- vides a labor relations service. Through designated representatives , it participates in the negotiation and execution of trade agreements with various building and con- struction trade unions in the 12 southern California counties noted ; thereafter it par- ticipates, on behalf of its membership , in the administration of such agreements. In that connection its labor relations staff, and particularly its labor relations di- rector, may interpret the provisions of any applicable contract to members and may proffer advice with respect to any "difficulties " encountered in the agreement's application. In 1953 the AGC membership roster included , inter alia, Ford J. Twaits Company, Morrison-Knudsen Company , Inc., and Macco Corporation. At the time, these firms were engaged-as members of a joint venture-in the performance of six contracts for the construction of various training facilities at the Marine Corps Training Center, Twentynine Palms, California .3 Ford J. Twaits Company , I find, was the "sponsor" on the project-a sponsor being a managing partner with primary re- sponsibility for the execution of joint venture contracts . Construction activity on the first of these contracts , as awarded by the United States Navy, began shortly after April 15, 1952; the work on the last contract , I find, was "substantially com- pleted" by March 31, 1954 . As of the latter date, the total joint venture revenue under the contracts had amounted to $12,894,880. Ford J. Twaits Company and Morrison -Knudsen Company , Inc., were also active in 1953, I find, as members of another joint venture-again under Twaits' spon- sorship-for the construction of certain ordnance storage structures at Nellis Air Force Base, Las Vegas, Nevada ; the contracts had beer awarded to the venture by the United States Army Engineers. Work under them began about June 1, 1953, and was "substantially" complete as of the date on which testimony with re- spect to it was taken in this case . The controller of the Ford J. Twaits Company, an informed and credible witness, testified , on the basis of his familiarity with the project, that the gross revenue which could be expected by the joint venture upon its completion would be between $ 10,000,000 and $ 11,000,000.4 The record reveals that the AGC has a substantial number of active members; no evidence with respect to the involvement in commerce of any members, aside from those involved in the two joint ventures noted, has , however, been offered. 8 Upon request , it is noted officially that Twentynine Palms is located in San Bernardino County, within the territorial jurisdiction of the San Bernardino and Riverside Counties District Council, previously cited. 4 Independently of these joint ventures, the General Counsel sought to adduce evidence with respect to the status of Morrison-Knudsen Company , Inc., as an enterprise engaged in business outside the State of California . The testimony offered in this connection, however, would seem to have been grounded in hearsay and "general knowledge" in the construction industry . I have not considered it in reaching any of the conclusions to be set forth elsewhere in this report. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Conclusions 1. The Los Angeles case In the light of the available evidence I am entirely satisfied, despite the contrary contention of the Respondent Unions in Case No. 21-CB-548 particularly, that a sufficient basis exists for the assertion of the Board's jurisdiction in this matter. Insofar as the Pardee enterprises are concerned, the record establishes clearly that the entire business complex involved is centered in the Pardee partners. Although each of the separate corporate and partnership enterprises involved may have indi- vidual management agents, the available evidence would seem to impel a conclusion that the Pardees, individually or collectively, dominate the policy decisions of each unit in the complex, and positively direct those enterprises which are active. Legal service for the Pardees and each of their enterprises is provided by a single law firm; all of the necessary records and books of account are kept at a single headquarters, in which all of the required clerical work is conducted for each of the related enter- prises by a group of employees hired by 1 Pardee enterprise and assigned to work for 1 or more of the others under specific "facility" contracts. The entire complex, there- fore, I find, constitutes a single integrated enterprise and may properly be considered a single "employer" within the meaning of the Act, as amended. American Televi- sion, Inc. of Missouri, 111 NLRB 164. During a period beginning in 1952, and extending into 1954, the general contracting work performed on behalf of the inte- grated enterprise in California and Nevada produced income in excess of $6,500,000; of this amount more than $2,800,000 was derived from the performance of construction service within the State of Nevada. Upon consideration of the Pardee complex as an integrated California enterprise, then, performing services outside of its home State, it would seem to be clear, upon the available evidence, that its extra-State services were valued in excess of $50,000 in one or more calendar years. I so find. No evidence with respect to the amount or value of any goods or materials received by the integrated enterprise is available. No determination can be made, therefore, as to the extent to which the integrated enterprise received such goods or materials in the form of "direct" or "indirect" inflow, from points outside of the State in which its principal office and place of business is maintained. And since the activi- ties of the integrated enterprise have ben confined, at all relevant times, to residential construction, no evidence was adduced as to the extent to which it furnished goods or services to other enterprises with a "direct outflow" of goods or services, public utilities, transit systems, or instrumentalities and channels of commerce. No con- sideration has been given, either, to the status of the Pardee complex as a multistate enterprise; even if it could be considered such an enterprise, on the basis of an assumption that it maintained residential agents or managerial personnel at various Nevada construction sites, the available evidence would not establish any "direct" or "indirect" outflow of the enterprise as a whole. Upon the available evidence, and in the light of the Board's recently established jurisdictional standards-see Jonesboro Grain Drying Cooperative, 110 NLRB 481; cf. Reimers-Kaufman Concrete Products Company, 110 NLRB 593-I find that the Pardee Construction Company is part of a single integrated enterprise engaged in commerce within the meaning of the Act, as amended, and that the assertion of the Board's jurisdiction in any case involving the enterprise would be warranted to effec- tuate the objectives of the statute. Additionally, and in the alternative, I am satisfied upon the entire record that the Pardee Construction Company, in particular, held BCA membership at all material times, and that, as an association member, it was engaged in commerce within the- meaning of the statute.5 For a number of years, as the record shows, BCA representatives have met with representatives of various building and construction trades unions to negotiate trade agreements for various crafts in the construction industry. Upon the con- 5 The Respondent Unions have challenged the substantiality and probative character of the evidence relied upon to establish the BCA membership of this Pardee enterprise. I find their challenge unpersuasive The executive vice president of BCA identified the Company as an association member, a regularly published list of BCA contractors signa- tory to the trade agreement allegedly then in effect, between the designated signatories and various building and construction trades unions, lists Pardee as a signatory member ; and physical evidence of the firm's adherence to such a trade agreement, which BCA could only have received from a member firm, was offered and received in evidence Upon the entire record, I am entirely satisfied that Pardee, at all material times, held BCA membership. LOCAL NO. 1400 145 elusion of these negotiations, many BCA members have adopted the agreements resulting therefrom , in a manner to be noted elsewhere in this report , manifesting by such action a desire to be bound in their labor relations by joint rather than individual action and to constitute themselves a single employer for bargaining purposes. Epp Furniture Company, et al., 86 NLRB 120; Columbia Marble Com- pany, 89 NLRB 1482; Bellingham Automobile Dealers Association, 90 NLRB 374; Members of the California State Brewers Institute, et al., 90 NLRB 1747. Clearly, this type of bargaining has served to establish a relationship, the impact on com- merce of which reaches beyond the confines of any one employer involved in the joint negotiations and is coextensive with the totality of the operations of all em- ployers so involved. The Board has recognized the scope of this impact, in its evaluation of the "commerce facts" in such cases, by considering the operations of all participants in the multiemployer bargaining whether or not they were parties to the proceeding.6 At this time, then, it would be totally unrealistic and contrary to Board precedent to disregard the involvement in commerce of the other employers signatory, as herein found, to a contract negotiated by BCA in their behalf, in any attempt to appraise the total effect of the activities attributable to the Respondent Unions on commerce-particularly where, as here, the implementation by the Re- spondent Unions of the contracts executed as a result of such collective bargain- ing forms the basis of the specific unfair labor practices alleged. In accordance with this view, I find that BCA and its member firms must be regarded as a single employer for jurisdictional purposes. Insulation Contractors of Southern California, Inc., et al., 110 NLRB 638; Vaughn Bowen, et al., 93 NLRB 1147, 1148-1150; Oertel Brewing Company and Louisville Brewers Association, 93 NLRB 530, 536-537; Federal Stores Division of Speigel, Inc., 91 NLRB 647, 659-660; Carpenter and Skaer, Inc., et a!., 90 NLRB 417,418-419. One BCA member, Oltmans Construction Company, supplied materials and con- struction services in 1953 to the B. F. Goodrich Company, clearly a firm engaged in interstate commerce, for which it received more than $700,000 in compensation. Despite the fact that none of the materials and labor supplied by Oltmans, in con- nection with its construction activity, appear to have been "directly utilized" in the fabrication of the products shipped by Goodrich in commerce, the services rendered to that enterprise by the construction company would clearly be sufficient, if the latter firm were before this Agency, to warrant the exercise of the Board's jurisdic- tion as to it under presently applicable standards. Jonesboro Grain Drying Coop- erative, supra; Burns Detective Agency, 110 NLRB 995; G. C. McBride Company, 110 NLRB 1255. In the light of the evidence as to Oltmans, then, further evidence with respect to the involvement of other BCA members in commerce, or activity affecting commerce, under this Agency's presently applicable standards, would be superfluous. Upon the entire record, therefore, and in the light of the decisions noted, I find that the Pardee Construction Company holds membership in a trade association, the members of which, collectively, are engaged in commerce or busi- ness activities which involve or affect commerce sufficiently to warrant the assertion of the Board's jurisdiction.? In reaching this conclusion, however, I have expressly refrained from any attempt to evaluate the evidence offered by the General Counsel with respect to the business activities of W. D. "Bill" Wright. Although most of his work in the construction industry within the last 2 years appears to have been performed for North Ameri- can Aviation Corporation, one of the largest manufacturers of aircraft in the country, the record provides no substantial or probative evidence that contracts involving more than $200,000 in materials and labor were performed by this contractor for North American Aviation in any given calendar year. And while official notice 6 See Carpenter and Skaer, Inc., et at., 90 NLRB 417; Federal Stores Division of Speigel, Inc., 91 NLRB 647. In the former case, the Board viewed as immaterial the fact that all of the employer-association members were not parties to the proceeding . In the latter case, not only was that holding affirmed, but the Board also attached no significance to the fact that the association itself was not a party. +I find immaterial, in this connection, the fact that the General Counsel may have failed to prove that the various contractor-members of BCA received goods valued in excess of any specified amount, directly or indirectly, in the operation of their respective enterprises, from sources outside of the State, as the complaint alleges. Since the evi- dence actually adduced by the General Counsel was fully litigated and, in fact, provides a sufficient basis for the assertion of the Board's jurisdiction, any failure to establish that basis in strict conformity with the allegations of the complaint may be dismissed as an immaterial variance. It has been so found. 390609-56-vol. 115-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD might well have been taken , as requested, that North American Aviation was engaged at all -material times in the manufacture of military aircraft for the United States Government, among other customers , services rendered by Wright for a firm which may be engaged in activities directly related to the national defense under contract with a Government agency will not suffice, under the Board's presently applicable jurisdictional standards, to establish Wright's involvement in an activity affecting commerce. It was also requested that official notice be taken of the fact that North American Aviation shipped more than $50,000 worth of its products to points out- side of the State; the period of time within which this occurred was not specified, however, and in any event I could find no basis for official notice as to whether it was North American Aviation which, itself, shipped aircraft made for the United States Government to the points outside of the State. Cf. Mast Lumber Company, Inc., 111 NLRB 18. And there is no evidence, whatever, that "Bill" Wright was himself engaged in construction activity under Government contracts. The Respondent Unions also objected to the evidence received with respect to the activity of Oltmans which affected commerce on the ground of its alleged hearsay character. N. L. R. B. v. Haddock-Engineers, Limited, 215 F. 2d 734 (C. A. 9). The objection was not sustainable. This case involves no attempt on the part of the General Counsel to rest upon evidence as to the activities of any firm in commerce in the form of a letter, allegedly signed by a responsible official of the firm involved who was never presented for cross-examination. In this case, and in the related Palm Springs case discussed elsewhere in this report, the available testi- mony as to the involvement of any trade-association member or members in activity affecting commerce was provided by representatives of each firm involved, possessed of direct personal knowledge as to the activities in question, their nature, and their financial scope. These representatives were available for cross-examination. And the fact that the matters about which they testified could also have been established otherwise, through the adduction of regular books of entry and original company records, cannot justify characterization of their testimony as hearsay. Upon the entire record, I find that the exercise of the Board' s jurisdiction, in Case No. 21-CB-548 in particular, would be warranted to effectuate the statutory objectives. 2. The Palm Springs case As previously noted the General Counsel contends in Case No. 21-CB-600 that the employer-members of two trade associations, contractually bound to certain alleged trade agreements, are engaged, collectively, in commerce. With respect to BCA and its contractor-members, this contention has already been accepted. Insofar as AGC and its various contractor members are concerned, how- ever, the record would seem to be equally clear. The activities of that associa- tion on behalf of its membership, in the labor relations field, have already been described. In the light of the established precedents, previously noted, AGC and its member firms would certainly seem to be subject to characterization as a single "employer" for jurisdictional purposes. Cf. South Texas Chapter, Associated Gen- eral Contractors of America, Inc., 107 NLRB 965; Central California Chapter, The Associated General Contractors of America, Inc., et al., 105 NLRB 767, 771. And I so find. With respect to the matter of the involvement of the association's mem- bership in commerce, the General Counsel again offered limited testimony. It is established, however, and I find, that a joint venture composed of three AGC mem- bers, each contractually bound to a trade agreement with the Respondent Unions, was engaged, throughout the' period considered material in this case, in construc- tion activity related directly to the national defense. The goods and services supplied' by the joint venture, I find, were furnished under a contract negotiated directly by the United States Navy, with respect to its Marine Corps Training Center at Twentynine Palms, California, and resulted in gross revenue for the joint venture in excess of $12,000,000 over a 2-year period between April 15, 1952, and March 31, 1954. In addition, another joint venture-consisting of 2 AGC member firms of the 3 involved in the Twentynine Palms project-was involved, at all material times, in construction work at Nellis Air Force Base in Las Vegas, Nevada, under a direct contract with the United States Army Engineers; the record contains a reliable estimate, not subjected to susbtantial challenge, that the gross revenue to be derived by the joint venture from its construction activity, which began on June 1, 1953, will be in excess of $10,000,000 at the least. Upon the entire record, I am more than satisfied that each of the joint ventures indicated was engaged in commerce within the meaning of the Act, at all material times, and that they were engaged sufficiently to warrant the exercise of the Board's jurisdiction in any case in which they might be involved. Maytag Aircraft Corp., 110 NLRB 594. Despite LOCAL NO. 1400 147 the absence of evidence, therefore, as to the activity of any other AGC member, and the extent to which such activities might involve or affect commerce , it would seem to be more than clear that the construction work done by each and every one of the AGC member firms bound to observe a contract or contracts with the Re- spondent Unions is sufficient , collectively, to warrant the exercise of the Board's jurisdiction in this matter. I so find. And, having reached these conclusions on the basis of the available evidence as to the activity in commerce of each association's membership, separately consid- ered, I find it unnecessary to consider the General Counsel's further contention that they may be found engaged in commerce , and activities affecting commerce, when considered jointly. The fact that AGC and BCA representatives may have nego- tiated successive trade agreements jointly with various union representatives might well warrant consideration of all their members, bound by such agreements, as a single employer; upon the present record, however, such a finding would be surplusage. It has not been made. It. THE LABOR ORGANIZATIONS INVOLVED Upon the two complaints in the present consolidated matter, and in the absence of any denial, I find that the Respondent Unions previously named are labor organ- izations within the meaning of Section 2 (5) of the Act, as amended. III. THE MASTER LABOR AGREEMENTS, A. The issue Essentially, it appears to be the General Counsel's contention , in these cases, that the Respondent Unions were, at all material times, privy to contracts negotiated in their behalf with various AGC and BCA contractors, engaged in commerce or business activities which affected commerce. And specifically, it is alleged that such a contractual relationship existed, at all material times, between the Respondent Unions in Los Angeles County and the Pardee Construction Company in particular. In the Palm Springs case, however , the General Counsel rests upon a generalized contention that contractual privity existed between the Respondent Unions in the case and various unspecified contractors, affiliated with one or another of the trade associations indicated. The agreements in question , it is alleged, contained uniform clauses, at all times material, under which any employers contractually bound were obligated to treat the Respondent Unions, at least in the first instance, as an exclusive source of labor supply, and under which the Respondent Unions, in return, were bound to dispatch employment applicants nondiscriminatorily, in accordance with specifically designated preferences . Under the circumstances, it is argued, the establishment of certain discriminatory prerequisites to an employ- ment referral by the Respondent Unions, and their application to the complainant and Johnny H. Dockery, involved an unfair labor practice. The Respondent Unions, in reply, rest upon several defenses . At the outset, in particular, they challenge the evidence adduced by the General Counsel in support of his contention that they were contractually bound, at material times, to refer employment applicants nondiscriminatorily to various AGC and BCA member firms, or to Pardee specifically. To the issue thus presented, this report now turns. B. Analysis 1. Contract history It is the General Counsel's contention, in substance, that contracts relevant to the disposition of these cases were negotiated and executed in 1946, originally, and that their status as currently effective contracts , during the 1953-54 period now material, rests upon their renewal and extension , as amended, at various times dur- ing the intervening years. Evidence was accordingly offered, initially, to establish the negotiation and ex- ecution of two contracts-designated as master labor agreements in the record- on June 3, 1946. One, the so-called AGC-AFL contract, I find, began with the following recital: This agreement entered into this 3rd day of June, 1946 , by and between members of the Associated General Contractors of America who are signatory hereto, parties of the first part, hereinafter referred to as the contractors. . . . It went on to list the various signatory building and construction trades unions. These included, inter alia, the Building and Construction Trades Councils of Los 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Angeles, Riverside, and San Bernardino Counties, similar councils in 7-other south- ern California counties, the United Brotherhood -of Carpenters and Joiners of America and its California State Council of Carpenters, 5 other large international unions, and a number of other labor organizations affiliated with the American Federation of Labor. The union signatories were, in turn, described in the contract as: signatory hereto for themselves, for their various Craft Councils and Local Unions which have jurisdiction over the work in the territory herein- after described... . The agreement dealt comprehensively,with the wages, hours, and working condi- tions to be established and maintained throughout its term, on general contract construction work, in the southern California area. The available evidence establishes that the agreement was approved and recom- mended for acceptance and signature on the part of the association's member firms by W. D. Shaw and M. A. Mathias for the southern California and San Diego chap- ters of AGC, and by Lloyd A. Mashburn and K. G. Bitter for the Los Angeles and San Diego Building and Construction Trades Councils, respectively. Among the general signatories of the agreement, in evidence, the following may be noted: Building and Construction Trades Councils of Los Angeles and San Bernardino- Riverside Counties, United Brotherhood of Carpenters and Joiners of America, California State Council of Carpenters, and numerous contractors, including, inter alia, the Morrison-Knudsen Co., Inc., Macco Construction Co., Zoss Construction Company, and the Ford J. Twaits Company-all of them mentioned, at one time or another, in these cases. Several collateral memoranda of agreement, supplementary schedules, and resolutions to continue supplementary agreements as modified were negotiated and executed at or about the same time by negotiators apparently author- ized to act for the contractors and labor organizations particularly interested in them .8 At the same time also, as noted elsewhere, a parallel and identical agreement was executed by and between the members of the Building Contractors Association of California, Inc., signatory to it and the various labor organizations previously designated. The copy of this agreement received in evidence-identified as a "signature" copy only-contained a recital, at its close, that the agreement had been approved and recommended for acceptance and signature on the part of the BCA members by the Building Contractors Association of California, Inc., and the Los Angeles Building and Construction Trades Council. No signatures appeared, how- ever, on behalf of these organizations. Nor did the copy in evidence reveal any signatures on behalf of the building and construction trades councils involved in the present cases, or any signature on behalf of the United Brotherhood of Carpen- ters and Joiners of America. The testimony adduced to account for these omis- sions will be discussed elsewhere. Appended to the record copy of this agreement are to be found the signatures of 59 BCA contractors. Other BCA members "sig- natory" to the contract, it is alleged, have evidenced their assent to be bound by its terms in another fashion. Each of the agreements now under consideration provided for a term commenc- ing on May 1, 1946, and continuing for 1 year, to May 1, 1947, and for "additional periods of one year" thereafter, in the absence of notice-to be given 70 days prior to May 1, 1947, or the end of any subsequent yearly period-that 1 "group" of signatories, or the other, desired negotiations for the modification or amendment of the particular agreement or any portion of it. The copies of each contract in evidence also reveal a provision that such negotiations, when undertaken in conformity with applicable contractual terms, would continue until the achievement of an agreement, with the proviso that if agreements could not be reached before each contract's termination date either "group" of signatories might thereafter give written notice to the other of its intention to terminate the agreement on some speci- fied date not less than 15 days later. There is evidence tending to establish that resolutions to continue the AGC-AFL and BCA-AFL southern California master labor agreements were executed subse- quently in June 1950 by the "parties" privy to the 1946 agreement just discussed. These resolutions, or their copies as received in evidence, provided, in accordance 6 On behalf of the United Brotherhood and the California State Council of Carpenters, I find the agreement was signed by J. F. Cambiano , an international representative of the union. The Respondent organizations have stipulated to the authenticity of his signature and his authority to bind the United Brotherhood and its subordinate organiza- tions in this and every other connection material. LOCAL NO. 1400 149 with the relevant provisions of each master contract, for their renewal with certain exceptions and modifications for a period of 2 years, from May 1, 1950, to April 30, 1952. For the contractors, the resolutions were executed, again, by designated rep- resentatives of the southern California and San Diego AGC chapters, and designated BCA representatives, respectively; for the unions, the resolutions were signed, once more, by representatives of the Los Angeles Building and Construction Trades Council, various other trades councils, and various international unions and district councils. No signatures on behalf of specific contractors appear. The record is silent, however, with respect to the authority of the AGC and BCA representatives to bind the membership of their respective associations by the execution of the reso- lutions under consideration. These resolutions, it may be noted, also incorporate by reference the contents of certain earlier resolutions to continue dated May. 20, 1948. No evidence with respect to the execution of the 1948 resolutions has, however, been offered. It should also be noted, I find, that the resolutions do not bear any signatures on behalf of the San Bernardino-Riverside Counties Building and Con- struction Trades Council, or on behalf of the United Brotherhood and its subordi- nate components. The available evidence suggests that the failure of any Carpenters' union repre- sentative to participate in the execution of these resolutions to continue may have been due to a labor dispute then current, in which the union was directly involved. There is testimony and documentary evidence in the present record, which I credit, indicative of the existence of such a dispute and certain related State court litigation, designed to test the extent to which the Carpenters' union and its various subordinate organizations were subject to the obligations imposed upon signatory unions by the master labor agreements then in force. On November 30, 1950, however, this liti- gation was settled. The settlement agreement, in evidence, as executed by the "parties" to the AGC-BCA-AFL southern California master labor agreements, declared, among other things, that: The parties desire . to recognize as valid and binding the Resolution to Continue of 1950 and the AGC-BCA-AFL Southern California Master Labor Agreement subject to the amendment hereinbelow set forth... . It was then expressly agreed, by the participants in the settlement, that the 1950 resolutions to continue and the AGC-BCA-AFL southern California master labor agreements would be accepted as valid and effective. Certain .amendments relevant to these documents were agreed upon. Among other things, the basic agreements were amended to provide for their continuation until May 1, 1954, and for "additional periods of one year" thereafter, subject to notice of a desire to negotiate modifications or amendments, and notice of termination, as previously indicated. The right to give these notices for the contractors was granted, expressly, only to the association repre- sentatives of the "contractor" parties; on the union side, the right to give the indicated notices was granted expressly, however, to each or any of the 6 "basic" trades (the Carpenters' union or 1 of the 5 large labor organizations previously mentioned) through their designated representatives. The amendments set forth in the settle- ment agreement went on to provide that each or any party failing to elect separate negotiations might negotiate through representatives as specified otherwise in the basic agreements. And with respect to notices of termination, the settlement agree- ment specifically provided for the amendment of the master labor agreements to assure the privilege of termination to the contractor's representatives and to each or any of the six "basic" trades in its own behalf. Additionally, the master labor agree- ments were amended to provide for wage reopenings in 1952 and 1953 at the option of each or any of the six "basic" trades through their respectively designated repre- sentatives, or at the option of the contractor's representatives. While providing that each of the 6 basic trades might "upon its election" reopen the contract for wage negotiations, in its own behalf, and modify or terminate the agreement thereafter, in accordance with its terms, the settlement agreement provided that any modification, amendment, resolution to continue, or agreement reached would become valid or effective only if its terms were accepted and the documents signed by the designated representatives of each of the 6 basic trades. In conclusion, the agreement, in evidence, provided that: This Settlement Agreement in its entirety shall be submitted to all of the parties or their authorized representative or representatives for acceptance, and upon such acceptance the parties hereto shall immediately perform the things to be done. Unless all of the parties to the Master Labor Agreement accept this Agreement, none of the provisions herein shall become effective. 150 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD The agreements, thus qualified, were executed by designated representatives of the southern California and San Diego AGC chapters, and designated BCA representa- tives, on behalf of their signatory member firms; for the unions, each agreement was subscribed, inter alia, on behalf of the United Brotherhood of Carpenters and Joiners of America, and the building and construction trades councils involved in this case .9 In 1952, after extensive negotiations, the representatives of AGC, BCA, and various interested building and construction trades unions reached an agreement for the amendment of the union-recognition clauses in the master labor agreements as they then read. In a departure from their former practice, however, the parties did not reduce the amendment to writing in a form suitable for execution, directly, by signa- ture. The available evidence suggests, instead, that the accredited representatives of AGC and BCA dispatched a letter to the Los Angeles Building and Construction Trades Council on October 10, 1952, with reference to the amendment; a copy of the amendment, as negotiated, appears to have been forwarded with the letter as an enclosure.10 On November 4, 1952, in this connection, L. A. Vie, the secretary of the Los Angeles Building and Construction Trades Council, dispatched identical letters to AGC's southern California manager and the executive vice president of BCA, respectively. The letters referred to their earlier "communication" of October 10, 1952, in regard to: the changes in the AGC-BCA-AFL Southern California Master Labor Agreement made necessary in order to comply with the National Labor Rela- tions Act... . And each association was advised that the Los Angeles Building and Construction Trades Council, at a regular meeting in executive session on July 17, 1952, had heard its secretary report as follows: The Secretary stated that at a meeting which was held with the representatives of the Six Basic Trades with reference to the Union Security provisions of the Master Contract that would be inserted in the Contract made necessary by the National Labor Relations Act, that with the exception of one or two minor clarifications of language, that it was acceptable to the Six Basic Trades. Each association was informed that this report had been accepted by the council and that the communication which conveyed this information might be accepted as an acknowledgment of confirmation with respect to the acceptance of changes in the master labor agreement made necessary by the Act, as amended. 2. The 1953-54 situation The General Counsel's presentation, taken at face value, would seem to establish his contention that the bargaining history just summarized' reveals the nature and extent of the contractual relationship in force as between the AGC, BCA, their various contractor-members, and the building and construction trades unions, at all material times. Most of the testimony and documentary evidence offered in this connection, however, was received in evidence over strenuous objection. And its substantiality and probative weight may, in several instances, be open to serious doubt. Further consideration of the matters involved, therefore, would seem to be warranted. Our conclusions in this connection, however, need not rest, alone, upon the factual findings made in this report with respect to the history of the 1946 agree- ments. Independent evidence with respect to the contracts, recognized as valid 0 Under the master labor agreements, as modified, it may be significant to note that the southern California and San Diego chapters of AGC, and BCA as well, subsequently executed an agreement with provision for a modified wage schedule, effective throughout the 12 southern California counties, with the United Brotherhood of C"rnenters and Joiners of America, on May 29, 1953, as revealed by the present record. The agreement, in evidence, is described as in accord with the provisions of the "AGC-BCA-AFL Southern California Master Labor Agreement" dated June 3, 1946, and the subsequent annual resolutions to continue that agreement, and particularly in accord with the settlement agreement of November 18, 1950, amendatory of the basic document. 10 The original letter and enclosure have not been produced for the record ; there was some indication that they may be unavailable. And a carbon copy of the letter-which the General Counsel did produce-could not be completely identified as a document signed and sent by its purported signatories. Upon objection, it was rejected as an exhibit ; and I have made no attempt, therefore, to draw conclusions with respect to its contents, except to the extent that such conclusions might be warranted on the basis of references to it in credible testimony, and in the other documentary evidence received. LOCAL NO. 1400 151 and effective in the construction industry throughout southern California during the 1953-54 period material herein, may be found in the record. Each of the trade associations previously mentioned regularly prepares for dis- tribution to its membership, and interested persons and organizations, printed copies of the master labor agreement in effect at any given time. Each copy of the agree- ment is prepared for distribution in a looseleaf ring binder. Its printed pages are perforated for easy insertion and removal. As bound, they are divided by card- board markers which indicate: The administrative articles of the agreement; the classifications, wage rates, and overtime provisions for the six basic trades; the classifications and wage rates currently effective for the so-called subtrades; and the resolutions to continue which followed the 1946 agreement and various supple- mental contracts. There is evidence also, which I credit, that responsible representatives of each trade association treated these printed booklets as accurate copies of the agreement in effect between their "signatory" members and the various building and construc- tion trades unions. With respect to the BCA members, in particular, it is estab- lished, and I find, that contractors considered "signatory" to the agreement were provided with up-to-date copies of it in the form described. The record also establishes that responsible representatives of each trade association regularly used and referred to a printed copy of their master labor agreement in order to answer questions posed by "signatory" contractor members; that such members were ad- vised with respect to their rights and obligations under the agreement currently effective by reference to the booklets indicated; and that no contractor aware of the use of such a printed copy of the agreement for the indicated purpose ever protested or disclaimed his representative's reliance upon it. So far as the building and construction trades unions are concerned, the record shows that these printed copies of the master labor agreement were carried and used as a reference, at least by the accredited representatives of the Los Angeles and Palm Springs locals- Respondents in the present cases-in their business contacts with contractors. It also shows that these booklet copies of the agreement are used as a reference by representatives of each group privy to it in the joint discussion of their grievances and the adjustment of their disputes. And I so find." In its printed form, the AGC-AFL master labor agreement is identified as a labor agreement between Southern California General Contractors and A. F. of L. Building and Construction Trades Unions. Its initial recital reads as follows: This agreement entered into this 3rd day of June, 1946, by and between members of the ASSOCIATED GENERAL CONTRACTORS OF AMERICA who are signatory hereto, parties of the first part, hereinafter referred to as the CONTRACTORS, and the Building and Construction Trades Councils of Los Angeles . . . Riverside, San Bernardino . . each affiliated with the Building and Construction Trades Department of the American Federation of Labor . . . United Brotherhood of Carpenters and Joiners of America; California State Council of Carpenters . . . all affiliated with the American Federation of Labor, who are signatory hereto for themselves, for their various Craft Councils and Local Unions which have jurisdiction over the work in the territory hereinafter described, parties of the second part, hereinafter referred to as the UNION. The initial recitals of the BCA-AFL agreement are identical, except for the desig- nation of the signatory BCA members as the parties of the first part, in place of the AGC's member firms. With respect to union recognition, the printed copy of each master labor agreement contained the modified provisions apparently negotiated and accepted by the parties in 1952, as previously noted. Under their terms, the parties privy to each contract agreed: II UNION RECOGNITION A. That the CONTRACTORS hereby recognize the UNIONS who are signa- tory hereto as the sole and exclusive collective bargaining representatives of all employees of the CONTRACTORS signatory hereto over whom the UNIONS have jurisdiction, as such jurisdiction is defined by the Building and Construc- tion Trades Department of the American Federation of Labor as of the date of this Agreement. It is understood that the Unions do not at this time, nor will 11 There is no evidence that any union agent or official ever protested the reliance of the association representatives upon their printed booklets , in this connection , as unwarranted. i 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they during the term of this Agreement, claim jurisdiction over the following classes of employees: executives, civil engineers, and their helpers, superin- tendents, assistant superintendents, master mechanics, time keepers, messenger boys, office workers or any employees of the CONTRACTOR above the rank of craft foreman. That subject to this understanding the CONTRACTOR shall have entire freedom of selectivity in hiring and may discharge any employee for any cause which he may deem sufficient, provided there shall be no discrimination on the part of the CONTRACTOR against any employee, nor shall any such employee be discharged by reason of any UNION activity not interfering with the proper performance of this work. It is the intention of the parties that all workmen covered hereby shall be or become forthwith upon employment and remain continuously, members in good standing of the International UNIONS signatory hereto through their affiliated Local UNIONS having work and area jurisdiction and on whose behalf this Agreement is executed, as a condition of employment, and that this provision shall become operative without further notice or amendment whenever amend- ments to or judicial interpretations of the Labor-Management Relations Act of 1947 remove the inhibitions against the application of this paragraph now existing under the present wording and judicial interpretations of that Act. It is agreed that all workmen covered hereby shall be-or become, not more than thirty (30) days after employment and remain continuously, members in good standing of the International UNIONS signatory hereto through their affiliated Local UNIONS having work and area jurisdiction and on whose behalf this Agreement is executed, and shall remain available for work as a condition of employment. B. That in the employment of workmen for all work covered by this Agree- ment in the territory above described, the following provisions, subject to the conditions of Article II-A, above, shall govern: 1. That the Local UNIONS shall establish and maintain open and non- discriminatory employment lists for employment of workmen in the work and area jurisdiction of each respective Local UNION of each particular trade. That the CONTRACTORS shall first call upon the respective local UNIONS having work and area jurisdiction, or their Agents, for such men as they may from time to time need, and the respective Local UNIONS, or their Agents, shall im- mediately furnish to the CONTRACTORS the required number of qualified and competent workmen and skilled mechanics of the classifications needed by the CONTRACTORS. That the respective Local UNIONS, or their Agents, will furnish each such re- quired competent workman or skilled mechanic entered on their lists, to the CON- TRACTORS by use of a written referral and will furnish such workmen or skilled mechanics from the respective Local UNIONS listings in the following manner: (a) Workmen who have been recently laid off or terminated in that respective Local UNION'S work and area jurisdiction by the CONTRACTORS now desiring to re-employ the same workmen in that same area provided they are available for employment. (b) Workmen who have been employed by CONTRACTORS in the respec- tive Local UNION'S work and area jurisdiction within the multiple-employer unit during the previous ten (10) years, and are available for employment. (c) Workmen whose names are entered on the list of the respective Local UNION having work and area jurisdiction and who are available for employ- ment. That reasonable advance notice (but not less than 24 hours) will be given by the CONTRACTORS to the UNIONS, or their Agents, upon ordering such workmen or mechanics; and in the event that 48 hours after such notice, the UNIONS or their Agents shall not furnish such workmen, the CONTRACTORS may procure workmen from any other source or sources. If men are so employed, the CONTRACTORS will immediately report to the Local UNIONS having work and area jurisdiction, or their Agents, each such workman by name. That workmen employed by the CONTRACTORS for a period of thirty (30) days continuously or accumulatively within the multiple-employer unit and procured in accordance with II, B-1, (c), above or procured from other sources, by the CONTRACTORS themselves, shall become members of the appropriate craft UNION signatory hereto immediately, upon terms and qualifications not more burdensome than those applicable at such times to other applicants to such UNION. LOCAL NO. 1400 153 The union-recognition clause of each master labor agreement continued with a definition of the circumstances under which contractors might transfer workmen in the six basic trades from the area jurisdiction of one local union to that of an- other within the same craft. These provisions are not, however, material now. They have not been detailed. On May 4, 1954, AGC and BCA received written notice-in the form of a letter from the United Brotherhood of Carpenters and Joiners of America signed by J. F. Cambiano, its international representative, for all of the organization's district coun- cils and local unions in the 12 southern California counties-with respect to the intention of these organizations to terminate "any and all" of their contracts with all contractors and employers, and their organizations, in the designated area. The letter referred specifically, I find, to the master labor agreement between the em- ployers indicated and the Carpenters' union, all resolutions to continue with respect to the agreement, and the settlement agreement of November 30, 1950; each associa- tion was advised that the Carpenters' union had elected to terminate these agree- ments and contracts separately, and in their own behalf, in conformity with the provisions of the master labor agreements as amended by the settlement agreement :previously noted. (In passing, it may be noted that the notice in question also served to terminate, inter alia, the May 29, 1953, wage agreement negotiated and executed by the Carpenters' union, through its international representative, with the associations.) No evidence has been made available, however, with respect to the present status of the master labor agreements insofar as the Carpenters' union and its constituent organizations are concerned. 3. Contract parties As previously noted, each master labor agreement is described, internally, as an agreement between the "members" of the association signatory thereto and the various signatory building and construction trades unions. By way of implementa- tion, also, each agreement expressly provides as follows: That this Agreement shall be deemed to be executed when the parties signing shall have affixed their signatures hereto. Insofar as these cases are concerned, however, the Respondent Unions argue, vigorously, that the record is barren of substantial or probative evidence with re- spect to the execution of either master labor agreement, in the manner indicated, by any AGC or BCA members. With respect to the AGC-AFL agreement, it is true, the record contains nothing more than a copy of the 1946 contract, with the reproduced signatures of various association representatives and contractors. Upon the entire record, however, I am satisfied that this copy of the agreement may be considered acceptable secondary evidence with respect to its execution-on or after the date of its acceptance by the various signatory unions-on behalf of the contractors indicated.12 In the light ,of the available evidence, I am entirely satisfied that the agreement, as negotiated and recommended for acceptance, became a viable contract upon its execution by various AGC members. (The document in evidence bears the reproduced sig- natures of 283 AGC contractor members.) There is testimony by the AGC labor relations director that the association- in order to obviate any question as to the identity of the association-members con- tractually bound, after the disappearance of the original 1946 agreement-changed its bylaws on December 15, 1953, to provide that any contractor maintaining ac- tive association membership would be considered contractually bound, under any negotiated agreement "accepted" at an open membership meeting, by virtue of such membership. In view of the specific language of the AGC-AFL agreement with respect to the manner of its execution, previously noted, there may be some ques- tion, as the Respondent Unions suggest, with respect to the "signatory" status of an association-member whose acceptance of the agreement could not be established through an actual signature, duly proved. For all present purposes, though, I find it unnecessary to resolve this question. I am satisfied that the agreement, after .its negotiation, was in fact executed in accordance with its terms by various AGC v The reported testimony indicates clearly that the original AGC-AFL agreement, with its signatures-from which the reproduction in evidence was derived-is currently un- available. And the reproduction has been adequately identified , in my opinion , as a copy of the original agreement in its executed form. It has been so found. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members, and that it was in full force and effect, at least as to such members, at all material times.13 With respect to the, BCA-AFL agreement, the General Counsel , as previously noted, offered a document without the signatures of any association or union repre- sentative, but signed by 59 BCA contractors. The document was challenged on two grounds. Initially, the Respondent Unions contended that it ought not to be considered proper secondary evidence of any 1946 agreement, in the absence of a showing that it had ever been signed by authorized representatives of BCA or the various building and construction trades unions. And secondly, it was argued that the 59 signatures attached to the document had actually been affixed by the contractors to an earlier agreement, and that their attachment to the purported master labor agreement represented a recent fabrication. When presented, however, these ob- jections were found to be deficient in merit and, upon analysis, the record compels a reaffirmation of that conclusion. With respect to the first contention, the record establishes that an integrated contract, identical with that received in evidence, was actually signed in 1946 by the authorized representatives of BCA and various interested labor organizations. (BCA's executive vice president so testified on the basis of his personal recollection; I have found his testimony in this respect to be worthy of credit.) The document thus subscribed, however, does not appear to have been offered to BCA contractors for signature. An identical mimeographed copy was offered to the membership instead. According to the association's executive vice president, this was the copy subscribed by the contractors. In this state of the record, the evidence would seem to establish the existence of a bilateral agreement evidenced by two documents-one a document executed by the signatory labor organizations for themselves, and on behalf of their various craft councils and local unions with jurisdiction over the work to be done in the 12 southern California counties, and the other a document subscribed by various BCA members. I so find. And in the light of the credited testimony offered by BCA's executive vice president, the copy received for the record may be said to constitute reliable, substantial, and probative secondary evidence of the agreement executed on behalf of the Respondent Unions herein, and at the same time "real" evidence with respect to the execution of the 1946 agree- ment by the individual signatory contractors. It is so found. Some basis for suspicion, with respect to the second contention of the Respondent Unions, may, it is true, be found in the fact that the page provided for the union signatories was numbered as page 14 of the agreement, while its very next page- the first provided for contractors to sign-is designated 'as page 17 of the contract. The Respondent Unions would argue, apparently, that this discrepancy in pagination will support their contention that the documentary pages bearing the signatures of BCA members had originally been affixed to another document, with 16 pages of prior text and signatures. At best, however, the indicated discrepancy in page enumeration gives rise to nothing more than a suspicion; in the face of positive testimony by the executive vice president of BCA with respect to the total authen- ticity of the document-which stands in the record without contradiction-the intimations of counsel for the Respondent Unions with respect to its allegedly fraudulent character must necessarily be considered-insufficient to warrant its rejec- tion. It has been so found. Sometime prior to 1946, and apparently in connection with the administration of an earlier agreement, BCA had instituted an arrangement under which its mem- bers, wishing to assume the obligations of any collective-bargaining contract and' to avail themselves of its benefits, could declare their intention to do so on a so-called "signature" post card signed and sent to the association headquarters. The record is not entirely clear as to whether the 59 signatory contractors shown to have executed the 1946 agreement directly, by their subscription of the signature copy proffered in the name of the association , were, by that act, reaffirming an inten- tion previously made evident by the execution of such a signature card. The testimony of BCA's executive vice president merely shows that the association made an effort, in this year, to secure the signatures of contractor-members on the agreement itself, if they had previously executed a signature card promising to "sign" it upon pres- entation. It does, however, show that BCA ceased to proffer its signature copy is Effective acquiescence in this conclusion on the part of the Respondent Unions may be inferred from the admitted fact that the business representatives of Local 1400 and Local 1040 possessed-and regularly consulted-a list of AGC members considered con- tractually bound to observe the terms of the AGC-AFL agreement ; the list, in ' each instance, appears to have been provided by the Respondent District Councils. LOCAL NO. 1400 155 of the agreement for subscription, after its execution by the 59th contractor, and that the association-members were requested to indicate their willingness to be bound by the terms of the agreement, thereafter, by the mere submission of the signed signature card.14 This arrangement, the record shows, has continued to date- except that the actual cards are no longer forwarded to the Building and Construc- tion Trades Council. Only a notice is sent. Among the BCA members who have indicated their acceptance of the master labor agreement by the execution of a signature card, Oltman's Construction Company may be noted. And as of July 23, 1954, about 7 months after the present cases arose, approximately 524 members of BCA were officially listed as master labor agreement signatory firms. All but a few of these had been 1953 signatories. During the 1948-49 period-a material period in this connection-the signature cards utilized by BCA read as follows: It is my desire to sign and avail myself to [sic] the benefits of the Collective Bargaining Agreement between the Building Contractors Association of Cali- fornia, Inc., and the Building Trades Councils of the American Federation of Labor, by affixing my signature to this card in lieu of the Master Contract which I agree to sign when presented to me. In addition to providing space for a date, the cards called for the firm name of the signatory member, the actual signature of the individual signing on behalf of the firm, the address and telephone number of the member's headquarters, the firm's State license number, and the type of work done by the firm as indicated by its license classification. Sometime subsequent to 1949, at a time not now material, the text appearing on the signature card, as noted, was slightly modified. Insofar as these cases are concerned, however, the modifications would seem to be without significance; therefore, they have not been detailed in this report. As in the case of the AGC contractors not actually "signatory" to a copy of the master labor agreement-if there be any-there could, conceivably, be a question as to whether BCA members indicating their acceptance of the contracts cur- rently in force, by the execution and submission of a signature card alone, actually became contractually bound as a result of such action. I find that they did. The association's signature card system, it is true, might well be considered irregular and open to manipulation or abuse; I find nothing in the law or public policy, how- ever, sufficient to bar agency consideration of the executed cards, which refer to the master labor agreement in unmistakable terms, as the equivalent of signatures "affixed" to it in a physical sense. And the undenied credited testimony of BCA's executive vice president establishes the acceptance of the signature card system as constituting compliance with the requirements of the agreement by the "union" to which the cards were initially sent. The fact, then, that such executed cards may not set forth the substantive terms of each signatory's commitment extensively or in haec verba would seem to be immaterial; when considered in conjunction with the document which they purport to incorporate by reference such cards, in fact and law, bind their signers. It is so found.15 The record is silent as to when Pardee became a BCA member-but it does es- tablish that a signature card of the indicated type was executed on behalf of the enterprise by Hoyt S. Pardee on May 17, 1948, and submitted to the association. On November 13, 1949, a similar card was executed on behalf of the enterprise by J. Douglas Pardee. When queried as to the reason for the submission of the sec- ond card, one of the Pardee partners, unspecified, informed BCA's executive vice president that it had been submitted because they "thought" that no card had been submitted previously. The record establishes that BCA did not, as a matter of practice, require its mem- bers to reaffirm their desire, once expressed, to be bound by the master labor agree- 14 Upon the receipt of such cards in the BCA office, the identity of the signer was noted ; the card itself, according to BCA's executive vice president, was then forwarded to the office of the Los Angeles Building. and Construction Trades Council in order that the unions' privy to the agreement might be advised as to the identity of any enterprise newly bound thereby. 15 The record suggests, indeed if it does not establish, that the file of executed BCA signature cards was, at one time, offered and received in evidence in State court litiga- tion to establish the identity of the association-members' privy to the master labor agree- ment and contractually bound by its terms. They appear to have been produced and utilized for that purpose-without objection-at the request of counsel for the Respond- ent Los Angeles District Council-a defendant in the litigation. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment's terms. The submission of a second card by Pardee, therefore, may very well have been a nullity or an act of supererogation; upon the entire record, however, I cannot find it prejudicial in any way to Pardee's asserted right to "avail" itself of the benefits of the agreement. The Respondent Unions in the Los Angeles case challenge the authenticity of the signature cards, however, and their sufficiency to establish Pardee's status as a master labor agreement signatory, on several grounds. At the outset, expressly and by implication, the Respondent Unions challenge each of the signature cards as a recent fabrication. They have adduced no evidence, how- ever, in support of this contention. The cards, it is true, bear no postmark; they appear to have been submitted personally, in each instance, and the association ap- parently made no independent record of their date of receipt. This fact, of course, would seem to militate against the rejection, out of hand, of a contention that each card had been recently prepared and back dated. Contrary inferences, however, tending to support the General Counsel's contention as to the authenticity of the cards, may be drawn from the fact-of which I take official notice-that each bears a printed BCA return address appropriate to the date of its purported execution, and the further fact-to be noted in detail elsewhere in this report-that the business representative of Local 1400 referred to Pardee as contractually bound under the master labor agreement, in the course of a December 1953 conversation with the complainant at the union hall. Certain discrepancies in the testimony of BCA's executive vice president with respect to the manner in which the signature cards were handled by that association between 1946 and 1950 are also relied upon by the Respondent Unions to cast doubt upon the authenticity of the Pardee cards. These discrepancies, however, were subsequently explained away, at least in part, by the witness. I have found it unnecessary to detail them; at the most they would tend to raise nothing more than a suspicion with respect to the authenticity of the cards. In the light of the positive uncontradicted testimony as to their authenticity, I have found the challenge of the Respondent Unions insufficient to warrant rejection of the cards as evidence of Pardee's intent to be bound by the agreement now under consideration. The available evidence would seem to suggest that BCA's administration of the signature card system indicated, even now, may be lax or inept-particularly in cases which involve the termination of an association membership, expressly or by legal implication, an attempt on the part of a member firm to rescind the association's authority to represent it in labor matters, or the formation of new joint ventures and other business entities by currently represented members. The fact that the association's established procedures may be subject to improvement however-with respect to the ascertainment and identification of the business enterprises contractu- ally bound at any given time, and the provision of current notice to the unions in connection with any changes-cannot, and should not, preclude any trier of fact from reaching such conclusions as the evidence may warrant as to the legal signifi- cance and effect of the procedure actually followed. The Respondent Unions also rely upon the failure of the evidence to show that the Pardee Construction Company, in liquidation, held a contractor's license from the State of California at any time subsequent to June 30, 1952. Reference is made, particularly, to the Business and Professions Code of the State of California, sec- tion 7031, which provides that: No person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action in any court of this State for the collection of compensation for the performance of any act or contract for which a license is required by this chapter without alleging and proving that he was a duly li- censed contractor at all times during the performance of such act or contract. [Emphasis supplied.] The Respondent Unions have cited and rely upon a California Supreme Court de- cision which held, in substance, that contracts by an unlicensed business entity for the performance of services as a general contractor and the collection of compensation for such services are "unlawful" and void, and thus may not be relied upon as the basis for any claim in law. Loving and Evans v. Blick, 33 Cal. 2d 603, 204 P. 2d 23. On the basis of this case, it is contended that Pardee's 1948-49 declaration of its intent to be bound by the BCA-AFL agreement became nugatory when its status as a licensed general contracting enterprise lapsed after June 30, 1952, and that it could not be considered a signatory party to the agreement thereafter. I find the contention to be without merit. Even if it could be assumed, for the sake of argument, that State law on the subject may be determinative, with respect to Pardee' s status as a contract signatory, two LOCAL NO. i406' 157 related lines of State decisional doctrine would nevertheless be worthy of note. The limitations imposed by the statute under consideration, with respect to the assertion of legal rights otherwise assured, attach only to persons engaged in business as con- tractors or acting in such a capacity, as statutorily defined. Business and Professions Code, section 7026. They do not apply, for instance, to employees, the latter are still free to assert legal claims grounded upon services in the construction field rendered for a wage, despite any similarity between such services and those which a contractor might render. Powell v. Berg, 99 C. A. 2d 353, 221 P. 2d 743 (1950), cf. Dorsk v. Spivack, 107 Cal. 2d 206, 236 P. 2d 840 (1951). And, presumably, the fact that their .claims might be rendered measurable by a contract to which some unlicensed contractor was privy would not serve, in and of itself, to defeat them. In addition, it should be noted that the statutory disability now in issue only applies to court actions "for the collection of compensation for the performance of any act or contract for which a license is required" under the code. The California Supreme Court has held, in the light of this language, that the code prohibition affects the contractor, and may not be extended to, affect the rights of anyone whose claim is based upon dealings with the contractor, in good faith and without knowledge of his unlicensed status. C. I. T. Corporation v. Breckenridge, 63 Cal. 2d 198, 146 P. 2d 271 (1944). And in a recent case, also-Grant v. Weatherholt, 123 C. A. 2d 34, 266 P. 2d 185 (1954)-a California appellate court has held that the provisions of the State code which require contractors to be licenesd, declare contracts by unlicensed persons to be invalid, and bar actions based upon such contracts relate only to the obligations which arise out of contracts under which services are rendered, and to acts which would normally create an implied obligation to render compensation. These code provisions, in the court's view, must be construed and applied so as to accomplish the protection of the public from incompetent and untrustworthy con- tractors. The tribunal disclaimed any possible intention to impose a penalty for -code noncompliance in addition to those provided expressly or by necessary implica- tion ; and the code provisions, which effectively shield from liability those who enter into contracts with unlicensed contractors, were characterized as not intended to shield them from responsibility for their own torts. Nor may such provisions be relied upon, in the court's view, as a basis for any action except one based upon contract liability. Here, the contract under consideration-the BCA-AFL agreement-did not call for the performance of any act for which a State license is required, since it did not call for a service to be rendered by any signatory party as a contractor. Nor can the present cases be characterized as actions for the collection of compensation due for services rendered as a contractor. And even if the complainant and his companion could be considered "real" parties herein-despite established decisional doctrine to the contrary under the Amalgamated Utility Workers case and others-the Respond- ent Unions could not, under the State law as construed above, utilize Pardee's lack of a license as a shield behind which to avoid responsibility to them for statutory wrongs. I so find. The contention advanced by the Respondent Unions in this connection, then, must be rejected. And if the rejection of this contention, upon the authority of the indicated State court decisions , could be considered erroneous , effectuation of the national labor policy would still require that this Agency's enforcement program with respect to the Act, as amended, be held unaffected by State or local enactments. Hill v. Florida, 325 U. S. 538; Hamilton v. N. L. R. B., 160 F. 2d 465, 471 (C. A. 6). As the Board said in Steinberg and Company, 78 NLRB 211, 214, with respect to a similar issue: It is well established that in applying a Federal statute of general uniform ap- plication local law must be rejected in favor of definitions and concepts expressed or implied in the Federal statute itself. [Emphasis supplied.] For this reason also, then, the contention of the Respondent Unions with respect to Pardee's asserted lack of contractual capacity must be dismissed as without merit. C. Conclusions Upon the entire record, I am satisfied and find that the Respondent Unions, at all material times, were privy to certain trade agreements, designated as master labor agreements in the record, with various AGC and BCA member firms. And specifically with respect to Case No. 21-CB-548, I am satisfied, and find, that the availahte evidence establishes the existence of a contractual relationship under the BCA-AFL agreement, at all material times, between the Respondent Unions in the case and -the Pardee Construction Company in particular. With respect to the 1946 agreements, it is true , purported contract originals have not been produced for the record. The original AGC agreement-a docu- 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment physically subscribed by its negotiators and executed on behalf of the various employers and labor organizations willing to be bound by its terms-appears to have been "lost" in the course of the 1950 litigation previously noted . A similar fate also seems to have befallen the "original" BCA agreement after its "approval" by the negotiators responsible for its preparation , and its execution on behalf of various interested labor organizations-among them the United Brotherhood of Carpenters and Joiners herein involved-through accredited representatives. Sec- ondary evidence, admissible under the applicable law and worthy of credit, has been adduced to establish the negotiation of the AGC-BCA-AFL agreements, their subscription on June 3, 1946, by the representatives of each trade association in- volved, and their subsequent or contemporaneous execution on behalf of the interested building and construction trades councils and various international unions, acting for their respective craft councils and local unions. Although each agreement, in terms, described the signatures of the AGC and BCA representatives, and those of the union negotiators , as sufficient only to indicate the status of the agreements as "approved and recommended " for acceptance and signature, the available evidence establishes that each agreement was, in fact , executed thereafter by numerous AGC and BCA contractors.is The action of these contractors with respect to the agreements-whether or not their signatures appear on the so-called "originals" of each agreement signed by the employer and union negotiators-gave force and effect, I find , to the contractual rights and responsibilities which these agreements were intended to establish. The available evidence with respect to the subsequent history of the agreements would seem, at least in some respects , to be questionable. The record is silent , for ex- ample, with respect to the manner in which the agreements were renewed in 1947 and the terms of their renewal. Various indications with respect to the 1948 resolu- tions to continue each agreement appear in the available documentary evidence , but the record is silent with respect to their negotiation or execution . And the 1950 resolu- tions to continue give no indication of their execution on behalf of the San Bernardino- Riverside Counties Building and Construction Trades Council , or on behalf of the United Brotherhood of Carpenters and Joiners of America and its subordinate com- ponents. While these omissions would seem to have been obviated by the execution of the settlement agreement of November 30, 1950, insofar as the unions are con- cerned, analysis still reveals, as previously noted , the absence of evidence with respect to the authority of the AGC and BCA representatives to bind their respective mem- bers by the execution of any settlement agreement or the resolutions now under consideration.17 And finally, with respect to the 1952 amendment of the "union recognition" clause in the contracts now under consideration , it must be noted that the present record, at least, fails to establish the execution of a bilateral agreement. There is some indication that a letter with a proposal in regard to the amendment may have been dispatched to the Los Angeles Building and Construction Trades Council by certain AGC and BCA representatives . As previously noted, however, the "original" of this document , though requested, has not been made available-and the only evidence offered with respect to it, a purported carbon copy, could not be completely identified as a copy of any document actually signed and sent , on behalf of its purported signers. Duplicate originals of a letter, apparently sent in reply by the secretary of the Los Angeles Building and Construction Trades Council, have been received in evidence . They refer, generally, to a purported amendment of the AGC-BCA-AFL southern California master labor agreement and authorize each association recipient to consider its letter, upon receipt, as "an acknowledgement of 16 In connection with the AGC agreement, it could of course be argued, upon the present retold , that the evidence with respect to the agreement's execution by the various association-members ought not to be considered probative ; AGC's labor relations director, it is true, could not testify, positively, with respect to its actual execution by any asso- ciation contractor. Other evidence in the record, however, would seem to provide more than ample justification for the rejection of any such argument. The labor relations director's unchallenged testimony with respect to the 1946-47 situation clearly establishes his use of the agreement, as purportedly executed by the signatory contractors shown, in the course of his official duties. I so find. And there is not the slightest evidence that his reliance upon it as evidence of a current labor agreement , executed by its purported signatories , was subjected to challenge by any contractor treated as bound. 17 The settlement agreement does provide, in terms , for its acceptance by an "authorized representative or representatives" of the parties, and declares that "upon such acceptance" the parties shall immediately perform the things to be done No independent evidence with respect to the status of the AGC and BCA signatories as "authorized representatives" has, however, been oftered or received. LOCAL NO. 1400 159 confirming the acceptance of the changes" within the agreement in question. Never- theless, as the Respondent Unions point out, the record is silent with respect to the authority of Secretary Vie of the Los Angeles Building and Construction Trades Council to bind any other building and construction trades council, or any international union signatory to earlier agreements, by the acknowledgment indicated. It is also silent, of course, with respect to the authority of the AGC and BCA representatives to propose an amendment of the agreement then in effect, or to receive any notice of its acceptance by the union signatories. (This is not to say that the necessary authoriza- tion in each case may not have been given; if given in behalf of any interested labor organization, however, the facts in that connection have not been spread upon the present record.) In the absence of reliable, probative, and substantial evidence, with respect to the effectiveness of any periodic renewal or modification of the 1946 agree- ments, my conclusions with respect to the existence of relevant contractual relation- ships, during the 1953-1954 period material herein, must necessarily rest upon the available evidence with respect to the conduct of the parties during the period in question. In this connection, however, it would seem to be clear, beyond any possibility of doubt indeed, that the Respondent Unions, AGC, BCA, and the-Pardee Construc- tion Company, mutually considered themselves contractually bound under the master labor agreements under consideration. ' There is evidence, to which I have already referred, that representatives of each trade association, charged with responsibility for any necessary action in the labor relations field in the interest of their membership, treated the 1946 agreements, as renewed and amended, as if they were agreements in full force and effect at all material times. Each utilized a conformed copy of the agreement, to which his association was privy, as a reference and guide in the discussion and adjustment of grievances and labor disputes with the signatory unions. The course of conduct attributable to each in this respect has never been subjected to union challenge. The association representatives also used copies of the agreement, as renewed and amended, to answer questions posed by association-members with respect to their rights and obligations vis-a-vis the signatory unions and their unionized employees. And there is no evidence that any association-member ever challenged such a use of the agreements by an AGC or BCA representative. Insofar as the Respondent Unions, in particular, are concerned, the record estab- lishes that the business representatives of each local involved carried copies of the AGC-AFL agreement as renewed and amended, at all material times, and utilized it as a reference and guide in the performance of their regular duties. There is testimony, indeed, that each of these representatives had received his copy of the agreement in question from the Respondent District Council with area jurisdiction over the local involved. It is so found. There is also evidence that each of these representatives-in the case of Local 1400, however, the union dispatcher-had copies of a list with the names of various firms considered contractually bound-on the basis of prior commitments and absent any subscription to a local "short-form" agreement-to observe the terms of one master labor agreement or the other. Union Dispatcher Savage identified his list as one supplied by the Los Angeles Building and Construction Trades Coun- cil, and periodically supplemented by that organization. I so find. The record contains no evidence that any employer, so treated, ever protested the assumptions of a union representative with respect to his status as a "party" to the agreements under consideration. Robert J. O'Hare, the Local 1400 business representative and president of the Los Angeles District Council, referred to the AGC-AFL agreement as an agreement currently in effect in the course of a discus- sion with Dockery and the complainant at the union hall, to be discussed in detail elsewhere in this report. As a witness in this consolidated matter, O'Hare testified that his organization currently has agreements with the AGC, BCA, several other associations, and their contractor-members, with respect to the employment of men "through" an appropriate union hall, pursuant to an arrangement allegedly approved by National Labor Relations Board Regional Office officials. And finally, the record establishes that the Carpenters' union, by its authorized international representative, negotiated and executed a modified wage schedule with the AGC and BCA, on May 29, 1953, for all southern California carpenters; the agreement was described, in terms, as in accord with the provisions of the AGC- BCA-AFL southern California master labor agreement, the subsequent annular res- olutions to continue that agreement, and the settlement agreement noted previous- ly. The significance of these references cannot be gainsaid; parties to an agree- ment would scarcely have been likely to describe it as one executed in "accordance" with nonexistent or nugatory prior commitments. ` 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to Pardee, the available evidence reveals the firm's objective indica- tion of its desire to accept the benefits and responsibilities defined in the BCA-AFL agreement. And the probative character of the evidence adduced in this connec- tion has already been a subject of discussion. Its significance, as found, is con- firmed by other evidence to be found in the record. Thus, it is established that Pardee was listed-without objection, insofar as the record shows-as a contract signatory in a published list of BCA signatory members. And Local 1400's dis- patcher, testifying with respect to a list of contractors privy to the southern Cali fornia master labor agreement in his possession, identified Pardee as a listed firm in December 1953, a period material herein. The dispatcher's testimony also estab- lishes calls for men by Pardee over a 3-year period prior to the events which have given rise to this case. In addition, I find that Business Representative O'Hare of the Los Angeles Respondent Local criticized the Pardee superintendent respon- sible for the referral of Dockery and the complainant to the union hall for action in violation of the contract by which Pardee was then bound. Under applicable decisional doctrine, in order to prove the commission of unfair labor practices by the Respondent Unions under Section 8 (b) (1) and (2) of the statute, in connection with the request of Dowdall and Dockery for a referral to, Pardee's Pacific Palisades project, the General Counsel, necessarily, must establish that Pardee was a BCA member and privy to a contract which obligated it to treat the Respondent Unions as an exclusive, nondiscriminatory, source of labor supply. See Local No. 63, United Brotherhood of Carpenters and Joiners of America, AFL, et al., (Wroan and Son), 106 NLRB 231, 232. Upon the entire record, however, I find that the General Counsel's burden, in this respect, has been met. In the field of contract law, it is of course a truism that the creation of a bilateral agreement is dependent upon some manifestation to an offeror of the offeree's assent to be bound, pursuant to the terms of a communicated offer. Such manifesta- tions of assent may involve acts as well as words and, indeed, under certain circum- stances silence and inaction may be construed as assent. Williston, A Treatise on the Law of Contracts, rev. ed. (1936) § 90, 90A, 91; American Law Institute, Restate- ment of Contracts, § 21, 72. Voluntary acceptance of a transaction's benefits may also, under appropriate circumstances, be considered equivalent to consent in regard to all of the obligations arising therefrom. California Civil Code, Third Division, part II, "Contracts," § 1589; see also §§ 1580-1581. These considerations, taken in conjunction with those relevant to the doctrine of ratification and estoppel, would seem to be determinative in the present cases. The contractors and the unions "signatory" to each of the master labor agreements now under consideration certainly conducted themselves, at all material times, as if they were privy to a contractual relationship. In the light of such conduct on their part, a conclusion that they were, then, contractually bound, under one legal theory or another, would certainly seem to be warranted. Wigmore, Treatise on Evidence, § 267, 272, and the cases therein cited. I so find. IV. THE UNFAIR LABOR PRACTICES A. Chronology 1. Background The complainant and J. H. Dockery-designated by the General Counsel as another discriminatee=have followed the trade of carpentry for many years; Dockery identified himself as a carpenter by trade for 15 years, while the complainant has claimed 40 years of experience in the craft. Dowdall's testimony, which I credit in this connection, also establishes his membership status in the Carpenters' union for most of the period elapsed since 1917, when he first became a member. As of May 1953, Dockery had been a union member for approximately 5 years.is Through- out the period subsequent to his first union initiation, I find Dowdall has held mem- bership at one time or another in 25 Carpenters' union locals; these have been scattered over 8 Western and Midwestern States, and in the Territory of Alaska. Early in 1953, Dowdall and Dockery-independently-left southern California and sought carpentry work at Anchorage, Alaska. Each had been, up to that time, a member of a southern California Carpenters' union local. (Dockery, I find, had been a member of Local 1400 and had been known as such to its officials and some of its other members; Dowdall, the record shows, had been a member of Local 1046, within which he had been similarly known.) And each, prior to his departure in 28 This conclusion Is based upon the findings In an earlier Board case involving Dockery, noted elsewhere in this report, of which I have taken official notice. LOCAL NO. 1400 161 search 'of Alaskan employment, had secured a "clearance" from the local in which his membership was currently maintained in order to make possible a transfer of his membership to some Alaskan local. After their arrival in Alaska, Dowdall and Dockery-independently-became members of Local 1281 of the Carpenters' union at Anchorage, and procured work referrals from that organization to an Alaskan employer. Insofar as the record shows, Dowdall and Dockery had not been ac- quainted prior to their encounter with each other in the course of Alaskan employ- ment. I so find. In October 1953, the Alaskan employment of Dowdall and Dockery was ter- minated. The circumstances of their termination impelled them to file unfair labor practice charges, which led to the issuance of a complaint by the General Counsel of this Agency. A hearing was held in the matter on November 9, 1953. See United Brotherhood of Carpenters and Joiners of America, Local No. 1281, 109 NLRB 874, for the Board's decision on the merits.19 Within a short time after the Alaskan hearing, Dockery and his wife left Alaska and proceeded to Los Angeles by car. Dowdall, upon the subsequent receipt of a communication with respect to his child's illness in the Los Angeles area, left Alaska by plane; he arrived at Los Angeles, I find, on November 21, 1953. As of the end of November, Dockery and Dowdall had established residence, separately, in the Los Angeles area. Each of the men, however, had retained union membership in the Alaskan local against which their charges had been filed; neither had taken action prior to his departure from the Territory in anticipation of any transfer to another local. 2. The Los Angeles case Dockery's testimony, which I credit in this connection, establishes his prior ex- perience in the Los Angeles area as a Pardee employee. Early in December then, while searching for employment, Dockery visited Pardee's Pacific Palisades develop- ment. There, I find, he spoke to Superintendent Richard Lancaster, his former supervisor. Dockery dated his conversation with Lancaster on December 3. And certain subsequent visits to the office or "hall" of each Los Angeles Respondent Union, undertaken by Dockery and the complainant jointly, were dated by Dockery as occurring on the 4th of the month. Dowdall, as a witness, dated his first visit to, the Pardee job in Dockery's company on the 3rd, and insisted that their first visit to Local 1400's hall had taken place on the same date; his testimony then dated a subsequent visit to the Los Angeles District Council office, and the hall of the- Respondent local on the 4th. Business Representative O'Hare and the Respondent- local's dispatcher gave no evidence indicative of an independent recollection with respect to the relevant date or dates in this connection; O'Hare adopted the date- tentatively suggested by counsel, and Union Dispatcher Savage merely testified that the visits of Dockery and the complainant to the local hall were completed in the- course of a single day. The relevant documentary evidence, as a whole, compel- lingly suggests, however, that Dockery visited the Pardee job on December 2, and that his contacts with each of the Los Angeles Respondent Unions, accompanied by Dowdall, occurred on the 3rd of the month. For the purposes of this report, I have- adopted the chronology indicated by the documentary evidence The fact that the- testimony of both Dockery and the complainant must thus be disregarded-at least insofar as these relevant dates are concerned-cannot, in my opinion, be considered sufficient to cast any real doubt on their credibility; their testimony with respect to the- nature of each visit cited, and the substance of each conversation in which they participated, was substantially in agreement and substantially in accord with that- of the union witnesses, except in certain relatively minor respects. In the course of his visit to the Pardee project, Dockery was asked by Superin- tendent Lancaster if he was, in search of a job. He indicated that he would be available soon. Lancaster, according to Dockery's credited testimony, then said that he had a position open and would like to have his visitor "come out" and finish the job. When Lancaster went on to indicate that he had been about to call for two carpenters, Dockery declared that he knew a eood worker in the T os Anoples area, with whom he had worked previously , who might need a job; Dockery- 19 As of December 1, 1953, at the outset of the period alleged to be material in the pres- ent cases, the matters at issue in the Alaskan proceeding were pending before a Board Trial Examiner, whose Intermediate Report was then in process of preparation. The- decisional records of this Agency, of which I take official notice, establish that it wa's issued on February 18, 1954, subsequent, I find, to most of the events relied upon by- the General Counsel to establish a statutory violation in the present cases. 890609-56-vol., 115-12 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD announced his intention to "contact" this individual, and said that he would appre- ciate it if Lancaster would try him. The superintendent indicated a willingness to talk to the individual involved. Dockery then telephoned Dowdall and, upon being advised that he was interested in a job, said that he believed employment might be available. Almost immedi- ately thereafter he called at Dowdall's residence and took him to the Pardee project 20 After a brief conversation, Dowdall and Dockery were offered employment by Superintendent Lancaster as carpenters on the Pacific Palisades project. He pro- vided each of the men with a written "request" intended to facilitate their immediate referral to the job; each "request" was addressed to William J. Savage, Local 1400's ,dispatcher. Dowdall's-the only one in evidence-read as follows: "Bill Savage. Please give Clarence Dowdall work order to this job." It was signed for Pardee by the superintendent. As received in evidence it bore a date notation by Dowdall, originally written as December 3, 1953, and corrected to read December 2, 1953. As previously indicated, the latter date would appear to be correct . It has, in any ,event, been so found. The record reveals a variance in the testimony of Dowdall and Dockery with respect to the conversation which accompanied Lancaster's preparation of the "work requests" now under consideration. Dockery's testimony, on its face, indicates a voluntary statement on his part that he and the complainant would have to "clear" into the local union with jurisdiction in the area, and that they would have to secure a "clearance" slip before they could come to work; his testimony, however, gives no definite indication as to whether Lancaster had or had not prepared the "work requests" now in issue before the alleged remark.21 Dowdall, however, testified categorically that Lancaster had first questioned him as to his experience and union membership, and that the superintendent had then advised him that: Before you're available to go to work on this job, you must go down to Local 1400 and get a work order or a permit, and clear through the local before you can go to work on this job. According to Dowdall, Lancaster had then prepared the "work requests" noted, addressed to the union dispatcher. Upon the entire record, however, I find it unnecessary to resolve this discrepancy between the complainant's testimony and that of his fellow employment applicant. The exact state of Lancaster's knowledge, if any, with respect to the procedure required of applicants for employment by Respondent Unions in connection with their establishment of eligibility for a work referral would seem to be immaterial in this case; the available evidence will clearly support an inference that he was aware, at the very least, of the fact that Dowdall and Dockery would have to get work orders from the Respondent local before they .could be employed, and that they would have to make some arrangement with the Respondent Unions-or with Local 1400 only-prior to the receipt of a referral. Hence, I find, his action in preparing the "work requests" noted. On the morning of December 3, 1953, at approximately 8 a. m., Dowdall and Dockery repaired to Local 1400's hall. Each presented the "work request" in his possession to Union Dispatcher Savage and requested a "work order" or referral to the Pardee job 22 Savage, after ascertaining their membership status in the 20 Dowdall's unchallenged and credited testimony establishes that he had sought work, since his arrival, through various project superintendents. 21 In cross-examination, Dockery testified that he'd meant to say he would have to procure a "permit" from the Respondent local by the payment of an appropriate fee before he would consider himself "ready" for work. 22 At various places in the present record references are made to documents designated as v ork requests, work orders, clearances, and permits. In many cases, a study of the context will reveal that these terms have been used interchangeably. Sometimes it would seem they have been used inaccurately. In the interest of clarity, however, an attempt has been_made in this report to utilize the terns, generally recognized as tech- nically correct, at all times. In order that these terms may be understood in their proper significance,. the interpolation of a short glossary at this time would seem to be appropri- ate. In its most exact sense, a "work request" of the type prepared by the Pardee super- intendent may be described as a document prepared by an employer or his representative and specifically intended to notify some labor organization that the referral of a desig- nated individual for available employment is desired. The phrase "work order" officially .designates the dispatch or referral slip utilized by the Los Angeles Respondents, and specifically by the locals affiliated with the Los Angeles District Council, in response to ,calls for men received from various contractors in the area . Such referral slips may occa- LOCAL NO. 1400 163 United Brotherhood's Alaskan local, refused to give Dockery and the complainant work orders to present at the Pacific Palisades project. When queried as to the reason for the refusal, Savage advised the men that they would have to secure temporary working cards from the Los Angeles District Council before they could "go to work" within the local's jurisdiction. Dowdall and Dockery then left.23 Dowdall and Dockery, I find, proceeded at once to the Los Angeles labor temple where they entered an office pointed out to them as that of the Los Angeles District Council. There they displayed their paidup Carpenters' union dues books and re- quested temporary working cards. The cards were prepared by an office employee; before the men received them, however, each was asked to pay a $3 fee. The fees were paid. (The fees, I find, were equivalent to the monthly dues then payable, throughout Los Angeles County, by union members affiliated with locals under the Los Angeles District Council's jurisdiction. In common parlance, the record shows, fees of the indicated type, when levied by a district council, are frequently designated as "foreign dues" payable by members of the United Brotherhood with some other local affiliation who have not "cleared" into a local within the territorial jurisdiction of the district council involved.) The men then received temporary working cards dated December 3, 1953, and receipts for their fees as paid. Each card bore a January 3, 1954, expira- tion date. Dowdall's-the only one received in evidence-bore the typewritten name of E. E. Thomas, the District Council secretary. The Respondent Unions vigorously challenge the testimony of Dowdall and Dockery with respect to their visit to the District Council office; they contend that the record fails to establish such a visit or the performance of any act at the labor temple legally attributable to the District Council or its accredited representatives. No evidence calculated to rebut that given by, Dockery and the complainant was offered, however. In the light of their testimony with its wealth of circumstantial detail, and particularly on the basis of the documents they received, I have found that they did visit the labor temple office of the Los Angeles County District Council of Car- penters, and that temporary working cards-of a type regularly issued by that organ- ization-were issued to them there. Any contention implicit in the argument of the Respondent Unions, with respect to the alleged insufficiency of the evidence to estab- lish action attributable to the Respondent District Council, must be rejected. sionally be designated, apparently, as "clearances" to employment. In its most exact sense, however, a "clearance" may be taken to represent the form or procedure used by union members to accomplish the transfer of their membership from one Carpenters' union local to another. The term "permit" would seem to be one used, in common pailanee, to designate the document issued by a Carpenters' union local or district council to authorize -the utilization of various union facilities or services by individuals lacking a membership affiliation with the particular local or district council involved; this document, hoitever, is designated as a "temporary working card" officially, and whenever such a designation may be necessary in order to avoid confusion it will be so designated in this report a3 As witnesses, Dockery and the complainant gave divergent testimony with respect to the course of their conversation with the union dispatcher on this occasion. Dowdall's testimony would indicate that he and Dockery were told, affirmatively, that they would be sent to the Pardee job upon their return to the hall with temporary working cards issued at the District Council office. Dockery, however, testified that Savage had refer red to an order by Business Representative O'Hare that no work requests from contractors should be honored. Also, according to Dockery, Savage had voiced an objection to the fact that he and Dowdall had come down from Alaska with an expectation of immediate referral to available employment on the basis of a "work request" prepared by their prospective employer. In the light of the available evidence there would seem to be a question as to whether Savage told Dowall and Dockery, in the course of this initial con- versation, that they would have to register for employment on the Union's "Out-of-Work" list and await their turn with respect to an employment referral under established pro- cedures, after the issuance of their temporary working cards. I find that he did not. Upon the entire record, including the union dispatcher's testimony, I am satisfied that Savage did express disapproval of the opinion apparently held by Dowdall and Dockery that the Respondent local owed them a referral to the Pardee job immediately, despite their recent arrival from the North, on the basis of Lancaster's work request. I am further satisfied that he told Dockery and the complainant, in substance, that no requests would be honored, as such The record as a whole, however, will not, in niy opinion, sustain a finding with respect to any statement by Savage that temporary working cards were no longer being issued , if any such statement was made by the dispatcher, it would ,,seem to have-been limited to a declaration that such cards were no longer being issued by locals and that they would have to be secured from the District Council's office. I so find. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shortly after noon on December 3, 1953, Dowdall and Dockery returned to Local 1400's hall with their temporary working cards. These were displayed to Union. Dispatcher Savage. The dispatcher, however, reaffirmed his inability to refer them to- the Pardee job on the basis of Lancaster's requests, and advised them that Business Representative O'Hare had expressed a desire to see them later that afternoon. Savage asked the men if they would mind the wait. They indicated acquiescence and the conversation ended. Dockery and the complainant, together with Mrs. Dockery, awaited O'Hare in the parking lot adjacent to the union hall. Upon his arrival, the men again displayed, their work requests and temporary working cards and renewed their request for a work order or referral to the Pardee job. O'Hare, in substance, refused to authorize their referral to the Pacific Palisades project on the basis of Lancaster's requests. When queried as to his reasons, O'Hare advised the men that the Union's agreement with AGC obligated employers bound thereby not to "request" anyone and to hire- "through" appropriate union halls. In connection with his remarks, O'Hare pro- vided Dowdall and Dockery with copies of a so-called "short form" contract 24 utilized by the building and construction trades councils of the 12 southern California- counties in the negotiation and execution of trade agreements with contractors not_ otherwise "signatory" to a contract negotiated for any recognized "multiple-employer" unit. Certain sections of the short-form contract, as supplied, clearly purported to establish union security and employment arrangements identical with those set forth in section II of the AGC-BC-AFL agreements. And these provisions, I find, were, in substance, called to the attention of Dowdall and Dockery to explain the- nondiscriminatory referral priorities which Local 1400, allegedly, currently en- forced. Specifically, I find O'Hare made it clear that the union no longer honored specific "requests" from contractors for individuals, even in situations like that of Dockery who had previously worked for the contractor requesting his referral. He declared that Dockery and the complainant had had no justification or excuse for their solicita- tion of employment directly at a construction project, that they had subjected them- selves to the possibility of a fine and expulsion from the Union by such action, and that Lancaster would also be subject to charges for the preparation of "requests" for- their referral.25 When queried by Dowdall and Dockery as to what they were supposed to do in order to secure employment, O'Hare referred to the local's "Out-of- Work" list and invited them to sign it. Dispatcher Savage produced the list, and Dockery and the complainant affixed their signatures 26 The names of Dowdall and Dockery, I find, appear on the third sheet of the Respondent local's "Out-of-Work" list for the December 1-8, 1953, period. In the space provided opposite each of their names for the notation of their local affiliation, the word "permit" appears; no one, 14 By its terms, the short-form contract requires signatory contractors to accept and be bound by all of the terms and conditions of the contracts currently in effect for the "multiple employer" unit, as recognized, modified, and renewed from time to time through collective bargaining by the signatory council and its affiliated local unions. 25 O'Hare testified that he told the men they were subject to a fine for going to the" Pardee project and procuring a work request before making any attempt to "clear" into some Los Angeles local or-alternatively-securing a temporary working card from the- District Council office. The business representative's testimony in this connection, how- ever, was not corroborated by that of the local dispatcher. I credit the testimony offered' by the General Counsel, as summarized. The list, I find, consisted of several printed pages, each designated as an "Out-of- Work" sheet. The lines on each page were numbered, and space on each line was pro- vided for the unemployed applicant's name, his telephone number, local affiliation, and a designation of the type of work for which he considered himself qualified. The list con- tained no space, however, for the designation of any signatory's last employer or the date- of his termination; nor did it permit the designation of signatories employed by con- tractors within any "multiple-employer" bargaining unit, in the Respondent local's juris- dictional area, during the previous 10 years. Under the bylaws and trade rules of the District Council, unemployed carpenters affiliated with other Los Angeles County locals of the United Brotherhood were free to sign the "Out-of-Work" list of the Respondent local, or that of any other local under the Los Angeles District Council's jurisdiction, upon terms and conditions identical with those applicable to the membership of the local main- taining such a list. And the record indicates that many unemployed carpenters with membership in some Lo`s Angeles County local do, routinely, register for work at locals other than their own ; hence the requirement that a local affiliation be listed in connection with such registration. LOCAL NO. 1400 165 ,however, could recall the identity of the individual or individuals who made the sentries. ' The men were told that they would have to wait to be "called" from the list when their names were reached . Nothing more was said, however, with respect to the manner in which the list would be utilized by the dispatcher , the length of time for which it would be valid, or the procedure which Dockery and the complainant would have to follow in order to maintain their eligibility for referral 27 The record, it is true, reveals a conflict in this connection-primarily on the basis of Savage's testimony-as to whether Dowdall and Dockery were informed of the fact that they would have to be in the hall when the union dispatcher reached their names, in order to receive a job referral, and likewise as to whether they were told that re- registration would be required every Tuesday until they secured employment. Upon the entire record, and my observation of the witnesses , I am satisfied, as previously noted, that the men received no such instruction . O'Hare, I find, criticized Dowdall and Dockery extensively for acting on the apparent "idea" that they could go out and procure employment upon their arrival from Alaska, and then expect the ,immediate issuance of a temporary working card and a job referral by the Re- spondent local; the men were advised then , in substance, that there were unemployed members of Local 1400 who were entitled to available employment first and that they would have to await dispatch . Dowdall and Dockery testified that they were merely told, in this connection, that they would be "called" when their turn came. And I so find. In its total context, this cryptic statement could easily have been under- stood as an indication that some effort would be made to reach them by telephone-at a number shown on the list-when their names were reached in the course of the dispatcher's routine. Any such impression as to the dispatcher 's procedure would clearly have been erroneous . Upon the entire record , however, I find myself unable to say whether Savage and O 'Hare intended, actually, to mislead Dockery and the complainant by silence in this regard . The available evidence in my opinion will merely support a conclusion that the men did not receive complete explanation of the procedure followed by the Respondent local with respect to job referrals and the use of the "Out -of-Work" list. It is so found. After signing the list as in- structed, Dowdall and Dockery left the Local 1400 hall. On December 7, 1953, Dockery returned to the Pardee job where he saw J . Douglas Pardee and the superintendent . Pardee, after questioning Dockery as to his availa- bility, instructed Lancaster to "get" him out to the project, if he could . Specifically, I find Pardee instructed Lancaster to telephone Savage and to see if he could secure a referral for Dockery to the Pacific Palisades job. After Pardee left, however, Lancaster was told by Dockery of his experience at the union hall ; the employee expressed the opinion , I find , that the union was displeased about the possibility of his presence on the Pardee job and went on to declare that he did not think the matter sufficiently significant to justify an argument. Lancaster, however, reiterated his need for carpenters and declared that he would "request" Dockery's referral again. After a telephone call, he advised Dockery that O 'Hare would visit the project. The applicant, however, had no word from Lancaster and did no work on the Pardee job. Approximately 2 weeks after his last visit to the hall, Dockery returned and spoke to the dispatcher. After failing to find his name on the "Out-of-Work" list then in use, Dockery asked Savage to explain its absence . At this time, I find, he was apprised , for the first time, of the fact that Local 1400 made up a new "Out -of-Work" list every Tuesday morning at 8 a. in., and that unemployed carpenters desirous of a place on the list had to be at the hall to sign it. He signed it forthwith . There- after, he reported at the hall in search of work about twice a week. Subsequently , as of a date not specified in the record, he was offered a referral by the union dispatcher, but refused it, according to his credible testimony, because it r, The record establishes that the union dispatcher, on the basis of current requests for men sent in by various contractors, calls the "Out-of-Work" list at the hall, routinely, every morning and offers referrals to the out-of-work carpenters then present , in the order of their rank on the list, with due regard to their ability to perform the work involved as a "rough" or "finish" carpenter . List signatories called by the dispatcher but not then present in the hall-and those who refuse a job-are passed over for immediate referral, but do not lose their relative rank in connection with future calls. The list, however, is rewritten every Tuesday, presumably to keep it current. On such days carpenters still unemployed and desirous of a work referral are required to present themselves in person at the union hall and re -sign the list. A new order of individual priority for job referrals is thus established , subject to extension by the addition of newly unemployed carpenters for the balance of the week. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD involved only 2 days of roof framing work and because he had learned in the mean- time that he could refuse such temporary assignments without losing his place on the registration list. However, on January 6, 1954, Dockery received a "work order" from Savage for available employment with the Zoss Construction -Com- pany.28 Dockery's undenied and credible testimony establishes that his referral to the Zoss job came about as a result of his own efforts in search of employment. The only available evidence in this connection shows that he had visited the Zoss superin- tendent at the project, and that he had been told he would be hired. At this point; according to Dockery's credible testimony, the superintendent had said that he would "request" the employee's referral by the Respondent local. After a telephone call by the superintendent, ostensibly to Local 1400's dispatcher, Dockery was told that, it would be "OK" for him to pick up his work order. His testimony establishes that, he repaired at once to Local 1400's hall, displayed his temporary working card to Union Dispatcher Savage, picked up the order, and went to work.29 Dowdall, however, never received a call from Local 1400 with respect to available employment. Upon the available evidence, I am satisfied that he was never ad- vised of the requirement that applicants for employment had to be in the local hall when their names were called, or the fact that a new "Out-of-Work" list was being made up routinely by the dispatcher, every week, until he was so informed by Dock- ery in the course of a telephone call on or about December 12. It is so found. Dockery's employment on the Zoss project, the record shows, continued, without interruption until February 26, 1954; as of that date he resigned to prepare for his return to Alaska. His departure took place shortly thereafter. As of April 8 and 9, the District Council and Local 1400 prepared separate letters for Dockery and the complainant; the men were advised, in substance, that these Respondent labor organizations had no objection to their employment by any Pardee enterprise or any other employer. Each letter, also, went on to say that: Insofar as this labor organization is concerned your employment by any of the employers named below as receiving copies hereof may be consummated without any permission, permit, referral or any document, act, or leave, ex- press or implied, of or by this labor organization. Copies were sent to the various Pardee enterprises, the Los Angeles Building and Construction Trades Council, BCA, and the Regional Director of this Agency. In Dowdall's case, the letter postmarks show that they were mailed on April 16, 1954; their date of actual receipt, however, is not clearly established. Dockery's letters were mailed to him in care of this Agency's Regional Office; as a witness he ac- knowledged their subsequent receipt in Alaska, but the record gives no clue as to the date on which the Respondents mailed them or the day on which they were actually received. 3. The Palm Springs case Dowdall's undenied credited testimony establishes that he made approximately three trips to Palm Springs, California, in December 1953 and early in January 1954, in the course of an unsuccessful search forwork. On January 5 or 6, he reported at the Indio office of the California State Employment Service to file a claim for unemployment compensation. (The record establishes that such a claim had been initiated by Dowdall in Alaska, prior to his departure, on the basis of his 1953 Alaskan employment. His intention at the Indio office, apparently, was to revive and continue the claim.) Upon inquiry as to whether he belonged to a union, Dowdall replied affirmatively and displayed his dues book. He was advised, however, that he would have to go to some local of his Union and "sign up" for work and that the local's business agent would then give him a number; upon his return with such a number, he was told, he would be permitted to file an unem- ployment compensation claim. rs Dockery, as a witness, insisted that his work on the Zoss job began at the end of January or early in the following month. The Respondent local's carbon copy of his work, order, however, bears the January 6, 1954, date. Its authenticity has not been challenged. A letter from the Zoss Construction Company, solicited and received by the Respondent local, indicates that Dockery's employment on the company's project began on January 7. I. am satisfied, therefore, that the entry on the work order correctly reflects the date on which Dockery was referred to the Zoss Construction Company project. 20 Dockery, I find, had procured a new temporary working card, dated January 4, 1954, upon payment of the requisite fee of $4 at the District Council's office. Subsequently, the record shows that he "bought" a third, dated February 13, 1954, for the same amount. LOCAL NO. 1400 167 On January 7, 1954, Dowdall visited the Palm Springs headquarters of Local. 1046, the Respondent local herein. There, I find, he sought out Business Agent James Adams and related in detail the instructions received by him at the State em- ployment service office 30 Adams acknowledged that the complainant would have to sign an "Out-of-Work" list and receive a number in order to register for unem- ployment compensation benefits. He then asked the complainant where his mem- bership book was deposited, and was told that it was still in the Union's Anchorage local. Adams, I find, refused, at first, to permit the complainant to sign the local's list, since he was not a local member. In the absence of any indication by Dowdall of a willingness to "clear" into Local 1046 and become a local member, despite solicitation, Adams finally agreed, however, to issue a temporary working card or "permit" to him, and to assign the necessary number; he added a caveat, as follows: you understand that you are not going to go to work on this permit here in Riverside County at all because I'm not honoring no permits. You have to clear into this local before you can go to work. Dowdall, in reply, pointed out that he had not asked Adams to send him to work. He insisted that he had only asked for a "permit" and number so that he might be enabled to draw unemployment insurance and promised, finally, that he would "take care" of his own need for employment. Dowdall categorically denied telling Adams that he was not looking for work, or that he did not expect to find work in the Palm Springs area. I credit his denials. Upon this representation, Adams prepared and signed a temporary working card for the complainant. Dowdall's name was added to a list substantially identical, in content and purpose, with the one Local 1400 used. His name was 61st on the list; Adams wrote "No. 61" on the back of his temporary Working card and "$5.00" on its face. He handed the card to Dowdall and requested $5 in payment. Dowdall surrendered this amount, took the card, and left the office. At the time of these events, it should be noted, Adams was also president of the San Bernardino and Riverside County District Council of Carpenters. The card issued by him bore that Respondent's imprint. Whether he issued the card as an officer or agent of the District Council, or in his capacity as Local 1046's business representative, thus, would seem to be immaterial; both organizations, under the cir- cumstances, must be held responsible for his conduct. Within a few days the complainant secured a promise of employment at Desert Hot Springs, California, from a contractor. While waiting for the job to begin Dowdall went to Indio to renew his unemployment compensation claim. Pursuant to instructions, he displayed his new temporary working card as evidence of his registration in 61st place on the Local 1046 "Out-of-Work" list, and reported that he had been offered employment to begin shortly. He was advised not to file a claim. Coincidently, however, he told the unemployment compensation official that Busi- ness Representative Adams had said that he would be unable to secure a work referral from the Respondent local while possessed of nothing more than a temporary work- ing card. Dowdall was advised, in substance, to inform the business representative of the Respondent local that his announced position with respect to his (Dowdall's) eligibility for a work referral was wrong. On or about January 19, 1954, when the complainant started work, he called on Roy Lee, the Respondent local's recording secretary, at his home. Dowdall in- formed Lee that he had been offered employment at Desert Hot Springs, but that he had been informed previously, by Adams, that he would be unable to secure a work order from the Respondent local while holding nothing more than a tem- porary working card. He requested Lee's advice, and was told to go ahead and work if he had, a job. Lee, I find, promised to "see" that Adams did nothing about the situation. Upon the entire record,'and my observation of the witnesses, I find Lee's alternative version of this conversation incredible. Dowdall was employed at Desert Hot Springs for about 5 weeks. Approximately 2 weeks after he started, according to his credible testimony, he encountered Busi- ness Representative Adams and 2 other union members in a Palm Springs bar. Adams asked if he was employed. Upon receiving an affirmative reply he asked why Dowdall had not come into the Union to secure a work order. Dowdall declared that the contractor had not requested him to get one and, indeed, had not 30 The complainant had been a member of Local 1046 prior to his departure for Alaska, and had worked in the Palm Springs area ; the record establishes that he was known to Adams and the other local officers, at the time of the events now under consideration, as a former local member and area worker. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked if he belonged to any union or said that he would have to have a union card in order to work . Adams, in reply, observed that Dowdall knew the "rules" of the Union and the extent of his obligations as a member . Dowdall conceded knowledge of the rules but stated that he paid no attention to them-to which Adams replied with a comment that he would probably file charges against the complainant, and fine him, for securing employment without a work order. Dowdall, according to his own testimony, conceded that Adams could prefer such charges and fine him, but insisted that the business representative would be unable to collect any fine. On or about March 1 , 1954, when his initial employment in Desert Hot Springs ended, Dowdall returned to Los Angeles. At the beginning of May, however, he returned to Palm Springs and again secured a promise of employment in nearby Desert' Hot Springs . While awaiting a call to work , Dowdall again visited Record- ing Secretary Lee of the Respondent local. Lee was informed of his prospective employment ; Dowdall then went on, however, to profess his desire to "keep straight" with the Union while at work. Lee, in the absence of Business Representative Adams, prepared a temporary working card for him dated May 3 , 1954, and received $5 in return for which he receipted by the addition of "$5.00 " on the face of the card.31 Dowdall remained at work with his new employer for approximately 2 weeks. He was not disturbed by any representative of the Respondent local. Within 2 days of the date shown on his temporary working card , however, his charges in Case No. 21-CB-600 were filed. B. Conclusions 1. The Los Angeles case It is the contention of the General Counsel in Case No. 21-CB-548 that the treat- ment accorded Dowdall and Dockery by the Respondent Unions involved unfair labor practices under Section 8 (b) (1) and (2) of the Act, as amended. In the light of the available evidence , the issues thus presented for determination may be stated, in substance, as follows: May a union contractually recognized as an exclusive source of labor supply, under agreements which provide for the establishment and maintenance of a non-discriminatory referral system presumed valid under the statute , condition the eligibility of applicants for employment to register for work and receive work orders either on their maintenance of local trade union membership within the area of the union's district council affiliation or, alternatively , on the posses- sion of a temporary working card obtainable only by the payment of a fee equivalent to the local dues payable within such a council 's territorial jusisdiction? Although relatively simple to state, this question is not easily answered . To a con- sideration of the various subsidiary questions implicit in it, we must now turn. a. The contract Under established decisional doctrine, it would seem to be patent that a labor organization cannot be said to have caused or attempted to cause an employer to discriminate against an employee, in violation of Section 8 (a) (3) of the statute, in the absence of contractual privity with the employer involved or , at the very least, some understanding pursuant to which such an employer has accepted the organization 's determination as to those permitted to work for him. In cases involving "integrated" contracts with unlawful union-security clauses, the evidence must establish the adherence of the employer and the labor organization to the agree- ment. And in the absence of such a contract, any decision that an unfair labor. practice has been committed would have to be predicated upon evidence that a discriminatory hiring arrangement existed between the union and the employer involved or, in the alternative, that the labor organization had demanded or requested discriminatory action by the employer in the premises . Local No. 63, United Brotherhood of Carpenters and Joiners of America, AFL, et al. (J. L. Wroan & Son), 106 NLRB 231. If the evidence , however, should establish the existence of >a There is a conflict in the evidence with respect to-the date of this transaction, and the place at which it occurred. Dowdall insists that it occurred at Lee's home on Sunday, May 2, 1954 ; Lee, acknowledging the possibility of such a visit , nevertheless insisted that the temporary working card had been prepared and delivered on the 3d at the Respondent local's office. Lee's recollection in this connection would seem to be more consistent with the date shown on the card . In the light of the issues posed for decision , however, I find the conflict immaterial and have made no attempt to reach a definite conclusion as to the date on which the "permit" now under consideration was received. LOCAL NO."1400 169 a "lawful contractual obligation" on the part of the employer to accept the union's determination as to the identity of those permitted to work for him, the labor organization involved could be found guilty of an unfair labor practice if the evidence established that its contractual privileges in regard to employment referral had been exercised in a discriminatory manner. Matson Navigation Company, 101 NLRB 1268, 1278; American President Lines, 101 NLRB 1417, 1429-32. These decisional principles must, necessarily, provide the major premise of the General Counsel's case. No attempt has been made, in these cases, to attack the validity of the AGC- BCA-AFL agreements. Had such an attack been attempted, I might well have been constrained to dismiss it as deficient in merit. The agreements, it is true, require employers bound by their terms to accord certain local unions with recog- nized work and area jurisdiction "first call" in connection with their employee needs; only in the event of a failure on the part of the unions to furnish needed men within 48 hours after notice may the contractors bound by the agreements procure workmen from other sources. The unions, however, are bound, reciprocally, to establish and maintain "open and non-discriminatory" employment lists for unemployed crafts- men within their respective work and area jurisdictions, and to furnish "qualified and competent" workmen to the employers as required, subject only to certain prefer- ences in referral established without reference to the membership status of the workmen involved or their lack of membership. Nonmembers employed on the basis of a union referral, or procured from other sources are, under the contracts, required to become members of an appropriate signatory union only after 30 days of employment "continuously or accumulatively" by employers contractually bound, upon terms and conditions equivalent to those applicable to any other applicants for union membership. Under established decisional doctrine, these contractual arrangements with respect to union security would seem to be unexcep- tionable. See International Longshoreman's and Warehouseman's Union, 90 NLRB 1021, 1022-1023; National Union of Marine Cooks and Stewards, 90 NLRB 1099, 1100-1102. If required to pass upon the question, at least, I would so find. In the absence of any contention, however, with respect to the legality or illegality of the agreements now under consideration, their propriety may be taken as estab- lished for all necessary purposes. The Columbus Show Case Company, 111 NLRB 206; United Brotherhood of Carpenters and Joiners of America, Local No. 1281, 109 NLRB 129, footnote 3; I. F. Sales Co., 82 NLRB 137, 1.38, footnote 6. Their status as legal agreements may be accepted, in short, as the "law" of the present cases. The existence of contractual privity under these agreements, at all material times, between the Respondent Unions and various AGC and BCA contractors has already been established. We are confronted, then, with a situation in which a union, priv- ileged by contract to require employer-acceptance of its determination as to the- identity of those permitted to work for the firms in contractual privity with it, mayor may not have exercised its responsibilities with respect to employment referrals. in a discriminatory manner. To a consideration of this question, we now proceed. b. Disparity of treatment In the discharge of its responsibilities as an employment referral agency, Local 1400, as previously noted, utilizes an "Out-of-Work" list which unemployed craftsmen seeking employment are required to sign. To this list, its dispatcher refers upon the receipt of:calls for qualified and competent workmen. Union Dispatcher Savage testified, in substance, that anyone interested in em- ployment as a carpenter was free to sign the list, and that any condition precedent to referral which the local might impose had to be met thereafter, prior to the issuance of a work order. The experience of Dowdall and Dockery at the local hall, how- ,ever, would seem to belie the dispatcher's claim. In the course of their first con- versation at the hall on December 3, as I have found elsewhere in this report, Savage made no attempt to apprize the complainant and his companion of the existence of the "Out-of-Work" list or to inform them of the Union's referral system.32 Whether or not his failure to do so reflected a deliberate attempt to mislead them with respect to the possibilities of subsequent referral pursuant to the "requests" of the Pardee superintendent need not be decided; it is only necessary to note that Dowdall' and Dockery were, in fact, given no opportunity to sign the registration list and that 88 Savage, as a witness, insisted that the list had been visible, that he had indicated it, and that Dockery and Dowdall had been told they could sign it. To the extent that his testimony implies such an invitation before the procurement of their temporary working cards, however, I find it unworthy of credit. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they were told, instead, to procure temporary working cards at the District Council office before anything further could be done. As members of the United Brotherhood- and under its constitution and laws- Dowdall and Dockery could, of course, have avoided any need to procure "per- mits" at the District Council office, or pay money for them, by a decision 'to "deposit" 'their dues books with the Respondent local, under the established clearance proce- dure, and thus -to transfer their membership from the Anchorage, Alaska, local to the Respondent organization. Such transfers of membership, under the union rules, involve no financial burden beyond the payment of current dues, first to one local'and then to the other.33 The record reveals their awareness of the possibility; Dowdall, in particular, appears to have invoked his organization's clear- ance procedure many times in the course of widespread travel as a union carpenter. The complainant and his companion, however, made no offer to "deposit" their books-nor did the Respondent local's dispatcher suggest the availability of the United Brotherhood's clearance procedure as an alternative to the procurement of a tempo- rary working card or permit . The decision of the men not to utilize' the clearance procedure, however, appears to have been motivated by significant personal 'consid- erations . Dowdall's testimony at least, which stands without contradiction in the record, establishes that he expected to return to Alaska and considered the reten- tion of his membership in the Alaskan local essential to the maintenance of his right to participate in certain union-sponsored funeral benefits; it establishes, also, that uninterrupted membership in the Alaskan local for a period of 12 months would serve to establish his right to vote in union elections. I so find. And Dockery's testimony shows that his unwillingness to "clear" into a Los Angeles local stemmed from his fixed intention to return to Alaska within 4 months. These considerations cannot be dismissed as inconsequential ; the constitution and laws of the United Brotherhood, which allow union members to elect the "clearance" procedure or the "permit" procedure according to their own fancy, cannot be said to bar them. Dowdall and Dockery, in my opinion, were entirely free to determine the course of anti"n they proposed to follow, with respect to clearance or the purchase of a permit, in their light. The Respondent Unions argue, however, that the decision of Dockery and the complainant to seek local employment after compliance with the United Brotherhood's "permit" procedure was, under the circumstances, a voluntary decision, for which they-the Respondent organizations-may not be held responsible. This argument, however, misconceives the issue presented for determination. If Dowdall and Dockery had a right of election under the constitution and laws of the Carpenters' union and its district councils, with respect to the organization's so-called "permit" procedure, the fact that they chose it in preference to the free "clearance" pro- cedure may not be held to dispose of all questions under the statute. A determina- tion must still be made as to whether the Respondent Unions were guilty of an unfair labor practice, in the face of such an election, when they conditioned the rights of these men to sign the local's "Out-of-Work" list upon the procurement of the "permits" or temporary working cards, and then, in turn, conditioned the issuance of such cards upon the payment of a fe' eouivalent to the dues customarily charged by the locals within the District Council's jurisdiction. The testimony of Business Representative O'Hare and the local dispatcher. itself, establishes that the action required of Dowdall and Dockery involved discrimination insofar as they were concerned. Members of the Respondent local and others in Los Angeles County, it is clear, are permitted to sign the Respondent local's registration list and qualify for dispatch without being required to pay any fees other than those incidental to their maintenance of current union membership.34 , Dowdall and S'+ The testimony of Business Representative O'Hare as corroborated by that of Union Dispatcher Savage, which I credit in this connection, establishes that workers already cleared out of their old local, who wish to clear into a Los Angeles County local, are 'considered eligible to register for work with the local of their choice immediately upon the "deposit" of their dues books with an appropriate local official. They may receive a temporary working card from the local's dispatcher to confirm their eligibility, at no cost, pending completion of all record changes. If appropriate clearance forms have not been executed by the secretary of their old local, their dues books must be returned for appropri- ate action ; in such cases, the record shows, they may receive temporary working cards from the local's dispatcher, free of cost, which will enable them to register for work and receive referrals through their new local while awaiting the return of their dues books and - the completion of the clearance procedure. 14 O'Hare testified, in this connection , that members of the Respondent local and other Los Angeles County locals, otherwise qualified to sign the "Out-of-Work" registration list, LOCAL NO. 1400 171 Dockery, however, as members of a "foreign" local with jurisdiction outside of Los Angeles County, were required to procure temporary working cards from the District Council and pay a fee designated as "foreign dues" in the record, in addition to their regular local dues, for the privilege of registration and referral. Clearly, they were being subjected to disparate treatment. The participation of the Respondent District Council in the discriminatory treatment of Dowdall and Dockery would seem to be patent.- Arty question as to whether the issuance of their temporary working cards was authorized by a man who answered to the name of District Council Secretary Thomas, as Dockery testified, or, alternatively, as to whether the clerk responsible .acted without actual consultation, must be dismissed as immaterial; the men were in the right place, as the record clearly shows, and they received cards with a District Council imprint from individuals functioning within the scope of their employment. In the absence of any evidence, whatever, calculated to refute that of the discriminatees, I find that the District Council, by its officers and agents, par- ticipated in the discrimination to which the complainant and his companion were subjected. The full extent of the discrimination to which they were being subjected may be seen clearly when note is taken of the local's established policy with respect to the issuance of temporary working cards to nonmembers of the Union seeking em- ployment in the trade. The Respondent local's business representative and dispatcher testified that such nonmembers would be given temporary working cards without being required to pay a fee, and that no financial burden would be laid upon them, as .a condition precedent to an "Out-of-Work" registration or a referral to available em- ployment, prior to the completion of their 30th day of employment in the trade.35 Insofar as the record shows, Dowdall and Dockery, although "paid-up" members of another union local, were not allowed any comparable period of grace within which they were considered eligible for an employment referral without the payment of a fee. The discrimination to which they were subjected, as a result, would seem to be patent. My conclusions in this regard, however, should not be taken as equivalent to a determination that deferment of the permit fee until a "foreign" local member has accumulated 30 days of employment experience, within the unit serviced by the Respondent Unions as an exclusive bargaining agency, would exculpate these organizations under the statute. In an appropriate case, such a determination might very well be made. No such situation, however, is presented here. The disparate treatment accorded Dowdall and Dockery was, I find, compounded by the failure of the local officials to advise them, after registration, that they would have to report at the hall each morning and be present at the call of their names in rotation in order to qualify for work orders; nor were they told that re- registration would be required every Tuesday until they secured employment. The testimony of Business Representative O'Hare, in both direct and cross-examination, omits any reference to such instructions; Dowdall and Dockery testified credibly, as previously noted, that they received none. Such a willful or negligent failure to ad- vise the complainant and his companion of the procedure they would have to follow in order to maintain their eligibility for a work referral could reasonably be expected to result in the loss or forfeiture of their employment opportunities-and the fact that such a loss or forfeiture actually did occur would seem to be clear.36 Under the may be debarred from a referral to available employment if unable to establish their good standing in some local under,the District Council's jurisdiction, by the production of a "quarterly working card" issued by the Council as evidence of their status No detailed evidence has been offered to establish the conditions upon which issuance of such a card might be withheld-although the bylaws of the Respondent District Council do state that union members will not be deemed "entitled" to a current quarterly working card if dues, fines, and assessments for a prior quarter, and at least 1 month's dues for the current quarter, have not been paid. Since the present cases, however, involve no refusal on the part of any Respondent local to refer a local member without such a card to available employment, it would seem unnecessary to consider whether such conduct on the part of a dispatcher might, under certain circumstances, involve an unfair labor practice 85 The testimony of Savage and O'Hare, it is true, indicates their unawareness of any occasion on which the Respondent organizations were called upon to issue a temporary working card under these circumstances. Their testimony with respect to union policy in this regard, however, stands in the record without contradiction. I find them qualified, by virtue of their positions, to testify with respect to the instructions they have received, and with respect to the union policy embodied therein. sa The record shows that three registrants , subordinate to Dockery and the complainant on the Respondent local's list, received work orders subsequent to December 3 and prior to the list's expiration date. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances, the significant omission of the indicated instructions can- only be characterized as part of the discriminatory pattern of conduct herein found. Because they lacked information, Dowdall and Dockery failed to press their demand for a refer- ral to the Pardee job under the local's established referral system. Nothing in the record suggests that such a referral , in the normal course of events, would have been impossible. Entirely aside from the Respondent local's contractually established system, the record reveals, as previously noted, that Savage, upon occasion, has issued work orders to nonpriority registrants on the basis of special "requests" received from prospective employers. Dockery's referral to the Zoss project may be taken as a case in point. At the very least, it would seem to provide support for a conclusion that the dispatcher's refusal of any similar referrals with respect to the Pardee job, even after the complainant and his companion had purchased permits, was dis- criminatorily motivated. Can it be said, however, that the action of the Respondent Unions in establishing the possession of a temporary working card, and the payment of a fee therefor, as conditions precedent to an "Out-of-Work" registration and employment referral- and thereafter in failing to make its referral services available, nondiscriminatorily, to Dowdall and Dockery-involved an attempt to cause, or did cause, any designated employer or employers to discriminate against the complainant and his companion, in violation of Section 8 (a) (3) of the statute? This question, in my opinion, must be answered in the affirmative. N. L. R. B. v. International Longshoremen's & Ware- housemen's Union, et al., Local 10, 210 F. 2d 581 (C. A. 9); Alaska Steamship Com- pany, 98 NLRB 22; Matson Navigation Company, supra; American President Lines, supra; Local 420, United Association of Journeymen and Apprentices etc., 111 NLRB 1126. To paraphrase the Trial Examiner's language in the Matson case, which the Board's decision adopted: the contract between the Union and Matson required that all . . . [em- ployees] be dispatched from the Union's- hall.. .. But the legality of such an arrangement is entirely dependent upon a nondiscriminatory dispatching practice and it fails to satisfy the requirements of the Act when discriminatory considerations come into play. . . Matson could lawfully have permitted the Union to select who should sail and who not only if the selections were made in conformance with the guarantees of the Act. By acquiescing in the Union's determination that Boatwright bey deprived of his job Matson imposed a test of union membership or good standing or favor which the Act does not permit and thus encouraged membership or good standing in the Union in violation of Section 8 (a) (3) of the Act. Although no employer respondent is now before this Agency, Pardee, in the light of the available evidence, would certainly have been vulnerable. Its deference to the determination of the Respondent Unions that Dowdall and Dockery could not qualify for registration and referral without the payment of a "permit" fee not re- quired of union members with a derivative Los Angeles District Council affiliation, and allegedly not required of nonmembers, clearly involved discrimination cal- culated to encourage membership in Local 1400 or "good standing" with the Re- spondent organizations. And, the determination of the Respondent Unions, noted, must be characterized, in turn, as ,the "effective cause" of the discrimination thus. chargeable to the partnership. The Respondent Unions argue that such a conclusion ought to be rejected, at the outset, on the ground that neither Dowdall nor Dockery was an "employee" within the statutory definition. This contention is clearly deficient in merit. N. L. R. B. v. George D. Auchter Co., 209 F. 2d 273 (C. A. 5), and cases cited therein. It is also argued that neither of the Respondent organizations had any "con- tact" with Pardee which caused the latter to refuse employment to the complainant and his companion. The contractual privity between them, however, clearly sufficed' to establish the necessary contact. For various reasons already noted at length, it is found that their reciprocal commitments in regard to employment and referral, under the BCA-AFL agreement, effectively established the nexus by which the conduct attributable to the Respondents caused Pardee to discriminate. The testimony of Dowdall and Dockery with respect to their receipt of an em ployment offer at the Pardee project is attacked by the Respondent Unions as un- corroborated hearsay. Upon the record, however, the challenged testimony can only be characterized as a "report" with respect to certain statements and conduct attributable to the Pardee superintendent; it was neither offered nor treated as evidence tending to establish the truth of any statements he made. The contention LOCAL NO. 1400 173 that such testimony ought to be disregarded as objectionable hearsay must , there- fore, be rejected . It might of course be argued , as the Respondent Unions inferen- tially suggest, that the General Counsel 's failure to produce any Pardee representa- tive for the purpose of corroboration warrants suspicion of the testimony actually offered, and impairs its probative value. Such a contention , however, would raise no hearsay issue. The testimony of Dockery and the complainant , in this con- nection, was not successfully shaken in cross-examination. It has not otherwise been subjected to attack . Upon the entire record , and my observations , I have been con- vinced of their credibility, generally. I find the absence of corroboration for their testimony, therefore, immaterial. The Respondent organizations also question their obligation to refer anyone to available employment on the basis of an unauthenticated request . Their question, however, misconceives the issue . The Respondent Unions are not under attack in this case-if I apprehend the General Counsel 's contention correctly-for an un- complicated refusal to refer the discriminatees to the Pardee job; their conduct is challenged as an unfair labor practice , initially, because it involved the imposition of a discriminatory fee requirement, applicable only to union members affiliated with a "foreign" local, as a condition precedent to the effective utilization of a supposedly nondiscriminatory referral system. The available evidence , also, would seem to provide sufficient justification for a conclusion that the Respondent local's "Out-of- Work" list has not actually been administered in a manner calculated to give effect to all of the preferences in referral which the master labor agreements define. This deficiency in the referral procedure , however, would seem to involve nothing more than a contract violation; in the absence of evidence sufficient to indicate that the failure of any union dispatcher to effectuate contractual priorities in referral neces- sarily caused employer discrimination calculated to encourage or discourage union membership, I find consideration of the question unnecessary. It is also argued that Local 1400's dispatcher followed a practice consistent with the "context" of the modified agreements dictated by the Board 's Regional Director and his legal adviser. This contention, too, misconceives the issue . Even if it could be assumed for the sake of argument that the Regional Director's participation in the preparation of a revised "union recognition" clause for the master labor agree- ments could be characterized as "dictation" as the Respondent Unions claim, the fact remains that the Respondent organizations are not under attack here for their adherence to any practice established pursuant to such a clause ; the conduct herein found to constitute an unfair labor practice involves union action dehors the agree- ments, calculated to condition referrals to available work upon an applicant's com- pliance with certain internal union regulations . Cf. N. L. R. B. v. Radio Officers' Union, et al., 347 U. S. 17. The contractually established referral system admin- istered by the Unions' privy to the AGC-BCA-AFL agreements may not be so utilized. In their answer the Respondent Unions present a number of so-called "affirmative" defenses. Several of these have already been considered and rejected 37 A conten- tion that the complaint in Case No. 21-CB-548 must be dismissed under Section 10 (b) of the statute, since no charge with respect to the acts therein cited had been filed within 6 months after their occurrence , although offered , has not been urged. I find it, in any event, to be without merit . N. L. R. B . v. Gaynor News Company, Inc., 197 F. 2d 719, 721 (C. A. 2); N. L. R. B. v. United States Gypsum Company, 206 F. 2d 410, 411 , 412 (C. A. 5). Radio Officers' Union, etc. v. N. L. R. B., 347 U. S. 17, footnote 30. Dowdall's charges-all of them-were clearly filed within the statutory limitation period . And the designation of Dockery in the complaint, as a discriminatee, could not be characterized upon the present record as statutorily proscribed. The Respondent Unions , finally,,argue that the entire situation revealed by the evi- dence reflects a "conspiracy" on the part of Dowdall and Dockery ; it is argued that their alleged search for employment at the Pardee project and their alleged referral request, addressed to the Respondent organizations , were feigned, fraudulent, and made pursuant to a scheme to intimidate , coerce, malign, and defraud the District Council and the local. 87 The contention that Section 8 (b) (1) and (2) are unconstitutional, not previously treated, may be rejected out of band. N. L. R. B. v. National Maritime Union of America, 175 F. 2d 686, 691-692 (C. A. 2) ; International Union, United Mine Workers of America .and John L. Lewis v. N. L. R. B., 184 F. 2d 392, 393 (C. A., D. C ). Cf. Radio Officers' Union, etc. v. N. L. It. B., supra. Absent a substantial issue not already presented for Agency consideration or judicial determination, the contention would seem to have been surplusage. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In this connection , considerable evidence was adduced tending to show that Dockery, at least, may have had information, prior to his visit to Local 1400's hall, with respect to the procedure he would have to follow in order to get a work order if he did not choose to deposit his dues book and "clear " into the local as a mem- ber. Evidence was also offered to establish that Dowdall , on several occasions, may have discussed his case against the Alaskan local, then under submission, with various union members . The Respondent organizations would apparently argue that Dock- ery's request for a work order, prior to any election on his part with respect to the deposit of his dues book or the acquistion of a temporary working card, must have been made in bad faith, in view of his supposed knowledge with respect to the . requirements of the Respondent local in that connection . And, with respect to Dowdall, the Respondents would seem to be relying upon a contention that his statements about the Alaskan case, and the back pay he expected to derive from it, reveal the absence of any intention on his part to engage in a genuine search for employment. I find these contentions , however, deficient in merit. Dockery, as a witness, did concede his antecedent knowledge that clearance into, a particular local, under generally applicable union rules, would eliminate any need for the worker "cleared" to procure a temporary working card in order to work within the local's jurisdiction ; he also conceded a conversation with a Local 1400 trustee, prior to December 2, in the course of which he was expressly advised that, absent clearance, he would have to get a temporary working card in order to estab- lish his right to employment , free of any objection from the Respondent local, within its jurisdictional area. There is no reliable evidence, however, with respect to Dock- ery's awareness, before his visit to the local hall, that the issuance of permits had been centralized at the District Council office. He may possibly have been so informed by the local's trustee, but I am satisfied, upon the entire record , that the information did not register with him and that his conduct reflects a good -faith belief that "per- mits" were otherwise procurable. On the whole, Dockery's testimony suggests confusion with respect to the situa- tion-more persuasively, in my opinion, than it suggests craft. Having been ap- prized by the Respondent local's trustee, and possibly by a District Council repre- sentative, of the fact that he could work in the Los Angeles area without "clearance" into a Los Angeles local upon the procurement of a "permit " and the payment of "foreign dues" or a permit fee, Dockery seems to have been genuinely surprised to learn that the Respondent local's dispatcher would not or could not issue the per- mits. He appears, therefore, to have interpreted Savage's announcement that noth- ing of the sort could be done at the local level , as a categorical declaration that the "permit" procedure, set forth in the constitution of the United Brotherhood, would be unavailable to him . The record , of course, will not support any finding that Savage intended such a sweeping abrogation of his organization's established "permit" policies; after some effort at repetition he apparently was able to make it clear that the men would have to get their "permits" or temporary working cards at the District Council office, before the local's referral system could be made available to them. I so find. Nor can it justifiably be said, in the face of categorical denials, that Dockery must have been aware-before his first visit to Local 1400's hall-of the way in which its registration list were being administered ; nothing in the record suggests that the list had been discussed in Dockery's conference with the local trustee. I credit the testimony of witnesses for the Respondent local, in the absence of contradiction, to the effect that "Out-of-Work" lists of some kind were being used as a referral source by the local's dispatcher, prior to the 1953 date when Dockery left the Los Angeles area, but there is no reliable evidence that the dispatcher maintained or administered them under procedures identical with those in use at material times herein, or, indeed, that Dockery had ever been made aware, through personal experience, of the way they were used. Dockery's testimony with respect to his conversation with Savage would warrant an inference, indeed, that he really considered himself eligible for immediate referral , on the basis of an employer 's request, after procuring a tempo- rary working card and paying the required "foreign dues" or fee; there is a clear im- plication in the record that the referral system in use at Local 1400's hall and else- where under the revised master labor agreements was new to him, and strange. It is so found. I find no indication of bad faith, per se, in the fact that Dowdall and Dockery initiated their conversation with Union Dispatcher Savage by requesting a work referral rather than by querying him with respect to clearance or the procurement of a temporary working card . Nor can I find any indication of bad faith attributable to Dockery , as such, in the available evidence that it was his fixed intention, at all LOCAL. NO. 1400 175 times, to return to:Alaska in the spring. Such intentions are not necessarily in- compatible with a bona fide search for short-term construction employment. As to Dowdall, it must be acknowledged that the record does establish references to the Board's case against the Anchorage local of the United Brotherhood on several occasions. He admitted them. He also admitted some references to his charge against the Los Angeles Respondents. Other testimony, however, offered to estab- lish supposed comments on his part about the back pay he expected to receive, and his supposed intentions with respect to the derivation of income without work through the medium, in part, of back-pay claims under the statute, he has denied, insofar as the available evidence may reveal conflict in regard to Dowdall's remarks on any particular occasions. I have found his testimony with respect to them more worthy of credit. Upon the entire record, such testimony might possibly warrant a characterization of Dowdall as garrulous, and even somewhat tiresome, with respect to the exposition of grievances; it could hardly, however, warrant characterization of his conduct as flagitious. The record shows that Dowdall listed the telephone number, at which Dockery could be reached, as his own on the Respondent local's registration list, and that he did not list the number of the telephone at his temporary residence. Under all the circumstances, however, I cannot find such conduct indicative of bad faith or a lack of interest in work, especially since it is established that the Respondent local's dis- patcher did not ordinarily use the telephone to call nonpriority registrants for em- ployment; there is not the slightest evidence that the Respondent local was, in fact, misled cr prejudiced, in any way, by the conplainant's action. I find it notable also, in this regard, that Dowdall's trip to southern California had been motivated in the first instance by his child's illness; there is no indication that he undertook it to establish a claim against the Respondent organizations. The record also establishes, in the absence or contradication, that he sought work in the Palm Springs area, to which his child had been removed, during the 4-week period subsequent to Superintendent Lancaster's abortive employment offer, and that he actually did secure extended work there, later, at a time when unemployed carpen- ters in the area were "beating the desert" for employment. Such conduct on the part of an alleged discriminatee would certainly seem sufficient to rebut any contention that he was not engaged in a bona fide search for employment at the time of the discrimination charged. As the Board, itseit, has recently declared, an abuse of this Agency's process may be established only by proof of a token hiring and firing, or by proof that an applicant for employment would not have taken the job he purportedly sought, if it had been offered. The Babcock & Wilcox Company, 110 NLRB 2116. None of the evidence offered by the Respondent organizations, as I see it, rises to such a level. Dockery and Dowdall were queried at length, in cross-examination, with respect to certain alleged statements or conduct attributed to them, both before and after the events with which Case No. 21-CB-548 is concerned, which-if established-might conceivably warrant a conclusion that they had acted pursuant to a prearranged plan, consensus, or conspiracy with respect to the prosecution of unfair labor practice charges against the Respondent organizations. In substantial degree, however, the statements and conduct attributed to them were credibly denied; if not denied, they were qualified or explained sufficiently to lay suspicion at rest.- The fact that the United Brotherhood, and other unions similarly situated, may have established their fee requirements-for the issuance of permits to members with a "foreign" local affiliation-on the basis of strong policy considerations cannot, in my opinion, warrant the recognition of any equity in the present Respondents. It may very well be true-as the testimony of some of the witnesses implied-that permit fees, in the form of "foreign dues" chargeable in addition to the regular dues of a traveling union member, tend to discourage the movement of unemployed members from a labor surplus area to other areas and thus provide some measure of protection for all union members everywhere against the job competition of their migratory brethren. If such job protection is desired, union rules and regulations calculated to promote it may, of course, be promulgated-and they may, of course, be enforced by the internal sanctions available to the organization involved. See the 8 (b) (1) (A) proviso. When a union, however, attempts to condition the access of employment applicants to a contractually established, exclusive employment referral system, discriminatorily, upon compliance with a policy or regulation promulgated with-such an objective in mind, its conduct is subject to statutory pro- scription. Upon the entire record, I find that the action of the Respondent Unions in condi- tioning the rights of Dowdall and Dockery with respect to their "Out-of-Work" registration and employment referral upon the procurement of temporary working 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards and the payment of a "permit" fee for them, and the failure of these organiza- tions to advise the men named of the action they would have to take after an initial, "Out-of-Work" registration to maintain their availability for an employment referral, involved an attempt to cause, and did cause , employer discrimination against them to encourage membership in a labor organization in violation of the statute , as amended. By these acts and omissions also, I find, the Respondent Unions restrained and co- erced the complainant and his companion in the exercise of their right to refrain from joining or assisting a labor organization and their right to refrain from engaging in other concerted activities for mutual aid or protection. 2. The Palm Springs case What has been said above, would seem to dispose, in the main, of the issues which Case No. 21-CB-600 presents for determination. Business Representative Adams, in substance, imposed the same conditions precedent, with respect to Dowdall's "Out-of-Work" registration, as the Los Angeles Respondents had imposed. These conditions, on their face, would seem to have been equally calculated to encourage membership in the Palm Springs local. If the requirements of th° Riverside County Respondent Unions with respect to the procurement of a temporary working card, and the payment of a "permit" fee, had been subject to enforcement only by the im- position of "internal" union sanctions, it could have been argued, conceivably, that these requirements involved nothing more than the application of their own rules and regulations with respect to the acquisition or retention of membership. See the proviso to Section 8 (b) (1) (A) of the statute. In Case No. 21-CB-600 however, as in the Los Angeles case, the sanctions used to compel compliance with the requirements herein found to be discriminatory, relate to the Respondent local's administration of its contractually established, exclusive employment referral system. And under the statute, it is clear, any attempt on the part of a union to condition access to its "Out-of-Work" registration lists upon an applicant's satisfaction of dis- criminatory requirements calculated to encourage union membership must be con- sidered subject to interdiction. I so find. The fact that Adams, as the custodian and administrator of the local's "Out-of- Work," list, customarily issued work orders out of rotation, to any unemployed men who found their own jobs and arranged or presented personal "requests" from a con- tractor, cannot be construed to vitiate this conclusion. The available evidence has made it entirely clear that the right to register for work and receive work orders- whether or not such orders were issued in rotation-was dependent, under the rules and practices of the Respondent Unions herein, upon membership in a San Ber- nardino or Riverside County union local, or the possession of a temporary working card. Specifically, then, the conduct attributable to Business Representative Adams- as agent of the Respondent Local 1046 and president of the Respondent District Council in the case-must be characterized as restraint and coercion of the com- plainant in connection with his exercise of rights statutorily guaranteed. And concurrently it constituted an attempt, in law, to cause employer discrimination against the complainant in violation of Section 8 (a) (3) of the Act, as amended. The Respondent Unions argue, with considerable vigor, that no violation of Sec- tion 8 (b) (2) may be found in the absence of evidence sufficient to establish that a particular employer or employers was "caused" to engage in discrimination by union action. And it is true that Section 8 (b) (2) has been held not to prohibit union discrimination independent of an employer. Pacific American Ship Owners Associ- ation, 98 NLRB 582, 587-588. Such, however, is not the case here. The temporary working card which Dowdall had to secure, and the fee which he had to pay, repre- sent discriminatory conditions imposed, at the threshold, with respect to his right to utilize the Respondent local's referral system in connection with his search for em- ployment.38 In the light of all the circumstances, the fact that he may not have had a particular promise of employment at the time, conditioned upon his satisfaction of the Union's requirement, must be considered immaterial. Under the AGC-BCA- AFL agreements, the employers contractually bound to give the Respondent Local 1046 "first call" with respect to any needed employees, would be effectively pre- vented from employing any nonmember of the Respondent local without a valid 81 The record establishes in this respect , as it did in the Los Angeles situation, that unemployed members of any 1 of the 11 locals affiliated with the San Bernardino. Riverside Counties District Council , were free to sign the Respondent local's "Out•of- Work" list upon proof of membership, free of any requirement with respect to the procure- ment of a temporary working card or the payment of a "permit" fee. LOCAL NO. 1400 177 temporary working card. That such employers were engaged in construction activity within Local 1046's territorial jurisdiction in 1953-1954 must be con- ceded. The local's present business agent so testified. The fact that all of them may not have been identified, for the record , presents no substantive difficulty and, under the facts of the present case, cannot be said to have deprived the Respondent Unions of procedural due process . They were ascertainable . Even if unnamed, therefore, their anonymity cannot bar an appropriate unfair labor practice finding. In at least one recent case-Pacific Coast Marine Firemen , Oilers, Watertenders and Wipers Association, Ind., 107 NLRB 593-a Trial Examiner refused to find that any 8 (b) (2) unfair labor practice had been committed , despite evidence as to the discrimination suffered by an employment applicant at the hands of a respond- ent union therein with respect to the administration of a contractually established, exclusive employment referral system legal on its face , in the absence of proof that the employers' association privy to the arrangement, or any of its members, knew about or condoned the union's discriminatory and improper action. His determina- tion that no Section 8 (b) (2) unfair labor practice had been committed was adopted, pro forma, in the absence of exceptions. The question of 8 (b) (2)'s applicability as a matter of law, therefore, would still seem to be open. Although my original inclination with respect to the question, as given expression in the course of the General Counsel's presentation, would appear to have been in accord with that of my fellow Trial Examiner, I am now convinced of the propriety of an 8 (b) (2) finding in this case. Action at a union hall which effectively forestalls a registration for work, or the referral of particular employment applicants to any employer in contractual privity with a labor organization , except upon discriminatory terms and conditions, necessarily causes or involves an attempt to cause such an employer to deny available employment to the applicants, unless such terms and conditions are met. If such applicants have, in fact, sought employment directly without satisfying the conditions called into question, their rejection by the employer would, of course, be readily provable. American President Lines, supra; Matson Navigation Company, supra. I find myself however, unable to distinguish, as a matter of law, between such a case and one in which the rejection of an applicant by any one of a number of asceitainable employers, because of his failure to meet a condition precedent to referral improperly imposed, may justifiably be considered probable. It the referral system established by a contract is to be considered lawful, this Agency cannot assume that employers bound to observe its limitations on their right to hire will not do so. The Respondent Unions argue that Dowdall's request for a registration number at the local hall had no relationship to a desire for employment on his part but was related, instead, to his desire to obtain unemployment compensation. Dowdall in fact, as a witness, conceded as much. The fact, however, that he may have had no immediate intention to seek an employment referral through the Union's agency, cannot absolve it of statutory liability if, in fact, the requirements imposed upon hin in connection with such registration involved an attempt to foreclose his employment by employers contractually bound to utilize the Respondent local's referral system, absent his satisfaction of discriminatory conditions calculated to encourage member- ship in the local union or adherence to the bylaws of the District Council involved. The further fact that Dowdall subsequently secured employment independently of the Respondent local, and retained it without interference, must likewise be charac- terized as insufficient to vitiate the conclusions herein set forth. At the time of his registration, Dowdall had received effective notice that his procurement of a tempo- rary working card would be insufficient to establish his eligibility for a referral to available employment through the local, in view of the widespread unemployment of its members . And there is not the slightest indication in the record that Business Agent Adams, as- an official of the Respondent local, lacked the will or capacity to make his declared policy effective, at least in connection with referrals to any contractor bound by the AGC-BCA-AFL agreements. The fact, therefore, that other contractors , not bound by any such agreement, might be willing to employ the complainant cannot negate the finding, herein made, that Adams had actually indicated an intent to bar Dowdall from referral to any employer using Local 1046 as an "exclusive" source of labor supply under a trade agreement. - Although the General Counsel has made no contention that the statements of Adams, in this connection, involved an independent 8 (b) (1) (A) violation, the facts as found would certainly warrant such a conclusion. In any event, the remarks attributable to Adams will certainly provide additional support for the conclusion, set forth elsewhere in this report , that the treatment to which the com- plainant was subjected by Adams, as an agent of each Respondent organization, 390 609--5 f i-col. 115-13 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD involved an attempt to cause employer discrimination against him for an objective statutorily proscribed. Upon the entire record, I find that the Respondent Unions-by requiring the com- plainant to procure a temporary working card and pay a fee , as a condition precedent to his "Out-of-Work" registration , and by advising him that he would be unable to qualify for an employment referral absent "clearance" into the Respondent local- restrained and coerced him in his exercise of rights statutorily guaranteed, and attempted to cause employer discrimination against him to encourage membership in the Respondent local, all in violation of the statutory provisions in such case made and provided. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Unions set forth in section IV, above, which occurred in connection with the operations of various AGC and BCA members described in section 1, above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Since it has been found that the Respondent Unions have engaged in unfair labor practices, it will be recommended that each of them cease and desist therefrom and take certain affirmative action, including the posting and distribution of appropriate notices, designed to effectuate the policies of the Act. Specifically, since it has been found that the Respondent Unions, in each case presented for decision, discriminatorily conditioned the rights of Dowdall and Dockery, or Dowdall alone, with respect to registration for work and eligibility for referral upon their procurement of temporary working cards, and the payment of a fee, it will be recommended that they jointly and severally make these employees whole for the losses immediately suffered by them as a result of the discrimination found. Among other things, it will be recommended that the Los Angeles Respondent Unions, in making Dowdall and Dockery whole, return to them any fees paid to the Respondent Los Angeles District Council in order to obtain temporary working cards. And a similar recommendation, with respect to Dowdall alone, will be made to the Palm Springs Respondents. The fact that the "permit" fees involved may have been assessed pursuant to the constitution and bylaws of the United Brother- hood and its subordinate organizations must be dismissed as immaterial; when the sanction used to compel such payments, herein found to be discriminatory, involves the foreclosure of a union member from any opportunity to register for work or qualify for an employment referral under an "exclusive agency" trade agreement, internal union regulations and established practice must bow to the national labor policy. As the Board expressed it in The Eclipse Lumber Company, 95 NLRB 464, 475, in discussing the remedial action therein found appropriate: Although these employees may have been legally obligated as a.matter of contract liability or as an incident of membership to pay the back dues and fines involved, the Union resorted to conduct unlawful under the Act as 4 means of collection. We believe that it will effectuate the policies of the Act to remedy such unfair labor practice by requiring the Union to reimburse the employees, as urged by the General Counsel, and to cease and desist from such unlawful conduct in the future. [Emphasis supplied.] See also Local 420, United Association of Journeymen and Apprentices, etc., 111 NLRB 1126, in which the Board ordered employees made whole for the cost of the permits required of them as a condition of employment with the specific employer there involved. In the Los Angeles case, the failure of Local 1400's dispatcher and its business representative to advise the complainant and Dockery of the course of conduct they would be required to adopt in order to insure their availability for a work referral has been held contributory to their failure to secure employment at the Pardee project. And since the ignorance of the discriminatees with respect to the action required of them can only be attributed to the malfeasance or negligence of the union agents, it would be inequitable in the highest degree to hold them scatheless for it. The failure of the union agents, in short, to advise Dowdall and Dockery of the procedure required of them in connection with the effective maintenance of their registration, whether deliberate or not, clearly constituted an integral part of the discrimination otherwise attributable to the Respondent Unions, and con- tributed to its effectiveness; I find the Respondent organizations, therefore, estopped to deny that I)owdall and Dockery would have been able to qualify, under Local LOCAL NO. 1400 179 1400's established referral system, for an immediate work order directing them to the Pardee project. In reaching this conclusion, I have found it unnecessary to determine whether a contractually established, nondiscriminatory, referral system may nevertheless be illegal when relied upon as a bar to direct applications for employment by anyone impatient with the principle of job rotation. I have found it sufficient to note the possibility, which I find the Respondent Unions estopped to deny, that Dowdall and Dockery, if properly advised as to the respondent local's procedure, might have qualified for dispatch to the Pardee job under the local's referral system, before the partnership's need for carpenters had been satisfied-and the further fact, established by Dockery's undenied testimony, that referrals to avail- able employment under the local's system have in fact been made by Union Dispatcher Savage, upon occasion, without regard to the rotational principle, and on the basis of specific "requests" received from job superintendents. It will be recommended, therefore, that the Respondent Unions in the Los Angeles case, jointly and severally, make whole Dowdall and Dockery for the losses of pay herein found due to the discrimination which they suffered. Since the record establishes that these Respondent Unions have, by letter, advised Pardee, BCA, and the discriminatees that they-the Respondent organizations-have no objection to the employment of the complainant and his codiscriminatee by any employer, and that their employment by any employer may be consummated without any permission, permit, referral, or any other document, act, or leave, express or implied on the part of the Respondent organizations, I find their liability to make the discriminatees whole terminated thereby. In the case of the complainant, the liability of the Los Angeles Respondents should be considered terminated 5 days after the date on which their respective letters were mailed. The Englander Company, Inc., 108 NLRB 38, overruled in R. Clinton Construction Company, 109 NLRB 73, in respect to an issue not involved in the present cases With respect to Dockery, however, the letters would seem to have been without significance as of the date on which they were sent, since the record establishes that he-the discriminatee-had already left the area and was no longer available for Los Angeles employment. In his case, therefore, the liability of the Los Angeles Respondent Unions for pay losses should, equitably, be considered terminated as of the date on which he relinquished Los Angeles employment in preparation for his Alaskan trip. Jarka Corporation of Philadelphia (Local 1291, International Longshoremen's Association), 94 NLRB 320, 327. The complainant and Dockery, then, should be made whole by the payment to each of a sum of money equal to the amount which they normally would have earned as wages, from the date of the discrimination practiced against them at Local 1400's hall to the dates previously indicated, with respect to each dis- criminatee, on which the Respondent Unions became absolved of liability. From any sums due in accordance with this recommendation, there should be deducted the net earnings of each discriminatee during such period. Crossett Lumber Com- pany, 8 NLRB 440, 497-498. The pay losses for which it is recommended that the discriminatees be made whole should be computed on a quarterly basis in the man- ner established recently by the Board in its Woolworth decision. F. W. Woolworth Company, 90 NLRB 289, 291-294; N. L. R. B. v. Seven-Up Bottling Company of Miami, Inc., 344 U. S. 344. In the Palm Springs case, there being no indication that the discrimination practiced at Local 1046's hall affected the prospects of the complainant in regard to specific available employment, my recommendations with respect to reimbursement for his losses will be limited to a recommendation that he be reimbursed for the fees paid by him to the Respondent District Council for the issuance of temporary working cards. With respect to the notices previously mentioned it will be recommended, initially, that Respondents Local 1400 and Local 1046 each post copies of the appropriate notice at their business offices and meeting halls in Los Angeles and Palm Springs, California, respectively. With respect to the Respondent District Councils, however, certain additional considerations warrant discussion. The record establishes that the discrimination suffered by Dowdall and Dockery as a result of the "permit" fee re- quirements discussed above reflect a general practice based upon the constitution and bylaws of the Carpenters' union and the Respondent District Councils herein. And since adherence to the practice herein found to be discriminatory would, of necessity, be general throughout the territorial jurisdiction of each Respondent District Council, effective administration of the statute and achievement of its remedial purpose would seem to require the geographical extension of any necessary cease and desist order to protect employees and applicants for employment through other locals than those involved in the present cases. In a recent case-International 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Local 179, 110 NLRB 287-the Board found that: The unlawful conduct found herein did not occur under unique circum- stances which are unlikely to reoccur. The Trial Examiner found that the discrimination herein resulted from two practices followed by the Respond- ents. . These practices do not necessarily entail a resort to methods pro- scribed by the Act. But as Respondents resorted to such methods in this in- stance to enforce their working rules, we think it only reasonable to anticipate their use of similar tactics for the same purpose against employees of other employers who are parties to Respondents' "Articles Of Construction Agree- ment." And this inference, we believe, meets the prerequisite established by the court in Express Publishing for the issuance of a broad order enjoining such conduct. . . . Because we believe that to effectuate the purposes of the Act it is necessary here to issue a remedial order which is co-extensive with the future violations which are to be reasonably anticipated, we shall issue a cease and desist order enjoining Respondents from committing this and similar viola- tions against employees of any other employer within Local 179's jurisdiction. Compare, also, Jarka Corporation of Philadelphia (Local 1291, International Long- shoremen's Association), 94 NLRB 320, 327; N. L. R. B. v. The Luminus Company, 210 F. 2d 377 (C. A. 5), enfg. 101 NLRB 1628, as modified. In conformity with the principle thus explicated, it will be recommended that the Respondent Dis- trict Councils each post copies of the appropriate notice in their business offices, and that they require the posting of similar notices at the business offices and meet- ing halls of every Carpenters' union local affiliated with them in Los Angeles, San Bernardino, and Riverside Counties, respectively. In order to publicize adequately to employers and employees, including nonmem- bers of the Respondent Unions, the fact that they will cease and desist from the practices herein found to be discriminatory, it will be recommended that the Re- spondent District Councils each publish a notice of their intentions in this respect in some newspaper of general circulation within their respective territorial jurisdic- tions. Local 420, United Association of Journeymen and Apprentices of the Plumb- ing and Pipefitting Industry, et at., supra. The appropriate notices required should, of course, be submitted for printing by each Respondent organization at its own ex- pense. Upon these findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Pardee Construction Company, and various other business entities hold- ing membership in Associated General Contractors, Southern California Chapter, and Building Contractors Association of California, Inc., and privy to collective- bargaining contracts negotiated in their behalf by representatives of these trade asso- ciations, with various building and construction trades unions, are employers with- in the meaning of Section 2 (2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Local No. 1400, United Brotherhood of Carpenters and Joiners of America, AFL and Los Angeles County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL, and Local 1046, United Brotherhood of Carpenters and Joiners of America, AFL and San Bernardino and Riverside Counties District Council of Carpenters, are labor organizations within the mean- ing of Section 2 (5) of the Act. 3. By their restraint and coercion of employees in the exercise of certain rights guaranteed in Section 7 of the Act, the Respondent Unions have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. By attempting to cause and causing Pardee Construction Company and other employers to discriminate against employees or applicants for employment, and thus to commit an unfair labor practice within the meaning of Section 8 (a) (3) of the Act, the Respondent Unions have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. These unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.]