Nassau and Suffolk Contractors' Association, Inc.

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nassau and Suffolk Contractors' Association, Inc., and its mem- bers listed in Appendix A and Peter Batalias and Local 138,. International Union of Operating Engineers, AFL-CIO, Party to the Contract Local 138, International Union of Operating Engineers , AFL-CIO, and Peter Batalias and Nassau and Suffolk Contractors' As- sociation, Inc., and its members listed in Appendix A, Party to the Contract Hendrickson Brothers, Inc. and Peter Batalias and Nassau and Suffolk Contractors' Association, Inc., and its members listed. in Appendix A, Local 138, International Union of Operating Engineers, AFL-CIO, Parties to the Contract. Cases Nos.. 2-CA-4208,2-CB-1438, and 2-CA-4f09. June 18,1957 DECISION AND ORDER On September 18, 1956, Trial Examiner David London issued his. Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and supporting briefs. The Board heard oral argument at Washington, D. C., on January 24, 1957.. Representatives of the General Counsel, the Charging Party, the Respondent Association, the Respondent Hendrickson, and the Re- spondent Union appeared and participated in the oral argument. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Murdock and Bean]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Intermedi- ate Report, the exceptions and briefs, the oral argument, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, except as modified hereinafter.2 1. We agree with the Trial Examiner that the 1944 collective- bargaining agreement between the Association and the Union as re- newed periodically thereafter contains unlawful hiring provisions I The Trial Examiner erred in taking official notice of the criminal conviction of John De Boning, Sr. We have not considered the fact of his conviction in reaching our deci- sion. Accordingly, we do not deem the Trial Examiner's error prejudicial. 2 The Trial Examiner found that Frank Fatscher was an official of Ted Fatscher, Inc. The record shows, and we find, that he was only an employee of that Respondent. 118 NLRB No. 19. NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 175, and that the so-called savings clause is not sufficient to purge those provisions of their illegal effect.3 The Respondents contend that the unlawful clauses have not been enforced and consequently there has been no violation of the Act. Where contracting parties agree not to enforce and in fact do not en- force an unlawful union-security clause, the Board has held that there is a violation of Section 8 (a) (1) and 8 (b) (1) (A), but not of Section 8 (a) (3) and 8 (b) (2). If the contracting parties go further and inform employees of their intention, no violation at all will be found.' There is no evidence in this case either of an agreement by the Respondents not to enforce the hiring provisions of their contract or of notification to employees to that effect. On the contrary, the evi- dence is overwhelming that the unlawful hiring clauses were in fact enforced according to their terms.5 The fact that a few individuals. may have been hired without clearance from the Union does not destroy the cumulative effect of testimony by numerous master me- chanics and company officials establishing that hiring was done in conformity with the provisions of the 1944 agreements Accordingly,, we find, as did the Trial Examiner, that by continuing in effect the closed-shop provisions of the 1944 collective-bargaining agreement, Respondent Association and Respondent Hendrickson violated Section 8 (a) (1), (2), and (3), and Respondent Union violated Section 8 (b). (1) (A) and (2) of the Act.' 2. We agree with the Trial Examiner that Respondents Hendrick- son and Davis Construction Corp., but not Ted Fatscher and William H. Greene, have unlawfully interfered with the administration of the affairs of Respondent Union by the voting of certain executives and supervisors at union meetings. There are insinuations in this case of corruption in and maladminis- tration of the affairs of the Union and collusion between union officials and Employers intended to give trade advantages to some Employers as against others. Because of the public importance of such issues, with which the Board Members as individuals are as much concerned as any other citizens, something must be said of the Board's power as an agency of the United States Government to deal with them. The ' N. L. B. B. v. Gottfried Baking Co ., Inc., et al., 210 F. 2d 772 ( C. A. 2) ; Gaynor News Company, Inc. v. N. L. P. B., 197 F. 2d 719 (C. A. 2), affd. 347 D. S. 17. 1 Gottfried Baking Company, Inc., 103 NLRL' 227, 246, enfd. 210 F. 2d 772 (C. A. 2) ; Port Chester Electrical Construction Corporation, 97 NLRB 354 ; see County Electric Co., Inc., 116 NLRB 1080. 5 Testifying to this effect were Master Mechanics Louis Wilkens , Clifford Smith, George Henry, Gerard Douglas, William Kreischer, and Charles Hansen. Company executives giv- ing similar testimony were Charles Davis, Joseph Brennan, and Frank Marmorale. John De Koning,, a former business representative of the Union, also testified that the closed- shop provisions were enforced. 6 N. L. R. B. v. Local 369, International Hod Carriers' Building and Common Laborers' Union of America, AFL, 240 F. 2d 539 (C. A. 3). 7N. L. P. B. v. Gottfried Balking Co ., Inc., et al., 210 F. 2d 772 (C. A. 2). 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Board is a creature of statute. It has only those powers which Congress has delegated to it. The primary purpose of the Act is to prescribe and protect the rights of employers and employees in dealing with one another. The Board does not have criminal, restraint of trade, or antitrust jurisdiction 8 It has been given no power to deal with corruption within a labor union. Neither the possibility of the perpetration of such offenses nor whatever find- ings may be made respecting their commission by duly constituted authority has any bearing upon our determination of whether, on the record before us, the statute has been violated? The Board has no authority to interfere with the internal ad- ministration of a labor organization. Although Section 8 (b) (1) (A) makes it an unfair labor practice for a labor organization to re- strain or coerce employees in the exercise of rights guaranteed in Section 7, Congress added a caveat that this does not "impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein." This limitation means, according to the courts and the legislative history, that labor organizations may "enforce their internal policies upon their member- ship as they see fit." 10 The Board cannot interfere. It is only if the labor organization causes or attempts to cause an employer to dis- criminate, by discharge or otherwise, against an employee ousted from the union for some reason other than the failure to tender periodic dues and initiation fees that the Board has the authority to step in and protect the employee in his job rights." There is, incidentally, no allegation in the present case that Respondent Union or its agents re- strained or coerced employees in the exercise of rights guaranteed by the Act,.except by being a party to an unlawful closed-shop contract. There is an allegation that the Union caused or attempted to cause the Association to deny employment to members of the so-called re- form group within the Union, but no proof was offered in support of this allegation. The Trial Examiner recommended its dismissal and no exceptions thereto have been filed by the General Counsel. We have accordingly adopted this recommendation pro forma. Although the Board has no jurisdiction over what employees them- selves do in the administration of their labor union affairs, the Act does make it unlawful for an employer "to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it." (Section 8 (a) (2).) The principal allegations of the complaint are based upon this section. 8 Cf. Allen-Bradley Co . v. Local Union No. 3, 1 . B. E. TV., 325 U. S. 797. 0 Cf. Imperial Reed & Rattan Furniture Co., 117 NLRB 495. 10 American Newspaper Publishers Association V. N. L. R. B ., 193 F. 2d 782, 800, 806 (C. A. 7), affd. 345 U. S. 100; Legislative History of the Labor Managements Relations Act, 1947, pp. 1097, 1141, 1142, 1420. 12 Union Starch & Refining Co . v. N. L. R. B., 186 F. 2d 1008, 1012 (C. A. 7). NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 177 The complaint alleges in general terms that Respondent Association and its members dominated, assisted, contributed to the support of and interfered with the administration of Respondent Union by caus- ing its supervisors to become and remain members of the Union, to attend and participate in general membership and executive board meetings of the Union, and to assume and retain official positions on the Union's executive board and in other official positions of a policy- making, executive, and governing nature. There is no allegation that Respondent Association dominated or interfered with the administra- tion of Respondent Union through the medium of corruption. The complaint allegations rest entirely on the role played within the Union by certain supervisors, principally master mechanics. The Trial Examiner made the following findings of Section 8 (a) (2) violations: ... by voting at membership meetings of the Union on matters involving the administration of that organization's affairs, officers and supervisors of Respondents Hendrickson Brothers, Inc., Ted Fatscher,12 Davis Construction Corp., and William H. Greene interfered with the administration of the Union... . ... by the participation, in behalf of the Union, by Supervisors Smith and Dean in bargaining negotiations with the Association, their employers, Hendrickson Brothers, Inc., and Radory Con- struction Corp., respectively, interfered with and dominated the administration of the Union's affairs... . [As Hendrickson] was negotiating as the duly authorized rep- resentative and agent of the Association and all its members .. . his conduct in continuing to acknowledge, recognize, and deal with Smith as a representative of the employees must be attributed to his principal, the Association and all its members. It will be noticed that the Trial Examiner has found to be violative of Section 8 (a) (2) only (a) the voting by officers and supervisors at union meetings, and (b) the participation of Master Mechanics Smith and Dean in bargaining negotiations in behalf of the Union. It will be further noted that the Trial Examiner found the voting by super- visors and officers to constitute only interference with the administra- tion of the Union, and that the finding of domination rests entirely on the fact that Master Mechanics Smith and Dean were members of the Union's negotiating committee. There is no finding that employers influenced union action by bribes or other corrupt means and no finding that the bonuses annually paid to Smith were intended to in- fluence his action as a member of the Union's negotiating committee. 19 The Trial Examiner found Ted Fatscher responsible because of his erroneous finding that his brother Frank Fatscher was an officer of the Ted Fatscher firm. In fact, Frank Fatscher is only an employee of his brother 's company, as the General Counsel conceded at the oral argument. On the Trial Examiner's theory, no violation should therefore be found against Ted Fatscher. 450553-58-vol. 118 13 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In fact, Radory Construction Corp., the employer of Master Mechanic Dean, is found to have dominated the Union, although there is no evidence that Dean was the recipient of any kind of bonus from his employer. The General Counsel has not filed exceptions to the Trial Examiner's report. Accordingly, the issues posed are : (1) Whether the fact that officers and supervisors of certain Asso- ciation members voted at union membership meetings constitutes un- lawful interference with the administration of that labor organization. (2) Whether in dealing with,a union negotiating committee which included two master mechanics the employers of those master me- chanics unlawfully interfered with and dominated the administration of the affairs of the Union. (3) Whether the other members -of the Association are equally responsible for the conduct described in issue (2) above. In order to treat these issues adequately some background facts are necessary. The Union has been in existence since about 1933. There is no contention and no evidence that it was employer dominated in its inception. In accordance with the constitution of the Union's International, Local 138 has two branches-Locals 138A and 138B.1' The membership of Local 138 comprises qualified operating engineers, that of 138A apprentices, oilers, and firemen, and that of 138B engi- neers engaged in other than heavy and building construction work. Again according to the International's constitution, both branches function under the direction and control of the parent local-138. Members of branch locals may not vote in their parent local except with the consent of the parent; "provided, however, that they may not vote, even should such consent be granted, in any election of of- ficers of the parent Local Union, nor shall they hold office in their parent Local Union, nor shall they elect officers in their subdivi- sions."" Local 138 has about 518 members, 138A about 435, and 138B about 270.15 Among the members of Local 138 are master mechanics. They are mostly long-time union adherents and are very active in the ad- ministration of the affairs of the Union. At least one master mechanic, Louis Wilkens, employed by a member of the Association, is a leader of the reform faction within the Union. The collective-bargaining contract between the Respondents requires that a master mechanic be employed where there are five or more operating engineers at work. They are supervisors.ls Some of the master mechanics have regular 13 Constitution of International Union of Operating Engineers ( 1952), article XiV, sections 1 and 4. 14 Id. article XIV, section 5. 1, The Trial Examiner found that Local 138 had 158 members. The testimony shows, however, and the General Counsel conceded at the oral , argument, that the correct figure is about 518. 13 The Respondents contend that the master mechanics are not supervisors . Although there is some testimony to this effect , we find that the preponderance of the testimony es- NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 179 jobs with one employer. Some shift from job to job. Those doing so may be it master mechanic on one job and an ordinary operating engineer on another. An individual working for a single employer may also be a master mechanic at one time and an operating engineer at another, depending upon whether the number of operating engi- neers employed falls below or rises to the level of five. Master mechanics are included in the unit represented by the Union. They are covered by the existing collective-bargaining contract per- taining to rank-an.d-file employees and are required to be members in good standing of the Union. The contract says that the "master mechanic shall be designated by the employer." However, Local 138's bylaws (article 7, section 10) provide that "Employment of Master Mechanics is to be governed by agreement, and they shall be members of this Local Union. They may accept such employment only with the consent of this Local Union." This requirement of union approval for master mechanics is lived up to. In fact, in some cases the Union appears actually to designate the individual who is to act as master mechanic on a given job.' The master mechanic is not only a union member, he is also the Union's shop steward on the job. A shop steward, according to the Union's' bylaws, is appointed by the business manager and is "re- sponsible for working conditions on the job." (Article 7, section 7.) A member arriving on or leaving a job must report to the shop steward, who is required to make a weekly report in writing to the business manager. (Article 7, sections 8 and 9.) In addition to the master mechanics who are required to be members of the Union, there are other supervisors and company executives who are members of the Union although not required to be such. These are individuals who became members of the Union when they were tablishes , as concluded by the Trial Examiner, that they are supervisors . Thus, the collective -bargaining contract between the Respondents provides that there shall he 1 master mechanic where there are 5 or more operating engineers employed and "under the direction of the employer [ he] shall be responsible for the hiring and firing of and the performance of their duties by the engineers , maintenance engineers, junior and ap- prentice engineers , firemen and oilers ." The agreement also provides that when an engi- neer , fireman , or apprentice is employed intermittently to operate a machine , "he shall do such other work during the period when his machine cannot be operated as may be determined by the Master Mechanic." These powers of the master mechanic bring him within the definition of supervisor contained in Section 2 (11) of the Act. ss In a companion case, A. Cestoac Company, 118 NLRB 669, involving charges of discrimination made against another employer and the Union, Trial Examiner London found that the master mechanic appeared on the job and bluntly introduced himself "as the master mechanic [who ] had just come from the Union hall." He was hired although lie had never previously spoken to company representatives. At the hearing the company president was asked whether the company had had anything to do with the "selection or hiring of the master mechanic ." He answered : No, truthfully a master mechanic , as far as a contractor is concerned , is not desir- able. we know that you have to have one, that is a union ruling , so I went to Mr. Sofield , and I said so long as I have to have a master mechanic, please send me someone who has worked on this kind of work before, who has watched these types of ma- chines that are on these jobs. At least I can get the best service out of him. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ordinary operating engineers and have retained their membership in order to enjoy the various benefits of that membership, especially the right of union employment should they revert to rank-and-file status.18 Among these executives is Milton Hendrickson, president of Respondent Hendrickson Brothers, Inc., who has been a member of the Union since 1936. He was employed as an operating engineer from 1936 to 1942, A a master mechanic from 1942 to 1947, and as an executive of his present company since 1947. The Trial Examiner specifically held that the mere maintenance of membership in the Union by executives and supervisors was not violative of the Act.10 An employer, particularly a corporate employer, acts through agents, among whom are his supervisors. The employer is responsible for the conduct of his supervisors on the basis of common law rules of agency.20 Ordinarily when a supervisor injects himself into union affairs the employer is held liable for his conduct. But this is not invariably so. In certain situations, the Board and the courts have recognized that a supervisor participating in union matters is acting in his individual rather than in his representative capacity and have refused to hold the employer responsible for his conduct. For ex- ample, in quite a number of industries foremen are members of the same union and are included in the same bargaining contract as rank- and-file production workers.21 This is particularly true in the building trades. Nearly all the building-trades unions require foremen to be union members. Foremen usually work with tools along with the men they supervise. Union contracts therefore often regulate their wages, hours, ratio to journeymen, and the conditions under which they may use tools. Foremen are considered agents of the employer, with power to hire and fire under the terms of the contract. They are under the control of the union, however, to the 's Some individuals who rise above the rank of master mechanic take withdrawal cards from the Union. It seems to be an individual choice whether to drop membership entirely, retain membership, or secure a withdrawal card. The holder of a withdrawal card seek- ing reinstatement to full good-standing membership must file an application with the local union, must submit to examination by a committee which reports on his character -and qualifications, and to a vote by the membership of the local. By a majority vote the membership may accept or reject the application for reinstatement. (International con- stitution, article XV, section 4.) 19 Section 14 (a) of the Act provides : "Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this Act shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining." 20 Section 2 (13) of the Act. - 21 "Foreman membership in unions and the inclusion of foremen under agreements cov- ering production workers are general in. the printing and building trades , in the metal trades insofar as they operate on a craft basis, in many of the railroad trades, and to a greater or lesser extent , among the teamsters , longshoremen , and others." United States Department of Labor, Bulletin No. 745 , Union Membership and Collective Bargaining by Foremen ( 1943), p. 1. NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 181 extent that foremen who violate union rules are suspended and this automatically ends their foremanship.22 Before the enactment of the Taft-Hartley Law, the Board included foremen in the same unit with production and maintenance employees when such inclusion was customary in the industry 23 Where foremen are members of the rank-and-file unit and union, it is reasonable to expect that they will have a voice and vote in the ad- ministration of the affairs of the union. It is obvious that in a setting where foremen are included in bargaining units together with the rank and file some modification of the ordinary rules of respondent superior must be made. The Board and the courts have indeed recognized this fact and have adapted a more limited theory of employer liability for the conduct of supervisors included in a rank-and-file bargaining unit. Thus, when a supervisor who was included in a bargaining unit with nonsupervisory employees made certain antiunion remarks, the Board refused to hold his employer automatically responsible for what the supervisor had said. Supervisors included in the unit, the Board said, "had the same right as rank and file employees to express their views as to the undesirability of representation by the Union. Liability for such statements and activities may be attributed to the respondent only upon a showing that the respondent `encouraged, authorized, or ratified their activities or acted in such manner as to lead the em- ployees reasonably to believe that the foremen [supervisors] were acting for and on behalf of management.' " 24 Applying this principle to a case of alleged domination, the Board refused to consider the fact that supervisors were active in behalf of a union as evidence of assist- ance to, or domination of, that union where supervisors were included in the bargaining unit and campaigned for both the charging and the alleged dominated union, in the absence of evidence that the re- spondent had "encouraged, authorized, or ratified" such activities .21 And in the Wayside Press case,26 the circuit court of appeals refused to uphold a Board finding of violation of Section 8 (a) (2) based on the participation of foremen in the affairs of an independent union, 23 Id. at p. 3. 23E. g., La Salle-Crittenden Press, Inc., 72 . NLRB 1166 ; Grace Line, Inc., 74 NLRB 174. By redefining the term "employee" so as to exclude supervisors, the Taft-Hartley Act has made mandatory the exclusion of supervisors from any unit found appropriate by the Board . It does not , however, prohibit employers and unions from voluntarily in- cluding supervisors in bargaining units. 4 Mississippi Valley Structural Steel Company, 64 NLRB 78, 79. When a supervisor is included in the unit . . . the employees obviously regard him as one of themselves . Statements made by such a supervisor are not considered by em- ployees to be the representations of management, but of a fellow employee . Thus they do not tend to intimidate employees. Montgomery Ward & Co., Incorporated, 115 NLRB 645 , 647, enfd. 242 F. 2d 497 ( C. A. 2). 25 Indianapolis Newspapers , Inc., 103 NLRB 1750, set aside on other grounds in 210 F. 2d 501 (C. A. 7). 26 Wayside Press, Inc. v. N. L. R. B .; 206 F. 2d 862 (C. A. 9), denying enforcement to Wayside Press, Inc., 103 NLRB 11. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where the charging union, as did the independent union, customarily admitted foremen to membership. The court said (at p. 866) In attending the meeting, and in nominating the officers to run the Independent Union, the foremen were only exercising their rights as union members. . . . It must be kept in mind that acts of such minor supervisory employees must be considered in their setting. We have been told that "acts of supervisory officials are not to be viewed in vacuo. Instead they are to be `taken in their setting.' , 1 21 In other words, the responsibility of an employer for the conduct of a supervisor cannot be ascertained by mathematical formulas. Rather it is the circumstances which determine the liability. If we examine the circumstances of this case, we find that the master mechanics are foremen with the powers accompanying such positions in the con- struction industry. They are not executives, or officers, as the dissent seems to imply. In addition the master mechanics owe allegiance at least as much to the Union as to their employers. They are agents of both?3 They obtained their positions only with the approval of the Union and the latter can cause their discharge by ousting them from membership. In long-unionized industries, the impetus for requiring foremen to be members of the rank-and-file union has come from the latter. In this setting it is totally unrealistic to attribute automatic respon- sibility to an employer for the role played by the foreman in his union. Certainly in the printing, publishing, and construction industries, where the inclusion of foremen in rank-and-file units and unions is a practice of long standing, employers would ridicule the idea that they dominate or interfere with the administration of such union because some of their foremen may be active within the union's administration. There is an obvious difference between the situation where foremen organize employees into one union in a context of unfair labor practices and hostility to another union, and the situation where, as here, the foremen are merely active in the administration of their own union to which they have belonged for many years as is customary in the in- dustry. All the cases relied on by the dissent to support the charge of alleged deviation from precedent are representative of the former type of situation. We have been able to find only two cases analogous to the present one. In both cases, the alleged dominated union was an unaffiliated union. In one case 29 the Board, and in the other the court,30 refused to 2.;V. L. B. B. v. Brown Co., 100 F. 2d 449, 455 (C. A. 1), setting aside 65 NLRB 208. 21 N. L. B. B. v. Local .1976, United Brotherhood of Carpenters ( Sand Door & Plywood Co.), 241 F. 2d 147 (C. A. 9) ; Grove Shepherd Wilson & Kruge, Inc., 109 NLRB 209, 215. '° Indianapolis Newspapers, Inc., supra. 30 Wayside.Press, Inc. v. N. L. R. B., supra. NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 183 find unlawful assistance to, or domination of, the unaffiliated union because of the conduct of supervisors included in the unit. A majority of the Board, which included Member Murdock, said in the Indian- apolis case (at p. 1751) : The record shows that zone supervisors, whose supervisory status is conceded by all the parties, and district managers, whose alleged supervisory status is disputed, were in the unit bargained for by the complainant Guild and were active on its behalf. In the ab- sence of evidence, as here, that the Respondent encouraged, author- ized, or ratified their activities or acted in such manner as to lead employees reasonably to believe that the supervisors were acting for and on behalf of management, we, like the Trial Examiner, do not believe that their conduct constituted assistance to, or domina- tion of, the Association. We believe that this represented good sense and good law when it was written in 1953 and that it is good sense and good law today. The rule makes no distinction between kinds of unions. It was applied in that case to a newly organized unaffiliated union ; we apply it in this case to a long established affiliated union. Member Murdock is there- fore in error in saying that we are applying a different rule for a long established union than we would for a newly organized union. As the rule points out the Respondent Employers may be liable for the intraunion conduct of the master mechanics if it can be shown that they "encouraged, authorized, or ratified" the activities of the master mechanics or "acted in such manner as to lead employees reasonably to believe" that the master mechanics were acting for and on behalf of management. There is not a scintilla of evidence that could support a finding to that effect. Under the circumstances, we find, contrary to the Trial Examiner, that the Respondent Association and its mem- bers are not responsible for the conduct of master mechanics and by such conduct did not therefore unlawfully interfere with the adminis- tration of the Union. In addition to master mechanics, certain other supervisors not in- cluded in the bargaining unit and some executives were identified as having participated in union elections. These included : Milton Hen- drickson, president of Hendrickson Brothers; Charles Verity, Walter Hagen, and Edward Cahill, job superintendents for Hendrickson Brothers; Albert Penn, shop foreman for Hendrickson Brothers; and Charles Davis, secretary and master mechanic of Davis Construc- tion Co." So far as appears from the record, these individuals did at Charles Salerno, an executive of R. Salerno Bros., Inc., a member of the Association, was also identified as having been present at the October 1954 union election. How- ever, the Trial Examiner has not made a finding that Salerno Bros. thereby interfered with the administration of the Union and no exceptions to this failure to find have been filed. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nothing more than appear at a union meeting and vote at a secret elec- tion concerning administration of the Union. However, voting in union elections is plainly a form of interference with the administra- ation of a labor organization. It may not be unlawful for company executives and high-ranking supervisors to retain the union member- ship they acquired as rank-and-file employees as job insurance in the event they should revert to ordinary employee status, but that does not make it lawful for them to participate in elections to determine who is to administer the affairs of the union. It is quite conceivable that in a closely divided vote executive and high-ranked supervisors would have the balance of power and be in a position to select the union officials who are to deal with them in their separate capacity as em- ployer agents. Accordingly, we find, as did the Trial Examiner, that by the foregoing conduct Respondents Hendrickson Brothers, Inc., and Davis Construction Corp. unlawfully interfered with the admin- istration of the Union in violation of Section 8 (a) (1) and (2) of the Act. 12 3. As stated, the Trial Examiner found that the participation of Master Mechanics Smith and Dean in bargaining negotiations on be- half of the Union proves that their employers unlawfully dominated and interfered with the administration of the Union's affairs. We agree that this conduct constitutes unlawful interference, but not domination. On July 1, 1955, after unfair labor practice charges in this case had been filed, the Union's executive board selected a committee of 12 members to negotiate for changes in the existing collective-bargaining contract with the Association .13 Of the 12 members appointed 8 were master mechanics, including 2-Clifford Smith and William Dean- who were employed by members of the Association. The Trial Ex- aminer holds the Association responsible only for the participation of Smith and Dean in bargaining negotiations. The other six master mechanics were employed by companies which are not members of the Association and for whom the latter is not shown to have any re- sponsibility. Except for proof that the 1955 negotiations resulted in substantial wage increases for employees," there is no evidence of how negotiations were conducted or the extent of participation in these negotiations by Smith and Dean. The complaint alleged that Respondent Association caused its rep- resentatives to assume and retain official positions of a policy-making or administrative nature with the Union. There is no evidence that 32 Cf. Birmingham Post Company, 49 NLRB 206 , 207, enfd. 140 F. 2d 638 (C. A. 5). Si Article 5, section 1 of the Union 's bylaws provides that members of the executive board shall be selected by the president. 34 The 1955 negotiations resulted in a wage increase for employees of 45 cents per hour sbread over a 2-year period . The rate for master mechanics was fixed at not less than $225 per week. NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 1b'a Respondent Association or its members were in any way responsible for the appointments of Smith and Dean to the negotiating committee or for their retention on such committee. The Trial Examiner's find- ing apparently rests entirely on the fact that Smith and Dean par- ticipated in the negotiations without protest from their employers. This is not sufficient, in our opinion, to establish that the employers of Smith and Dean thereby dominated the Union. The statute does not define what is meant by a dominated labor. organization. Nor has the Board enunciated such a test. The courts have, however, stated that ". . . the test, whether a challenged organi- zation is employer controlled, is not an objective one but rather sub- jective, from the standpoint of employees." 35 As pointed out above, there is no evidence that Respondent Association or its members were .in any way responsible for the appointment of Smith and Dean to the negotiatincommittee. In fact, since the appointments were made after the-unfair labor practice charges had been filed, it seems extremely improbable that the Respondent Employers would have been guilty of so stupid an act if they had had any part in these selec- tions. Moreover, we do not believe that the appointments of Smith and Dean would give members of the Union just cause to believe that they were employer instruments for the control of the negotiating committee. First, as master mechanics they were among the oldest members of the Union. Secondly, as the Union's job stewards they were the representatives of the Union and of the Union's members on the job. Thirdly, they were included in the bargaining unit and were required to be members of the Union. And finally, they held their positions as master mechanics only with the approval of the Union and subject at all times to its discipline. In the absence of some other evidence of employer control employees are not likely to believe that their labor organization is controlled by the Respondent Em- ployers from the mere fact that the heads of the Union selected Smith and Dean as 2 of the 12-man negotiating committee. A far more likely employee inference from all the facts is that the Union is strong enough to dominate the Employers. However, Congress has not seen fit to make it an unfair labor practice for a labor organization to dominate or interfere with the administration of an employer's busi- ness. Accordingly, we do not adopt the Trial Examiner's finding that Respondent Association or its members have dominated Respondent Union in violation of Section 8 (a) (2) of the Act. Our dissenting colleague's belief that the Union is a bad union and should be dissolved has likely influenced his conclusion that it is under the control of Respondent Association. We can share his moral indig- se N. L. R. B. v. Thompson Products, Inc., 130 F. 2d 363, 368 (C. A. 6) ; N. L. R. B. v. Sharple8 Chemicals, Inc. 209 F. 2d 645, 652 (C. A. 6). Accord : N. L. R. B. v, Jay Com- pany, Inc., 227 P. 2d 416, 419 (C. A. 9) ; Sperry Gyroscope Co. v. N. L. R. B., 129 F. 2d 922, 924 (C. A. 2). 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nation, yet we cannot permit that feeling to override our duty to apply the law as it is and not as we think it ought to be. We have already referred to the fact that the Board does not have power to police the internal operations of labor unions. It cannot dissolve or disestablish labor unions because the leadership is corrupt, criminal, dictatorial, or otherwise insufficient. These problems of internal union management or government must be resolved by the members themselves, the Union's International, or perhaps in specific aspects by other agencies of the Government. Member Murdock would, we believe, subscribe to this statement of the limitation of the Board's powers. Yet it seems to us that he is acquiescing in a recommendation to do indirectly what the Board cannot do directly and what he would not even do indirectly but for the nature of the Union's leadership. There are many industries where for a very long time foremen have been included in the same bargaining unit and union as the rank and file. No doubt in many such cases the foremen are active in the affairs of the union, serve on union committees, and are even union officers. It has not heretofore been contended, to the best of our knowledge, that where such conditions exist the employer must necessarily be considered as dominating the bargaining representative. We are not willing to hold that the voluntary inclusion of foremen in a bargaining unit of nonsupervisory employees is per se proof of employer domina- tion and justifies disestablishment of the union representing such unit. And to require the employer to exercise some sort of veto power over the appointment of foremen to official positions within the union to avoid the charge of domination would seem to involve interference in the affairs of the union, which is precisely what Section 8 (a) (1) of the Act is designed to prevent. Apparently contrary to our colleague's views, it seems clear to us that in some industries, particularly construction, unions are strong enough to compel employers to relinquish control of their supervisors to the union. In this industry and in this Union, the presence of master mechanics on various union committees is not sufficient to establish that the employers control the Union without some evidence connecting the employers with these appointments.36 36 The dissent refers to the presence of master mechanics on the various union coin- mittees, but fails to mention that only some of these master mechanics are employed by members of the Respondent Association . Thus none of the Respondent Employers' mas- ter mechanics are on the 13-man executive board , or on the 4-man pension committee ; only 1 is a member of the 4-man examining committee, only 2 on the 9-man bylaws com- mittee , and only 2 on the 12-man negotiating committee . The dissent does not explain the theory upon which the Respondent Employers can be held responsible for the agents of other employers . Similarly , the dissent refers to 50 unidentified owner -operators pres- ent at 1 of the critical union meetings as represenatives of management and inferentially at least as responsive to Respondent Association. The owner-operators are individuals owning and operating their own ,machines . There is no connection shown between them and the members of the Respondent Association. NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 1.87 Although we have rejected the Trial Examiner's finding that Re- spondent Association dominated Respondent Union because 2 master mechanics employed by members of the Association were on the 12- member union negotiating committee, we do believe that it is improper for supervisors, even those with predominantly union loyalty, to serve as negotiating representatives of employees; and to the extent that the employer acquiesces in such participation the employer is guilty of un- lawful interference with the administration of the Union. It is true that we have held that the employers of master mechanics are not re- sponsible for the roles played by the latter in the internal affairs of the Union and that their participation in bargaining negotiations in behalf of the employees does not, under the circumstances of this case, justify a finding of union domination by the employers of such master mechanics. But participation in bargaining negotiations vis-a-vis the employer is not merely a matter of a union's internal affairs, and, although conduct may fall short of proving control, it may neverthe- less constitute unlawful interference with a union's administration. Despite the large measure of control exercised over master mechanics by the Union, the mechanics remain in part agents of their employers with a resulting divided loyalty and interests. That conflict of in- terest may be accentuated, as in the case of Clifford Smith, by the payment of special bonuses at the discretion of the employer. Em- ployees have the right to be represented in collective-bargaining nego- tiations by individuals who have a single-minded loyalty to their in- terests. Conversely, an employer is under a duty to refrain from any action which will interfere with that employee right and place him even in slight degree on both sides of the bargaining table. There is no evidence that employers were responsible for the naming of any master mechanics to the Union's negotiating committee. But they were under a duty, we think, when confronted with a union negotiating committee which included their own agents, to protest the composition of the committee and to refuse to deal with it because it was tainted with an apparent,employer interest. By failing to register such protest and by actually dealing with the committee as constituted, Respond- ents Hendrickson and Radory acquiesced in such appointments and to that extent, we find, interfered with the administration of the Union in violation of Section 8 (a) (2) and (1) of the Act. We also find, in agreement with the Trial Examiner, that as Milton Hendrickson and the other representatives of the Association who negotiated with the Union's bargaining committee were acting as agents of the Associa- tion, the latter and its members as principals are responsible for their agents' conduct and thereby also violated Section 8 (a) (2) and (1) of the Act. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY We have found that the Respondent Union is a party to an operative unlawful hiring arrangement with the Respondent Association. We shall order the Respondents to cease giving effect to such arrange- ments. There is reason for believing that the Union has the same unlawful hiring arrangement with employers who are not members of the Association and are not parties to this proceeding. We shall therefore order the Union not to give effect to similar unlawful hiring arrangements with any employer in its jurisdictional area. We have found that Respondents Hendrickson Brothers, Inc., and Davis Construction Corp. unlawfully interfered with the administra- tion of the Union through the participation of supervisors and ex- ecutives, other than master mechanics, in elections to determine the Union's officers. It appears that similar officials employed by other members of the Association are also likely to have participated in such elections.37 Our order directing the cessation of such interference will therefore extend to all members of the Association 38 We shall also order the Association to cease dealing with any negotiating com- mittee of the Union which includes in its membership Master Me- chanics Clifford Smith, William Dean, or any other master mechanic, whether or not employed by members of the Association. Further, in view of the serious interference found, we believe that it is necessary, in order to effectuate the policies of the Act, to require the Association to withdraw all recognition from the Union unless and until it is certified as bargaining agent by the Board. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. Nassau and Suffolk Contractors' Association, Inc., and its mem- bers listed in Appendix A attached to the Intermediate Report, Mineola, Long Island, their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Maintaining.in their collective-bargaining agreement with the Respondent Union any provision which requires membership in, or clearance from, the Respondent Union as a condition of employment, or which requires that preference in employment be given to members 17 See footnote 31. 38 Employers who are not members of the Association are not before the Board and there- fore we may not make our order run against them . However, we expect that the Union will voluntarily exclude executives and supervisors , other than master mechanics, employed by nonmembers of the Association from participation in the selection of union officials and in the administration of its affairs . This is not intended to bar such individuals from re- taiAing the membership they may have acquired as nonsupervisory employees. NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 189 of the Respondent Union, except as authorized in Section 8 (a) (3) of the Act. (b) Maintaining and enforcing any agreement, understanding, or practice wi.preby membership in, or clearance from, the Respondent Union is required as a condition of employment, or which requires that preference in en' ployment be given to members of the Respondent Union, except as authorized in Section 8 (a) (3) of.the Act. (c) Interfering wish the administration of the Respondent Union, or contributing support to it by permitting executives and supervisors, other than master mechanics, to vote at union elections or otherwise participate in the internal administration of the Respondent Union, and by conducting collective-bargaining negotiations with any com- mittee representing the Respondent Union, which includes in its membership Clifford Smith, William Dean, or any other master mechanic. (d) Recognizing Local 138, International Union of Operating Engineers, AFL-CIO, or any successor thereto, as the representative of any of their employees for the purposes of collective bargaining with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until such organization shall have been certified by the Board. (e) In any other manner interfering with, restraining, or coercing employees or applicants for employment in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board Finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Local 138, Inter- national Union of Operating Engineers, AFL-CIO, as the represent- ative of any of Respondent Association's employees for the purposes of collective bargaining with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment, unless and until said organization shall have been certified by the Board. ' (b) Post at their respective business offices in Nassau and Suffolk Counties, Long Island, New York, and at all projects now being op- erated by them within the territorial jurisdiction of the Respondent Union, copies of the notice attached hereto marked "Appendix B." as Copies of such notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by representatives of ' 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." 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent Employers, be posted by each of them immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. The notices shall remain posted for sixty (60) consecutive days thereafter. Reasonable steps shall be taken by Respondent Association and its members to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, as to what steps Respondent Association and its members have taken to comply herewith. B. Respondent Local 138, International Union of Operating Engi- neers, AFL-CIO, Uniondale, Long Island, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from: (a) Maintaining in their collective-bargaining agreements with Respondent Association and any other.employer within its territorial jurisdiction over whom the Board would assert jurisdiction, any pro- vision which requires membership in, or clearance from, the Respond- ent Union as a condition of employment, or which requires that pref- erence in employment be given to members of the Respondent Union, except as authorized in Section 8 (a) (3) of the Act. (b) Maintaining and enforcing any agreement, understanding, or practice with Respondent Association or any other employer within its territorial jurisdiction over whom the Board would assert juris- diction, whereby membership in, or clearance from, the Respondent Union is required as a condition of employment, or which requires that preference in employment be given to members of the Respondent Union, except as authorized in Section 8 (a) (3) of the Act. .. (c) In any like or related manner restraining or coercing employees or prospective employees of members of the Respondent Association or any other employer within the territorial jurisdiction of the Re- spondent Union over whom the Board would assert jurisdiction, in ,the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requir- ing membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its business offices in Uniondale, Long Island, New York, copies of the notice attached hereto marked "Appendix C." 40 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the represent- atives. of the. Respondent Union, be posted by it immediately upon 10 See footnote 39. NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 191 receipt thereof, and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that such notice is not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Second Region signed copies of the notice attached hereto marked "Appendix C" for posting, the Respondent Association and its members willing, at their business offices and at construction projects within the territorial jurisdiction of Respondent Union on which members of the Respondent Union are employed or may expect to be employed, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being signed as provided above, be forthwith returned to said Regional Director for posting. (c) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps the Respondent Union has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that (1) Respondent Association dominated Respondent Union, and (2) Respondent Association and its members discriminated against, and Respondent Union caused or attempted to cause Respondent Association and its members to dis- criminate against, employees because of their concerted activities in behalf of a reform group within Respondent Union. MEMBER MURDOCK, dissenting in part : I concur in my colleagues' finding that Respondents have violated the various sections of the Act indicated in the majority opinion, without necessarily embracing all of their language. However, I must strongly disagree with their conclusions, and various grounds and authorities they advance therefor, that the Employer Respondents have merely interfered with the administration of Local 138, Inter- national Union of Operating Engineers, AFL-CIO. I fully sub- scribe to the well-developed and.documented report of the Trial Ex- aminer holding that the Respondents have dominated Local 138 within the meaning of Section 8 (a) (2), and should therefore be required to disestablish it. On such an issue the best criteria are the facts themselves. We may thus directly penetrate the elaborate rationale of the majority opinion by forthwith examining and retaining in mind these facts. I am firmly of the view that there is no room for doubt on the evidence, if the same rules of decision are applied as the Board has used in other cases, that the Trial Examiner's finding of domination was warranted and required. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is not disputed, as the Trial Examiner found, that at least 36 management representatives, largely, but not limited to, master me- chanics, actively participated in the most vital affairs of this union. Master mechanics have at least five employees under their supervision and spend all of their time in supervision. They hire, fire, and direct the performance of engineers, fireman, and oilers on the job. They receive salary and bonuses in excess of $10,000 per year. Master Mechanic Smith, employed by Hendrickson Brothers, was paid about $17,000, including a $5,000 yearly bonus, in 1954 and again in 1955. Any effort to make the master mechanics appear as minor or border- line supervisors is plainly misplaced. Nor can my colleagues, for purposes of these issues, create an extrastatutory supervisory category of "executives, or officers," as distinguished from supervisors generally. That the master mechanics are "supervisors" under the Act's definition is explicitly found by my colleagues, and is all too obvious for argu- ment. We need no more, especially in the present circumstances, to impute employer responsibility. As the majority opinion states, master mechanics "are very active in the administration of the affairs of the Union." They constitute a dominant. majority of most of the important committees of Local 138. Three of the four members of the examining committee, which passes upon applications for membership in the union, are master mechanics. Five of the nine members of the bylaws committee are master mechanics. (It may be noted that the record shows that the bylaws were changed to give the executive board complete power to operate the Union.) Three of the five members of the pension plan committee are master mechanics. Some master mechanics serve on the board of trustees and 3 serve on the executive board, but the record does not disclose whether or not they are a majority on these 2 boards. When we reach the heart of the very reason for the existence of a labor union-free collective bargaining -we find that there, too, supervisors constitute a majority of Local 138's negotiating committee. Of the 12 members, 8 are master mechanics and now of the remaining 4 members is an employee in the bargaining unit. When we look at the composi- tion of both the Union's bargaining committee and the 5-member em- ployer committee, we find that 2 of the latter are Milton Hendrickson and Edward Regnall, president and personnel manager of Hendrick- son Brothers, while seated on the Union's side of the table is Master Mechanic Smith, the $17,000-a-year man mentioned above, also of Hendrickson Brothers. The largest contractor among the employers is literally represented on both sides of the bargaining table; and the only "union" representative at the job site is the master mechanic who doubles as shop steward as well as supervisor. Active participation in the direction of union affairs and the shap- ing of its policies is also shown by the attendance of management NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 193 representatives at union meetings where officers were chosen and im- portant policy made and where their votes might be determinative. About 705 members of the Union in Local 138A and 138B have no voice in the-election of their officers. Voting rights are vested exclusively in 581 members of Local 138. Some 700-750 persons were present (the number of nonvoting Local 138A and B members present does not appear) at a meeting in October 1954 where vital union policy was shaped. At this meeting full power was voted to the executive board for the operation of the organization, and a slate of officers was elected. More management representatives were present than at any time since 1933. Those who could be identified as having been present included 20 master mechanics and a "number" of job superintendents. Also about 50 owner-operators were there. And among the executives in attendance was Milton Hendrickson, President of Hendrickson Brothers, who participated in the voting. Further evidence of employer domination of Local 138 is found in the testimony of a former business representative who was a leader in the so-called reform group that as business representative he had been instructed "not to go on places where there were master mechanics especially [their] own local contractors, mainly Hendrickson Broth- ers . . . ," but to enforce "to the letter" against outside contractors the working conditions imposed by the contract. Despite this he made six visits to Hendrickson jobs and found contract violations, but when he reported these to higher union officials he was told to "mind his own God damned business"; and when he later visited the same jobs the contract violations were still taking place. Further incentive and motive to dominate the Union, as well as a definite product of the domination, are thus shown. As the Trial Examiner points out, "The cases that have dealt with the subject [of domination] do not single out any one activity or circumstance as determinative of whether or not a labor organization is employer dominated. . . . In each of the cases a series of acts have been revealed which, in their totality, constitute domination of, or interference with, a labor organization." The Board has heretofore refrained from laying down any single test for domination. But if a union so infiltrated with supervisors who constitute a majority on important committees-from that controlling admission to the union to the bargaining committee itself-is not "dominated" by manage- ment., then that term has lost all meaning 41 This is entirely apart from all the other evidence properly taken into consideration on the issue of domination, such as the role of management agents, other than 41 Domination does not necessarily mean complete control. E. g., Neptune Meter Co. v. N. L. R. B., 158 F. 2d 448 (C. A. 2) : "There may be domination within the meaning of the Act which does not reach the point of abject servility. . . . Negotiations by a union only partially free of employer influence are not what the statute contemplates." 450553-58-vol. 118-14 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD master mechanics, in meetings and vital affairs of the Union, the illegal closed-shop contract,"' and the favored treatment accorded Respondents, as against "outside contractors." 43 "Collective bargain- ing becomes ,a delusion and a snare if supervisors are permitted to sit on both sides of the table." 44 Yet that is literally what this situation has developed into with supervisors directly seated on both sides of the bargaining table and in all the high councils of the Union. Local 138, although a "long established" affiliated union, is so per- meated with supervisors and therefore dominated by management that it is simply not a fit labor organization to represent rank-and-file employees. Disestablishment of this Union would be the best thing which could possibly happen to its rank-and-file members. Disestab- lishment would mean that the Employer Respondents could never again recognize it even if good-faith compliance by them with the dis- establishment order did not immediately result in its actual extinction. (Nor, of. course, could it ever appear on a ballot in a Board election.) As a practical matter a disestablishment order would undoubtedly result in the disappearance of Local 138 and the international union chartering a new local in this area which could start out with a clean slate-a salutary change from the status quo. Domination has been found by the Board and disestablishment ordered where the taint of employer control of the labor organization was certainly no more, and in many cases much less, flagrant than here.45 At this point I cannot permit to stand unchallenged one paragraph of the majority opinion which charges that considerations as to the general character of the Union and its leadership rather than proper 42 _N. L. R. B. v. Gottfried Baking Co., Inc., 210 F. 2d 772 (C. A. 2), holding that such an illegal contract furnishes "very substantial support to the Union." 43 N. L. R. B. v. Mt. Clemens Pottery Co., 147 F. 2d 262, 265 (C. A. 6), "The charge of domination cannot be insulated from the unfair labor practices held to have interfered with the organizational activities of the employees." 44 E. g., Report of House Comm. non Labor on 14. R. 1147, 74th Cong., 1st Sess. 3 ; see also N. L. R. B. v. Pennsylvania Greyhound Lines, 303 U. S. 261; N. L. R. B. v. Stow Mfg. Co., 217 F. 2d 900 (C. A. 2) ; American Enka Corp. v. N. L. R. B., 119 F. 2d 60 (C. Virginia Ferry Corp. v. N. L. R. B., 101 F. 2d 103 (C. A. 4). 45 E. g., N. L. R. B. v. Link. Belt Co., 311. U. S. 584; S. 11. Camp v. N. L. R. B., 160 F. 2d 519 (C. A. 6) ; N. L. R. B. v. M. E. Blatt, 143 F. 2d 268 (C. A. 3) ; N. L. R. B. v. Idaho Refining Co., 143 F. 2d 246 (C. A. 9). See also Standard Oil of Calif., 62 NLRB 449 (where on facts showing supervisory licensed personnel as members of the union and on the executive board which negotiated contracts with the employer, the union was held as incapable of representing the employees, free and uncoerced) ; Kresge Department Store, 77 NLRB 212 (where the employer failed to take effective steps to remove his supervisory staff from union activity) ; C. Ray Randall Manufacturing Company, 88 NLRB 140 (where the leading role played by the employer's foremen in the union affairs was held the determi- native factor in finding "domination," as opposed to "mere support"). To the same effect; Beaver Machine & Tool Co., 97 NLRB 33; Duro Test Corporation, 81 NLRB 976; Majestic Metal Specialties, 92 NLRB 1854. And compare cases where "interference" but not "domination" was found, on the basis that management representatives took no part in the meetings or activities of the union or attempted to influence its policies, e. g., Nutone, Incorporated, 112 NLRB 1153; Ephraim Haspel, 109 NLRB 37; N. L. R. B. v. Edwin D. Wemyss, 212 F. 2d 465 (C. A. 9) ; Hershey Metal Products, 76 NLRB' 695 ("limited participation of minor supervisors who exercised little influence on the employees' committee"). NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 195 legal considerations are responsible for my conclusion that it is a dominated union. That paragraph further states that such feelings cannot override the Board's duty to apply "the law as it is" to the case. In answer to this charge I would point out that nowhere in my opinion have I even discussed the character of the leadership of this Union except insofar as it is controlled by supervisors in violation of Section 8 (a) (2). On the contrary, it is obvious from the paragraph referred to and the introductory portions of the majority opinion that it is the majority which has found it necessary to discuss what they characterize as "insinuations in this case of corruption in and maladministration of the officers of the Union," and their inability to deal with the situation. That is their prerogative. But I must em- phatically reject the majority's assertion that considerations as to the general character of this Union or its leadership have been re- sponsible for my conclusion that it is a dominated union rather than the overwhelming weight of legal authority with respect to super- visory control over the administration of a labor organization. My colleagues take a curious approach to the issue of domination. In their view the issue turns solely on whether the rank-and-file mem- bers of the union are "likely to believe" that their union is controlled by the employers because of the role played by master mechanics and other management representatives; they conjecture the absence of such a belief. But, as the statute expressly prohibits the fact of a union's domination by an employer, where the fact of domination is amply evidenced, as here, whether or not the employees realize it can- not be deemed controlling 46 Still, the impelling inference, one which the Trial Examiner apparently drew, is that the employees were aware of the true situation, as recited above, revealing the Employers' dom- inating influence in the Union. My colleagues' heavy reliance on the assertion that master mechanics are included in the bargaining unit, and on two cases which they say are the only ones they can find "analogous to the present one," is mis- placed. In the first of the "two cases," Wayside Press,47 the Board did find domination, where three working foremen, who were also mem- bers in the Charging Union, participated in a meeting and other activity to reactivate the independent union. The court reversed the Board, stating, inter alia, that "acts of minor supervisors must be con- sidered in their setting." It was a small plant, and such supervision as was exercised by the 3 working foremen consumed only 20 to 25 percent of their time. Said the court, "To attempt, as the Board has 96 Indeed , evidence that the employees were "satisfied" with the dominated union, and that they sought by positive action to continue the status quo, has been decisively re- jected and the union nonetheless disestablished. E. g., N. L. R. B. v. Newport News Ship- building, 308 U. S. 241; N. L. R. B. v. Donnelly Garment, 330 U. S. 219; N. L. R. B. v. Thompson Products, 130 F. 2d 363 (C. A. 6). 4' Wayside Press, Inc. v. N. L. R. B., 206 F. 2d 862 (C. A. 9) (1953), denying enforce- ment to Wayside Press, Inc., 103 NLRB 11. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD done, to apply the same standards to such a plant as are applied to plants employing hundreds of persons with full-time supervisory emn- ployees is to ignore reality." [Emphasis supplied.] This is an obvious magnitude of difference between the character of the master mechanics here and those of the 3 working foremen in Wayside, apart from other distinctions apparent between the 2 cases, such as the fact that 2 unions were involved, and the foremen were identified with both. I note, moreover, that in the 4 years since the court decision in Wayside, the Board has at no time indicated its acceptance of that case as good law despite the fact that it did not seek certiorari. And in the other case, Indianapolis Newspapers,"' a divided Board held that an em- ployer was not responsible, in the absence of specific authorization or ratification, for the statements of five zone supervisors and district man- agers with equivocal supervisory status who were included in a bar- gaining unit as a consequence of consent election and Regional Director certification. (That case also, as did Wayside Press, involved a two- union situation where supervisors were members of first one, then another union.) As the Board pointed out in a more recent case, which too is cited by my colleagues, where a union agrees for purposes of a consent election, and without the knowledge of the Board, to include a supervisor in the unit, this "cannot result in nullification of the statutory exclusion of supervisors from the definition of `employee' in the Act," and the supervisor, "though mistakenly permitted to vote in the election," remained an "arm of management," even though under the circumstances the Board found his statements not violative of Section 8 (a) (1).49 It is utterly inconceivable that my colleagues should accept the proposition and find, as they do, that the master. mechanics here, though patently supervisors under the Act, "are part of the same bargaining unit as the rank-and-file employees." They are certainly not included in the unit by Board process, nor were they, as in the unusual circumstances of Indianapolis Newspapers, "mis- takenly" permitted to vote at a consent election, which in no event 48 Indianapolis Newspapers, Inc., 103 NLRB 1750, set aside in 210 F . 2d 501 (C. A. 7). 49 Montgomery Ward & Co ., Incorporated, 115 NLRB 645 . As pointed out in the Second Circuit Case 242 F. 2d 497 enforcing the Board decision , the fact that the Board found that statements by DuFour, a supervisor who had voted in a consent election, did not iritimidate - eniployees because he was considered by the employees as one of them, did not preclude the Board , which had not formally determined his status ; from treating DuFour as a supervisor on an 8 ( a) (3) violation . "These subjective employee reactions have no bearing on whether he actually was an agent of management for he could very easily have been very high in management circles without the other employees having any notion of this . . . . iTjhe fact that DuFour voted in the election has no necessary connection with his also being an agent of management for purposes of 8 (a ) ( 3)." This would also be true of Section 8 ( a) (2). Mississippi Valley Structural Steel Co., 64 NLRB 78, also relied on in the majority opinion , involves the similar holding under the Wagner Act that an employer was not responsible for certain antiunion statements of a super- visor who was mistakenly included in a unit for purposes of a Board consent election. In N. L. R. B. v. Jas. H. Matthews & Co., 156 F. 2d 706 (C. A. 3), to the same effect, the court stressed the distinction that the assistant foremen there in question spent at least 80 . precerit of their time in working. NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 197 would lawfully entitle them to inclusion in the unit. Voluntary bar- gaining for supervisors in a unit not certified by the Board cannot re- verse congressional policy to exclude supervisors from employee bargaining units.50 Surely, a history of employer domination through intrusion of supervisors into controlling positions in the union and into the unit, as here, cannot be turned into a defense to a charge of domination. I do not think it can be gainsaid that if Local 138 were an independ- ent union, in view of the degree of supervisory infiltration, the Board would find it a dominated organization and direct the usual disestab- lishment order. Yet Congress has explicitly told the Board in Section 10 (c) of the amended Act that ". .. in deciding such [8 ( a) (2) ] cases, the same regulations and rules of decision shall apply irre- spective of whether or not the labor organization affected is affiliated with a labor organization national or international in scope." Con- gress specifically rejected the Board's prior disparate practice of not finding domination and not disestablishing affiliated unions, a prac- tice which had rested on the Board's view that a labor organization affiliated with a national or international federation that was outside the ambit of the employer's control "could not be permanently and completely subjugated to the employer' s will." 51 The foregoing, I believe, presents all the facts, argument, and au- thority needed to substantiate my position on the domination issue. I have not therein touched on certain aspects of the majority opinion which appear to me unsupported, inaccurate, or inconsistent. How- ever, I think it necessary, because of possible repercussions on future Board cases, to comment briefly on selected points. (1) My colleagues apparently place considerable reliance upon an assumption of fact that a "widespread practice exists in certain in- dustries in which supervisors or foremen are active members in the same union and included in the same bargaining unit as the rank and file employees." [Emphasis supplied.] The sole basis for such as- sumption is a 14-year-old bulletin of the United States Department of Labor (dated 1943) written before passage (1947) of the Taft- Hartley Act, and at a time when the Board itself included certain supervisors in a rank-and-file unit "where customary in the industry." (Stich rulings are, of course, emphatically precluded by the amended Act, the coverage of which was expressly limited to employees, re- 60 ". . . one purpose of the Act was to draw a clear line of demarcation between super- visory representatives of management and employees because of the possible conflicts in allegiance if supervisors were permitted to participate in union activities with employees." Bausch & Lomb Optical Co ., 108 NLRB 1555, 1557. 61 Carpenter Steel Company, 76 NLRB 670. In this case , initially construing the Sec- tion 10 ( c) provision , the Board flatly stated : " So plain a mandate must be carried out without reservation or purpose of evasion no matter how great the practical diffi- culties," and announced the policy that it would uniformly order disestablishment in those cases in which "an employer's unfair labor practices have been so extensive as to constitute domination." 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD defined to exclude supervisors.) That such a "widespread practice" exists today in view of the amended Act may be seriously doubted, and the majority opinion furnishes no current documentation to sup- port the statement or to indicate how "active" a form such member- ship takes. But even assuming, arguendo, that such condition does now exist, traditional practices can scarcely provide justification for conduct which violates the law. The closed shop was perhaps also traditional in the construction industry, but nevertheless had to give way to the proscriptions of the Act. For the majority to advance as a reason for not finding domination the doctrine that employers ,are not to be held responsible in 8 (a.) (2) cases for conduct of their foremen who are "active in the administration of their own union to which they have belonged for many years as is customary in the industry," is to engraft an exception on Section 8 (a) (2) of the Act by administrative fiat, and to accord special treatment under the Act to employers and affiliated unions in certain industries. Yet the Act neither provides nor permits such special treatment, and, and as already pointed out, this runs directly counter to the express mandate in Section 10 (c) of the Act that in deciding 8 (a) (2) cases "the same regulations and rules of decision shall apply irrespective of whether or not the labor organization affected is affiliated with a labor organization national or international in scope."' Section 14 (a) of the Act permits to supervisors only "remaining a member" of a labor organization. Neither that section nor traditional practices can justify .according to foremen a right to be active to the point of controlling the operations of a labor organization, as is the case here, thereby impinging upon the rights of rank-and-file employees under Section 7 and emasculating the prohibitions of Section 8 (a) (2) which are designed to protect those rights from interference by employers and their supervisors. I doubt that my colleagues would find that a union is permitted to strike to seek agreement of the employer that a super- visor be a member of the union or part of the rank-and-file bargaining unit, or that they would fail to find an unlawful refusal to bargain where one of the parties insists on including supervisors in the rank- and-file unit 52 Cf. Section 8 (b) (1) (B), forbidding a union to restrain or coerce "an employer in the selection of his representatives for the purposes of collective bargaining or - the adjustment of grievances." (2) My colleagues assert that the master mechanics "obtained their positions only with the approval of the union,53 and the latter can cause ezSee Retail Clerks International Assn., etc. (Safeway Stores . Inncorporated), 90 NLRB 581; N. L. R. B. v. Retail Clerks Union (Safeicay Stores, Inc.), 203 F. 2(1165, 211 F. 2d 739 (C. A. 9). O Contrary to the majority opinion , union approval in the employment of master me- chanics is not required by the contract, which simply provides that the "master mechanic shall be designated by the employer." NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 199 their discharge by ousting them from the membership." I cannot conceive that my colleagues mean, while maintaining that the master mechanics are in the bargaining unit, that such a discharge could legally be effected, under Section 8 (b) (2) and 8 (a) (3), and espe- cially here where the union membership requirement of the contract, a closed shop, itself is unlawful. (3) My colleagues say that "to require the employer to exercise some sort of veto power over the appointment of foremen to official positions withinthe union to avoid the charge of domination would seem to in- volve interference in the affairs of the union, which is precisely what Section 8 (a) (1) of the Act is designed to prevent." I must vigor- ously dispute this conception of the law. Neither Section 8 (a) (1) nor any other provisions of the Act afford protection to supervisors as such. Congress has prescribed .a strict standard of integrity in dis- tinguishing between employees and supervisors. Under the scheme of the amended Act, an employer not only has every right,54 but in such circumstances as here has a duty to prevent his supervisors, for whose activities in relation to the employees he is responible, from occupying positions of power in the union representing the employer's rank-and-file employees. Indeed, it seems strangely inconsistent for my colleagues to make the statement quoted while in the same opinion ordering the Respondents 55 (a) to forbid their executives and super- visors, other than the master mechanics, from participating in the Union's internal administration, and (b) to cease dealing with any negotiating committee of the Union which has in its membership a master mechanic of any employer. (4) The different findings and rationale which my colleagues apply with respect to the master mechanics on the one hand and "executives and high ranking supervisors" on the other-all of these being "super- visors" under the Act-are inherently inconsistent, and patently irrec- oncilable with the statute. (5) In determining whether Local 138 is a dominated union, my colleagues pointedly refuse to take cognizance of 6 of the 8 master mechanics on the bargaining committee for the technical reason that the employers of these 6 were not made respondents. Yet they proceed cs Sen. Rep. No . 105, 80th Cong., 1st Sess. , 5 : "Employers are due 'undivided loyalty' wherever their interests conflict with those of the ran', and file ." See also Senator Smith of New Jersey on Section 2 (3) of the amended Act ( 93 Cong. Ree. 4411 ) : "It recognizes that a supervisor is a representative of management , and not a representative of labor, and when the supervisor has.to represent management , it seems only proper that he should not be in the category of being union -minded because unfortunately controversies between management and the union do occur." 55 illy colleagues repeatedly advert to the "absence of evidence " ( and "not a scintilla") connecting the Respondents with the activities of the supervisors in the Union . Of course, evidence rarely is , and need not be, so direct . The Board may draw proper inferences, for which , as shown , there is ample evidence . Certainly the same evidence upon which my col- leagues rest their findings of merely "interference" is available at least to support the finding of "domination." 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nonetheless to order the Respondents to cease dealing with any bar- gaining committee of Local 138 which includes any master mechanic. (6) In judging the various activities of master mechanics in Local 138, my colleagues draw an artificial distinction by finding objection- able only the membership on the bargaining committee. Essentially all activities in a union relate immediately or ultimately to the bargain- ing process, which is the union's recognized reason for existence. (7) Although the majority opinion in considering the domination question speaks in terms only of prohibiting "company executives and high ranking supervisors from voting in union elections," the Board order enjoins the Respondents from "permitting the executives and supervisors, other than master mechanics, to vote at union elections or otherwise participating in the internal administration. of the Respond- ent Union." [Emphasis supplied.] The evidence of union participa- tion of the company executives and supervisors at the October 1954 union meeting can only be regarded as illustrative, and showing gen- erally the extent and gravity of the entire union participation of these employer agents. Domination under Section 8 (a) (2) differs from mere interference and support in degree only51 Although my colleagues fail to find violative of Section 8 (a) (2) the extensive part played by the super- visory master mechanics in running the Union (except for the bargain- ing committee) and fail to consider other significant evidence in the case bearing on the domination issue, they nevertheless conclude that Respondents were guilty of "serious interference." In their reasoning, no discernible basis is shown why the conduct should not be found "domination." The evidence in my opinion demonstrably supports the Trial Examiner's conclusion of "domination" and his recom- mendation of disestablishment. I would so find. 56 Supra . See also Board 's Annual Reports, e . g., Fifteenth at p. 101 ; Third at p. 112; Thirteenth at p. 54; Fourteenth at p. 57; and Seventeenth at p. 128. APPENDIX B NOTICE TO ALL EMPLOYEES ANb APPLICANTS FOR EMPLOYMENT 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, we hereby notify our employees and prospective em- ployees that : WE WILL NOT maintain in our collective-bargaining agreement with Local 138, International Union of Operating Engineers, AFL-CIO, any provision which requires membership in, or clear- ance from, Local 138, International Union of Operating Engi- neers, AFL-CIO, as a condition of employment, or which requires that preference in employment be given to members of that labor NASSAU AND 'SUFFOLK CONTRACTORS' ASSOCIATION, INC. 201 organization, except as authorized in Section 8 (a) (3) of the Act. WE WILL NOT maintain and enforce any agreement, understand- ing, or practice whereby membership in, or clearance from, Local 138, International Union of Operating Engineers, AFL-CIO, is required as a condition of employment, or which requires that preference in employment be given to members of that labor or- ganization, except as authorized in Section 8 (3) of the Act. WE WILL NOT interfere with the administration of Local 138, International Union of Operating Engineers, AFL-CIO, or contribute support to it by permitting executives and supervisors other than master mechanics to vote at its elections or otherwise participate in its internal administration, or conduct collective- bargaining negotiations with any committee representing Local 138, International Union of Operating Engineers, AFL-CIO, which includes in its membership Clifford Smith, William Dean, or any other master mechanic. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees or applicants for employment in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL withdraw and withhold all recognition from Local 138, International Union of Operating Engineers, AFL-CIO, as the representative of any of our employees for the purposes of collective bargaining with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said organization shall have been certified by the Board. (Employer) Dated---------------- By------------------------------------- (Representative ) (Title) NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC., Dated---------------- By------------------------------------- (Representative ) ( Title) APPENDIX C NOTICE TO ALL MEMBERS OF LOCAL 138, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO . Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, we hereby notify our members and all employees and prospective employees that : WE WILL NOT maintain in our collective-bargaining agreement with Nassau and Suffolk Contractors' Association, Inc., and any other employer within our territorial judisdiction over whom the Board would assert jurisdiction, any provision which requires membership in, or clearance from, Local 138, International Union of Operating Engineers, AFL-CIO, as a condition of employ- ment, or which requires that preference in employment be given to members of our labor organization, except as authorized in Section 8 (a) (3) of the Act. WE WILL NOT maintain and enforce any agreement, understand- ing, or practice with Nassau and Suffolk Contractors' Association, Inc., or any other employer within our territorial jurisdiction over whom the Board would assert jurisdiction, whereby member- ship in, or clearance from, Local 138, International Union of Operating Engineers, AFL-CIO, is a condition of employment,' or which requires that preference in employment be given to mem- bers of our labor organization, except as authorized in Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees or prospective employees of members of Nassau and Suffolk Contractors' Association, Inc., or any other employer within the territorial jurisdiction of Local 138, International Union of Operating Engineers, AFL-CIO, over whom the Board would assert jurisdiction, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent such rights may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. LOCAL 138, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges and amended charges filed by Peter Batalias, the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region, issued (1) an order consolidating the above-entitled cases, and (2) an amended complaint, dated December 27, 1955, against Nassau and Suffolk Con- tractors' Association, Inc., hereinafter called the Association, its members listed in Appendix A hereto attached and made a part hereof, and Local 138, International Union of Operating Engineers, AFL, herein called the Union. The amended com- plaint alleges that all Respondents had engaged in and were engaging in unfair labor practices affecting commerce, the Association and its members in violation of Sec- tion 8 (a) (1) (2) and (3), and the Union in violation of Section 8 (b) (2) and NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 203 8 (b) (1) (A) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. The charges and, amended charges, order of consolidation , the amended complaint, and notice of hearing were duly served upon all the parties hereto. The amended complaint alleges that since on or about August 19, 1954, the Asso- ciation and its members have assisted , dominated, contributed to the support of, and interfered with, the administration of the Union by: (a) Causing their representatives, agents and supervisory personnel to attend and participate in general membership and Executive Board meetings of the Union; (b) Causing their representatives , agents and supervisory personnel to be- come and remain members of Respondent Union; (c) Causing their representatives , agents and supervisory personnel to assume and retain official positions on the Executive Board of the Union and in other official positions of a policy making, executive , administrative and governing nature. (d) Maintaining in effect and enforcing the term of its collective bargaining agreement with the Union containing , inter alia, union security provisions which did not and do not comply with the requirement of Section 8 (a) (3) of the Act. The amended complaint 'also alleges that the Association and its members have discriminated, and are discriminating , against their employees in regard to hire or tenure of employment, or terms or conditions of employment, by maintaining in effect and enforcing the terms of the collective -bargaining agreement with the Union containing, inter alia, union-security provisions which are violative of Section 8 (a) (3) of the Act and by being parties to an arrangement, and/or understanding, and/or practice, with the Union whereby: (1) The hiring of employees has been and is accomplished exclusively through the Union ; and/or (2) Preference in employment and/or an employment referral has been and is granted to members of the Union; and/or (3) Employees have been denied employment and/or employment referrals because of nonmembership in the Union; and/or (4) Nonmembers of the Union are required to procure job clearances or referrals from Respondent Union as a condition of employment ; and/or (5) Employees have been denied employment and/or employment referrals because of their concerted activities on behalf of a reform or dissident group in the Union. The amended complaint further alleges that since on or about August 19, 1954, the Union, by its officers , agents, organizers, and representatives , has caused and/or attempted to cause the Association and its members to discriminate against employees in regard to hire or tenure of employment or other terms or conditions of employ- ment by maintaining in effect and enforcing the terms of the collective-bargaining agreement with the Association containing illegal union -security provisions in violation of Section 8 (a) (3) of the Act, and by being parties to an arrangement and/or understanding and/or practice with the Association and its members whereby the Association and its members engaged in the hiring practices described in para- graphs ( 1) through ( 5) immediately above. By their answers all the Respondents denied the commission of any conduct violative of the Act. Pursuant to notice , a hearing was held at Hempstead and Mineola, New York, on various days between March 20, 1956, and June 7, 1956, before the Trial Examiner duly designated to conduct the hearing . The General Counsel, all the Respondents , and the Charging Party appeared through counsel. Full opportunity to be heard , to examine and cross-examine witnesses, and to pro- duce evidence was afforded all parties. After the close of the testimony , brief oral arguments were presented by all the parties . Since the close of the hearing, briefs have been filed by the Union, the Association and its members other than Hendrick- son Brothers, Inc., and a separate brief by the latter, all of which have been duly considered. The Association and its members other than Hendrickson Brothers , Inc., have also filed a motion requiring me to issue 30 separate Intermediate Reports each deal- ing separately with the activities of each Respondent "or, in the alternative, [to] issue such consolidated Intermediate Report as will be just and proper in the premises." No adequate reason having been assigned therefor, the motion to issue separate Intermediate Reports is hereby denied. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT' 1. THE BUSINESS OF THE ASSOCIATION AND ITS MEMBERS Nassau and Suffolk Contractors' Association, Inc., is an association of 28 em- ployers whose names are listed in Appendix A attached hereto and made a part hereof. The Association is, and at all times material herein was, a corporation duly organized under and existing by virtue of the laws of the State of New York. The Association exists for the purpose, inter alia, of negotiating and administering collective-bargaining agreements made for and on behalf of its member employers with the Union and other labor organizations . By reason of the contract between the Association and the Union hereinafter discussed , the members of the Associa- tion constituted themselves a single employer for bargaining and "jurisdictional pur- poses." N. L. R. B. v. Gottfried Baking Co., 210 F. 2d 772 (C. A. 2); Electrical Con- tractors of Troy and Vicinity, 116 NLRB 354; Insulation Contractors of Southern California, Inc., 110 NLRB 638. Each member of the Association maintains a place of business in the State of New York and each is engaged in the building and construction industry in Nassau and Suffolk Counties in the State of New York. During the year ending December 31, 1954, in the course and :conduct of their business operations , the members of the Association purchased building materials and equipment valued in excess of $500,000, which were shipped from outside the State of New York to building projects and other places located in the State of New York. During the year ending December 31, 1954, Hendrickson Brothers, Inc., a member of the Association, in the course and conduct of its business operations , caused to be purchased, transferred, and delivered to its building projects and other places located in the State of New York, building materials and equipment valued in excess of $500,000, which were transported to said places in interstate commerce directly from States of the United States other . than the State of New York. On the entire record I find that the totality of the operations , in volume and character, of the Association and all its members has a substantial effect on commerce, and that Hendrickson Brothers , Inc., is engaged in commerce, all within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and during all times mentioned herein was , a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Discrimination On April 8, 1944, the Union and the Association entered into a collective-bargain- ing agreement for a period of 3 years covering all engineering and building con- struction work to be done in Nassau and Suffolk Counties, New York, by members of the Association and by any other employer who might thereafter become a member thereof.2 The contract provided that it was to remain in effect during each calendar year after its original terminal date unless written notice of termination or proposed change be served by either party on the other on or before the 15th day of any following January commencing with the year 1947 . The parties also agreed that if such changes are agreed upon , "a new agreement embodying such changes, shall be drawn and signed on or before the 1st day of April of the year in which the notice has been served." Verner W. Sofield , the Union's present recording- corresponding secretary and one of its officers continuously since 1934 or 1935, testified that the aforementioned contract is "presently in force." It has been amended only with respect to certain wage changes reflected in an exchange of correspondence between the parties dated May 12 , 1947, January 23 , 1948, June 19, 1952, August 3 and 5, 1955.3 Article IV of the agreement provides that the employers "shall employ . . . only such workmen [as] are members in good standing of the Union ," a common-and prior to the effective date of the Taft -Hartley Act in 1947, a legal-closed-shop I All the findings that follow are based on the undenied testimony received in support of the complaint. No evidence was offered by any of the Respondents. 2 At the hearing, the parties stipulated that at all times relevant herein, the employers named in Appendix A hereof were members of the Association. 8 Sofield's testimony was given in compliance with a subpoena duces tecum which re- quired him to produce " the existing contract" between the Association and the Union. NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 205 provision found in many contracts of that period. The agreement contains other conditions implementing this closed-shop provision. Thus, article VIII, section 2 (w) provides that the Union "agrees to, furnish competent men, when requested, upon twenty-four hours notice; and in the event [it] is unable to furnish such men, then the [employer] may hire nonunion men until such time as the Union can supply competent Union men." And article IX, section 2, dealing with shopmen, provides that "when mechanics and helpers are employed in the shop, they shall be members of the [Union]." 4 In addition to requiring membership as a condition of employment, the agree- ment, in its "Declaration of Principles," also provides that "in case any employee becomes ineligible under the rules of the Union and the employer is notified, then the said employer shall promptly discharge such employee." Article VI, section 5 contains an express prohibition against lockouts and strikes by the respective parties except that if any member of the Association "employs non-union help . ., the Union shall have power to adopt immediately such measures with respect thereto as are prescribed by its rules and regulations." Respondents do not challenge the General Counsel's contention that the closed- shop provisions as found in the 1944 contract are, and since 1947 have been, vio- lative of the Act.5 Their only defense to that contention is that the illegality of the challenged provisions is avoided by a so-called saving clause found in the same 1944 contract reading as follows: "Whenever any provision herein may conflict with existing law, Federal or State, such conflicting provision shall be considered as amended in order to conform with such law." Saving clauses of substantially the same character and substance have, however, been held by the courts and the Board not sufficiently specific enough to purge the illegal provisions from the existing contract. N. L. R. B. v. Gottfried Baking Co., 210 F. 2d 772 (C. A. 2); Red Star Express Lines v. N. L. R. B., 196 F. 2d 78 (C. A. 2); N. L. R. B. v. Gaynor News Co., 197 F. 2d 719 (C. A. 2), affd. 347 U. S. 17; Louis Goren, d/b/a City Window Cleaning Co., 114 NLRB 906; Ebasco Services Incorporated, 107 NLRB 617. The alleged saving clause inserted in 1944, 3 years before the enactment of, the Taft-Hartley Act, fails to identify specifically which, if any, of the provisions of the existing contract were to be severed from the bargaining agreement. The parties could not have had reference to the closed-shop provision because that type of union security was not then violative of any "existing law, Federal or State." And I can only speculate in what manner, and how, the violative provision "shall be con- sidered as amended." In all the circumstances, "the very existence in the contract of the [illegal] clauses . act as a restraint upon employees desiring to refrain from union activities within the meaning of Section 7 of the Act." Hazel-Atlas Glass Company et al., 85 NLRB 1305; Louis Dix, d/b/a Hickey Cab Company, 88 NLRB 327. By allowing these provisions to remain as part of'the contract presently in force, the Association and its members, at all times since August 19, 1954, have restrained and coerced employees in the exercise of rights guaranteed by the Act, unlawfully given support to the Union, and discriminated against employees in order to encourage membership in the Union, all in violation of Section 8 (a) (1), (2), and (3) of the Act. Similarly, by maintaining the same provisions of the con- tract, the Union, at all times since August 19, 1954, also has restrained employees in the exercise of guaranteed rights, and caused, or attempted to cause,'members of the Association to discriminate against their employees to encourage membership in the Union, thereby violating Section 8 (b) (2) and 8 (b) (1) (A) of the Act. New York State Employers Association, Inc., 93 NLRB 127; H. 0. Wheeler et al., d/b/a Tacoma Harbor Lumber and Timber Co., 108 NLRB 912; Consolidated Western Steel Corpo- ration, 108 NLRB 1041. Assuming, arguendo, that the existing contract had been legally purged. of its closed-shop provision and that I were to "consider" the agreement "amended . to conform with" the Taft-Hartley Act as the saving clause allegedly does, the findings and conclusions of violation against all the Respondents announced immediately above would, for the reasons that follow, nevertheless have to be entered. 4 Article XXIII, subdivision 3 (a) of the Union's international constitution requires that "each member shall hire none but those in good standing with a Union having juris- diction over the work to be done." 5 Under Section 8 (a) (3) thereof, the only union-security provision which may be in- corporated in such an agreement is one which "require[s] as a condition of employment membership [in the union] on or after the thirtieth day following the beginning of employ- ment or the effective date of such agreement, whichever is later, . . . 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 (a) (3) of the Act flatly and broadly forbids all forms of discrimination to encourage or discourage membership in a labor organization except only those which come strictly within the terms of the single proviso to that broad proscription. By that proviso, since its amendment in 1951, the execution of a valid union-security agreement is authorized only if the union "at the time the agreement was made or within the preceding twelve months [has] received from the Board a notice of com- pliance with section 9 (f) (g) (h)" of the Act. Sofield testified that he has never complied with the section just referred to, and the parties stipulated that the Union, to the time of. the hearing herein, has never been in compliance therewith.6 In this state of the record, the existence of an otherwise valid union-securtiy clause must be deemed to be violative of the Act.7. Edwin D. Wemyss, d/b/a Coca-Cola Bottling Company of Stockton, 102 NLRB 586, enfd, as mod. in another respect, 212 F. 2d 465 (C. A. 9). Having found that the 1944 closed-shop provisions are still part of the contractual arrangement between the parties and therefore violative of the Act, I find it un- necessary to burden this report with detailed findings upon undisputed evidence sub- stantiating the additional allegations of the complaint that the employer members. of the Association were "parties to an arrangement and/or understanding and/or practice with the Respondent Union" whereby union membership, or a union referral or permit to work for nonunion members, was a condition of employment by the members of the Association. While the testimony of master mechanics, hereafter found to be supervisors, establishes that a number of the individual Employer Re- spondents engaged in such an illegal practice, and I so find, neither the conclusions of law to be drawn therefrom, nor the remedy required to undo the same, would be broader than the conclusions and remedy pertaining to the closed-shop provisions of the contract heretofore found to have been violative of the Act. In its brief, the Union lays great emphasis on the construction industry's "unique . problems in obtaining skilled men" other than through the Union's hiring hall, and argues "that it would be impossible for contractors to operate without a ready source of available skilled operators." I am 'fully mindful of that problem, but nothing contained in these findings, or the recommended remedy that follows, is intended to cast doubt on the right of a labor organization. to maintain a legal hiring hall operated on a nondiscriminatory basis. There remains for consideration on this phase of the case the allegations of the complaint that the Union caused, or attempted to cause, the Association and its members to deny employment to employees "because of their concerted activities on behalf of a reform or dissident group in Respondent Union." While the record establishes that a substantial number of employees were active in a so-called reform movement within the Union, no evidence was offered that any employees, or pro- spective employees, were denied employment for that reason. It will, therefore, be recommended that the allegations pertaining to that type of discrimination be dis- missed. B. Domination and interference by the Employers Turning now to the allegations of the complaint that the Association and its mem- bers dominated the Union and interfered with the administration of its affairs, it is the position of the General Counsel that the record establishes that master mechanics (alleged by the General Counsel to be supervisors within the meaning of the Act), superintendents, and officers of the employer members of the Association main- tained membership in the Union, actively participated in its affairs, and directed its policies. Such being the case, he contends, a finding of interference with and domina- tion of the Union must follow. Respondents, on the other hand, contend that master mechanics are not super- visors within the meaning of the Act, and that their participation in union meeings and affairs was a proper exercise of their rights as ordinary employees and members of t_he Union without pressure or influence by their Employers. With respect to all the alleged participation in union activities and affairs by company officials, it is the position of the Employers that this activity was confined to mere membership O During the hearing, the Union announced that it was then engaged in the preparation of the necessary documents to bring it into compliance. 4 Prior to its amendment in 1951, the Act provided that no valid union-security clause could be made a part of a labor bargaining agreement unless, pursuant to a Board-conducted election, "at least a majority of the employees eligible to vote in such election have voted to authorize . . . such an agreement." In view of the Union's non-compliance, the Board could not have conducted such an election, nor is any claim made that any such election was ever held. NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 207 in the Union with a rare attendance at its meetings . They expressly deny the exercise of any influence in the direction of the Union 's affairs or policies, and also deny the exercise of any pressure on their supervisory personnel in connection with the union activities or affairs of such supervisors. Membership in the Union is divided into three divisions . Local 138 consists of master engineers, master mechanics ,8 and contractor executives who earlier in their lives were employed as engineers; 138-A consists of junior or apprentice engineers, oilers, and firemen ; and 138-B is made up of engineers engaged in other than heavy and building construction work. The same officers and committees serve all 3 divisions of the Union and the agreement with the Association covers work per- formed by members of all 3 divisions . Dues of 133 and 138-A are $8 per month, and those of 138-B $6 a month. At the time of the hearing, 138 had approximately 158 members, 138-A about 435, and 138-B approximately 270. Included in the membership of 138 are an un- disclosed number of executives of Association members. Among them are Milton A. Hendrickson, hereafter referred to as Hendrickson , president of Respondent Hendrickson Brothers , Inc., considered to be one of the biggest contractors on Long Island and employing 600-1 ,000 men; Charles Davis, secretary of Respondent Davis Construction Corp.; Charles and Joseph Salerno, officers of Respondent R. Salerno & Sons; Joseph Brenner, president of Respondent Grefe & Brenner . Also included in the membership of 138 are at least 31 master mechanics, assistant master me- chanics, foremen , and job superintendents employed by contractors under con- tractual relationship with the Union. Monthly meetings of the Union are attended by members of all three divisions. At these meetings , the members of 138 have an absolute right to vote on all issues put to a vote , and in the election of officers . Members of 138-A and B, however, cannot vote in the election of officers ; on all other matters at issue, they may vote only with "the permission of the chairman , . . . if he so chooses, . . . it is within his discretion ." And, while the denials of such right to vote may be appealed "to the body, . . . it would be up to the chairman " to decide who votes on that appeal. In this connection , Sofield, the Union's secretary since 1935, testified that such a ruling "has never been appealed to the floor." 0 As Respondent Association points out in its brief , the Union prior to the time that the charges herein were filed, was "rent by factional warfare." The dissension manifested itself at the election of union officials in June 1954 at which meeting, attended by approximately 75-100 persons , Sofield presented "the slate of officers" who were to serve during the following term . The slate did not include the name of William DeKoning , Jr., its then president and business manager, who explained that "he couldn't run for office any more because of his probation and requested that Charles Britton's name be substituted for his." 10 The request was granted. The slate also failed to include the name of John DeKoning ," a leader in the so-called reform group , as business representative , and who was then serving in that capacity and had done so since October 1951. A number of members wanted to know the reason for this latter omission and were informed by Sofield, who was presiding, that "they weren't allowed to elect a business representative ; that it was an ap- pointed job." A motion was nevertheless made and carried that John DeKoning's name be included , and the slate, as amended , was adopted "by a shout vote," the only dissenting voice being that of Sofield . All of the elected candidates, including Britton and John DeKoning, were then sworn in by a past president of the Union. No meetings of the Union were held in July or August 1954. At the following meeting in September, when the minutes of the June meeting were read by Sofield, 8 The contract with the Association provided that all master mechanics must be members of the Union. 8 Louis Wilkens testified that at one meeting "a motion was put to give the A and B men the right to vote , and it was denied . . . by the President and (the men] were told that the only one who could interpret its constitution was the general president." 11 As the record does not otherwise explain this "probation," I take official notice of the criminal court records of Nassau County which disclose that on April 9, 1954, William DeKoning, Sr., a former president of the Union , pleaded guilty to 2 indictments for ex- tortion and 1 for grand larceny , in connection with the operations of contractors on Long Island , and was sentenced to 3 concurrent terms of 1 year to 18 months in Sing Sing prison . At the same time, William DeKoning , Jr., his son , was given a suspended sentence of 1 year, and placed on probation, upon his plea of guilty to a. charge of coercion. In connection with these sentences , it was made a condition thereof that neither DeKoning hold official union position in Nassau County. 11 John DeKoning is a nephew of William DeKoning , Sr., and a cousin of William DeKoning, Jr. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they failed to disclose the election of, or oath taken by, John DeKoning as business representative; the minutes also stated that Britton was elected business manager, but, according to Peter Batalias' undenied testimony, this "hadn't happened." Much commotion followed and, by a secret ballot which then was ordered, the minutes of the June meeting, as read by Sofield, were rejected. Instead, they were corrected to show.John DeKoning's election as business representative and to strike the name of Britton as business manager. The next meeting, in October 1954, was attended by 700-750 persons, the largest attendance in recent years, if not in the Union's entire history. Among those who attended the meeting and voted thereat were executives, or "bosses," of the follow- ing members of the Association: Hendrickson, president of Hendrickson Brothers, Inc.; Charles Salerno of R. Salerno & Sons; Frank Fatscher of Ted Fatscher; and Charles Davis, secretary of Davis Construction Corp. Other contractors in attend- ance were not identified by name, but Wilkens, a member of the Union since 1933 and its first president, testified, without contradiction, that there were more "con- tractors" present at this meeting than at any prior meeting he had ever attended. Also present were approximately 50 "owner-operators," a number of job superintend- ents, and approximately 20 master mechanics. During this meeting, and over objection of the so-called reform group which was denied the opportunity to fully present its views, a motion "to give the Executive Board full power for the operation of *he organization" was adopted. On separate occasions, between the union meetings of September and October 1954, Wilkens, Garrett Nagle, and John DeKoning called on Hendrickson and told him about the reform movement which they were leading in the Union. Wilkens told Hendrickson that "the contractors had an awful crowd of contractors at the last meeting, . . . and that it would be a good idea [for Hendrickson] to stay away from the meetings and . . . not throw his weight for the men to vote one way or the other." Hendrickson replied to Wilkens that he was maintaining "a hands-off policy" in the struggle then going on within the Union and which precipitated the large attendance at the October meeting. He nevertheless added that he was a member entitled to come to a meeting, and "he would not stay away." Hendrickson, however, not only attended the October meeting, but contrary to his, expressions of neutrality, voted on the motion to give the executive board the plenary powers above described. The record also establishes, and I find, that master mechanics serve on the Union's executive board, its board of trustees, and its committees. With respect to 1 of these committees, the evidence discloses that on July 1, 1955, a union committee of 12 members was appointed to negotiate changes in its agreement with the Association "covering wages and working conditions." Serving thereon were eight master me- chanics including Clifford Smith and William Dean, employed by members of the Association, Hendrickson Brothers, Inc., and Radory Construction Corp., respectively. The remaining six were employed by other contractors who were also "under con- tractual relations with [the Union]." In behalf of the Association and its members, these negotiations were conducted by a committee of five including Milton A. Hendrickson and Edward Regnell, the latter being the personnel manager of Hendrickson Brothers, Inc. It is the argument of the General Counsel that Hen- drickson's participation in these negotiations on one side of the bargaining table while Smith, one of his supervisors, is on the other side, brings into focus, by such duality of roles, the Employers' control over the Union. During the time John DeKoning was the Union's business representative, it was his duty to visit various jobs on which the members of the Union were employed to ascertain whether the working conditions and other terms of the contract with the Association were observed and fully complied with. In connection with these duties, however, he had been instructed by William DeKoning, Sr., William DeKoning, Jr., and Sofield "not to go on places where there were master mechanics, especially [their] own local contractors, mainly Hendrickson Brothers . that they have a master mechanic there [who] can take care of that job." 12, With respect "to outside contractors, that come in from New York or from other areas, [John DeKoning] was told to [enforce the working conditions imposed by] the contract to the letter." In the winter of 1953 and 1954, John DeKoning made approximately six visits to jobs of Hendrickson Brothers on which occasions he reported what he considered to be contract violations to either DeKoning, Jr., or Sofield, and was told that the matter would be taken care of by them. On one such occasion, Sofield told John 12 The contract between the Association and the Union required every Employer to engage 1 master mechanic for every 5 engineers employed on any shift. NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 209 DeKoning "to mind [his] own God damned business land to] stay off the job." 13 Nevertheless, he later visited the jobs in question to "see if there was any change in conditions," and found that there was not. Though John DeKoning had been elected business representative by the membership in June 1954, he was "fired" from that position on October 15, 1954, by Britton, the Union's president.14 Because so much that is involved here relates to the activities of master mechanics, consideration should first be given to their status and a determination of whether or not they are supervisors within the meaning of the Act so as to make their em- ployers liable for their conduct and activities. The briefs of the Respondents obliquely, but without merit, challenge the posi- tion of the General Counsel that Master Mechanic Clifford Smith is such a super- visor. Smith is responsible for the maintenance of pumps, steam shovels, and all other equipment owned by Hendrickson Brothers, Inc., and for the maintenance of 60-70 trucks. The value of this equipment "varies from a $200 pump to a shovel that may have cost $80,000"; its total value "is at least a million dollars." He has two assistants and maintains a desk in the general offices of the company. When work is about to start on a project, Smith does the hiring. When the job is completed, he decides "which men are to be laid off." He earns a weekly salary of $225 and, in the last 4 years, has been awarded an annual bonus mounting from $1,000 to $5,000, which latter amount he received in 1954 and 1955, thereby increasing his annual earnings to approximately $17,000. During the last 4-5 years, the company has furnished to, and maintained for, him 4-5 automobiles, the latest a 1956 Buick. While the car is used by him in connection with his work, he is allowed to drive it to his home evenings and over weekends. Though the testimony establishes that other master mechanics were not treated as generously by their employers as Smith was by Hendrickson, and that his re- sponsibilities covered a more extensive field of operations than that of other master mechanics employed by Hendrickson Brothers, Inc., and the other contractors, on the entire record I am convinced, and find, that all other master mechanics employed by members of the Association are also supervisors within the meaning of the Act. Louis Wilkens has been employed as a master mechanic by 9 or 10 different con- tractors since 1933. At the time of the hearing, he was so employed by Respondent John C. Peterson Construction Co. As such master mechanic, he had authority to hire, fire, or lay off employees; it is his responsibility to keep all equipment in working condition; his salary is $55 or $60 a week more than that paid to engineers on the job.15 Bernard J. Pelgrim and Johannes Lamberton are employed by Hendrickson Brothers, Inc., the first as assistant master mechanic, and the latter as master mechanic. Both make recommendations on the hiring of engineers, and direct their work. Their salaries are respectively $200 and $225 a week, while the hourly rate paid engineers aggregates about $140 for a 40-hour week. Additionally, in 1955, Pelgrim received a bonus of $1,500 and Lamberton $750. George Henry, a master mechanic for Good Roads Engineering & Contracting Co., hires engineers for his employer. While the president of the company tells him how many men are to be employed, he is never told whom to hire. His salary is $225 per week plus overtime. Gerard Douglas, employed by the Union since October 1955, was engaged as a master mechanic prior thereto by Slattery Contracting Co. As such, it was his duty "to see that the equipment was running, and see that the jobs were manned and all is During the September meeting of the Union , DeKoning , Jr., referred to Arthur Hendrickson , chairman of the board of directors for Hendrickson Brothers, Inc., and its former president , as "godfather of the local." 14 While I ain mindful that the events referred to in the preceding paragraph pertain to, and had their origin in, instructions given more than C )nonths prior to the filing and service of any charge herein , both the courts and the Board have held that "a state of affairs once shown to exist is presumed to continue to exist until the contrary is shown." X. L. R. B. v. A'atio,al Motor Bearing Co.. 105 F. 2d 052 (C. A . 9) ; N. L. R . B. v. Piqua MnnisinqWood Products Co., 109 F. 2d 552 ( C. A. 6) ; and Local a0, Bakery and Conjec- tiontsry Workers International Onion, AFL-CIO ( Arnold Bakers, Inc.), 115 NLRB 1333. to The findings in this and the following paragraphs pertaining to the supervisory status of waster mechanics are based on the undenied testimony of the named individuals. All their employers are members of the Association. 450553-58-Pol. 115 15 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equipment covered with engineers." As master mechanic he made the necessary arrangements with the Union to supply his employer with the required engineers. William H. Kreischer, a master mechanic for Tully & DiNapoli, Inc., during the latter part of 1955, testified that it was his job "to make sure" that the machines were running properly. Charles Brandenstein is employed by W. H. Greene as master mechanic. As such, it is his duty to see to it that Greene's 75 pieces of equipment, cranes, bull- dozers, etc., are kept in running condition. For that task, Greene employs 15 operating engineers and 8 oilers and shopmen. Charles Hansen has been employed by Respondent Karlson & Reed, Inc., as a master mechanic since 1951. The firm employs about 300 men of whom 50-90 are engineers and oilers, the number varying with the season. It is his responsibility to "see that [the equipment] is kept in first class shape; [he] travels from one job to the other, all around the Island, checking on different equipment; . . . if a machine needs repair, [he] directs a man how to repair it." At the hearing, the parties stipulated that William Dean, then confined to a hos- pital, if called as a witness, "would testify to his employment as master mechanic for Respondent Radory Construction Company, and that in all other respects his testimony would be similar to that of the other master mechanics, such as Branden- stein, Kreischer, Henry, and the others who have testified in this case." The evidence also establishes that every master mechanic supervises the work of at least five engineers. Article II (z) of the contract between the Association and the Union requires the employment of a master mechanic when five or more engineers are employed on any shift. It further provides that the master mechanic, "under the direction of the employer, shall be responsible for the hiring and firing of, and the pe4rformance of their duties by the engineers, maintenance engineers, junior and ap- prentice engineers, firemen and oilers." [Emphasis supplied.] Under the Union's bylaws, master mechanics are "not permitted to operate, . . . except in case of emergency," and the testimony establishes that such was the practice. In the light of all the foregoing, and the absence of any evidence that the authority of other master mechanics was more narrow in scope than that possessed by those described above, I find that the master mechanics employed by members of the Association are supervisors within the meaning of the Act, and that the activity of the master mechanics in the affairs of the Union hereafter found to be violative of the Act must be, and is, attributed to their respective employers. Turning next to the problem of whether the union activities of supervisors and officials of members of the Association are proscribed by the Act, we begin with Section 7 thereof which guarantees to employees "the right of self-organization" and "to bargain collectively through representatives of their own choosing." Section 8 (a) (2) declares that it shall be an unfair labor practice for an employer "to dom- inate or interfere with the formation or administration of any labor organization or contribute . support to it." The latter section is thus clearly intended to protect the guaranteed rights aforementioned by proscribing any form of employer participa- tion in the administration of a labor organization of employees. In other words, "we are dealing here . with a clear legislative policy to free the collective bargain- ing process from all taint of an employer's compulsion, domination or influence. The existence of that interference must be determined by a careful scrutiny of all the factors, often subtle," by which that interference or domination asserts itself. Inter- national Association of Machinists v. N. L. R. B., 311 U. S. 72. [Emphasis supplied.] The cases that have dealt with the subject do not single out any one activity or circumstance as determinative of whether or not a labor organization is employer dominated as to be violative of Section 8 (a) (2) of the Act. In each of the cases a series of acts has been revealed which, in their totality, constitute domination of, or interference with, a labor organization. And, although conduct and events oc- curring beyond the limitation period imposed by Section 10 (b) of the Act cannot be, and herein are not, made, the basis for any finding of violation, such earlier conduct may be considered insofar as it sheds light on, and imparts meaning to, events properly alleged in the complaint.16 Indeed, here, such background evidence is a requisite to a proper understanding and appraisal of the subsequent conduct of the parties, and the issues involved. 10N. L. R. 13. v. Sharpies Chemicals, Inc., 209 F. 2d 645 (C. A. 6) ; N. L. R. B. v. Reed cE Prince 31fg. Co., 205 F. 2d 131 (C. A. 1) ; Senorita Hosiery Mills, Inc., 115 NLRB 1304 (11ay 14, 1950). NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 211 The General Counsel points first to the fact that master mechanics, job superin- tendents, and company executives are members of the Union, attend its meetings, and cast votes thereat. On this phase of the case, the evidence establishes that these supervisors and company officials joined the Union while they were engaged as journeymen but have maintained their membership as they became master mechanics or otherwise progressed in their employment status, or went into business for themselves. The General Counsel concedes, and I conclude, that mere membership in the Union by supervisors and company officials is not violative of the Act. Certain insurance and welfare benefits available to members of the Union, and a desire by contractors or company executives to retain their status as engineers so as to again make them eligible for employment as journeymen if financial misfortune overtook them as employers, may well have been, as Hendrickson and others testified, the factors that prompted them to retain their membership in the Union.17 What the General Counsel attacks, however, is not mere membership in the Union by manage- ment executives and supervisors so as to deprive them of any of the benefits for which it was claimed membership was retained. Objection here goes solely to their active participation in the direction of the Union's affairs and the shaping of its policies. In this Union, as in practically all organizations, labor or other, its activities are not carried on by its members but are entrusted to its officers, executive board, and committees. It therefore becomes pertinent to ask how those who govern and direct the affairs of this Union are elected. As previously reported, the Union has a total membership of approximately 863. About 705 of these members, however, have no voice in the election of those who are to govern their affairs, negotiate in their behalf, and maintain relationship with their employers. That elective power is vested exclusively in the approximately 158 members of Local 138. And who constitutes this electorate? Pursuant to subpena, Sofield, the Union's secretary, produced General Counsel's Exhibit No. 7, purport- ing to be "a list of all members of Local 138 . .. who have served at any time since August 19, 1954, as master mechanic, assistant master mechanic, or foreman for any contractor under contractual relationship with Local 138." The list con- tained 22 names but apparently was not an accurate or complete list. It did not include the names of the following union members who testified credibly, and without contradiction, that they served the named Respondent Employer in the supervisory classification designated after their names: Bernard Pelgrim--_-_---__--_ Hendrickson Brothers,Inc -------- Assistant master mechanic. Johannes Lamberton-----__-_- ----- do----- ------------ Master mechanic. Albert J. Penn------------------ -----do----- ---------- Foreman. Raymond Edwards-_----------- Switzer Contracting Co. Inc------ Master mechanic. Edward Smith ------------------ Davis Construction Corp-----_-- Foreman. loan Dellegati------------------- Cirefe & Brennan --------- --_----_ Do. The subpena aforementioned did not request the names of job superintendents or management officials of members of the Association who were also members of Local 138, nor was any other evidence offered concerning the employment status of the total membership of Local 138. The credible, oral testimony, however, establishes that while the following named persons were employed by and served it The insurance and welfare funds aforementioned were maintained by the Union with the deposit or payment, by the contractors, of 5 percent of the wages earned by the' em- ployees covered by the agreement with the Union. However, no payment into the fund was made by Hendrickson Brothers, Inc., in behalf of Hendrickson, and he testified rh -^ he did not know whether he was entitled to the welfare benefits or not. He neverthe'less maintained his membership in the Union. The testimony also establishes that some com- pany executives and supervisors took withdrawal cards from the Union after they ;achieved higher status in their organizations and thereby remained eligible for reentry to full mem- bership whenever the occasion would thereafter 'arise. Hendrickson took such a ti llli- drawal for a 3-year period while a member of the Armed Forces,- and other executives or supervisors took similar withdrawals. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the named contractors in the capacity designated after their respective names, they were also members of Local 138 in good standing: Edward Cahill-----------_----- Hendrickson Brothers , Inc-------- Job Superintendent. Charles Verity------------------- ----- do----------------------------- Do. Walter Hagen -----------_------ ----do---------------------------- Do. Milton Hendrickson ------------- -----do------- --------- President. Charles Davis------------------- Davis Construction Corp --------- Secretary. Charles Salerno ------------------ It. Salerno & Sons---_-_--------- Officer. Joseph Brennan ----------------- Crefe & Brennan------------------ President. -- Grefe--- ----------------- -----do----------------------------- Secretary-Treasurer. Though, as just noted, no testimony was offered to show how many more super- intendents and management executives were members of Local 138, it seems highly improbable that others in these categories employed by the 28 contractor members of the Association did not also maintain membership in that Union . Without specu- lating, however, as to how many more superintendents or company executives hold membership in Local 138, the record, as made, shows that at least 36 out of the ap- proximately 158 members of Local 138 are representatives of management. Because only members of Local 138 are eligible to vote at the election of officers, it is thus apparent that management officials and supervisors play an important and influential part, and under some circumstances may well have the controlling voice, in the selection of those who are to administer the entire Union's affairs and its relations with the contractor members of the Association . The potency of the power so lodged takes on added significance in view of the authority vested in the officials so elected to appoint the committee which negotiates the contract with the Employers concerning wages and conditions of employment for rank-and -file employees (about which more will be said later ), and the business agents who police that contract. "Whether or not [management representatives and supervisors ] actually exercise this [voting] power is beside the point . The significant fact is that they possessed this power." Sharples Chemicals, Inc., 100 NLRB 20, 33, enfd . 209 F. 2d 645 (C. A. 6). The voting power vested in management officials and supervisors manifests itself at union meetings other than those involving the election of officers . The General Counsel places special emphasis on the October 1954 meeting at which far-reaching changes in the administration of union affairs were brought about. It will be re- called that it was at this meeting that "the Executive Board was given full power for the operation of the organization," a power broad enough, and so understood by Hendrickson, to grant authority to the executive board for the appointment of business representaitves. It was also apparently sufficient to authorize the discharge of John DeKoning who had been elected by the membership at a meeting in the preceding June. Included among those who voted at the October meeting on this important issue was Hendrickson , notwithstanding his protestations of neutrality concerning the internal affairs of the Union , and his promise to Wilkens and others to maintain a "hands-off policy" with respect thereto . The September and October meetings were the only meetings attended by him in a span of approximately 31h years between either December 1952 or January 1953, and April 26, 1956 , the day he testified herein . 18 Similarly present at this October meeting were other manage- ment executives , more in number than union charter member Wilkens had seen at any prior meeting (including those named in the finding that immediately follows) and more than a score of job superintendents , foremen, and master mechanics. On the entire record I find that by voting at membership meetings of the Union on matters involving the administration of that organization's affairs, officers and supervisors of Respondents Hendrickson Brothers , Inc., Ted Fatscher, Davis Con- struction Corp., and William H. Greene interfered with the administration of the Union. By that conduct, the Respondents just named violated Section 8 (a) (2) and 8 ( a) (1) of the Act. No credible evidence having been offered that other Respondents engaged in that specific conduct , it will be recommended that the allegations of the complaint charging them therewith be dismissed. 1s I do not credit Hendrickson 's testimony that he attended these meetings only "out of curiosity" and so that those who had spread uncomplimentary remarks about him would have an opportunity to repeat them "to [his ] face." ^No explanation was offered by him why he failed to request that such an opportunity be given . According to his own testi- mony, he did not speak at the meeting and his own activity thereat was to cast a vote. a NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 213 Supervisors exert even a greater influence in the administration of the Union's affairs than merely casting their vote at its meetings . Thus, on its executive board are found Master Mechanics James Belcher, John Vario, and Gerard Douglas, the latter having been so employed prior to the time he was appointed as business representative of the Union in September or October 1955. Three of the four members of the Union's examining committee , which has the important function of passing on applications for membership in Local 138, are master mechanics. The General Counsel , however, points his heaviest guns at the presence of master mechanics on the union committee "to negotiate for changes in [its] conditions." Sofield's testimony , and the exhibits produced by him, disclose that of the member- ship of 12 on this committee , 8 are master mechanics employed by either members of the Association or contractors maintaining "contractual relationship with Local 138," 1 is a retired union business representative , and 3 are present employees of the Union. This committee was "appointed" on July 1, 1955, and at the time of the hearing had not yet been dismissed . Without minimizing the effect of the overloading of this committee with master mechanics and the complete absence of journeyman representatives thereon , the General Counsel's principal shaft is di- rected at the presence on this committee of Master Mechanic Clifford Smith, employed by Hendrickson Brothers , Inc., and his participation in negotiations as a representative of the employees concerning wages and working conditions with Milton Hendrickson and Edward Regnell, respectively the president and personnel manager of his Employer, on the other side of the table as the representative of the Employers. In considering the effect of the presence of master mechanics on the Union's bargaining committee and in policy-making positions , there must be borne in mind the control wielded by the Employer over their continuing status in such supervisory positions . Furthermore, and without intimating that the additional bounties awarded to Smith and other master mechanics were corruptly intended to influence their action in union affairs or negotiations , human frailties being what they are, the fact that the grant of a bonus , and its amount, are within the absolute and uncontrolled' .discretion of the employer cannot be ignored in appraising the impact that such generosity has on the recipient thereof in guiding or determining his conduct and. vote in the administration of the Union's affairs. To illustrate by considering the position of Smith sitting on one side of the bar-- gaining table with Hendrickson, his Employer, on the other. Already earning- $ 11,700 a year, in 1954 and 1955 he was awarded an additional bonus of $5,000. Can it realistically be assumed that in negotiating with his Employer concerning wages of journeymen and apprentice engineers, oilers, and others for whom the- Union is bargaining , be is not swayed more by, and responsive to, the views expressed' and positions taken by Hendrickson than he would be if he were not treated so• generously by his Employer? The test, whether a challenged organization is employer controlled, "is not an objective one, but rather subjective from the stand -point of employes." N. L. R. B. v. Thompson Products, Inc., 130 F. 2d 363, 368 (C. A. 6); N. L. R. B. v. Tappan Stove Co., 174 F. 2d 1007, 1014 (C. A. 6); N. L. R. B. v. Donnelly Garment Co., 330 U. S. 219, 231. Applying that test, r cannot attach controlling significance, as urged by Respondents , to the self-serving declarations and testimony of Smith and other master mechanics and superintendents that their employers had never "interfered in [their] union activities, dominated' [them] in any way, or told [them] what to do or how to conduct [themselvesi in the union or at a union meeting." 19 Section 8 (a) (2) of the Act was intended to vouchsafe to rank-and -file employees that in the bargaining relationship and process those purporting to act for them not be rendered so subject to employer control , or dependent upon employer favor, as to tend to deprive them of the will and capacity to give their faithful devotion to the interests of the group they represent. The proscription against any inter- ference by employers in union affairs is so vital to the successful operation and administration of the Act that, "as a matter of policy, the Board has held that a supervisor cannot . . . represent employees of an employer for purposes of collective bargaining, regardless of whether the employees desire such a bargaining agent and despite the employees' right in Section 7 to bargain collectively through represent- atives of their own choosing . In so holding, the Board indicated that one purpose of the Act was to draw a clear line of demarcation between supervisory represent- atives of management and employees because of the possible conflicts in allegiance if supervisors were permitted to participate in union activities with employees." 20 ifl Insofar as the record discloses , master mechanics and job superintendents were the only recipients of an annual bonus. a Bausch t' Lomb Optical Company, 108 NLRB 1555. 2 1.4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Indeed, "collective bargaining becomes a delusion and a snare if the employer , either directly or indirectly, is allowed to sit on both sides of the table." [Emphasis sup- plied.] American Enka Corp. v. N. L. R. B., 119 F. 2d 60, 62 (C. A. 4); Virginia Ferry Corp. v. N. L. R. B., 101 F. 2d 103, 105 (C. A. 4). I find no merit in the contention of Respondents that the allegations of the com- plaint under consideration have not been sustained because "the wage scale of the Respondent Union is as high or higher than any other local of the International Union of Operating Engineers in the United States." First, not one scintilla of evi- dence was offered in support of any such claim. But even if it be assumed , arguendo, that the wage scale negotiated between these parties compared favorably with that prevailing elsewhere, that fact would not be diapositive of the issue posed here. It is not for me to speculate what wages, or conditions of employment , the negotiators might ultimately have agreed upon if employer representatives were not found on both sides of the table. My responsibility is limited to an analysis of the relationship existing between the negotiators, consideration of the innate dangers involved in that relationship , and a determination of whether or not those who purport to act as negotiators for the employees have the independence of judgment and action en- visaged and prescribed by the Act. It is enough for me to recognize that there are "two parties to a labor bargaining contract , [and that the Act] requires that the employees in bargaining be completely independent of the employer so that . . labor will be represented by persons or organizations having only its interests in mind, and acting wholly uninfluenced by fear or favor, of or from the management." [Emphasis supplied.] N. L. R. B. v. Brown Paper Mill Co., 108 F. 2d 867, 871 (C. A. 5). On the entire record I find that by the participation, in behalf of the Union, by Supervisors Smith and Dean in bargaining negotiations with the Association, their employers, Hendrickson Brothers, Inc., and Radory Construction Corp., respectively, interfered with and dominated the administration of the Union's affairs , and thereby violated Section 8 (a) (1) and (2) of the Act. There remains for consideration what effect the violative conduct just found has on the Association and the remaining individual respondent contractors . While the record does not establish that any of the other members of the Association were directly aware of Smith's status or presence at the bargaining table, when Hendrick- son sat at those conferences and dealt with Smith who attended in the guise of a representative of the employees , Hendrickson was not there in his individual capacity as president of Hendrickson Brothers, Inc. He was negotiating as the duly author- ized representative and agent of the Association and all its members. In that state of the record, his conduct in continuing to acknowledge , recognize, and deal with Smith as a representative of the employees must be attributed to his principal, the Association and all its members Z1 Accordingly, and for the same reasons that Hendrickson Brothers, Inc., and Radory Construction Corp. were found to have violated Section 8 (a) (1) and (2) of the Act, I similarly find that the Association, and the remaining members thereof, violated the same sections of the Act. Pacific American Shipowners Association, 98 NLRB 582; N. L. R. B. v. Waterfront Em- ployers of Washington, 211 F. 2d 946 (C. A. 9). In arriving at these conclusions I have not ignored Section 14 (a) of the Act read- ing as follows : "Nothing herein shall prohibit any individual employed as a super- visor from becoming or remaining a member of a labor organization, but no employer subject to this Act shall be compelled to deem individuals defined herein as super- visors as employees for the purpose of any law, either national or local, relating to collective bargaining." Respondent Hendrickson Brothers, Inc., contends that this section "guarantees the right of supervisory personnel to remain members of the Union," and to exercise all the privileges thereof. Certainly such a construction is not justified by a literal application of the words of the section. Indeed, supervisors have no guaranteed rights under the Act. To construe the sections as suggested by Respondents would be to run counter to one of the underlying objectives of the Taft-Hartley amendments to the Act. Section 14 (a) came into the Act in 1947 together with the amendment of Section 2 (3) thereof by which it was made clear that supervisors were to be deemed repre- sentatives of management and no longer included in the definition of "employee" as that term is used throughout the Act. By that change, supervisors lost the only rights "guaranteed" by the Act, the right of "employees." However, because the 21 "In determining whether any person is acting as an 'agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling." Section 2 (13) of the Act. NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 215 testimony before the 80th Congress showed that many employers were desirous of negotiating with a union composed exclusively of foremen , Section 14 (a) was enacted to make such negotiation permissive. Thus, the Senate Report dealing with the amendments concerning "supervisory personnel" reported that the amendments do "not prevent anyone from organizing nor does it prohibit any employer from recognizing a union of foremen." 22 [Emphasis supplied.] Contrary to Respondent's aforementioned contention, therefore, the legislative history establishes that the 1947 amendments took away, rather than "guaranteed," the protected status of supervisors' union activities. And one of its expressed reasons for such action was congressional belief that the pressure of supervisors in labor organizations admitting rank-and-file employees to membership is a source of man- agement pressure on such ordinary employees. The House Report accordingly observed that to accord statutory protection to supervisors in their union affairs is, in effect, "inconsistent with the policy of Congress to assure to [rank-and-file] workers freedom from domination or control by their supervisors in their organizing and bargaining activities." 23 It is thus clear that the caveat to Section 14 (a) was not intended to extend the rights of supervisors, nor can it be construed to give man- agement representatives and supervisors license, and the sanction of law, to nullify both the underlying objectives of the Act and the expressed proscriptions imposed by Section 8 (a) (2) thereof.24 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the operations of Respondent Association and its members 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 obstruct- ing commerce and the free flow thereof. V. THE REMEDY Having found that all the Respondents have engaged in unfair labor practices in violation of the Act, it is recommended that they be required to cease and desist there- from and to take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent Association and its members and the Respondent Union have maintained and enforced an illegal discriminatory agree- ment, and have similarly engaged in the practice of, requiring employees or prospec- tive employees to be members of, or to obtain job referrals or permits from, the Respondent Union as a condition of employment. It is, therefore, recommended that all the Respondents cease and desist from that practice, and from performing or giving effect to the foregoing contract, or any modification, extension, supplement, or renewal thereof. Nothing in this recommendation, however, shall be deemed to require any of the Respondents to vary or abandon any substantive provisions of such contract as amended or extended, or to prejudice the assertion by employees of any rights they may have acquired thereunder. I have also found that the Union maintains contractual relationship with con- tractors other than those who are members of the Association. On the entire record I am convinced that it is reasonable to anticipate that the Union will also discrimina- torily require union membership or referral as a condition of security employment by employees, or prospective employees, of such other employers with whom the Union maintains contractual relationship. Because I believe that to effectuate the policies and purposes of the Act it is necessary to have a remedial order which is co- extensive with the violations which are reasonably to be anticipated, it is recom- mended that a cease and desist order be issued enjoining the Union from committing this and similar violations against employees of any other employer provided such other employer parties to such agreements or arrangements are employers over whom the Board would assert jurisdiction in an appropriate proceeding. International Brotherhood of Teamsters, etc. (DePrizio Construction Company), 110 NLRB 287. 21 Senate Report No. 1.05, 80th Congress, 1st Session, pp. 3-5. 23 House Report No. 245, 80th Cong., 1st Session, p. 14. 24 In any event, as heretofore noted, I have not found violative of the Act the mere maintenance of membership by company executives and supervisors so that they may enjoy the insurance, welfare, social, and employment benefits which membership in the Union may bestow. It was the desire to retain these benefits that Hendrickson and several supervisors testified that they continued to remain members of the Union. All that has been found violative of the Act herein has been the interference with, and domination of, the ad- ministration of the Union's affairs by supervisors and management representatives. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that the Respondent Association and its members contributed support to, interfered with, and dominated the Union, it will be recommended, in order to effectuate the policies of the Act and to free employees from the effect of the unfair labor practices committed by the Association and its members, that these Employers cease and desist therefrom, and that they no longer recognize the Union, or any successor thereto, as the representative of any of their employees for the purpose of dealing with the Association or any of its members concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. For the above reasons, and because the effect of the forbidden con- tract indulged in by the members of the Association in the affairs of the Union is so overpowering, I conclude that the only effective remedy therefor is to completely dis- establish the Union as the representative of the employees of the members of the Association, and I so recommend. In making that recommendation, I have not been unmindful of the Union's affiliation with a great and powerful international union. Indeed, that affiliation caused me to pause and inquire, as the Board did in earlier years,25 whether a labor organization affiliated with a national or international federation that was outside the ambit of the employer's control could be so completely and permanently sub- jugated to the will of the employer as to require its complete disestablishment. Thus, for a period of 11 years, from the time of the enactment of the Wagner Act until 1947, though domination of an affiliated labor organization was found, the Board consistently was of opinion that the drastic remedy of disestablishment of such an affiliated union was not required. Undoubtedly, the power and control which the national or international federation is capable of exercising over its con- stituent organizations, and the likelihood that it would, and indeed should, exercise that power and influence to rid its constituent organizations of such domination, played a prominent part in limiting the remedy under consideration. Accordingly, in the case of such affiliated unions, in addition to directing the cessation of the illegal interference, the Board merely ordered that recognition be withheld from the employer-controlled organization until it was certified by the Board.26 However, in the case of a dominated nonaffiliated union, the Board always ordered complete disestablishment as the only adequate remedy for such domination. By its 1947 amendment of Section 10 (c) of the Act, Congress expressed its disagreement with the foregoing distinction drawn by the Board. By that amend- ment, the Board was directed to' apply the "same regulations and rules of decision . irrespective of whether or not the labor organization affected is affiliated with a labor organization national or international in scope." Accordingly, since that time, in the comparatively rare cases involving a dominated union with such affiliation, the Board has ordered complete disestablishment. See Jack Smith Beverages, Inc., 94 NLRB 1401, enfd. as mod. in another respect, 202 F. 2d 100 (C. A. 6), and Poly- nesian Arts, Inc., 100 NLRB 542, enfd. as mod. in another respect, 209 F. 2d 846 (C. A. 6). In the circumstances here, I believe that disestablishment is the only remedy. The scope of the unfair labor practices indulged in by all of the Respondents dis- closes a purpose to interfere with, restrain, and coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, and that danger of other unfair labor practices in the future is to be anticipated from the course of Respondents' conduct in the past. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act and effectuate the policies of the Act, it is recommended that all the Respondents cease and desist from in any manner infringing upon the rights guaranteed employees in the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent Union, Local 138, International Union of Operating Engineers, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of their employees, and by maintaining in effect an unlawful union-security agreement, Respondent Nassau and Suffolk Contractors' Association, Inc., and all of its members have engaged in and are engaging in unfair labor practices within the meaning of Section 8 ( a) (1) and 8 (a) (3) of the Act. 25 See Carpenter Steel Company,76 NLRB 670. 20 "No certification would, of course, issue, until the effect of the employer's illegal control . . . had been dissipated, but thereafter it could issue to the same organization." Carpenter Steel Co., supra. ORANGE CRUSH OF P. R., INC. 217 3. By interfering with, giving support to, and dominating the administration of the affairs of the above-named Union, the aforesaid Association and all its mem- bers violated Section 8 (a) (2) and 8 (a) (1) of the Act. 4. By causing the said Association and its members to discriminate against em- ployees and prospective employees in violation of Section 8 (a) (3) of the Act, the above-named Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX A Bancker-Tooker & Co., Inc., 67 Orchard Street, Manhasset, L. I. Buchanan & Eberhard, Inc., Shore Road, Glenwood Landing, L. I. William Casey & Sons, Inc., 2 Lakeview Avenue, Lynbrook, L. I. Craft & Brucia, Inc., 158 Irving Place, Woodmere, L. I. Davis Construction Corp., Charlotte Ave., Hicksville, L. I. Ted Fatscher, 17 Emerson Place, Valley Stream, L. I. Gifford Construction Co., Inc., 146 Newbridge Road, Hicksville, L. I. Good Roads Engineering & Contracting Co., Inc., Burns Avenue, Wantagh, L. I. Grant Park Construction Co., Inc., 65 Prospect Avenue, Lynbrook, L. I. Grefe & Brennan, 71 S. Long Beach Road, Long Beach, L. I. William H. Greene, Grand Boulevard, Westbury, L. I. J. J. Hagerty, Inc., Westhampton Beach, New York The Hallen Co., Inc., 45-24 37th Street, Long Island City, New York Hendrickson Brothers, Inc., Valley Stream, Long Island, New York Hinkle & Finlayson, Inc., Sea Cliff Avenue, Glen Cove, L. I. Horn Construction Co., Inc., 2174 Hewlett Avenue, Merrick, L. I. Karlson & Reed, Inc., W. Barclay Street, Hicksville, L. I. Frank Marmorale, Oyster Bay Road, Locust Valley, L. I. Merrick Utility Associates, Inc., 26 Surrey Drive, Merrick, L. I. John C. Peterson Construction Co., 958 Church Street, Baldwin, L. I. Radory Construction Corp., 94 Cherry Valley Road, West Hempstead, L. I. Vincent Provenzano Construction Co., 1955 Franklin Place, Woodmere, L. I. W. E. Sexton, Inc., 193-195 Jericho Turnpike, Mineola, L. I. Slattery Contracting Co., Inc., 46-36 54th Road, Maspeth, L. I. R. Salerno & Sons, 116 Harbor Road, Port Washington, L. I. Standard Bitulithic Co., Woodside Avenue, Baldwin, L. I. Switzer Contracting Co., Morris Avenue, Glen Cove, L. I. Tuly & DiNapoli, Inc., 127-50 Northern Boulevard, Corona, New York Orange Crush of P. R., Inc. and Unidad General de Trabajadores de P. R., Petitioner. Case No. P34-RC-954. June 18,1957 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before George L. Weasler, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act.' 2. The labor organization involved claims to represent certain em- ployees of the Employer. 1 See Orange Crush of Puerto Rico, Inc., Case No. 24-RC-784, not reported in printed volumes of Board Decisions and Orders. 118 NLRB No. 25.