Alexander-Stafford Corp.

ALEXANDER-STAFFORD CORPORATION 79 Alexander-Stafford Corporation and Robert Eley and The Master Insulators Association ,' Party to the Contract and Interna- tional Association of Heat & Frost Insulators & Asbestos Workers, Local 47, AFL-CIO and International Association of Heat & Frost Insulators & Asbestos Workers, AFL-CIO,' Parties to the Contract The Master Insulators Association and Robert Eley and Interna- tional Association of Heat & Frost Insulators & Asbestos Workers, Local 47, AFL-CIO and International Association of Heat & Frost Insulators & Asbestos Workers, AFL-CIO, Parties to the Contract and Alexander-Stafford Corporation, Party to the Contract International Association of Heat & Frost Insulators & Asbestos Workers, Local 47, AFL-CIO and International Association of Heat & Frost Insulators & Asbestos Workers, AFL-CIO and Robert Eley and The Master Insulators Association, Party to the Contract and Alexander-Stafford Corporation, Party to the Contract. Cases Nos. 7-CA-1197, 7-CA-1198, and 7-OB-237. June 7,1957 DECISION AND ORDER On December 9, 1955, Trial Examiner Alba B. Martin issued his Intermediate Report in the above-entitled proceeding, finding that Respondents Alexander-Stafford Corporation and The Master Insula- tors Association, herein referred to as Alexander-Stafford and Associa- tion, respectively, had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, and that Respondent International Association of Heat & Frost In- sulators & Asbestos Workers, Local 47, AFL-CIO, hereinafter re- ferred to as Local 47, had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act, and recommending that said Respondents cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that Respondent International Association of Heat & Frost Insula- tors & Asbestos Workers, AFL-CIO, hereinafter referred to as Inter- national, had not engaged in unfair labor practices within the meaning of the Act and recommended that the complaint against it be dismissed. Thereafter Respondents Alexander-Stafford and Association filed ex- ceptions and supporting briefs to certain portions of the Trial Ex- 1 This is the correct name of the Association as it appears in the Association 's articles of incorporation. 2 The AFL and CIO having merged subsequent to the hearing in this proceeding, we are amending the identification of the Union accordingly. 118 NLRB No. 14. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aminer's recommended order; the General Counsel filed exceptions to the Trial Examiner's Intermediate Report, and Respondent Inter- national filed a brief in support of the Trial Examiner's Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudical error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner insofar as they are consistent with this Decision and Order. Contrary to the Trial Examiner, we find that the International is jointly responsible with Local 47 for the negotiation, interpretation, administration, and enforcement of the unlawful provisions of the contracts, including their enforcement against Robert Eley. We are convinced, upon examination of the provisions of the Inter- national's constitution and bylaws, and the International Joint Trade Agreement, that in the performance of its collective-bargaining func- tions, Local 47 is not a free agent with complete autonomy to conclude negotiations independently of the International's control. As a "sub- ordinate branch" of the International, Local 47 is required to "work under" the International Joint Trade Agreement, as adopted by the International in convention assembled, and accordingly, in its negotia- tions with the Association, it was compelled to gain the latter's ac- ceptance of the International Joint Trade Agreement as the collective- bargaining agreement governing their relationship. That agreement expressly states that its provisions are "not subject to change by a Local Union" and permits the negotiation of additional provisions only if they do not "conflict with its letter or spirit." It further states that it has been approved by the International as to form and substance and certifies that it is not in violation of the International's constitution and bylaws. Moreover, analysis of the substantive terms of the Inter- national Joint Trade Agreement reveals that Local 47's bargaining authority was restricted largely to negotiating over wage rates, ex- pense allowances, contributions to the welfare fund, and provisions relating to the effective term of the contracts. With respect to other matters, including those governed by the unlawful clauses,' Local 47 3In absolving the International of responsibility for the unfair labor practices stem- ming from the existence of unlawful clauses in the 1953, 1954, and 1955 contracts, the Trial Examiner relied, in part, on his conclusion that "the clauses found above to be unlawful on their face, because they discriminated in favor of Local 47 members over nonmembers in conditions of employment, were contained in the supplemental agree- ments not supplied by the International and for which the International Union could not in any case be held responsible ." Article IX, however, does appear in the International Joint Trade Agreement. Moreover, in each of the contracts in issue , article IX contains a typewritten notation referring to the supplemental agreement , which can only be a ref- erence to paragraphs 1, 2, 3, 4, and 6, which are elaborations on the provisions of article IX and which, in accordance with the provisions of the International Joint Trade Agree- ALEXANDER-STAFFORD CORPORATION 81 was required to accept the provisions of the International Joint Trade Agreement. Under all the circumstances, we find that the contracts involved herein were the product of the International's insistence that Local 47 "work under" the International Joint Trade Agreement, the pro- visions of which were not subject to change, and were not changed by Local 47. In negotiating the contracts in accordance with the re- strictions and conditions imposed by the International, it is clear that Local 47 was acting as the agent of the International, and that its unlawful conduct in this regard is imputable to the International, and we so find .4 Moreover, we find that by adopting the International Joint Trade Agreement in convention, and by requiring Local 47 to "work under" it, thus compelling Local 47 to gain the Association's acceptance of it in collective-bargaining negotiations, the International participated in the negotiation of the unlawful contracts, notwithstanding the fact that its representatives were not physically present at the negotiation meetings.' In insisting that Local 47 negotiate on the basis of such agreements, the International necessarily contemplated that Local 47 would interpret and administer the terms thereof in accordance with the intent of the International when it adopted them. The International therefore stands at least as a cosponsor of the provi- sions of the contract and the practices occurring under them. Such cosponsorship carries with it the responsibility of a joint participant in a common enterprise for the acts performed in furtherance of the enterprise by the other participant of the enterprises. Accordingly, although the evidence does not show that the International was ac- tively associated with the events leading to the discrimination against Robert Eley, caused by Local 47, or with Local 47's interpretation, administration, and enforcement of the contracts generally, we find that because of its participation. in a common enterprise with Local. 47, the latter's conduct becomes, the liability of the International.' As the International is therefore responsible for Local 47's negotiation of the 1954 and 1955 contracts, and for the interpretation, adminis- ment, are in accord with the spirit of article IX, in that the additional expenses provided are provided only for members of Local 47. Accordingly, it makes 110 difference, insofar as the responsibility of the International is concerned, that they appear in the supplemental agreement. Finally, the Trial Examiner did not take into consideration the fact that article VII, which he found to be unlawful in that it provided for a preferential hiring ar- rangement which required membership in or referral from Local 47 as a condition of employment with Alexander-Stafford and other members of the Association, appears in the International Joint Trade Agreement. 4 See Bay Counties District Council of Carpenters and Joiners of America, AFL-CIO, 117 NLRB 958. 5 See Chicago Typographical Union No. 16, 80 NLRB 1041, enfd. 193 F. 2d 782 (C. A. 7), cert. denied 344 U. S. 812. 6 George D. Auchter Company, 102 NLRB 881., 883; P. F. Shuck Construction Co. Inc., 114 NLRB 727, 729. 450553-58-vol. 118-7 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tration, and enforcement of the 1953, 1954, and 1955 contracts gen- erally, and for the discrimination against Robert Eley, caused by Local 47, we find that by these acts the International violated Section 8 (b) (2) and (1) (A) of the Act. THE REMEDY Having found that the Respondents engaged in the unfair labor practices set forth above, we shall order that they cease and desist therefrom and that they take certain affrmative action designed to effectuate the policies of the Act. The Trial Examiner, though finding that article IX and para- graphs 1, 2, 3, 4, and 6 of the contracts in issue were unlawful on their face and should be corrected, did not include in his recommended order a provision designed to accomplish that end. We shall order the Respondents to cease and desist from continuing such provisions in their existing and future contracts. - Respondents Alexander-Stafford and Association except to the cease and desist order recommended against them as being too broad in scope. We find no merit in their exceptions, and accordingly, as the Trial Examiner's recommendations in this regard accord with our usual policies in cases such as this,' we shall issue a broad cease-and- desist order against all Respondents. Respondent Alexander-Stafford also excepts to the provision in the Trial Examiner's recommended order that it publish a notice in all newspapers in the communities in western Michigan where it has employed mechanics or improvers during the last 3 years. As acknowl- edged by Respondent Alexander-Stafford, publication is a reasonable extension of the posting requirements in order to insure adequate notice.8 As Respondent's operations are carried on at different job sites for relatively short lengths of time at any particular job site, there is no assurance that posting of notices at current job sites, as suggested by Respondent, will cover the entire area in which Respond- ent operates. The requirement of publication in all of the cities of western Michigan in which Respondent Alexander-Stafford has em- ployed mechanics or improvers during the last 3 years should insure notice to all interested persons in the area of Respondent's operations,. that it has discontinued its unlawful hiring practices.' As we have found that both Respondent Local 47 and Respondent International are responsible for the unfair labor practices found,. we shall order both to cease and desist therefrom and to take the affirmative action directed in our Order below. 7 See, for example, North East Texas Motor Lines, Inc., 109 NLRB 1147. s Frank W. Hake, James D. Hake, Glenn F. Hake t/a Frank W. Hake, 112 NLRB 1097 J. J. White, Inc., 111 NLRB 1126. 9 In so finding we reject Respondent 's interpretation of the terns "has employed" as meaning "has hired ." We use it in the sense of "has made use" of services of mechanics or improvers. ALEXANDER-STAFFORD CORPORATION 83 ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : 1. The Respondent Alexander-Stafford Corporation, Grand Rapids, Michigan, its officers, agents, successors, and assigns, shall: (a) Cease and desist from : (1) Entering into, enforcing, or otherwise continuing in effect agreements which provide for the payment of benefits to members of Local 47 without also providing for payment of such benefits to nonmembers. (2) Entering into, enforcing, or giving effect to any agreement or practice of requiring membership in or referral from Respondent Local 47 or any other labor organization as a condition of employment with it except as authorized by Section 8 (a) (3) of the Act. (3) Encouraging membership in Respondent Local 47, or any other labor organization by discriminating in regard to any term or condi- tion of employment of any employee or prospective employee because of membership in or failure to obtain membership in Respondent Local 47. (4) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. (b) Take the following affirmative action which the Board finds will effectuate the policies of the Act : (1) Offer to Robert Eley immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his. seniority and other rights and privileges previously enjoyed.10 (2) Make whole Robert Eley for any loss of pay he may have suf fered by reason of the discrimination against him in the manner set forth in the section of the Intermediate Report herein entitled "The Remedy." (3) Cause, at its expense, the notice hereto attached as Appendix A 11 to be printed in newspapers having general circulation in each of 10 Neither the correspondence leading to Eley's present term of employment beginning July 5, 1955, nor the record, established that Eley was then reinstated to his former or substantially equivalent position , without prejudice to his seniority and other rights and. privileges previously enjoyed. 11 In the event that this Order is enforced by a decree of a United States Court of Ap- peals, 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." 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the cities and towns in western Michigan in which it has employed mechanics or improvers during the last 3 years. (4) Post at its office and warehouse in Grand Rapids, Michigan, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by Respondent Company's rep- resentative, be posted by said Company immediately upon the receipt thereof, and maintained by it for sixty (60) consecutive days there- after in conspicuous places, including all places where notices to mechanics and improvers are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure that such notices are not altered, defaced, or covered by any other material. (5) Notify the Regional Director for the Seventh Region in writing, within ten ( 10) days from the date of this Order, what steps Re- spondent Company has taken to comply herewith. 2. The Respondent , The Master Insulators Association , its officers, agents, successors, and assigns, shall : (a) Cease and desist from : (1) Entering into, enforcing, or otherwise continuing in effect, agreements which provide for payment of benefits to members of Local 47, without also providing .for payment of such benefits to nonmembers. (2) Entering into, enforcing, or giving effect to any agreement or practice between itself or Alexander-Stafford Corporation or Kala- mazoo Asbestos Company or any other of its members on the one hand and Local 47 or International Association of Heat & Frost Insulators & Asbestos Workers, AFL-CIO, on the other hand, which conditions employment upon membership in or referral from said Local 47 or any other labor organization , except under a nondiscriminatory ar- rangement permitted by Section 8 (a) (3) of the Act. (3) In any other manner interfering with, restraining , or coercing employees in the exercise of the rights to self-organization , to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection , or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. (b) Take the following affirmative action which the Board finds will effectuate the policies of the Act : (1) After receiving from the Regional Director for the Seventh Region copies of the notice attached hereto marked "Appendix B,712 cause, at the expense of The Master Insulators Association , said notice 11 See footnote 11. ALEXANDER-STAFFORD CORPORATION 85 to be printed in newspapers of general circulation in Grand Rapids, Kalamazoo, Lansing, Flint, Saginaw, Jackson, and Bay City, Michigan. (2) Notify the Regional Director for the Seventh Region in writ- ing, within ten (10) days from the date of this Order, what steps Respondent The Master Insulators Association has taken to comply herewith. (3) The Respondent Local 47 and the Respondent International, their officers, representatives, agents, successors, and assigns, shall : (a) Cease and desist from : (1) Entering into, enforcing, or otherwise continuing in effect, agreements which provide for the payment of benefits to members of Local 47 without also providing for payment of such benefits to nonmembers. (2) Entering into, enforcing, or giving effect to any agreement or practice with Alexander-Stafford Corporation, Kalamazoo Asbestos Company, or any other member of The Master Insulators Associa- tion, or the Association itself, which requires membership in or referral from said Local 47 or any other labor organization as a condition of employment with any said companies, except as author- ized by Section 8 (a) (3) of the Act. (3) Causing or attempting to cause Alexander-Stafford Corpora- tion to discriminate against Robert Eley or any other employee or applicant for employment because they are not members of said Local 47, or in any manner to discriminate against them in violation of Section 8 (a) (3) of the Act. (4) In any other manner restraining or coercing employees of, or applicants for, employment with Alexander-Stafford Corporation 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 re- quiring membership in a labor oganization as a condition of employ- metnt as authorized by Section 8 (a) (3) of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (1) Notify Alexander-Stafford Corporation in writing that they withdraw all objections to the employment by Alexander-Stafford Corporation of persons who are not members of or are not referred - from said Local 47 and that it requests said Company to employ persons as asbestos workers and pipe coverers without regard to their membership or nonmembership in, or to their having or not having a referral from, Local 47 or any other labor organization. (2) Notify Alexander-Stafford Corporation in writing and send a copy to Robert Eley at his home in Grandville, Michigan, that they withdraw all objections to the employment of Robert Eley in the position he occupied prior to the discrimination against him, without 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regard to his membership or nonmembership in, or his having or not having a referral from Respondent Local 47 or any other labor organi- zation, and without prejudice to his seniority or other rights and privileges. (3) Make whole Robert Eley for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in the section herein entitled "The Remedy." (4) Cause, at their expense, the notices attached hereto marked "Ap- pendix C" 13 to be printed in newspapers of general circulation in Grand Rapids, Kalamazoo, Lansing, Flint, Jackson, Saginaw, and Bay City, Michigan. (5) Post at the Labor Temple in Lansing, Michigan, copies of the notice attached hereto marked "Appendix C." Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by representatives of Respondent Local 47 and representatives of Respondent International, be posted by said Respondents immediately upon receipt thereof, and maintained by them for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to mechanics and improvers are customarily posted. Reasonable steps shall be taken by said Re- spondents to insure that such notices are not altered, defaced, or covered by any other material. (6) Notify the Regional Director for the Seventh Region in writing, within ten (10) days from the date of this Order, what steps Respondent Local 47 and Respondent International have taken to comply herewith. MEMBER JENKINS took no part in the consideration of the above Decision and Order. '"" Appendix C sets out the notice to be subscribed and posted by Local 47. That to be posted by Respondent International shall be identical in form, except that where the name of the Union appears above the signature line , the words "Local 47 " shall be deleted. In the event that this Order is enforced by a decree of a United States Court of Ap- peals, 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." APPENDIX A NOTICE TO ALL EMPLOYEES 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 our employees and prospective employees that : WE WILL NOT enter into, enforce, or otherwise continue in effect, any agreement which provides for the payment of benefits to members of Local 47, International Association of Heat & Frost ALEXANDER-STAFFORD CORPORATION 87 Insulators & Asbestos Workers, AFL-CIO, without also provid- ing for payment of such benefits to nonmembers. WE WILL NOT require that Robert Eley, or any other employees who work for us applying insulating material, be members of or have referrals from Local 47, International Association of Heat & Frost Insulators & Asbestos Workers, AFL-CIO, as a condition of employment. We will not give effect to any agree- ment or engage in any employment practice which makes any such requirement, except as authorized by Section 8 (a) (3) of the National Labor Relations Act, as amended. WE WILL NOT interfere with, restrain, or coerce our employees or applicants for employment in the exercise of the rights guar- anteed by Section 7 of the Act, except to the extent such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8 (a) (3) of the Act, as amended. WE WILL offer to Robert Eley immediate and full reinstatement to his former or substantially equivalent position, without prej- udice to his seniority and other rights and privileges previously enjoyed. 117E WILL make whole Robert Eley for any loss of pay he may have suffered because of the discrimination against him. ALEXANDER-STAFFORD CORPORATION, Employer. Dated----=----------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL EMPLOYEES 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 our employees and prospective employees that : WE WILL NOT enter into, enforce, or otherwise continue in effect, any 'agreement which provides for the payment of benefits to members of Local 47, International Association of Heat & Frost Insulators & Asbestos Workers, AFL-CIO, without also provid- ing for payment of such benefits to nonmembers. WVE WILL NOT enforce, give any effect to, or renew any .agreement or employment practice \1Tith Local 47, International Association of Heat & Frost Insulators & Asbestos Workers, 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFL-CIO, which requires that employees who apply insulating material for any of our member companies be members of or have referrals from Local 47 as a condition of employment , except as authorized by Section 8 (a) (3) of the National Labor .Relations Act, as amended. WE WILL NOT interfere with, restrain, or coerce the employees of or applicants for employment with any of our member com- panies in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent such right 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, as amended. THE MASTER INSULATORS ASSOCIATION, Employer Association. Dated--- ------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. APPENDIX C NOTICE TO ALL MEMBERS OF LOCAL 47, INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS & ASBESTOS WORKERS, AFL-CIO, AND TO ALL EMPLOYEES WHO APPLY INSULATING MATERIAL Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify you that : WE WILL NOT enter into , enforce, or otherwise continue in effect,. any agreement which provides for the payment of benefits to members of Local 47, International Association of Heat & Frost Insulators & Asbestos Workers, AFL-CIO, without also provid- ing for the payment of suchbenefits to nonmembers. WE WILL NOT enforce, give effect to, maintain, or renew any agreement, understanding, or practice with The Master Insulators Association or any of its members including Alexander-Stafford Corporation, under which employment of employees who apply- insulating material is conditioned upon their being members of' our organizations or having referrals from them and under which we give preference to our own members. WE WILL NOT cause or attempt to cause Alexander-Stafford Corporation or any other member of The Master Insulators Asso- ciation, their officers, agents , successors, or assigns, to discriminate against employees or applicants for employment because they are not members of or have not received a referral slip from the ALEXANDER-STAFFORD CORPORATION 89 business agent of our organization, or in any other manner to discriminate against them in violation of Section 8 (a) (3) of the Act, as amended. WE WILL NOT in any other manner restrain or coerce employees of, or applicants for employment with, Alexander-Stafford Cor- poration or any other member of The Master Insulators Associa- .tion., their successors, or assigns, in the exercise of the rights of employees guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act, as amended. WE HAVE notified Alexander-Stafford Corporation that we have withdrawn all objections to its employment of Robert Eley in the position he occupied prior to the discrimination against him, without regard to his membership or nonmembership in, or his having or not having a referral from, our organization, and without prejudice to his seniority or other rights and privileges. WE WILL make whole Robert Eley for any loss of pay he may have suffered because of the discrimination against him. LOCAL 47, INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS & ASBESTOS WORKERS, AFL-CIO, Union. 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. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed by and on behalf of Robert Eley , an individual , the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, by the Acting Regional Director for the Seventh Region (Detroit, Michigan ), issued his complaints dated May 27, 1955, against Alexander -Stafford Corporation (herein called Respondent Company ), The Master Insulators Association (herein called the Employer Association and the Association ), Local 47 of the International Association of Heat & Frost Insulators & Asbestos Workers (herein called Local 47 and the Local), and International Association of Heat & Frost Insulators & Asbestos Workers, AFL (herein called the International Union and the International ), alleging that Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3 ), Section 8 (b) (1) (A) and (2 ), and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges and complaints together with an order consolidating the cases and notice of hearing were duly served upon the parties. With respect to the unfair labor practices the complaints alleged in substance that at all times since June 1, 1953 , Respondent Company and the Employer Association together with Local 47 and the International Union have had and enforced collective- bargaining agreements which contained illegal closed-shop provisions granting a greater degree of union security than permitted by the Act and other provisions affording illegal preferential treatment in the terms and conditions of employment 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for union members. The complaints alleged further that the agreements and/or understandings between the parties required as a condition of employment that employees be members of the Union or have referral cards or work permits from it. In substance, the complaints against Respondent Company and the Respondent Unions alleged the discharge induced by the Unions of one Robert Eley on or about May 20, 1954 , because he was not a member of and did not possess a work permit or referral from the Union, and that thereafter he was repeatedly refused reinstate- ment for the same reasons . In their answers Respondents denied the commission of any unfair labor practices. Pursuant to notice a hearing was held September 6, 7, 8, and 9, 1955 , in Grand Rapids, Michigan, before Alba B. Martin, the Trial Examiner duly designated by the Chief Trial Examiner . All parties were represented by counsel and participated in the hearing . Full opportunity to be heard, to examine and cross -examine witnesses, and to introduce evidence bearing on the issues was afforded all parties . At the con- clusion of the General Counsel 's case-in-chief the General Counsel 's motion to con- form the pleadings to the proof was granted and the International Union's motion to dismiss the complaint as to it was denied . At the conclusion of the hearing the Respondents made short oral statements . Helpful 'briefs were received from the General Counsel, the International Union, and Local 47. No brief was received from the Respondent Company or the Employer Association. Upon the entire record in the case, and from observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE MASTER INSULATORS ASSOCIATION AND OF RESPONDENT COMPANY The Master Insulators Association , a corporation created under the laws of Michigan in 1952, is composed of employers , including Respondent Company, en- gaged in insulating work principally in the western Michigan area. It was formed by a number of such employers who theretofore had engaged in multiemployer bargaining with Local 47 for over a decade. Since 1953 it has annually negotiated a single collective-bargaining agreement with Local 47 for all association members and has been the party to the contracts on their behalf . By this joint action the association members, including Respondent Company, have manifested a desire to be bound in their labor relations by joint rather than individual action, and have constituted themselves a single employer within the meaning of the Act.' During 1953, 1954, and 1955 at least six employers other than Respondent Com- pany were members of the Employer Association : Garlock Insulation Company of Lansing, Michigan ; Genesee Asbestos Company, Flint, Michigan ; Kalamazoo Asbes- tos Company, Kalamazoo, Michigan ; M. Evert Asbestos Insulation Company, Grand Rapids, Michigan; Murphy Supply Company, Lansing, Michigan ; and J . W. Willman Company, Saginaw, Michigan . In addition , during 1955 at least three other com- panies were members. Annually the above-named 6 members of the Association in their combined operations sell goods and perform services valued in excess of $200,- 000 to Michigan manufacturers in Michigan. Each of said Michigan manufacturers annually ships goods valued in excess of $50,000 from points located in the State of Michigan to points located outside the State of Michigan . Annually the above- named 6 members of the Association in their combined operations receive by direct shipment from points located outside Michigan to points located in the State of Michigan , goods valued in excess of $500,000. Alexander-Stafford Corporation, with its principal place of business in Grand Rapids, Michigan, is engaged in the business of installation and distribution of asbestos and other type insulators . Its annual gross income during the calendar years 1953, 1954, and 1955 was between $400,000 and $500,000 per year, 40 percent of which was received from work performed under contract on public buildings, in- dustrial plants, commercial buildings and the like , including Fisher body plants of the General Motors Corporation and a General Motors diesel plant . During the calendar year 1953 , it purchased materials at a cost of $244,000, of which approximately $228,000 worth was shipped to it directly from points outside the State of Michigan. During the calendar year 1954, it purchased materials at a cost of approximately $326,000 of which $283,000 worth was shipped to it directly from points located 1 Insulation Contractors of Southern California, Inc., 110 NLRB 638,639; Capital District Beer Distributors Association, at al., 109 NLRB 176 , 179 ; Gottfried Baking Company, Inc., 103 NLRB 227; E. F. Shuck Construction Co., Inc., 114 NLRB 727. Cf. Santa Clara County Pharmaceutical Association, et at.. 114 NLRB 256. ALEXANDER-STAFFORD CORPORATION 91 outside of the State of Michigan . In Insulation Contractors of Southern California, Inc., et al., 110 NLRB 638, 639, the Board said, Although the Board has recently announced new minimum requirements for the assertion of its jurisdiction , we will adhere to our past practice of con- sidering all association members who participate in multiemployer bargaining as a single employer for jurisdictional purposes. Considering as a single employer for jurisdictional purposes the Respondent Company and the 6 other companies who have been members of the Employer Association since its inception, it appears that this single employer had a direct inflow of over $728,000 during 1953, and over $826,000 during 1954, and that annually it has a direct outflow of over $300 ,000-which figures are considerably in excess of the Board's present minimum standards for asserting its jurisdiction ? It appears, there- fore, and I find, that this emloyer is engaged in commerce within the meaning of the Act, and that under its present jurisdictional standards it will effectuate the policies of the Act for the Board to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED International Association of Heat & Frost Insulators & Asbestos Workers, AFL, and, Local 47 thereof, are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Unfair labor practices committed by Respondent Company, Local 47, and the Employer Association 1. Supervisory status of Ralph Sasser and Edward Kranenberg At all times of concern herein until July 11, 1954, Ralph Sasser was contract manager of Respondent Company. As such, on behalf of the Company he ne- gotiated job contracts and was responsible to the ' president of the Company for the performance of the work under the job contracts . He was instrumental in the establishment of the Respondent Association and as a representative of Respondent Company participated in the bargaining with Local 47 which led to the 1953 and 1954 contracts considered below. He was in charge of hiring and firing those who applied insulation, herein called asbestos workers, for Respondent Company. It is held that Sasser was a supervisor within the meaning of the Act. Edward Kranenberg, an employee of some 25 years' standing with Respondent Company, worked generally as a job foreman . Although the contracts of concern herein established the hourly rates of pay of mechanics and improvers (journey- men and apprentices ), Kranenberg was paid a little more per hour than either group. The contracts were silent as to rates of pay of foremen . All of Respondent Com- pany's work of applying insulating material to structures was done at the job site, none of it at the Company 's warehouse in Grand Rapids. The job sites were lo- cated all over ( or anywhere ) in western Michigan . As job foreman Kranenberg was responsible to the contract manager and the Company 's president for the proper performance of the work at the job site . He assigned all work on that job. He testified that if an asbestos worker did sloppy work , and upon being shown did not improve, Kranenberg "would have to report to Mr. Sasser." He checked to see that the men reported on time and did not leave early . He saw that the work was done according to the job specifications . If the job foreman was not a su- pervisor, then Respondent Company had no supervisor at the job site where a num- ber of men might be working in a city miles away from Grand Rapids, which Sasser would visit only from time to time as his other activities permitted. On the above evidence , and on the entire record considered as a whole , I find and hold that at all times of concern herein Edward Kranenberg had authority , in the interest of the Respondent Company, responsibly to direct other employees , and that the exercise of such authority was not merely routine or clerical in nature but required the use of independent judgment. It follows that within the meaning of Section 2 (11) of the Act, Kranenberg was a supervisor . It is so found. 2. Background Contributory to an understanding of the issues in dispute herein, although in no way relied upon for the resolution of those issues , are the following background facts, all of which occurred more than 6 months prior to the filing of the initial charge herein. - a. For a number of years prior to the amendment of the Act in 1947, the form contract used by Local 47 in its bargaining negotiations with the employers in Michi- 2 Jonesboro Grain Drying Cooperative, 110 NLRB 481. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gan who later formed The Master Insulators Association,' contained a clause-ar- ticle XI-providing that all insulating work-that is, the application of all insulat- ing materials , with which we are here solely concerned-would be performed by members in good standing of Local 47. Such clauses were included in the contracts signed with the employers in 1939, 1942, 1944, 1945, and July 1947. In general, the contracts between the parties from 1939 to 1947 covered a num- ber of subjects other than wages and transportation expense, and consisted of a number of pages. From at least 1949 until June 30, 1953, the only written. agree- ments between the parties were one-page documents relating solely to wages and transportation expense. In Construction Specialties Company, 102 NLRB 1542, the Board considered whether the practice of another local of the same international union during a part of this period and under similar written contracts, violated the Act-a problem which does not arise herein because of Section 10 (b) of the Act and because not pleaded in the complaint. b. The General Counsel adduced evidence that when Eley first went to Sasser for employment, in 1950, the latter said to him that, "as long as you have a referral . you can work. . . Even though you have a referral . . . and a cardman is avail- able out of work, that cardman will have the job in preference to referral men." Sasser testified that he did not recall this conversation with Eley. Robert Eley testified further that once during his first 4 months of employment, when some new men were brought onto the job, Kranenberg "wanted to make sure that we had our referrals up to date, because he said, `If you not up to date, the Union members of Local 47 aren't allowed to work with nonunion members or members that don't have a referral.' " Although Kranenberg in substance denied this testimony, for reasons given later, Eley was a more credible witness than Kranenberg. c. The General Counsel adduced evidence that in December 1953, Eley was ab- sent from work with Respondent Company under circumstances not unlike those herein. At first Eley testified that the event occurred in January 1954, but Eley's timecards, introduced by Respondent Company, established that it could not have taken place then. On rebuttal Eley testified that it occurred in December 1953, while he was working on the "St. Thomas" job, and that he was off for a week only. He worked on the "St. Thomas" job during the 4 days just before his departure. Then counsel stipulated that the payroll records reflect that Eley did no work for Respondent Company from the end of work on December 10 until December 28, 1953. Eley was unable to remember whether during the first week he was off he moved his family from one home to another. Asked how he remembered the dates he had given in his direct testimony, he stated that he had refreshed his recollection from the letter he wrote the International Union, which is the document referred to below as a memorandum dated June 9, 1954. The record does not reflect whether or not all employees were off for a period of time during the Christmas period. Although Local 47 urges this testimony as an adverse reflection upon Eley's general credibility, I view it as reflecting solely upon his memory for dates .(for which he acknowledged a weakness), and upon his memory for the duration of events. By his demeanor on the witness stand Eley impressed me as a credible witness and a far more credible witness than Sasser. With respect to this event Eley testified that "Mr. Sasser came on the job and told me that the Local was putting their cardmen in and that he would have to lay me off. He said it might not be what they claim it is . . . he said `when things smooth out I'll give you a call and you can come back to work."' Eley added that "in about a week's time he called me and I went back to work." At that time he did not get a new referral; he still had his old one. Sasser was not asked concerning this event, so he neither confirmed nor denied Eley's version of it. However, Sasser testified that he never laid off a nonunion man in order to provide work for a union man. 3. The contracts The agreements with which we are here concerned are those in effect during and after the 6-month period before the filing and service of the charges,3 the con- tracts in effect at the time Robert Eleyleft the employ of Respondent Company and during the period that he did not work there, that is, prior to his beginning to work there again on July 5, 1955. These are the contracts "made and entered into" s The charge against Local `47 and the International Union was filed and served October 8, 1954. The charge against Respondent Company was filed and served November 18, 1954. The charge against the Employer Association was filed and served November 19, 1954. ALEXANDER-STAFFORD CORPORATION 93 and "effective" on July 1, 1953, July 1, 1954, and July 1, 1955, which recited that they were to be "rigidly observed." Prior to 1953, the contracts were jointly negotiated with Local 47 by a group of employers, and all employers who signed the contracts considered themselves bound by them. In the bargaining in 1953 and 1954, the negotiating was handled by the Employer Association and all members were considered bound by the resultant contract, having first given their approval of the contract to those who bargained on their behalf if they themselves were not present. An agent of Respondent Com- pany, Ralph Sasser, was instrumental in the formation of The Master Insulators Association and was one of its negotiators at the bargaining meetings with Local 47 in the summers of 1953 and 1954. In 1955 the Employer Association was repre- sented at the bargaining by a committee of three, which included Thomas Stafford, president of Respondent Company, who in July 1955 became president also of The Master Insulators Association. Without question on this record-and it was not contended otherwise-the Employer Association, Respondent Company, Kalamazoo Asbestos Company, and Local 47 were all bound by these contracts. The responsibility of the International Union, if any, is considered hereinafter. These three contracts each consisted of a so-called master agreement, which was supplied by the International Union, and several pages of supplemental agreement.. Clauses attacked by the General Counsel as containing a greater degree of union security than permitted by Section 8 (a) (3) of the Act, and other provisions attached as affording illegal preferential treatment in the terms and conditions of employment to union members, were as follows: ARTICLE I It is hereby agreed that the provisions of this Agreement shall be binding upon the party of the first part individually and as members of said Association and upon the membership of Local No. 47 individually and as members of said Union within a radius of thirty (30) miles from City Hall-outside territory situated half way to any other affiliated Local Union. Rand & McNally's .map shall be considered the Official map of the Trade. All places on said map touched or intersected by radius circle shall be considered within the territory, and in such cases the entire town or city limits of such places shall be considered within the territory. On operations (All contracts on the premises of buildings, mines, mills, factories, shipyards, etc.) outside of chartered terri- tory the nearest Local Union is to be given first preference in the supplying of labor in excess of one (1) Mechanic and one (1) Improver, who shall con- form to the working rules and Trade Agreement of the Local Union under whose jurisdiction they work, and in addition shall receive the wage rate and board allowance highest in either the Local having jurisdiction over the opera- tion or the wage rate incorporated in this Agreement. ARTICLE VI The individuals, firms or corporations comprising the membership of the Master Insulators' Association agree to execute their work as described in Article XI as direct Employers of Local No. 47 membership, and not to sublet any of the same, nor the labor thereof; .. . ARTICLE VII Local No. 47 will direct non-members to the employers in the numbers agreed. upon and shall issue them Referral Cards for purpose of identification and classification. ARTICLE IX Members of Local No. 47 shall receive board when on jobs requiring same in the amount of $6.00 per day and shall receive railroad transportation and local car or bus fares in excess of two city fares daily figured from nearest chartered city City Hall to job and return to City Hall. Night traveling shall be paid for at single time, except in cases where berth is provided, when no traveling time shall be paid. When boarding on out-of-town jobs they shall receive all transportation expenses expended. ARTICLE XI The party of the first part agrees to employ the membership of Local No.. 47 in the application of pipe and boiler covering, insulation of hot surfaces,. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ducts, flues, etc., also the covering of cold piping and circular tanks connected with the same. This to include alterations and repairing of work similar to the above and the use of all materials for the purpose mentioned. SUPPLEMENTAL AGREEMENT 1. Expense Jobs in excess of 30 miles when sent by the Business Agent. Members of Local 47 shall receive Board and Room expense in the amount of Six Dollars ($6.00) per working day when placed by the Business Agent on jobs located in excess of thirty (30) miles from the nearest chartered city and in addition shall receive traveling expense allowance at the rate of seven cents (70) per mile to and from job at the beginning and termination of same. 2. Expense Jobs in excess of 30 miles when sent by the Employer and night traveling. Members when sent from shop by the Employer shall receive Board and Room expense allowance at the rate of Six Dollars ($6.00) per working day and in addition shall receive transportation . allowance of Seven Cents (70) per mile to and from job at the beginning and termination of same figured from shop. Night traveling shall be paid for at a single time, except in cases where berth is provided, when no traveling time shall be paid. When boarding on out of town jobs, they shall receive all transportation expense expended. 3. Expense jobs in excess of 50 miles, Members working five (5) or less days per week on a Room and Board job located in excess of fifty (50) miles from shop or nearest chartered city when said job is to continue into the following week or weeks shall receive one (1) additional day's Board and Room expense allowance. 4. Expense jobs of less than a full day. Members reporting on expense jobs and leaving for no reason of personal convenience after working less than a full day shall receive full amount of expense allowance for the day. 6. Transportation Jobs located within a radius of 30 miles and job transfer. Members of Local 47, when working on jobs located within a radius of thirty (30) miles shall receive allowance for transportation expense at the rate of Seven Cents (70) per mile in excess of two (2) city fares daily figured from City Hall of nearest chartered cities, Jackson, Grand Rapids, Kalamazoo, Lansing, and Saginaw, Michigan. Members when ordered by the employer to transfer from job to job shall receive full traveling time in addition to traveling expense allowance at the rate of Seven Cents (70) per mile. On their faces, the 1953, 1954, and 1955 contracts contained certain clauses which discriminated in favor of members of Local 47 over nonmembers. Each con-' tract provided for the employment of members and, in article VII, of nonmembers. Yet each contract, in article IX, and paragraphs 1, 2, 3, 4, and 6 of the supple- mental agreement, provided for expenses on the job for only union members, and was silent as to expenses for nonmembers. To this extent each contract was dis- criminatory and unlawful on its face and should be corrected. It was Virgil Fisher's uncontradicted and credited testimony, however, that in fact nonmembers receive the same expense money in all respects as do members. In Mundet Cork Corporation, 96 NLRB 1142, the Board found that the earlier form of this International Union's master agreement violated the Act. There article XI was identical with article XI here; but article VII there provided that where the joint trade board determined an "emergency" existed, the employer might obtain the "emergency" number of employees agreed upon, who would work under "permit" from the local "until replaced by members of said union." The Board said, Concededly, article XI of this contract did not expressly provide that the Association hire only, or primarily, union members. Article VII, however, by providing for the hiring of nonmembers only in "emergency" situations, when no union members were available, ahd for their ultimate replacement by union members, dispelled any doubt as to the meaning of article XI. Considering these provisions together, we find that the Respondents' 1949 contract, by its terms, both express and implied, provided for preferential hiring of members of the Respondent Union. In his brief here, counsel for the International Union stated that the change in the wording of article VII to its present form was made in an attempt to comply with the Board's ruling in Mundet Cork Corporation, and urged that in view of ALEXANDER-STAFFORD CORPORATION 95 this and the deletion from article XI of the previous closed-shop provisions, the contracts herein being examined no longer provide for preferential hiring of union members. It appears to me, however , that on its face article VII of the revised master agreement is at best ambiguous, and that in order to understand its meaning it is necessary to look to the practice of the parties under it. 4. Hiring, referral, and clearance practices ' under the contracts a. Generally 1. John Bond was president of the Kalamazoo Asbestos Company, a member of The Master Insulators Association . His company is not a respondent here. Bond was also president of the Employer Association from its inception in 1952 until July 1955. He dealt with the Local for many years prior to the amendment of the Act in 1947, during which years, as stated above, the contracts provided for closed-shop conditions except in emergencies , and the ultimate replacement of those hired in emergencies by union members . In substance Bond testified , although somewhat vaguely, that the practice of his company has not changed since the changes in the master agreement beginning in 1953; that the company considers itself bound to call the business agent of Local 47 for asbestos workers, that the latter will send him union members if he has any available and others only if he has not, and that if the business agent cannot supply any men the company will find the men and the Local will issue referrals. Thus under his company's practice the Local is the sole source of supply, and known to the company the Local gives preference to members-which amounts to a violation of the Act. Although the testimony of Virgil Fisher (considered more fully below), business agent of Local 47 since about April 1954, does not fully parallel or corroborate Bond's testimony, Fisher was not called upon to, and did not , deny the truth of Bond's testimony. Assuming for the moment the truth of Bond's testimony, no order would lie against Kalamazoo Asbestos Company because it is not a respondent herein. The legal effect of its practice upon the possible violation of Respondent Company and the Master Builders Association is considered below. 2. Ralph Sasser, contract manager of Alexander-Stafford Corporation from about 1948 to July 11, 1954, who did most of the hiring for it during the period with which we are concerned , testified that when he needed asbestos workers his practice was "to hire from the Union . because that is where one . . . knows the available manpower is." Asked if he thought he could have hired a specific non- union member without clearing through the business agent, Sasser replied, "I believe I could have , if the conditions demanded . Now, when I say `if,' when I qualify that statement, I want you to realize that if you are going to catch fish, you've got to go where fish are, so that it is quite customary for we insulators to go to the man who knows where labor is when we are in need of labor." Asked what he meant by "if the conditions were right," Sasser replied , "As I stated on a previous instance here when I was unable to get ahold of Mr. Fisher because he was out, . and the job was of such urgency that it had to have someone immediately , then I took measures to get somebody there and told him about it when the time come." Sasser's reference was to an occasion , sometime between May 20 and July 11, 1954, where on a specific job when he needed 2 men "immediately," he "tried desperately" to reach Fisher, and not being able to he borrowed 2 carpenters from the general contractor of the job, put them on Respondent Company 's payroll, and instructed them how he wanted the work done . When he was first questioned on this, in a leading question he was asked whether he attempted to reach Fisher because he felt he had a legal obligation to or because he felt he could get the best men that way. Sasser replied, "Force of habit, I would expect ." The next time Sasser talked with Fisher he told him about these two men being on the job. Asked if it was necessary for him to tell Fisher, he replied, "I just assumed that it was necessary." Asked his purpose in telling Fisher, he replied, "Because we worked together"-the contractors and the Union-"we are both engaged in one trade... . Fisher then gave the two carpenters referrals. Having earlier testified that he had seen so many of the yellow slips-meaning referral slips-that they all looked alike to him, and having earlier alluded to them interchangeably as permits or referrals , Sasser was asked what he called them whenever he referred to them . He answered, "permit because it is so printed on the document." This suggested that Sasser still thought of them as permits, which they used to be, although for some years there have been no permits , but only referrals. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sometime between May 20 and June 14, 1954, Sasser prepared but did not send a draft of a letter to the secretary-treasurer of the International Union. The draft said, 1 GENTLEMCN: We are enclosing a table column "A" of which represents the card carrying asbestos workers which were on our payroll for the first week of each of the months of 1949 through 1953 inclusive, column "B" represents the permit men (some affiliated with other A. F. of L. trades and some not) who were on our payroll at the same time. We have a request for 4 men from the union which is unfilled. The above data is submitted as a side light to your letter published in the April 1953 Asbestos Worker and to advises similarly published on the same subject in later issues. With the help of counsel, Sasser indicated that the letter to which he referred in the Asbestos Worker, a publication of the International Union, probably was a notifica- tion to the local unions from the International Union instructing them to expand their locals and take in more members so they could more properly service the jobs. Sasser said the letter was probably written "because I was continuously short of manpower and was always wanting more qualified men." On the attached table one column is headed "47," the other "per." Of note herein is the fact that neither the "letter" nor the table makes any reference to a possible third category, those on the payroll who were neither members of Local 47 nor on "permit" from it. As the documents were prepared "as just a recap of certain records . . . of employment at Alexander-Stafford," to give the International added evidence of the need of expanding the Local, and as the record showed at times a high proportion of "permit" men as compared with "47" men-which is undoubtedly what Sasser intended to show-it is highly probable that if there had been any employees in this third category, he would have included the figures concerning them. This omission, plus the entire record in the case which made no reference to any employees in this third category, convinces me that there were none. I conclude that at all times of concern herein all asbestos workers working for Respondent Company were either members of or referrals from Local 47. It is concluded from Sasser's above testimony, and from the entire record considered as a whole, that Sasser, representing Respondent Company and having assisted in the negotiation of the 1953 and 1954 contracts, considered himself bound to hire all asbestos workers through the Local or get referrals for any he hired himself. Thus his practice was "to hire from the Union," except that under certain circumstances, namely in emergencies when he could not locate the business agent, he would hire the man himself and, out of "force of habit," and because he "just assumed that it was necessary," would tell the business agent about it the next time he saw him. Because he was continuously short of manpower and was having trouble getting it from the Local, Sasser went so far as to draft a letter to the International Union-which, however, he did not send, for the reason, he presumed, that in the meantime he had received the necessary manpower from the Local. Had he not felt compelled to get from or have his manpower cleared by the Local, which, for reasons of its own, had chosen to restrict its membership to meet less than the peakload requirements, presumably Sasser could have undertaken on his own to train some new men in the field. There is no evidence that he ever did. Confirming Sasser's understanding that the Respondent Company's arrangement with Local 47 was compulsory rather than permissive was Sasser's statement to Eley on May 20, 1954--as found below-that until the union men were placed, "I can't put you to work, I can't keep you working"; and also Sasser's statement to Eley on about May 29, 1954-as found below-that until all the cardmen were placed, "I can't put you back to work." Although on May 20 Sasser added that "We've got to play ball with the Union . . . they're cooperative," this does not subtract from'the fact that Sasser equated cooperation with giving preference to union members at that time, and that there was a rigidity in his understanding which could have been grounded only in compulsion. Compulsion is further proved by Sasser's May 29 statement to Robert Eley that Eley would have to get a new referral from Fisher before he could return him to work; and also the fact that sometime between May 20 and July 11, 1954, when Sasser needed two men immediately, the first thing he 'did was to try desperately to reach Fisher. [Emphasis added.] 3. As to Local 47's understanding and practice under article VII of the 1953 and 1954 contracts, we look to one of its bylaws, and to the testimony of Virgil Fisher, its business agent, and of Edward Kranenberg, each of whom. had been union members for many years. ALEXANDER-STAFFORD CORPORATION 97 In about 1943 or 1944 Local 47 passed a bylaw reading as follows: Any member of Local No. 47 found working with any man not holding a Permit or Union Card shall be called before the Executive Board - and fined accordingly. Since then this bylaw has not been changed, according to the knowledge of Business Agent Virgil Fisher, who has been a member of the Local at all times since then, and during at least 1 recent year was its president . Asked whether it had been enforced since the amendment of the Act in 1947, Fisher replied, "I know of no instance of any member of Local 47 that has been found . working with anyone without proper credentials ." Thus Fisher did not deny that it had been enforced but stated in substance that the question had not arisen because all men on all jobs had the proper credentials . The entire record indicates that "proper credentials" included membership in the Local or a referral from it. Al- though Kranenberg testified that the rule had never been enforced, this is highly unlikely inasmuch as closed-shop conditions did not become illegal until 1947,. several years after it was passed. Fisher's testimony established that, at least during the 1'h years that he had served as its business agent just prior to his testimony, Local 47 gave preference to its members over nonmembers in the filling of jobs. Fisher testified in substance that when a request for men comes from an employer to the Local, Fisher seeks first to fill the vacancies with members of Local 47: "I'd try to get members of Local 47 if I could. That is what I'm paid for." ` . . when I have exhausted the membership of Local 47 and I still don't have a sufficient amount of men to refer to the employers, then the next step is to try to secure referral mechanics to supply the demand... . . Fisher stated further that if there are not enough jobs. to take care of all the members of the Union, he would not send any referral men to any of those jobs. . He explained, in substance, that the construction industry is seasonal, that the employment peaks occur in the fall and mid-spring, that "you either carry a membership in your local to take care of the peak and let them loaf half of the time, or you are going to take an. average and there will be a certain time when you will have to use a cushion there to take up the peak," that when Local 47 cannot supply the need from its own ranks, then under article VII "we will endeavor to secure the number of men that is necessary and refer them to [the employers] to complete their contracts.. .." Fisher's testimony indicates further than he, on behalf of Local 47, issues referrals. under two sets of circumstances: first, when an employer has already employed a nonmember of Local 47 and the employer requests a referral for him-in which event Fisher issues the referral "as soon as I have knowledge that the individual is working"; second, when Fisher receives "a call for employees from the employer greater than the amount of Local Union manpower and I am able to secure someone who will agree to go over and work for him.. . ." When Fisher issues a referral to a nonmember, he testified the employer is not bound to employ him. When a request is made for a given number of men, it is Fisher who determines which. of that number shall be members and which, if any, nonmembers of Local 47. On cross-examination he stated that "it's my job to see that there is work for" as many members of Local 47 as is possible, that a part of his duty is to give them preference. When men ask for referrals, it is Fisher's general practice to ask them if they belong to any union, and if their dues are paid up in any union connected with the building trades. No charge is made for the referrals, and the contracting parties have never set a limit on the number of referrals to be issued by the Local. Until November 1954, referrals were renewed every 30 days for nonmembers who were employed on the renewal date, but not for nonmembers who were not employed. The system of renewals was abandoned in November 1954 because, as well as Fisher remembered, a member, having returned from a sojourn working in another jurisdiction, advised that it might be some evidence of a violation of the Act. Fisher testified that the reason for having referrals is for identification and classi- fication, to keep track of the men who are working in the trade in Local 47's juris- diction, while they are working. The purpose of a referral when Fisher is sending a man over to the job: "It acts as an introduction to the employer and also serves as an identification to the other crafts . . that he has been referred there by Local Union 47." The purpose when the man is already on the job is that the referral serves as identification to the other craftsmen on the job and serves to 450553-58-vol. 118-8 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .alleviate quite a few jurisdictional problems. A further purpose, in either case, is that having a record of who is working on- a given job enables Fisher to check and see that the employer makes a contribution to the welfare fund on behalf of all employees, referral men as well as union members. Fisher testified further that when a nonmember requests a referral, Fisher gives it to him only if Fisher has a job to fill-that is, only if he has a current call for men from an. employer. Fisher does not keep a list of nonmembers who are seeking employment in the trade. In substance this means that while constantly seeking jobs for members Fisher can have a short memory as to which nonmembers are seeking jobs. Under this system it is possible for a nonmember to be refused .a referral on Monday because on that day Fisher had no call for men, and for Fisher .to fill all calls for men the next day with members of the Local. It is the undenied testimony of Fisher that nonmembers as well as members get paid the same in all respect for travel time, despite the clauses in the contracts which cover members only. Beginning in February 1954, Local 47 instituted a practice of requiring that all referrals be picked up at the union hall in Lansing, Michigan. In the case of Robert Eley, who lived near Grand Rapids, this meant a round-trip drive of 134 miles from and to his home once a month. The reason for this change in practices was not explained. 4. That the practice of Respondent Company and Local 47 under the contracts required either membership in Local 47 or a referral from it as a condition of employment is strongly suggested by the fact that Robert Eley found it necessary to obtain a renewal of his referral at intervals of about 30 days during the several years he worked for Respondent Company. If Eley had not considered it com- pulsory for him to have a current referral in order to hold his job, it is a fair conclusion that he would not have bothered getting the referrals, especially during his last 4 months when he had to make a long drive each month to obtain one. The abandonment of the 30-day renewal practice in November 1954 did not alter .the compulsory requirement of a referral at the beginning of employment. That under their mutual practice and understanding. the Local was the sole source of supply of asbestos workers was amply borne out by Sasser's testimony, considered above. That Fisher shared this understanding and practice was indicated by his response to the question as to how the number of referrals was determined under .section VII of the 1953-54 contract. Fisher replied, I'll have to give it a moment's thought. I'll answer it as best I can. There are so many different angles entered into in the construction business. I would say that the amount of work in the asbestos field at the time of the request would determine quite a bit the number of insulators requested from the employer. All work covers all construction, the amount of work, the amount of men. It is pretty simple to figure that out. A fair construction of this testimony, in the light of the entire record, and particu- larly in the light of Fisher's testimony concerning the "average" composition of the Local, is that the Local supplies asbestos workers for all work on all construction within its jurisdiction. This construction confirms the conclusion herein reached that Local 47 was the sole source of supply of asbestos workers for Respondent 'Company. That Local 47 intended to continue as the sole source of supply, and to protect "itself in that role, was attested by the continued existence of its unchanged bylaw which in substance barred its members from working with any asbestos workers who were not either members of Local 47 or on referral from it. That Local 47 was not only the sole source of supply but in fact was in control ,of the hiring, was established by Fisher's admission to Robert Eley on June 3, 1954-found below-to the effect that the Local was going to issue no more refer- rals, that "they were going to handle the work themselves." Fisher's assumption behind this statement that by withholding referrals he could preserve the work for Local 47 members shows the existence of an understanding between the Local and Respondent Company concerning the employment of asbestos workers. As has been seen above, in filling jobs Local 47 gives preference to its own mem- bers. As is found below, on May 20, 1954, Ralph Sasser told Eley that "we have an agreement with the Local to keep all our cardmen in work." It follows from -this, and I conclude, that the Respondent Company shared with the Local the un- derstanding and practice of giving preference in the holding of jobs to Local 47 members over nonmembers. ALEXANDER-STAFFORD CORPORATION 99 b. In the case of Robert Eley The. General Counsel contends that the May 20, 1954, separation of Robert Eley -from his employment with Respondent Company was a discriminatory discharge or layoff. Respondent Company contends that Eley quit. With an exception or two of short duration, Eley had worked for Respondent Company steadily for about 3-3/1 years, mostly as. a mechanic and always on a referral basis from Local 47. A mechanic is a journeyman in the trade; an improver is an apprentice. He was regarded by the management of the Company as a com- petent and responsible worker. Throughout his employment with Respondent Company, Eley obtained a referral from the business agent of Local 47 at about 30-day intervals; and due to the change in the Union's practice effective in February 1954, mentioned above, the referrals he obtained thereafter, namely in February, March, April, and May, he had to pick up at the union hall in Lansing. Eley considered having to get renewals at all, and finally having to drive so far for them, an imposition. At all times of concern herein he was a member in good standing of another building trades union in Grand Rapids: Operators, Plasterers and Cement Finishers, Local 115. On April 19, 1954, Eley wrote the business agent of Local 47, Virgil Fisher, point- ing out that he had worked at the insulating trade for 71/2 years, stating that he would like to continue to do so, but as a member of Local 47, and requesting that Fisher forward him an application. Fisher replied, in writing, that he did not have the authority to issue applications, that anyone asking for an application must appear before the executive board of Local 47 and make his wishes known, and that the board met on the first Friday of each month in Lansing, Michigan. Although the date of this letter was not included in the stipulation concerning it, it is fair to as- sume, and I do, that it was written shortly after Fisher received Eley's letter of April 19. In a memorandum dated June 9, 1954, which Eley sent to the Interna- tional Union, he stated that he then appeared before the executive board at its "next" meeting, which would have been held on the first Friday in May 1954, which was May 7. In the memorandum he stated further that the executive board did not give him a definite answer, that Fisher said he would let him know after a meeting between the Union and some contractors the following Thursday, and that he had never heard further from Fisher concerning his application. Eley testified without contradiction that Fisher told him "that they would have to have a meeting between the contractors and the Executive Board of Local 47 to determine how [many] men each contractor was needing." Eley's memorandum stated further, in substance, that he had been trying, without avail, to get into Local 47 for 5 years, and had discussed the matter with its 3 business agents during that period. On May 10, 1954, Fisher issued Eley a referral to work for Respondent Com- pany, at the bottom of which in open space not calling for further information Fisher wrote, "Central Paper-exp. in 30 days." Fisher testified that it was customary for -him to write the job or area where the referred person would work, that it was cus- tomary at that time to issue referrals for only 30 days, but given ample opportunity he offered no convincing reason for writing the obvious and what everybody con- ,cerned already knew-that the referral would expire in 30 days. On May 20, 1954, some 20 to 26 employees, all but possibly 1 or 2 being mem- bers of Local 47, became unemployed when the job they were working on in Monta- gue, Michigan, closed down. In the days immediately preceding this Fisher had contacted a number of employers for jobs. On and after May 20, he sought jobs for these men, contacting some six contractors . The record does not disclose how many employees he placed , but some of them he was unable to place and they left the jurisdiction of the Local. Others whom he could not assist just waited. Fisher • did not.know whether he ever succeeded in placing them all. About that time there was still on, or had shortly before been on, in the area, a carpenters' strike which slowed down the building industry and ultimately retarded insulating work. The first employer Virgil Fisher telephoned on May 20 -was Thomas Stafford, president of Respondent Company. Fisher told him of the group of men without work and asked Stafford if he could use any of them. According to Stafford and -Fisher, Eley's name was not mentioned . Stafford assumed that Fisher was talking about union members, a correct assumption under all the circumstances. Stafford then told Ralph Sasser, his so-called contract manager, of Fisher's call and need and , according to Stafford , "instructed him if possible to take on what men he could." In Sasser's language , Stafford "told me to try to make room for any union men that it was possible for us to hire," to "look over the work on hand and see if it were possible to absorb any of the men that were available ." Stafford testified that he gave no instructions to lay off anyone to make room for any of 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the union men. He testified also that Sasser replied that he did not want to' take these men, and indicated to Stafford that he did not like those men. Although, Sasser challenged this, Sasser was an unsatisfactory witness and I do not credit his testimony as. against Stafford's. • Sasser was not a forthright witness, was evasive, and professed a poor memory. Further, on June 3, Sasser told Eley he did not want to hire those men because they were not dependable workers. Stafford testified further that at this point in their relationship Sasser, one of his top supervisors, was not keeping him well informed concerning the business, that relations between them were somewhat strained . It is a fact that just over 7 weeks later, on July 11, 1954, Sasser left the employ of Respondent Company and then or shortly thereafter became president of a competing corporation in the same line of business, which position he occupied at the time of his testimony herein. According to the credited testimony of Virgil Fisher, he talked with Sasser twice that day, May 20, presumably over the telephone. The first time Sasser told Fisher that he was going to Muskegon that day and would let him know later whether he could use any men there. Insofar as the record shows the only job Respondent Com- pany then had going in Muskegon was the Central Paper job where Eley and three other men were then working. Later that day, presumably after Sasser had been to Muskegon, Sasser again called Fisher and told him that he could use two mechanics at the Central Paper job. The following day two of the men began working for Respondent Company, both of whom lived in Muskegon and both of whom were members of Local 47. They were Bernard Wines and Henry Grebel. As Sasser told Fisher he could use these men at .the Central Paper job, I find that they were assigned to that job and that they went to work May 21. The record does not disclose how long they worked on that job, but Wines worked steadily for Respondent Company until early August 1954 and Grebel worked until the week ending June 4, 1954. While Sasser was at the Central Paper job in Muskegon that day, May 20, oc- curred the incident of primary concern herein, which the General Counsel contends was a discharge of Eley in order to make an opening for a member of Local 47, Wines or Grebel, and which Respondent Company and Local 47 contend in sub- stance was a voluntary quit by Eley in order to force his way into the Local-and possibly with the collusion of Sasser. According to the credited testimony of Robert Eley, a forthright and credible wit- ness, Sasser came over to Eley at the Central Paper job that afternoon and told him that the men at the Montague job were being fired, that there would be a crowd of men out of work, and that "it might be a good idea if you didn't show up on the job tomorrow." Sasser allegedly added, "You know, we have an agreement with the Local to keep all our cardmen in work," and also that "if they came down here on the job looking it over and saw a referral man working and them not, there would be some trouble." According to Eley, Edward Kranenberg, who had over- heard the above, then affirmed Sasser's sentiment and added, "You might as well take your tools home because . you probably won't be coming back to this job. . Bernie Wines lives here in Muskegon and if there is any work in Muskegon, Bernie Wines will get it. . So, it would be a good idea if you didn't show up or come back." Then, after Kranenberg had left, Sasser said to Eley, still according to the latter, that there was a lot of work then in Michigan, that it should not take more than a week or 10 days to place the men, and that "until they have their men placed on jobs, I can't put you to work, I can't keep you working. . We've got to play ball with the Union . they're cooperative. . It would be the best thing if you would wait until this blowed over and at that time I'll call you back to work." As Eley was packing his tools he said to Kranenberg that inasmuch as he was being laid off he might as well go fishing the next day. Kranenberg said that. that would be a good idea. Eley left with his tools just before or at the closing hour, 4:30 p. m., and was paid for a full day's work that day. Sasser professed to remember little of the incident. It was his best, though feeble, recollection, that he told Eley something to the effect that there were spare mechanics available because of the shutdown in Montague, and also that someone said something about going fishing. The testimony of Sasser and Edward Kranenberg concerning this incident contains inconsistencies which are irreconcilable and cannot be credited. Sasser stated in substance that it was his custom when going on a job to speak to the foreman first, and that on this occasion he spoke to Kranenberg before speaking to Eley, probably talking over with him the status of the job and probably telling him that the men were leaving the Montague job. Kranenberg testified positively that Sasser merely greeted him in passing, went to Eley, and had a conversation with Eley, Kranenberg not being present but going about his business. He stated further that as Sasser was ALEXANDER-STAFFORD CORPORATION 101 leaving, at nearly quitting time, Sasser called to Kranenberg to have Eley bring his tools in, but that Eley was already packing his tools when Kranenberg relayed Sasser's instructions. Further, Kranenberg testified that he had no conversation with Sasser about the men being laid off at the Montague job, which is unlikely inasmuch as Sasser had gone to the Central Paper job that afternoon partly to discover for Fisher whether any of the latter's men could be absorbed there-a .situation concerning which Kranenberg would be particularly informed. A further inconsistency is Kranenberg's statement that he had been keeping Sasser informed .all that week (May 20 fell on Thursday) of an impending lathers' strike which would bring the insulators' work at Central Paper to a sudden halt, as against Sasser's testimony that he had not heard of a lathers' strike in prospect or had no memory ,of it. A further inconsistency is the testimony that, known in advance by Sasser and Kranenberg, the Central Paper job closed down temporarily the following day because of a lathers' strike, which does not jibe with sending Wines and Grebel to work there that day. Certain additional facts and considerations may contribute to the solution of this portion of this case: a. During the years that Eley had worked for Respondent Company, the usual practice was to transfer him to another project when the project he was working on was completed. In the present instance he was not transferred. b. Sasser testified that at times Eley requested vacations from him, and that it was Sasser's recollection that Eley always took his vacations by going deer hunting. Sasser "couldn't say" as to whether each of Eley's vacations was in fall of the year. It is clear that in the present instance, which came during the spring, Eley did not ask off to go deer hunting. c. Sasser confirmed an opinion previously expressed by him in an affidavit to the ,effect that he thought anyone acquainted with unionism and being on a permit would have taken off under the circumstances. d. Eley admitted that while he was on the Riverside School job-which counsel suggested but Eley did not confirm was during the spring of 1954 4-he told Virgil Fisher that "under the Taft-Hartley Law a man has a right to belong to any organi- zation he wishes." Respondent Company and Local 47 offered this fact as an element of proof that Eley quit his job on May 20 (and did not thereafter press for reinstatement) as a means of forcing his way into Local 47. Respondent sought, with questionable success, to show that Sasser was assisting Eley to become a member of Local 47. Respondents' theory as to how Eley's action (assuming it was so-motivated) would accomplish his objective of becoming a member of Local 47 was not developed at the hearing. e. Some 9 days after his termination, on May 29, Eley returned to Sasser and, according to Eley's credited testimony, asked Sasser if the "local men were placed on jobs and if I could go back to work, and Mr. Sasser said no, that the cardmen that were out hadn't been placed and he said, `Until that time that they get them placed, I can't put you back to work.' " Eley then showed him his referral, which on its face expired 30 days after May 10. Sasser said that that referral was not any good anymore, that "You'll have to get another new one issued from Mr. Fisher before I can put you back to work." A few days later, on June 3, Eley again asked Sasser when he could return to work, and Sasser replied that the cardmen were still out, that he did not know when they would be back, but as soon as things broke Sasser would call Eley and the latter could return to work. Then Eley spoke to Fisher, who said, according to the former, that they were not going to issue any more referrals, that "they were going to handle the work themselves." Fisher's version was that he refused Eley a referral because he had no calls for men. Under all the circumstances, Eley's version is credited. On June 8, Eley again 'asked Fisher for a referral and, according to Eley, Fisher said that they were not going -to issue referrals to any men who had already had a referral. Eley then said that he would have to see a lawyer about getting his job back. Fisher denied the first part of Eley's version, and said he did not remember any threats by Eley, although Fisher acknowledged his memory was a little vague on this conversation. Eley's -version is credited. f. During the period May 20 to June 10, 1954-during which, as seen just above, Eley made 3 efforts to get reinstated-Respondent Company hired as new employees some 5 mechanics, including Wines and Grebel, who were mechanics, and l other who was either a mechanic or an improver. Wines and Grebel started work May 21. One of the others started work on June 3; two others started June 10. From June 10, 1954, until May 7, 1955, the date of the issuance of the complaints herein, 4 One of Eleyy's timecards shows he worked at the Riverside School on January 11 and 12, 1904. Of course he may have worked there during other weeks also. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Company hired as new employees not less than 35 asbestos workers.. Thomas Stafford testified that during May and June 1954, the labor need of his business "was steadily increasing. There is no bush to hide behind that we did not have work to reemploy Eley. There is absolutely none. We had plenty of work, there is no question." In substance the Company contended that Eley had no right to reinstatement or back pay after Sasser left July 11, 1954, because thereafter Eley never applied for reinstatement. If Eley was discriminatorily discharged, it was not necessary-for him to make application for reinstatement at all. If in fact, as alleged by Respondents, he quit, he made application for work again on May 29 and June 3, and learned then from the lips of Sasser that any further applications were futile as long as there were any union members available for jobs. The "Board has consistently held that where an employer engaged in a discriminatory hiring practice and where such practice is communicated to applicants for employment,. albeit when no jobs for them are available, an inference 'and finding is warranted that further application would be futile because from the existence of the dis- criminatory practice it is clear that the same discriminatory conditions would be attached whenever the jobs became available." 5 In substance the Company con- tended also that it refused Eley reinstatement because of a statement he made in his memorandum of June 9, 1954, to the international Union. In the light of the entire record this defense is not credited. In substance Local 47 contended Eley was not reinstated because it had no requests for men when he requested referrals. As I find herein that Local 47 was the sole source of supply of asbestos workers for Respondent Company, and as over 35 asbestos workers were employed by the Company during the period Eley was not reinstated, this defense by Local 47 is not credited. g. Respondents' theory that Eley quit his job in order to force his way into- Local 47 was not spelled out in the record or in the briefs. Forcing his way-implies. compulsion and pressure. The record discloses no pressures Eley brought to bear upon Local 47 either before or after his separation May 20, 1954. Nor does the record reflect how, it at all, Eley expected to, or could have with the means at his disposal, brought more pressure on the Local to admit him to membership while- he was unemployed than while he was working for Respondent Company. Although Eley was frustrated in his continuing efforts to become a member of Local 47, and although he thought he had a right under the Act to join Local 47 if he wanted to,. the record does not disclose how he thought he could accomplish this objective- other, possibly, than filing a charge against it. If filing a charge with the Board is urged as such a pressure, it should be noted that he filed no charge against Local 47 until October 8, 1954, some 41/2 months after his termination. Nor does the record disclose any other motive for Eley's quitting. He had friendly relations with both the Company and his fellow workers, was well regarded by his superiors in the Company, including its president, and evidently preferred insulating work to his other trade of cement finishing. h. Thomas Stafford, president of Respondent Company, testified that on May 20, 1954, he told Sasser to make an effort to place the men who had been released from the job in Montague, Michigan, "because there was trouble brewing in the contract department [of Respondent Company] over the Eley case. . I was aware that there was a problem." From this it appears that at this moment Stafford thought there was trouble ahead for the Company if it continued to employ Eley. And although Stafford for some time theretofore had given Sasser almost free reign in the running of the contract department, his testimony indicates that in this instance he gave Sasser not a suggestion, but an instruction, to try to place the Montague men. In this frame of mind, it is highly probable that in his instruction to Sasser, Stafford made some mention of Eley, although both Stafford and Sasser denied this. So forceful did Stafford make his instruction to Sasser that the latter undertook to carry it out contrary to his own better judgment. i. It is undenied that Sasser initiated the conversation with Eley on May 20, and that if Eley quit he did so as a direct and immediate result of something Sasser said. to him. In his testimony Sasser allowed that although he knew nothing about "unionism," he thought that anyone acquainted with unionism and being on a- "permit" would have taken off under the circumstances. The only circumstances: Eley knew at this point were those pointed out to him in that conversation by Sasser.. In conclusion, in view of the inferences above,. as Eley was a far more credible wit- ness than Sasser, as most of the statements attributed to Sasser by Eley on May 20 were undenied by Sasser, and on the record considered as a whole, I credit Eley's 5 Consolidated Western Steel Corporation, 108 NLRB 1041, 1044, and cases cited therein.. Myles Worst ell and United Brotherhood of Carpenters, 114 NLRB 503. ALEXANDER-STAFFORD CORPORATION 103 version of his May 20 conversation with Sasser and his conversations with Sasser after his termination. It is held that on May 20, Sasser told Eley it would be a good idea if he did not show up for work for a while in order to prevent trouble with the Union, and that Sasser could not keep Eley working as long as the union men then out of work were not placed. It is held further that on May 29, 1954, when Eley applied for work Sasser told him that the union members were not placed, that until they were placed he could not put Eley back to work, and that Eley's referral was no longer any good and he would have to get a new one from Fisher before Sasser could return him to work. I hold further than on June 3, 1954, when Eley again applied for work, Sasser told him that the union members were still out, and that when they were back to work Sasser would call Eley and return him to work. 5. Conclusions Section 8 (b) (2) of the Act provides, in part, that it shall be an unfair labor practice for a labor organization "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3)." Section 8 (a) (3) prohibits discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. The sole exception to this general provision is a proviso per- mitting a union shop under certain conditions.. No other arrangement encouraging union membership is valid. Radio Officers' Union v. N. L. R. B. 347 U. S. 17, 40-42. It is now well settled that any contract, practice, or arrangement, oral or written,. requiring that employees must be members of a union or have clearance from it as a condition of being hired or continuing their employment, or that union members shall receive preference in employment, is violative of the Act.6 In my opinion the testimony here fully establishes that there was a stronger under- standing between Local 47 and Respondent Company under the contracts than that the former would supply the latter with asbestos workers when requested. . As found above, Local 47 was the sole source of supply of asbestos workers for Respondent Company, and its own bylaw prohibited its members from working with any who were not either members of Local 47 or on referral from it. As found above, Local 47 was not only the sole source of supply, but in addition it in fact maintained control of who would do the asbestos work for Respondent Company, as shown by Fisher's statement to Eley that "they were going to handle the work them- selves." As found above, and not disputed in this record, in the filling of jobs Local 47 gave preference to its own members. That Sasser, who participated in the negotiating of the 1953 and 1954 agreements, considered himself bound to obtain clearance from the Local for all asbestos workers was amply borne out by the evidence, as found above. As has also been found above, Respondent Company shared with the Local the understanding and practice of giving preference in the holding of jobs to Local 47 members over nonmembers, as shown by Sasser's statement to Eley that "we have an agreement with the Local to keep all our cardmen in work." 0 Construction Specialties Company, 102 NLRB 1542, enfd. 208 F. 2d 170 (C. A. 10) Operative Plasterers' and Cement Finishers' International Association, Local 555, AFL (Teller Construction Co.), 110 NLRB 463; South Texas Chapter, Associated General Con, tractors of America, Inc., 1.07 NLRB 965 ; Operative Plasterers' and Cement Finishers International Association of the United States and Canada, AFL, Local 511 (National Gunite Corporation), 110 NLRB 279 ; Mohawk Valley and Vicinity District Council, United Brotherhood of Carpenters and Joiners of America, and Local No. 1261, United Brotherhood of Carpenters and Joiners of America (Grow Construction Co., Inc.), 109 NLRB 522 ; Local Union 595, International Association of Bridge, Structural and Orna- mental Iron Workers, AFL (Id. Clinton Construction Company), 109 NLRB 73; Seabright Construction Company, 108 NLRB 8: Local 13, International Brotherhood of Boilermakers, Iron Ship Builders, and Helpers of America. AFL (The Babcock it Wilcox Co.), 105 NLRB 339: Mundet Cork Corporation, 96 NLRB 1142 ; Alaska Chapter of the Associated General Contractors of America, Inc., 1.13 NLRB 41 ; Fiehleay Corporation v. N. L. R. B., 206 F. 2d 799, 803, 805 (C. A. 3) ; George D. Auchter Co., 102 NLRB 881, 885. enfd. 209 F. 2d 273 (C. A. 5) ; International Brotherhood of Boilermakers, etc., 94 NLRB 1590; Consolidated Western Steel Corporation, 108 NLRB 1041 ; Myles Worstell, and Local 2023, of the United Brotherhood of Carpenters and Joiners of America, AFL, 7.14 NLRB 502; Millwright Local Union No. 2484 and H. B. Clem, Financial Secretary, United Brotherhood of Carpenters and Joiners of America, AFL, 114 NLRB 541 ; Daugherty Company, Inc., 112 NLRB 986; International Longshoremen's and Warehouse- men's Union, 90 NLRB 1021, 1022. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The unlawful hiring practices disclosed in this record could not have been pos- sible without the understanding, cooperation, or participation of both the Company and the Local. That the practices had their roots deep in the long history of the relationship between the parties is undoubtedly true, but this does not make them lawful. The treatment of Robert Eley on and shortly after May 20, 1954, further proves the existence of an understanding or arrangement between the parties, and the ap- plication of such arrangement. On May 20, Sasser, Eley's top supervisor, referring to the contract with the Local which required the Company to keep "all our cardmen in work," suggested that Eley absent himself from the job the next day, and then told him that he could not give him any more work until all the union members had been placed. On the same occasion Supervisor Kranenberg told him to take his tools home and that he would not be coming back to that job. On the basis of the entire record con- sidered as a whole I conclude that these words by Sasser and Kranenberg amounted to and constituted a discharge of Eley under the arrangement between the Company and the Local and because Eley was not a member of the Local. The following day the Company placed two union-member mechanics (Eley was a mechanic) on the same job he had left. On June 3, 1 other started to work for the Company and <on June 10, 2 others. Meanwhile on May 29 and June 3, Eley reapplied to Sasser for employment and was put off on the grounds that he could not take him back until all the union members were placed and that in any case he would have to get a new referral from Fisher. Meanwhile on June 3 and 8, Eley asked Fisher for a referral and was refused on the ground that the Local was going to handle the work itself and was not going to issue any more referrals to those who had had referrals. Under all the circumstances of this case it is clear, and I conclude, that during this period Eley was denied reinstatement under the arrangement between the Company and the Local and because Eley was not a member of the Local. On the basis of the entire record considered as a whole I hold that as interpreted, administered , and enforced by Local 47 and Respondent Company, the 1953, 1954, and 1955 contracts required membership in or referral from Local 47 as a condition of employment with Respondent Company, members being given preference. Thus these contracts amounted to preferential hiring contracts no longer permitted under the Act. By interpreting, administering, and enforcing the 1953 contract as a preferential hiring contract from 6 months prior to the filing of the charges herein until its duration (April 8 to June 30, 1954, in the case of Local 47; May 18 to June 30, 1954, in the case of the Company), Respondent Local 47 violated Section 8 (b) -(2) and (1) (A) of the Act, and Respondent Company violated Section 8 ( a) (3) and (1) of the Act. By entering into, interpreting, administering, and enforcing the 1954 and 1955 contracts as preferential hiring contracts, Local 47 violated Section 8 (b) (2) and (1) (A) of the Act, and Respondent Company violated Section 8 (a) (3) and (1) of the Act. On the basis of the entire record considered as a whole, I hold that on May 20, 1954, in the enforcement of the 1953 contract as a preferential hiring contract, Respondent Company discriminatorily discharged Robert Eley because he was not a member of Local 47, Respondent Company thereby encouraging membership in Respondent Local and thereby violating Section 8 (a) (3) and (1) of the Act. Although there was no proof that Local 47 specifically requested the Company to discharge Eley, it is clear under Board precedent that as the contract has resulted in actual discrimination, Local 47, by enforcing the contract, "must be deemed to have caused such discrimination." 7 Accordingly I hold that Local 47 caused Re- spondent Company to discriminate against Eley in violation of Section 8 (a) (3), Local 47 thereby violating Section 8 (b) (2) and (1) (A) of the Act. On the basis of the entire record considered as a whole, I hold further that at all times between May 20, 1954, and July 5, 1955, in enforcing the 1953, 1954, and 1955 contracts as preferential hiring contracts by withholding a referral from Robert Eley because he was not a member, Local 47 caused Respondent Company dis- criminatorily to refuse employment to Eley in violation of Section 8 (a) (3) of the Act, Local 47 thereby violating Section 8 (b) (2) and (1) (A); and Respondent Company, by discriminatorily refusing employment to Eley, thereby encouraging membership in Respondent Local, violated Section 8 (a) (3) and (1) of the Act. 7 Childs Company, 93 NLRB 281, 285; Nundet Cork Corporation, 96 NLRB 1142,1149; .Construction Specialties Co., 102 NLRB 1542, eiifd. 208 F. 2d 170 (C. A. 10). ALEXANDER-STAFFORD CORPORATION 105 It has been found above that one member of The Master Insulators Association- Alexander-Stafford Corporation-has engaged in unfair labor practices under the 1953, 1954, and 1955 contracts to which The Master Insulators Association was a party signatory on their behalf, by its agreement, arrangement, or practice under the contracts with Local 47, and its application of said agreement, arrangement, or practice. It has been stated generally above that another member of said Em- ployer Association, Kalamazoo Asbestos Company, was in violation of the Act by its practice under the contracts. The question arises as to the responsibility of the Employer Association for such unfair labor practices. The Association never functioned except to negotiate the several contracts. It met just before each bargaining meeting with Local 47 and discussed what positions to take in the bargaining. Otherwise it did not meet at all. It never employed a paid official. It never undertook to tell its members how they should interpret, or conduct their practice under, the contracts, or that their practice thereunder should be uniform. Nevertheless, as a participant in a common enterprise with Respondent Company and with Kalamazoo Asbestos Company, it was a cosponsor with them of any un- lawful clauses in the contracts and the unlawful practices thereunder. Such co- sponsorship carried with it the responsibility of joint participants in a common enterprise for one another's acts performed in furtherance of the enterprise. Ac- cordingly the Association was jointly responsible with Respondent Company for the unlawful clauses in the contracts and the general unlawful practices thereunder as found above.8 As the complaint against the Association did not allege that the Association was responsible for the discriminatory discharge and refusal to rein- state Robert Eley, I do not find that it was. B. Unfair labor practices committed by the International Union It has been found above that the 1953, 1954, and 1955 contracts contained certain unlawful clauses, and that as interpreted and enforced the contracts violated the Act. The question arises as to the responsibility of the International Union for these violations. The constitution of the International Union gives the international "supreme ruling authority and supervision over all its affiliated Local Unions. . . Its power- shall be Legislative, Executive and Judicial." The International's president "shall preside at Local Union meetings when he so decides. . He shall be an ex- officio member of all Local Union Committees and Boards. He shall have au- thority to audit Local Union finances and to suspend Local Union officers- and appoint their successors pending hearing by General Executive Board or Conven- tion." The general executive board of the International "shall have power to re- organize or suspend a Local Union or revoke its Charter when in the opinion of the Board such action is in keeping with the best interests of the Local member- ship or the International Association." The International's constitution sets forth precise rules for the levying of initiation fees, fines, assessments, and dues by the local unions, and the issuance of withdrawal, traveling, and transfer cards. The constitution provides further that "Local Unions are subordinate branches of the international [Union] and as such can be reorganized, suspended or dis- banded with charter revocation by action of the General Executive Board or Convention." With reference to referrals, the International constitution provides, "Referral cards shall be issued for the purpose of identification in directing other than our- membership for employment. There shall be no charge of any nature or collections in connection with the issuance of Referrals." With reference to collective bargaining, the constitution provides, "Local Unions shall work under trade agreements as adopted by the International Association in Convention assembled. . . . Local Unions shall have power to fix wages within their chartered jurisdiction or trade agreement radius. Also to regulate the working conditions of either Mechanics or Improvers, in any manner they deem proper except in the restriction of individual working effort, or in opposition to the Inter- national form of Joint Trade Agreement." The constitution provided further that "Local Unions as subordinate branches of the International Association can only exercise local autonomy in matters upon 8 George D. Auchter Company et at., 102 NLRB 881, enfd. 209 F. 2d 273 (C. A. 5) Paul W. Speer, Inc., 98 NLRB 212; Osterink Construction Company, 82 NLRB 228; E. E. Shuck Construction Co., Inc., 114 NLRB 727. Cf. Pacific American Shipowners As- sociation, 98 NLRB 582. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which the International Constitution and By-Laws are silent. They shall function within their chartered jurisdiction and in such other territory covered by signed trade agreement with employers"; and also that "Local Unions shall exercise local autonomy when it does not conflict with laws of the International Association. . As provided in the constitution, the International Union provides certain supplies to the local unions, ' including referral blanks and "international Joint Trade Agreements." The preamble to the 1953, 1954, and 1955 agreements read as follows: The following Agreement is not subject to change by a Local Union. Any provision not in conflict with its letter and spirit may be agreed upon and attached to it in the form of addenda. It provides for collective bargaining and as such must recognize as its prin- cipals Local Unions and Insulating Contractors' Associations composed of Insulating Contractors known and recognized as such within the trade. It is understood and agreed that the approval by the International Asso- ciation as to form and substance of this Agreement is only for the purpose of indicating that the International Association certifies that the said contract is not in violation of the International Constitution and By-Laws and is ap- proved as to form and substance for that purpose only and no other. Each contract then recites that it was made and entered into between The Master Insulators Association and Local 47. The first four pages of each of these contracts consists of many printed words, which were on the original form when it came to Local 47 from the International Union, and a few blank spaces which were filled in as a result of the collective bargaining between Local 47 and the Employer Association. Attached to each of the "International Joint Trade Agreement" (the forms are labeled simply "Agree- .ment," and under that the words, "Master Insulators' Association") are some 3 or 4 pages of "Supplemental Agreement" dealing mostly with travel expense, job stewards, and the welfare fund. Concerning the supplemental agreement of the 1955 contract there is evidence that a Washington, D. C., attorney participated in the discussion of whether 3 pro- posed paragraphs should be included in the supplemental agreement and of how 1 of them should be phrased. Signing this agreement on behalf of The Master Insulators Association was Thomas Stafford, then its president as well as president of Respondent Company, and Stephen Dunn, its acting secretary, and a practicing attorney in Grand Rapids, Michigan, who participated on behalf of the Asso- ciation in the bargaining negotiations leading to the contract. Thomas Stafford testified, "We were endeavoring to get clarification of para- graphs which we felt were in violation of the law. The local 47 had no attorney and Mr. Dunn wanted to find what the, stand nationally was with the Asbestos Workers.. . . He consulted with me about seeing the National about the problem. ... From the counsel table at the hearing Local 47's attorney, whose office is in Grand Rapids, stated that he "had been retained by the Local at that time." On July 1, 1956, the Washington, D. C., attorney, Carlton R. Sickles, on his own letterhead as a practicing attorney wrote Stephen Dunn in Grand Rapids: Reference is made to our telephone discussions yesterday of the three pro- posed paragraphs drafted for use in the collective bargaining between Asbestos Workers Local 47 and the Asbestos Insulators Association in that area. The first paragraph, deleting specific reference to particular articles, would seem to present no difficulty and as modified would provide as set out below: Nothing contained in this agreement or the supplemental agreement or in any article of this agreement or the supplemental agreement read separately or together shall be construed to constitute a "closed shop" or to provide for conditions which if enforced would constitute a "closed shop." It is my conviction that the second of the proposed paragraphs would be unnecessary, in light of Article XVII which provides that neither party "Shall continue in force or create any rules or bylaws conflicting with its provisions," and which appears to have the same intent as the suggested language. Again, it would appear that the third proposed paragraph would have no place in this agreement between these parties since there is nothing in the agreement which would oblige a party to the agreement to comply with de- mands made by anyone not a party to the agreement. A copy of this letter was sent to Business Agent Virgil Fisher of Local 47. ALEXANDER-STAFFORD CORPORATION 107 As originally signed, according to the uncontradicted and credited testimony of 'Thomas Stafford, paragraph 12 of the supplemental agreement read as follows: 12. Declaration. Nothing contained in this agreement or the supplemental agreement or in any article of this agreement or supplemental agreement read separately or together shall be construed to constitute a closed shop or to provide for conditions , which, if enforced, would constitute a closed shop. It is further agreed that the letter dated July 1, 1955, from Carlton R. Sickles, shall apply with respect to questions of interpretation of the new agreement. To be noted is that this language is word for word the same language as was ,proposed by Sickles in his letter, except for the last sentence . It would appear further that Sickles had modified this paragraph while it was in his hands, for he stated in his letter, "The first paragraph, deleting specific reference to particular articles, would seem to present no difficulty and as modified would provide as set out below:" According to the uncontradicted and credited testimony of Thomas Stafford, "Mr. Sickles objected to his name appearing. It was in a reference to a letter. We took this matter, Mr. Fisher immediately called me. I took the matter up with Mr. Dunn. We discussed the matter. It was of no value whatever, so far as we were -concerned, and we authorized the exchanging of this sheet for a new sheet on which Mr. Sickles' name was not there." So by agreement of the parties, paragraph 12 was changed by deleting the last sentence-leaving it as it had been phrased by Mr. .Sickles. Conclusions It is clear that as between Local 47 and the International Union, only the former was a party to the 1953, 1954, and 1955 contracts. The fact that the Interna- tional Union supplied the master agreements did not make it a party to the contracts or mean that it was responsible for their execution, in the absence of any evidence that the International Union participated in their negotiation. Heating, Piping and Air Conditioning Contractors, etc., 102 NLRB 1646, 1654. The clauses found above to have been unlawful on their face because they discriminated in favor of Local 47 members over nonmembers in conditions of employment, were contained in the supplemental agreements not supplied by the International and for which the Inter- national Union could not in any case be held responsible. The clauses found above to have been unlawful as interpreted, administered, and enforced by Local 47, Re- spondent Company, and the Employer Association were not shown by any evidence whatsoever to have been interpreted, administered, and enforced in the same man- ner by the International Union. In fact the record is devoid of any evidence as to how the International Union interpreted, administered, or enforced said clauses, or that it did so at all. The General Counsel contended that by its advance approval of the master agreements the International Union in effect ratified them and thereby became a party to them. But the contracts recited that this advance approval was solely to indicate that the International certified that the contracts were not in violation of the International's constitution and bylaws, and there is no evidence that it was for any other purpose. The Employer Association executed the contracts knowing that this was the purpose of the International's advance approval and knowing that the other party to the contract was Local 47 and not the International Union. The General Counsel contended in substance that the International Union should be held responsible for the execution of the 1955 contract because through its attor- ney, Carlton R. Sickles, it participated in the negotiation of that contract. It is true, as recited in Sickles' letter, that during the negotiation period Sickles consulted with Dunn of the Employer Association concerning certain clauses for the contract. It is also true that Sickles' suggestions were accepted by the Employer Association and Local 47. In my judgment it was not established, however, that in advising Dunn as he did Sickles was acting as a bargaining representative of the International Union such as to make the International a party to the contract or responsible for it by participating in its negotiation. The record is silent as to Sickles' authority or apparent authority to speak for the International Union on this occasion or generally, and such authority or apparent authority may not properly be inferred from the fact that Dunn had consulted with Stafford about "seeing the President of the National about the problem" and the fact that some 2 months later Sickles represented the International Union at the hearing herein. Attorneys for international unions do not necessarily bind the international unions every time they give requested advice to local unions or to employers bargaining with local unions. As the International Union did not participate in the negotiation of and was not a party to the contracts or to the interpretation or enforcement of them or the 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practice under them, and was in no way connected with the discharge and non- reinstatement of Robert Eley, I conclude that the General Counsel has failed to prove that any unfair labor practices were committed' by the International Union. The complaint against it should therefore be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities, set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free. flow of commerce. V. THE REMEDY Having found that certain of the Respondents have engaged in the unfair labor practices set forth above, I recommend that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. By letters dated June 23, 1955, the International Union informed Eley, and Local 47 informed both Eley and Respondent Corporation, that the unions had no objection. to the Company's employing Eley. As soon thereafter as was practicable under all the circumstances, on July 5, 1955, Respondent Company returned Eley to work. As the practices of Local 47 and Respondent Company under the 1953, 1954, and 1955 contracts caused Eley to be discharged May 20, 1954, and not to be reinstated'. until July 5, 1955, it will be recommended that they jointly and severally make him whole for any loss of pay he may have suffered as a result thereof by paying to said Robert Eley an amount equal to that which he would have earned as an asbestos. worker from May 20, 1954, until July 5, 1955, less his net earnings during said period.9 The computations shall be made on a quarterly basis in the manner estab- lished by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-299. The geographical scope of the unlawful contracts and practices is wide, covering a number of cities in western Michigan. In 1955 the Employer Association, a contract- ing party, had members in Grand Rapids, Kalamazoo, Lansing, Flint, Saginaw, and Bay City. Local 47, the other contracting party, has no office of its own, but it meets at the Labor Temple in Lansing. The 1955 contract, in naming Local 47 a party to the contract, recited that Local 47 was "of Lansing, Kalamazoo, Jackson, Grand Rapids, and Saginaw, Mich." The record reveals that the operations of Respondent Company cover a number of cities. Respondent Employer Association has no office. It is evident from the above that posting notices at the office and warehouse of Respondent Company and at the Labor Temple in Lansing would not adequately effectuate the policies of the Act. In order adequately to publicize both to employers and employees, including nonmembers of Local 47, that the Respondents will cease and desist from their unlawful practices found herein, I believe that they should be required to publish notices to that effect in newspapers of general circulation in the cities and towns in western Michigan where mechanics and improvers have been and will be employed.10 These would include, presumably, Grand Rapids, Kalamazoo, Lansing, Flint, Saginaw, Bay City, and Jackson, Michigan. Because of the Respondents' unlawful conduct and its underlying purpose and tendency, I find that the unfair labor practices found are persuasively related to other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the Respondents' conduct in the past." The preventive purpose of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby to minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, I will recommend that Respondents cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. Alexander-Stafford Corporation and The Master Insulators Association are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 9 Crossett Lumber Company, 8 NLRB 440, 497-98 ; Republic Steed Corporation v. N. L. R. B.. 311 U. S. 7. m J. J. White, Inc., 111 NLRP 1126. 1.127. n N L. R. B. v. L'xpress Publisking Co., 312 U. S. 426. LOCAL 16 109 2. Local 47 and the International Union are labor organizations within the meaning of Section 2 (5) of the Act. 3. By entering into, maintaining, and enforcing agreements , arrangements, or practices requiring membership in, or referral from, Local 47 as a condition of em- ployment, members receiving preference , and by otherwise discriminating in favor of Local 47 members over nonmembers in conditions of employment , Respondent Company and the Employer Association have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, and Local 47 and the International Union have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2 ) of.the Act. 4. By discriminating in regard to the hire and tenure of employment of Robert Eley, Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( a) (1) and (3) of the Act. 5. By causing Respondent Company to discriminate against Robert Eley in the hire and tenure of his employment , Local 47 and the International Union have en- gaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2 ) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Local 16, International Longshoremen 's and Warehousemen's Union and Denali-McCray Construction Company. Case No. 19-CD-26. June 7, 1957 DECISION AND DETERMINATION OF DISPUTE STATEMENT OF THE CASE This proceeding arises under Section 10 (k) of the Act, which pro- vides that "Whenever it is charged that any person has engaged in an -unfair labor practice within the meaning of paragraph (4) (D) of Section 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall .have arisen. . . . - On September 27, 1956, Denali-McCray Construction Company, herein called Denali-McCray, filed a charge with the Regional Director for the Nineteenth Region alleging that Local 16, International Long- shoremeii's and Warehousemen's Union, herein called the IL`VU, had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. It was charged in .substance that the ILWU had induced and encouraged employees of Denali-McCray to engage in a strike or a concerted refusal to work with an object of forcing or requiring the Company to assign certain duties to members of the ILWU rather than to the Company's own employees who are members of the AFL-CIO Building Trades Unions, including the International Union of Operating Engineers, Local 302, herein called the Operating Engineers, which intervened in the instant proceeding on behalf of the Building Trades Unions. Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional 118 NLRB No. 12.