Merritt-Chapman & Scott Corp.

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not indicated an unwillingness to represent a more comprehensive unit, it has not made a substantial showing of interest in the larger unit. We shall, therefore, dismiss the petition without prejudice. [The Board dismissed the petition] MEMBERS RoDGERS and BEAN took no part in the consideration of the above Decision and Order. Merritt-Chapman & Scott Corporation and United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Carpenters District Council of Madison County, Illinois, and Vicinity, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Local 633, United Brotherhood of Car- penters and Joiners of America, AFL-CIO; and Local 377, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Henry Michel and Harold A. Hanlon . Cases Nos. 14-CA-1438 Fund 14-CR-305. June 28,1957 DECISION AND ORDER On April 24, 1956, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding, finding that the District Council, Local 633, and Local 377, herein called the Unions, had engaged in and were engaging in certain unfair labor practices -within the meaning of Section 8 .(b) (2) and (1) (A) of the Act, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto: The Trial Examiner also found that the Company and the Brotherhood had not engaged in the alleged unfair labor practices. Thereafter, exceptions and briefs were filed by the Company, the General Counsel, and the Unions, 1 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner insofar as they are consistent with the Decision and Order herein. 1. With respect to the company and the Brotherhood, the General Counsel alleged that in and after May 1955 they maintained and en- 'The 'Unions also requested oral argument. In our opinion, the record, the exceptions, and the briefs fully present the issues and the positions of the parties. Accordingly, the request for oral argument is hereby denied. 118 NLRB No. 48. MERRITT-CHAPMAN & SCOTT CORPORATION 381 forced the so-called International Agreement providing for a closed shop. The Company and the Brotherhood admit that in. March 1946 they executed the International Agreement, which provided that the Com- pany would recognize the jurisdiction claims of the Brotherhood and employ Brotherhood members "only." No termination date was pro- vided for in the agreement, and no express terms or conditions of employment were set forth. The evidence does not show any termi- nation of the agreement by mutual agreement of the parties, or even any attempted termination by unilateral notice from one party, to the other. On the contrary, the evidence clearly shows that the Com- pany in May 1955 and thereafter was still conforming to the closed shop provided for in the agreement, as Company Vice President Mynatt in effect admitted. In addition, General Superintendent O'Shea, who from February until sometime in September 1954 was in charge of the Olin construction project at East Alton, Illinois, admit- ted having stated to a Board field examiner investigating the case on 'January 26, 1956, that the agreement was still in effect. Accordingly,. O'Shea had in fact abided by the closed-shop provision of the agree- ment at the Olin project, and had hired only Brotherhood members when he needed carpenters or millwrights. Moreover, he admitted having told applicant Hanlon in August 1954 that he (O'Shea) under- stood that union clearance was required based on the terms of the agreement. From all this evidence it is apparent to us that in May 1955 and thereafter the Company and the Brotherhood were still maintaining and enforcing a closed shop as provided for in the International Agree- ment. In all the circumstances, we cannot give controlling weight to O'Shea's testimony that in February 1956, after issuance of the com- plaint and after his statement to the field examiner, and in contempla- tion of his testimony at the hearing in this case, the Company advised him of its interpretation that the unlawful parts of the agreement had not been in existence "since the time of the Taft-Hartley Act." Nor can we credit Company Vice President Mynatt's testimony that the agreement was lost sight of and abandoned long ago or that there was an understanding to this effect, particularly in view of his further testimony that it was not until about October 1955, during the inves- tigation of a charge against the company by the Regional Office of the Fifth Region (Baltimore), that the Company specifically stated, a The date of May 1955 was selected because Section 10 (b) of the Act provides in part that no complaint should issue based upon any unfair labor practice occurring more than fi months prior to the filing and service of the charge . The earliest relevant filing and service were completed on November 18, 1955 , with respect to the Brotherhood, and on November 21, 1955, with respect to the Company . The earliest date on which an unfair labor practice could be found against the Brotherhood is therefore May 18, 1955, and 3 days later as against the Company. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in a letter to that Regional Office, that the agreement was not in effect and had not been in existence for many years. We are likewise unimpressed with vague general testimony that the Company's closed- shop hiring practices do not show enforcement of the agreement be- cause they antedated and allegedly did not depend on the closed-shop agreement. Finally, fleeting testimony as to the Company's practice in instances where, unlike here, the Brotherhood might be unable to furnish sufficient employees, is hardly enough to overcome the closed-shop terms of the agreement. The Company and the Brotherhood argue that even if they are found to have enforced a closed shop pursuant to the agreement, such en- forcement would be lawful because of Section 102 of the Act, a "savings" provision applicable to collective-bargaining argreements made before the Taft-Hartley Act and not thereafter renewed or ex- tended. However, the document here cannot be termed a collective- bargaining agreement because it does not set forth any wages, rates of pay, hours of employment, or conditions of work, nor does it set forth any of the other customary terms and conditions of employment. We therefore find this contention without merit? For the foregoing reasons and on the entire record, we find, contrary to the Trial Examiner, that the Company and the Brotherhood in May 1955 and thereafter unlawfully maintained and enforced the International Agreement containing an unlawful union-security provision. 2. With respect to the remaining 3. Respondents (the District Coun- cil, Local 633, and Local 377, herein called the Unions), the General Counsel alleged and the Trial Examiner found 3 separate groups of unfair labor practices since August 28, 1954:4 (1) maintaining and enforcing an unlawful union-security hiring arrangement with the Company for the Olin construction project; 5 (2) causing the Com- pany to discriminate against Complainant Hanlon pursuant to this arrangement; and (3 ) taking disciplinary action against 3 members (Hanlon, Lesko, and Michel) because they had filed unfair labor practice charges with the Board, and depriving them of their oppor- tunities for employment as a consequence of the arrangement with the Company. We shall consider the exceptions to these three findings in numbered sections below. 3 Consolidated Western Steel Corporation, 108 NLRB 1041. At the Company' s request we have reexamined this case in the light of N. L. R. B. v. Clara-Val Packing Company, 191 F. 2d 556 (C. A. 9), but reaffirm our holding in that 'case. We note that the agree- ment involved in the Clara-Val case was a complete collective -bargaining agreement, unlike the agreement here which obligated the Company to. whatever terms and condi- tions of employment the Brotherhood might unilaterally establish in the locality. 4 See footnote 2. The original charge was served on the Unions on February 28, 1955. s Apart from the International Agreement , it was also alleged that the Brotherhood maintained and enforced a similar arrangement with the Company. We agree with the Trial Examiner that there was no evidence to support this allegation. MERRITT-CHAPMAN & SCOTT CORPORATION 383 (1) The Unions and the Company both attack the findings of an "unlawful hiring arrangement" and "illegal hiring practices" at the Olin project-a finding the Trial Examiner based on the testimony of O'Shea and Meyers, both of whom were called by the General Counsel as adverse parties under Rule 43 (b). In March 1954, Company Superintendent O'Shea obtained a conference with Meyers, the Unions' business agent, for the purpose of assuring the Company of an adequate supply of competent carpenters and related craftsmen for the Olin project. O'Shea in effect asked Meyers whether he could supply the necessary craftsmen, and under what terms and conditions of employ- ment they would work. In reply, Meyers agreed to supply the Com- pany's requirements, and gave O'Shea certain written material establishing the expected terms and conditions of work. Significant among this material are sections 5; 6, and 38 of article XII of the District Council's constitution, bylaws, and working rules, which prohibit members from working not only with nonunion men of the .trade but even with union men not holding a current working card.' Also among the material which Meyers gave O'Shea was a form contract containing a provision that the employer would employ only union members. At all times thereafter, the parties abided by the dis- criminatory closed-shop requirement provided for by the material above described, until the Olin project was completed about May 15, 1955. In particular, as set forth below under paragraph (2), the Company at first accepted Hanlon's application for employment but later canceled it upon the District Council's refusal to clear or approve Hanlon. Based on this evidence, the Trial Examiner found that the Unions had entered into an unlawful hiring arrangement with the Company relating to the Olin project, and had violated Section 8 (b) (2) and (1) (A) by maintaining and enforcing this arrangement on and after August 2S, 1954. The Company and the Unions point out that Meyers specifically denied that there was any sort of arrangement made with the Company, and that O'Shea did not testify to making any such arrangement. However, this establishes only that no express closed-shop arrangement was made. It does not invalidate the Trial Examiner's inference, based on the facts in this case and particularly on Meyers' testimony that he supposed O'Shea expected to go along with the Unions' form agreement for a closed shop, that the Unions and the Company reached an understanding that the Company would employ only union carpenters and related craftsmen. Thus, when the Company in effect - asked the Unions the terms under which they would furnish crafts- men upon request, the Unions gave the Company a copy of the rule prohibiting members from working with anyone not a member in good 6 Article X authorizes the issuance of a working card only to paid-up members. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standing-a clear indication that the Unions would furnish workers only if the Company limited its employment to union members in good standing. That the Company understood this is shown by the fact that it thereafter abided by the Unions' limitation, and secured all but one of its carpenters directly from the Unions ' hall. And as to the sole exception-Hanlon-as we find below, the Company promptly canceled his employment when the Unions refused to clear him. To find that the Company's discriminatory actions were not due to the Unions' unspoken ultimatum that no union craftsmen would be forthcoming unless the Company operated a closed shop, as the Unions argue, would be unrealistic . Whether or not a union may have the right to act as an employment agency for an employer, or to refuse to do so, we hold that it may not lawfully condition its action in such a way as to cause the employer to discriminate by employing only union members in good standing and rejecting all others . That is precisely what the Unions here caused the Company to do. The Unions also argue that the original complaint alleged only a hiring arrangement "by virtue of" the International Agreement; that no such Agreement was in existence; and that an independent hiring arrangement is therefore not in issue. However, we have found that there was an International Agreement in existence. Moreover, _ the complaint was amended at the hearing to allege a hiring arrange- ment not dependent on the International Agreement, and the issue as amended was fully litigated by all parties. Thus, even if an inde- pendent arrangement were not properly alleged in the original com- plaint-a contention with which we do not agree-we find that the allegation as amended and as fully litigated would be ample to put the arrangement in issue. Accordingly, we find no merit in this argument. We find, as did the Trial Examiner, that the District Council, Local 633, and Local 377 caused the Company to maintain and enforce a hiring arrangement or practice in violation of Section 8-(a) (3) of the Act at the Olin project from and after August 28, 1954, thereby restraining and coercing employees in the exercise of the rights guar- anteed in Section 7 of the Act. (2) The Unions also attack the Trial. Examiner's finding that Hanlon was discriminated against by the Company in September 1954, and that they caused the discrimination. The evidence credited by the Trial Examiner shows that on September 2, 1954, Hanlon, convinced that he was not being treated fairly by the Unions in referrals to jobs and that it was futile to continue seeking employ- ment through the Unions, applied for employment directly to the Company's representative, O'Shea. O'Shea replied that if Hanlon could clear with the local union he would be hired, and should report MERRITT-CHAPMAN & SCOTT CORPORATION 385 for work on Monday, September 13; but that if he could not clear, there was nothing O'Shea could do for him. When O'Shea asked Hanlon about getting a referral slip or clearance from the District Council, Hanlon answered that he would not be able to get one. O'Shea then offered to call Meyers, the District Council's representa- tive, and request Hanlon by name. About a week later Hanlon tele- phoned O'Shea to inquire whether the District Council had granted O'Shea permission to employ him. O'Shea replied that something had come up and that Hanlon should not report for work until O'Shea called him. Not receiving any call during the next 2 or 3 weeks, Han- lon telephoned the Company and spoke to Riese, the new superin- tendent who had replaced O'Shea. After Hanlon explained the entire situation, he was told by Riese that he could not talk to him at that time. There was no further communication between the two men. We note that the record is devoid of any legitimate explanation for O'Shea's action in canceling Hanlon's employment, which was to begin on September 13. We also note that O'Shea had inquired whether Hanlon could get a referral, from the District Council, and had warned Hanlon that without it there was nothing that O'Shea could do for him. In these circumstances we can only conclude, as did the Trial Examiner, that the Company was carrying out its discriminatory warning to Hanlon that it would employ him only if he was cleared or approved by the District Council. Because of the unlawful hiring arrangement found above, we agree with the Trial ' Examiner that the Unions caused the Company's unlawful discrimination against Hanlon? (3) In the complaint in Case No. 14-CB-305, the General Counsel alleged with great particularity that the Unions had restrained and coerced three of their members (Hanlon, Lesko, and Michel) by ex- pelling them from membership in or about October 1955 because they had filed unfair labor practice charges with the Board. And further restraint and coercion was alleged in that the Unions deprived the three men of employment opportunities as a consequence of their expulsion, the Unions' rules, and the hiring arrangement with the Company. When the Unions requested a bill of particulars as to this latter allegation, the General Counsel on February 2, 1956, stated in writing that he was not relying on any actual employment applica- tions by the 3 men, but rather on closed-shop agreements with 3 named employer associations and with employers other than the Company. At the hearing, the Unions argued that the expulsion was protected by the proviso to Section 8 (b) (1) (A), and that the alleged deprival ° See Radio Ofcer8' Union (Butt Steamship Company) V. N. L. R. IT., 347 17. S. 17, affirming 196 P. 2d 960 (C. A. 2), which enforced 93 NLRB 1523. 450553-58-vol. 118-26 .386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment opportunities must be limited to the Company, as al- leged in the complaint, or in any event to employers whose activities were shown to affect commerce within the meaning of the Board's jurisdictional standards. The Trial Examiner rejected these argu- ments, and.sustained the complaint in this respect. The Unions argue in their exceptions that these unfair labor practice findings were improper. Even assuming that the General Counsel's bill of particulars may properly be regarded as amending the complaint so as to allege that the Unions caused discrimination by employers or employer associ- ations other than the Company, we find merit in the Unions' juris- dictional argument. 'Thus, we note that the record developed at the hearing was devoid of evidence that the unnamed employers, or the employer associations mentioned for the first time in the General Counsel's bill of particulars, were engaged in commerce. And the Unions' unlawful hiring arrangement with the Company had expired in May 1955, some 4 or 5 months before the alleged deprival of em- ployment opportunities. We are therefore constrained to find that the allegations are not properly before us for determination.8 Ac- cordingly, we cannot agree with the Trial Examiner that the Unions violated the Act either by disciplining Hanlon, Lesko, and Michel, or by depriving them of employment opportunities. However, we agree with the Trial Examiner, for the reasons set forth by him, that the appropriate remedy for the unfair labor prac- tices found in (1) and (2), above, should be coextensive with the demonstrated danger that the Unions will engage in similar unfair labor practices involving other employers. We shall accordingly prohibit the Unions from causing discrimination by the Company or any other employer. Our Order shall be construed as limited to employers or employer associations over whom the Board would assert jurisdiction in an appropriate proceeding. 3. The activities of Respondent Company and Respondent Brother- hood set forth in section 1, above, occurring in connection with the op- erations of the Company described in section I of the Intermediate Report, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free ;How of commerce. 'The General Counsel cites International Association of Bridge, Structural & Orna- mental Iron ii'orkers, etc., 112 NLRB 1059, as authority supporting the allegations in question. However, that case is entirely distinguishable on its facts. Thus, the union's threat of loss of membership in good standing was made to one D . D. Dolen, an em- ployee of Buie Building Materials Company, whose operations were found to satisfy our jurisdictional requirements . And in the absence of evidence that the union might simi- larly threaten employees of other employers, our order prohibiting restraint and coercion was limited to employees of Buie Building Materials Company. MERRITT-CHAPMAN & SCOTT CORPORATION THE REMEDY 387 Having found that Respondent Company and Respondent Brother- hood have engaged in certain unfair labor practices affecting com- merce by maintaining an International Agreement for a closed shop, we shall order them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. On the basis of the foregoing we make the following : SUPPLEMENTAL CONCLUSIONS OF LAW 1. By maintaining and enforcing the International Agreement con- taining an unlawful union-security provision, the Company and the Brotherhood have engaged in and are engaging in unfair labor prac- tices within the meaning of Section 8 (a) (3) and (1) and Section 8 (b) (2) and (1) (A) of the Act, respectively. 2. The said unfair labor practices are unfair labor practices affect- ing commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. Respondent Merritt-Chapman & Scott Corporation, its officers, agents, successors, and assigns shall : 1. Cease and desist from maintaining or enforcing the provision in the International Agreement made in March 1946 with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other understanding which requires membership in or clearance by a labor organization as a condition of employment, except 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) Post copies of the notice attached hereto marked "Appendix A." I Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall be duly signed and posted im- mediately upon receipt thereof and maintained for sixty (60) consecu- tive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. ° In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant'to a Decree of the United States Court of Appeals, Enforcing an Order." 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify the Regional Director for the Fourteenth Region in writing, within ten ( 10) days from the date of this Order, what steps have been taken to comply herewith. B. Respondent United Brotherhood of Carpenters and Joiners of America, AFL-CIO, its officers, agents, successors, and assigns shall : 1. Cease and desist from maintaining or enforcing the provision in the International Agreement made in March 1946 with Merritt-Chap- man & Scott Corporation , or any other understanding which requires membership in or clearance by a labor organization as a condition of employment, except 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) Post copies of the notice attached hereto marked "Appendix B." 10 Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall be. duly signed and posted immedi- ately upon receipt thereof and maintained for sixty ( 60) consecutive days thereafter in conspicuous places, including all places where no- tices to members are customarily posted. Reasonable steps shall be taken by the Brotherhood to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Fourteenth region in writing, within ten (10) days from the date of this Order, what steps have been taken to comply herewith. C. Respondents Carpenters District Council of Madison County, Illinois, and Vicinity, affiliated with United Brotherhood of Carpen- ters and Joiners of America , AFL-CIO; Local 633, United Brother- hood of Carpenters and Joiners of America , AFL-CIO ; and Local 377, United Brotherhood of Carpenters and Joiners of America, AFL- CIO ; their officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Executing, maintaining, renewing, or enforcing any agreement, understanding, arrangement, or practice with Merritt-Chapman & Scott Corporation, or any other employer, which requires member- ship in or clearance by a labor organization as a conditioii of employ- ment, except as authorized in Section 8 (a) (3) of the Act. (b) Causing or attempting to cause Merritt-Chapman & Scott Corporation, or any other employer, to refuse employment to or other- wise discriminate against any employees or applicants for employ- ment because they are not members of or have not been cleared by any labor organization, in violation of Section 8 (a) (3) of the Act. (c) In any other manner restraining or coercing employees 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 11 See footnote 9. MERRITT-CHAPMAN & SCOTT CORPORATION 389 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) Make Harold A. Hanlon whole for any loss of pay suffered by reason. of the discrimination against him, in the manner set forth in the Intermediate Report. (b) Notify Merritt-Chapman & Scott Corporation and Harold A. Hanlon in writing that they withdraw all objections to the employ- ment of Hanlon by the Company. (c) Post at each of their offices and meeting halls in Madison.Coun- ty, Illinois, and vicinity, copies of the notice attached hereto marked "Appendix C." 11 Copies of said notice, to be furnished by the Re- gional Director for the Fourteenth Region, shall be duly signed and posted immediately upon receipt thereof, and maintained for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by these Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fourteenth Region in writing, within ten (10) days from the date of this Order, what steps have been taken to comply herewith. MEMBER MURDOCK, dissenting in part : I must take issue with the majority's finding in this case that the Respondent Unions violated Section 8 (b) (2) and (1) of the Act by participating in a closed-shop "arrangement" at the Olin project of Merritt-Chapman & Scott. My disagreement is on two grounds. First, I can find no substantial evidence in this record to warrant the inference that all agreement was reached by the Unions and the Com- pany requiring the latter to enforce the Unions' bylaws, constitution, or contracts with other employers. Second, as I read Section 8 (b) (2) of the Act, that section does not forbid discrimination by a union; it forbids only causation or attempts to cause employer discrimination in violation of Section 8 (a) (3). Whatever agreement the Unions and the Company reached, I can find nothing in the circumstances of this case to warrant the conclusion that this Company was persuaded, urged, or forced by these Unions to discriminate against any employees. In March 1954, General Superintendent O'Shea on behalf of the Company sought out Union Business Agent Meyers for the purpose of securing an adequate supply of craftsmen for the Olin project. Ac- cording to the uncontradicted testimony of these persons the only agreement made during this conference was that Meyers would fur- 11 See footnote 9. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nish the Company with competent craftsmen as requested. No con- tention has been made that this agreement was unlawful. The majority, however, infer that another unlawful agreement was made at the same time. I note that the majority does not use the term "agreement" in this connection, preferring the vaguer terms of "arrangement," "understanding," or "practice." I do not know what these terms legally can mean in this context unless they mean a meeting of the minds and therefore an agreement between the parties. Obviously, any unilateral action taken voluntarily by either of the parties cannot be used to find a violation by the other. (N. L. R. B. v. Brotherhood of Painters (Spoon Tile Co.), 242 F. 2d 477 (C. A. 10), modifying the Board's decision in 114 NLRB 1172.) The basis of the majority's inference that an unlawful agreement was made in March 1954 are statements in its decision to the effect that Meyers' agreement to furnish O'Shea with craftsmen was con- ditioned on the further agreement by O'Shea to employ "only union members in good standing and rejecting all others." Thus, the ma- jority states: "O'Shea in effect asked Meyers whether he could supply the necessary craftsmen, and under what terms and conditions of em- ployment they would work. In reply, Meyers agreed to supply the Company's requirements, and gave O'Shea certain written material establishing the expected terms and conditions of work." Again, the majority states : "Thus, when the Company in effect asked the Unions the terms under which they would furnish craftsmen upon request, the Unions gave the Company a copy of the rule prohibiting members from working with anyone not a member in good standing. ... A careful reading of the testimony of O'Shea and Meyers discloses nothing to warrant the above statements of the majority. O'Shea testified that in contacting Meyers he was following the ° common practice of the trade and explained the reason for this prac- tice as follows : ". . . If you want carpenters throughout the country when you travel, the source of your carpenters is your local, because they have the carpenters, and not only that, they are capable trades- men, I mean you just can't go out in the street and ask somebody if he is a carpenter. He might tell you he isn't. You go to the, source of supply. It's the logical thing to do." Specifically as to his agree- ment with Meyers, he testified : A. Well, we [O'Shea and New York Project Manager Fred Bauer] told him that we were going to put up a project in Alton, and that we required some men, and he gave them to us. Q. Is that all you recall about the meeting? A. Well, it was a general discussion about wages and welfare and probably insurance, the general things you discuss any time you attempt to hire some men. MERRITT-CHAPMAN & SCOTT CORPORATION 391 In answer to a question whether he had always hired carpenters through the A. F. of L., O'Shea responded : A. That is the only one we had any desire to hire. I have seen rush big jobs where they are unable to hire them . They will let other men come in on permits , and things like that, not necessarily go to the union. You are not obligated to hire any , body. It is a practice that is followed. Meyers testified that he furnished O'Shea with a copy of the Unions' bylaws and area contract at the latter's request : "A. As far as Merritt- Chapman & Scott, we do not have any agreement with them, they never signed any. I wasn't aware of any international agreement, and as I told you, I inet Mr. O'Shea and Mr. Bauer at the Stratford . Hotel and I furnished him with a copy of our by-laws and our present agreement at that time , and there wasn't anything said other than that. He wanted the information . I think I brought him some wel- fare blanks along." Again, Meyers testified : "Mr. O'Shea asked for a copy of our by-laws, working rules and the present rate in the dis- trict." Twice Meyers specifically denied that he had made an agree- ment with O'Shea, which the majority finds by inference was, in fact, made. Meyers concluded his direct examination by the following statement : "I said that as far as that agreement, there was no agree- ment made. Whenever there is an agreement made, we have the individuals sign on the back they are representing the company." In the face of this specific and uncontradicted testimony the ma- jority nevertheless finds that the Company was acting under an "un- spoken ultimatum" which required it to operate a closed shop. It seems to me that the majority's position is untenable . Not only is there an absence of substantial evidence to support their inference of an unlawful agreement, but the record, in my opinion, is perfectly clear that Meyers furnished O'Shea with information as to wage rates and the Unions' bylaws and rules at the latter's specific request. The record will not support an inference that any "ultimatum," ex- press or implied , was ever made by Meyers to O'Shea. Indeed, the testimony of O'Shea, quoted above, is absolutely clear that the Com - pany desired to hire its craftsmen through the Unions to be assured of their competence . If the Company desired further to hire only union members and thereafter discriminated against nonunion mem- bers, that, of course, might well be a violation of Section 8 (a) (3), but certainly this unilateral action by the Company can hardly be- turned into a violation of Section 8 (b) (2) by the Unions. I think, moreover, the time has come to clarify what, in my opinion,. is some misconception as to the scope and effect of Section 8 (b) (2). That section of the Act forbids a labor organization or its agents- 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." This section of the Act, as the legislative history makes abundantly clear, was aimed at unions which went to employers and demanded that an employer discharge a particular employee because the latter "did not like the union." Senator Taft stated most succinctly on the floor of the Senate the effect of this provision :12 The pending measure does not propose any limitation with respect to the internal affairs of unions. They still will be able to fire any members they wish to fire, and they still will be able to try any of their members. All that they will not be able to do, after the enactment of this bill, is this : If they fire a member for some reason other than nonpayment of dues they cannot make his employer discharge him from his job and throw him out of work. That is the only result of the provision under discussion. On the basis of the specific language of Section 8 (b) (2) and its legislative history it seems perfectly clear to me that the essential element of unlawful conduct by a union is an overt act on its part requiring an employer to discriminate against an employee in viola- tion of Section 8 (a) (3). Such conduct of the union must, of course, under Section 10 (c) of the Act, be established by a "preponderance of the testimony taken." It cannot be established by conjecture, speculation, or by the absence of evidence completely disproving the allegations of the complaint. As the Court of Appeals for the Tenth Circuit has held in the Spoon Tile case, supra, at page 1173: "Neither employer nor union can be held accountable for the unilateral action of the other. Neither is bound to police the other nor can it be inferred that an unfair labor practice indulged in by one is caused by the undisclosed activity of the other or through the tacit under- standing of both." [Emphasis supplied.] If an employer volun- tarily goes to a union and requests that the union furnish it with men and takes the position that it does not desire to hire any men other than union men, I fail to see how the union can be found in violation of Section 8 (b) (2). Whether or not such conduct of an employer is violative of Section 8 (a) (3), certainly the union has done nothing to compel, require, or urge the employer to this course of conduct. It is a decision that the company itself has made for a reason that may have nothing to do withz union compulsion. As in the instant-case,- a 19 93 C. R. 4318 (April 29, 1947). MERRITT-CHAPMAN & SCOTT CORPORATION 393 company may well believe that the label of union membership is a guarantee of competence. In an area where it is unfamiliar with the skills of local craftsmen it may be unwilling to risk the success of an important job by hiring nonunion craftsmen. The statute may forbid discrimination of this sort by an employer. But Section 8 (b) (2) does not make a union a party to this discrimination merely because it agrees to provide union members at the employer's request. Unions are formed to represent employees, normally their brother members. They are not formed, and Section 8 (b) (2) does not require them, to be the guardians of every nonunion workman who desires a job with an unwilling employer. Nothing in the statute forbids per se union discrimination against employees who are not union members. The sole restriction under Section 8 (b) (2) against union conduct as to these employees is that a union cannot cause or attempt to cause an employer to unlawfully discriminate against them. Assuming that the evidence in this case was sufficient, as it is not, to find that the Company and the Union had agreed that the latter would furnish union members for the job, I cannot be persuaded in the circumstances of this case that the Union would have thereby caused the Employer to discriminate against any employee. In my opinion, cause, if it means anything, means something more than acquiescence. It means that the employer would not have done what he did were it not for the union's insistence. Senator Taft, quoted above, used the term "make" in explaining the term "cause" under Section 8 (b) (2). To say that a union, sought out by a company and requested by the company to furnish union men for a particular job, has caused or made the company discriminate against other employees is to stretch Section 8 (b) (2) into a provision that makes unions the positive champions of nonunion workmen. I do not believe that Congress intended any such result. The Board, and not unions, is charged with the prevention of unfair labor practices under Section 8 (a) (3). If an employer voluntarily undertakes to discriminate against non- union workmen, it is he against whom a charge should be filed and the processes of the Board invoked. While I believe I have already answered the majority's finding that Hanlon was denied employment pursuant to an "unlawful hiring arrangement," a word more about this surprising result. Again the majority relies upon inference to find a violation of Section 8 (b) (2). Here, however, the inference is based not upon a minimum of evidence, but upon no evidence at all ! The majority candidly states that "the record is devoid of any legitimate explanation for O'Shea's action in cancelling Hanlon's employment." Without the barest scintilla of evidence and relying solely on O'Shea's comments to Hanlon, the majority is satisfied that the Unions caused the Company to discrimi- 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nate against this employee. It may be noted that Hanlon was a union member and could have been referred to any job but for one fact. The. Unions operated their unemployment register fairly and demo- cratically by placing those longest unemployed at the top of the list. Hanlon had a job at the time he applied to O'Shea and knew very well that he would not be referred while others were unemployed. It seems to me that the Unions, even if Hanlon had sought a referral from them, which he did not, were under no obligation to refer this employee in preference to another, who had patiently waited his turn for a job opening. As the Court of Appeals for the Sixth Circuit, affirming by dissenting opinion in Turner Construction Company, _ 110 NLRB 1860, 1867, has said, if the union referred the alleged dis- criminates rather than the "registered union member who would nor- mally have been referred such member could more realistically complain of discrimination as to him." N. L. R. B. v. Turner Construction Company, 227 F. 2d 498, 501. For these reasons I would dismiss the complaint in its entirety. MEMBERS RODGERS and JENKINS took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT maintain or enforce the provision, in the Inter- national Agreement made in March 1946 with United Brother- hood of Carpenters and Joiners of America, AFL CIO, which requires membership in or clearance by a labor organization as a condition of employment, except as authorized in Section 8 (a) (3) of the Act. All our employees are free to become, remain, or refrain from be- •coming or remaining, members of any labor organization, except to the extent that this right may be affected by agreements in conformity with Section 8 (a) (3) of the Act. MERRITT-CHAPMAN & SCOTT CORPORATION, Employer. Dated-----=---------- BY------------------------------------ (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. MERRITT-CHAPMAN & SCOTT CORPORATION 395 APPENDIX B NOTICE TO ALL MEMBERS AND TO EMPLOYEES OF MERRITT-CHAPMAN & SCOTT CORPORATION Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT maintain or enforce the provision, in the Inter- national Agreement made in March 1946 with Merritt-Chapman & Scott Corporation, which requires membership in or clearance by a labor organization as a condition of employment, except as authorized in Section 8 (a) (3) of the Act. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX C NOTICE TO ALL MEMBERS AND TO EMPLOYEES OF MERRrrr-CHAPMAN & SCOTT CORPORATION Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT execute, maintain, renew, or enforce any agree- ment, understanding, arrangement, or practice with Merritt-Chap- man & Scott Corporation, or any other employer, which requires membership in or clearance by a labor organization as a condition of employment, except as authorized in Section 8 (a) (,3) of the Act. WE WILL NOT cause or attempt to cause Merritt-Chapman & Scott Corporation, or any other employer, to refuse employment to or otherwise discriminate against any employees or applicants for employment because they are not members of or have not been cleared by any labor organization, in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole Harold A. Hanlon for any loss of pay suffered by reason of the discrimination against him, and will notify him and Merritt-Chapman & Scott Corporation in writing that we withdraw all objection to his employment. CARPENTERS DISTRICT COUNCIL OF MADISON COUNTY, ILLINOIS, AND VICINITY, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO, Labor Organization. BY------------------------------------- (Representative ) ( Title) LOCAL UNION No. 377, UNITED BROTHER- HOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO, Labor Organization. By------------------------------------- (Representative ) ( Title) LOCAL UNION No. 633 , UNITED BROTHER- HOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE These proceedings , authorized and conducted in accordance with the provisions of Section 10 of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act, were initiated by charges duly filed by Henry H . Michel and Harold A. Hanlon, individuals , against Merritt-Chapman & Scott Corporation (herein called Respondent Company ), United Brotherhood of Carpenters and Joiners of America , AFL-CIO 1 ( herein called Respondent Brotherhood), Carpen- ters District Council of Madison County, Illinois, and Vicinity, affiliated with United Brotherhood of Carpenters and Joiners of America , AFL-CIO ( herein called Respondent District Council ), and Local Unions Nos. 633 and 377 , United Brotherhood of Carpenters and Joiners of America , AFL-CIO (herein respectively called Respondent Local 633 and Respondent Local 377). Pursuant to Section 10 (b), the General Counsel of the National Labor Relations Board, herein separately designated as General Counsel and the Board , by and through the Regional Director for the Fourteenth Region, St. Louis, Missouri, on November 29, 1955, issued a complaint in Case No. 14-CA-1438 alleging that Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and ( 3), affecting commerce within the meaning of Section 2 (6) and (7) of the Act. He likewise on November 30, 1955, issued a complaint in Case No. 14-CB-305 alleging that Respondents Brotherhood, Dis- trict Council, and Locals 633 and 377 have engaged in and are engaging in un- i Designation amended pursuant to the merger of American Federation of Labor and Congress of Industrial Organizations , effective December 5, 1955. MERRITT-CHAPMAN & SCOTT CORPORATION 397 fair labor practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2), affecting commerce within the meaning of Section 2 (6) and (7) of the Act. Copies of the charges, complaints, and other pertinent processes were duly served upon all Respondents and parties in interest. Pursuant to Section 102.64 (b) of the Board's Rules and Regulations, Series 6, as amended, to avoid unnecessary costs or delay and to effectuate the purposes of the Act, the Regional Director in writing, on November 30, 1955, issued an order to consolidate the cases for hearing. On or about December 20 or 21, 1955, Respondents in Case No. 14-CB-305 filed a motion to dismiss the complaint, which was referred to Trial Examiner Robert E. Mullin and denied upon a finding that issues of fact had been raised that could best be resolved only after a full hearing of the evidence in connection therewith. Thereupon, said Respondents filed request for a bill of particulars, which was furnished by the General Counsel upon order of Trial Ex= aminer George A. Downing dated January 30, 1956. Answer and supplemental answer of Respondents in Case No. 14-CB-305 deny all allegations of unfair labor practices. Answer and supplemental answer filed by Respondent Company in Case No. 14-CA-1438 admit allegations of the complaint pertaining to commerce, and deny all allegations of unfair labor practices. With respect to unfair labor practices, the composite complaints, as amended, allege particularly in substance that: (1) Respondents Merritt-Chapman & Scott Corporation and United Brotherhood of Carpenters and Joiners of America, AFL- CIO at all times material hereto have been parties to, maintained, enforced, and continued to maintain and enforce, an International Agreement constituting an illegal union-security contract interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, and discriminating and causing discrimination in regard to their hire or tenure of employment and other terms or-conditions of employment; (2) Respondents Brotherhood, District Council, Local 633, and Local 377 have, at all times material hereto, maintained and en- forced..and. continue to maintain and enforce an unlawful hiring arrangement. with Merritt-Chapman & Scott Corporation; (3) Respondents District Council, Local 633, and Local 377, by virtue of the aforesaid International Agreement and the maintenance and enforcement of an unlawful hiring arrangement, caused or at- tempted to cause and is now causing Merritt-Chapman & Scott Corporation to dis- criminate against its employees in violation of Section 8 (a) (3); and (4) Respond- ents Local 377, District Council, and Local 633, respectively, filed charges against, fined, and suspended the union membership of Harold A. Hanlon, Henry H. Michel, and Michael Lesko as a consequence of which in combination with aforesaid un- lawful hiring arrangement they were deprived of employment opportunities within the jurisdiction of the Respondents herein; all for the reason that they resorted to processes of.the National Labor Relations Board in the exercise of the rights guaran- teed in Section 7 of the Act. Respondent Company in its answer to the complaint admits the execution of the International Agreement, but denies that said contract has been in force and effect at any time material hereto. It avers that even if said contract had been in force and effect it would be protected by the provisions of Section 102 of the Labor Management Relations Act, 1947, because it was signed on March 12, 1946, and has not been renewed or extended since that time. As a complete bar to proceedings herein against it, Respondent Company further pleads a settlement agreement in October 1955 with the Regional Director for the Fifth Region, Balti- more, Maryland, in Case No. S-CA-985, wherein the international Agreement was" -attacked. It also pleads as a bar the limitation provided in Section 10 (b) of the Act for issuance of complaints based upon unfair labor practices occuring more than 6 months prior to the filing of the charge. Respondent Brotherhood in its answer likewise admits execution of the Inter- national Agreement, denies that it has been maintained or enforced at any time material hereto; and that in any event it is protected by the provisions of section 102, Labor Management Relations Act, 1947. Respondents District Council, Local 633, and Local 377 deny any knowledge of the International Agreement of 1946 and deny any unlawful hiring arrangement with Merritt-Chapman & Scott Corporation. With respect to union disciplinary ac- tion taken against Hanlon, Michel, and Lesko, they assert that the complaint is an improper and unwarranted invasion and interference with the internal affairs of a labor orgaization protected by the proviso contained in Section 8 (b) (1) (A) of the Act; and that the General Counsel had in that respect no authority to issue the complaint, because these, men failed to exhaust their administrative remedies as provided in section 57, constitution and bylaws of the United Brotherhood of Car- penters and Joiners of America. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice to all parties, a hearing was conducted at St. Louis, Missouri, on February 14, 15, 16, and 17, 1956, by the Trial Examiner duly designated by the Chief Trial Examiner. All parties were present and represented by counsel. All parties were afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce evidence pertinent to the issues involved, to present oral argument before the Trial Examiner, and to file written briefs and proposed. findings and conclusions within a fixed time from the close of the hearing. In due- course written briefs were filed by counsel for the General Counsel and all Re- spondents, which have been given due consideration. Upon the entire record in the case, and from my observation of the witnesses,. I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT COMPANY Merritt-Chapman & Scott Corporation is a corporation engaged in the general. construction business with its principal office in the City of New York. In the course and conduct of its business during the year 1954, which period is repre- sentative of all times pertinent herein, it performed services for enterprises engaged in interstate commerce throughout the. United States of America valued in excess of $100,000,000. During said year it performed services for Olin Industries alone at East Alton, Illinois, valued in excess of $1,000,000. Purchases of materials, and equipment made by Respondent Company in 1954 throughout the United States and shipped to its various construction sites and places of business, includ- ing the State of Illinois, were valued in excess of $80,000,000. I find, therefore, that Respondent Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. It. THE LABOR ORGANIZATIONS INVOLVED United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Carpen- ters District Council of Madison County, Illinois, and Vicinity, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Locals Nos. 377 and 633, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Factual chronology On or about March 12, 1946, Respondent Company and Respondent Brotherhood executed and entered into the following written agreement: International Agreement Memorandum of Agreement between the firm of Merritt-Chapman & Scott Corporation, 17 Battery Place, N. Y. C. and United Brotherhood of Carpenters, and Joiners of America. We, the firm of Merritt-Chapman & Scott Corporation AGREE to recognize the jurisdiction claims of the United Brotherhood of Carpenters and Joiners, of America, to work the hours, pay the wages and abide by the rules and regu- lations established or agreed upon by the United Brotherhood of Carpenters and Joiners of America of the locality in which any work of our company is being done, and employ members of the United Brotherhood of Carpenters and Joiners only. No change to be made in the hours and wages in any locality, and no condi- tions imposed other than are enforced on all Local firms. In -consideration of the foregoing, the United Brotherhood of Carpenters and Joiners of America agree that no stoppage of work or any strike of its members, either collectively or individually, shall be entered into pending any dispute being investigated and all peaceable means taken to bring about a settlement. MERRITT-CHAPMAN & SCOTT CORPORATION, (Signed) FRANK W. BARNES. For the United Brotherhood of Carpenters and Joiners of America. (Signed) M. A. HUTCHESON, 1st Gen. Vice Pres. Dated March 12, 1946. MERRITT-CHAPMAN & SCOTT CORPORATION 399 With respect to the foregoing "International Agreement," Vice President Richard Mynatt credibly testified in substance without contradiction that it was signed in 1946 at the top level for Respondent Company by Mr. Barnes (assistant to the president), went into his file, and its existence was probably known only to Barnes, the president, and a few of the top personnel officers, but no directive or instructions concerning the agreement were ever issued to men in the field. We operated as most general contractors do who employ union tradesmen. When we go into a locality to bid a job, we investigate the prices of material, the prices of labor, the weather conditions, and we know that the best crafts- men do come from the trade unions and we find out from them in advance what the wages and working conditions are so we can put those into our bid. And then the craftsmen that belong to the union, knowing we are bidding the job, follow the jobs and they know when we are awarded the job almost as soon as we do, so that when we move into a site to commence work, through the dissemination of information we have the carpenters and tradesmen waiting to go to work. And our job superintendent, knowing that the carpenters come from the carpenters' union, generally contacts the carpenters' union and asks them to furnish them, they contact the electrician union for the same purpose, so that they might have been complying with the terms of that in general. But as to any specific applying, we merely complied with the prevailing wages and working conditions in effect by the local union in the area in which we were working. Vice President Mynatt further testified that the International Agreement caused no change in their method of operation, but simply committed an existing agreement to writing. It was already their normal method of operation to recognize the juris- diction of the United Brotherhood, to work the hours, pay the wages, and abide by the rules and regulations established and agreed upon with the United Brotherhood in the locality in which any work of the Company was being done and to employ members of the United Brotherhood only. This written International Agreement made no change in that relationship. In all cases they first applied to the Union for workers, but, when not available, employed them elsewhere with the understand- ing that they would become members of the Union. Their policies in that respect have not changed, and are the same today as they were prior to 1946. They have to meet the requirements of the Union in order to be competitive and get men. There has been no occasion to refer to the International Agreement. It has been lost sight of, and has never been renewed, or extended, or any other formal action taken about it. In other words, Respondent Company had a certain labor policy prior to 1946, and still adheres to it. The International Agreement does not affect it one way or the other. When they want carpenters they call upon the local A. F. of L. carpenters' union to furnish a certain number, and have always been able to fill requirements from that source. In the event the local union is unable to furnish them, the Company may hire men from other sources. With respect to wages and working conditions, they abide by the rules, regulations, constitution, and bylaws of the United Brotherhood for the particular. occupation in the area where the work is performed. With respect to its jurisdiction,2 the constitution and laws of the United Brother- hood of Carpenters and Joiners of America and rules for subordinate bodies under its jurisdiction provides: A. Section 6. The jurisdiction of the United Brotherhood of Carpenters and Joiners of America shall include all branches of the Carpenter and Joiner trade. In it shall be vested the power through the International Body to establish and charter Subordinate Local and Auxiliary Unions, District, State and Provincial Councils in all branches of the trade, and all other employes working in the industry, and its mandates must be observed and obeyed at all times. B. The right is reserved to the United Brotherhood through the. International Body to regulate and determine all matters pertaining to fellowship in its various branches and kindred trades. C. To subordinate Local or Auxiliary Unions, District, State and Provincial Councils the right is conceded to make necessary laws for Locals and District, State and Provincial Councils which do.not conflict with the laws of the Inter- national Body. 2 Jurisdiction of Respondent Brotherhood is claimed over all subdivisions of the car- penter and joiner trade , including millwrights , piledrivers, etc. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The right is reserved to establish jurisdiction over any Local or Auxiliary Unions, District, State or Provincial Councils whose affairs are conducted in such a manner as to be a menace to the welfare of the International Body. E. The United Brotherhood shall enact and enforce laws for its government and that of subordinate Locals and Auxiliary Unions and District, State and Provincial Councils and members thereof. The constitution, bylaws, and working rules of the Carpenters District Council of Madison County, Illinois, and Vicinity, which were approved by its affiliated Re- spondent Brotherhood, contain, inter alia, the following provisions: Article V FOREMEN SEC. 1. All foremen shall be members of the United Brotherhood and shall be qualified as foremen when they specify work , place men, pass on qualifi- cations of workmen , or give orders direct to the men. SEC. 2. Should a foreman agree to give employment to a traveling brother, unless said brother is in possession of the current working card or temporary permit card, he shall be fined $50.00 or debarred as a foreman for one year, and further should he make any gesture that conflicts or is contrary to that part of our agreement with the general contractors that prescribed procedure of hiring men , he shall immediately be removed and debarred as foreman for a period of one year. Article X DUES-WORKING CARDS SEC. 1. Working cards shall be issued the first and last meetings of the last month of each quarter, and no member shall be entitled to the regular working card who has not paid for the previous quarter and also one month in advance. Article XII WORKING RULES SEC. 1. Any member desiring to secure work in this jurisdiction shall first report to the offices of this Council. * * * * * * * SEC. 5. Working with non-union men of our trade shall not be allowed and shall be considered a serious offense by this Council. SEC. 6. Members shall not be permitted to work on the job without the current working card, nor be permitted to work with any member who does not have a current working card. A member shall at all times show his card when requested to do so by any member of any organization. B. Hiring arrangement at East Alton, Illinois In February 1954 Merritt-Chapman & Scott Corporation entered into a contract with Olin Industries to construct an evaporator plant at East Alton, Illinois. The project was completed on or about May 15, 1955. Respondent Company initially appointed Thomas J. O'Shea as general superintendent in charge, and he remained there until the middle of September 1954. Thereupon he was succeeded by Walter Riese. Without specific instructions from his home office concerning the employ- ment of labor, O'Shea followed established policy and procedure by interviewing George W. Meyers, business agent for Respondent District Council, in the city of Alton, for the purpose of procuring an adequate supply of suitable workmen. Meyers agreed to furnish sufficient men as called for under the working rules and conditions prescribed by Respondent District Council. Respondent Company began calling for craftsmen for the project in May 1954, but prior to that time he also furnished workers to subcontractors, Raymond Pile Driving Company, Hell- rung Construction Company, and probably others on the same project. In July or August 1954, Meyers requested O'Shea to hire some millwrights, but O'Shea did not need such craftsmen at that time. Later in September 1954 Meyers did furnish to his successor, Walter Riese, 2 crews of millwrights consisting of 1 foreman, 1 steward, and about 20 other craftsmen from affiliated local unions. Throughout MERRITT-CHAPMAN & SCOTT CORPORATION 401 the summer of 1954 he also furnished carpenters for the project to Merritt-Chapman & Scott Corporation and Hellrung Construction Company. All pile drivers, car- penters, and millwrights who worked at any time on the project were members of local unions affiliated with Respondent District Council sent out by Business Agent Meyers or members of foreign locals to whom Meyers issued permits to work thereon. All were required to get clearance through his office, except a few men permanently employed by Hellrung Construction Company. George W. Meyers credibly testified that he has been the business agent for Respondent District Council since its formation in 1952, and prior thereto was business agent for its predecessor, Alton-Wood River District Council. He also holds office in Wood River Local No. 1808. Respondent District Council is the policy-making organization having territorial jurisdiction over eight local unions, including Respondent Locals Nos. 633 and 377, and negotiates all collective-bar- gaining agreements on their behalf. It receives applications for membership in the Brotherhood, and after approval certifies such applications to the appropriate local union. The local unions under its jurisdiction do not maintain an office. Respondent District Council maintains a master "Out of Employment List" at its Edwardsville, Illinois, office and one such list at each of its other offices. Members and permit men register thereon when out of employment, and in his discretion the business agent notifies the men when and where to report for work. It is a requirement of Respondent Brotherhood that all obtain clearance from Respondent District Council before going to work on a job. Business Agent Meyers further testified that he had no knowledge of the Inter- national Agreement of 1946, entered into no written agreement with O'Shea, but as part of the understanding in March 1954 he delivered to O'Shea in pamphlet form the constitution, bylaws, and working rules of Respondent District Council. Inter alia, the pamphlet contained written agreements in effect with the Construction Employers Council of Alton-Wood River Area, Southern Illinois Builders Associa- tion, and Collinsville Contractors Association, which incorporated by reference other agreements existing in that area. In addition to the foregoing, the pamphlet contained a form of written agreement between an employer, as party of the first part, and Carpenters Local Union No. 377, United Brotherhood of Carpenters and Joiners of America, as party of the second part, which, inter alia, contained the following provision: The party of the first part agrees to employ one or more members of the party of the second part on all work that is being executed by the party of the first part, and it is further agreed that the party of the first part will employ only members of the party of the second part or those who have signified their intention to become a member of the party of the second part by complying with the rules and regulations provided for in the By-Laws of the party of the second part. I am, therefore, constrained to find from the uncontradicted testimony of Business Agent George W. Meyers, Superintendent Thomas J. O'Shea, and the entire record in the case that Respondent Company and Respondent District Council with the approval of Respondent Brotherhood, irrespective of but not necessarily by virtue of the International Agreement of March 12, 1946, entered into an unlawful hiring arrangement in March 1954, and thereafter maintained and enforced illegal hiring practices on the aforesaid construction project at East Alton, Illinois, until its com- pletion on or about May 15, 1955. Since Respondent District Council was the agent of and negotiated the unlawful hiring arrangement on behalf of the members of Local Unions Nos. 633 and 377, and thereafter maintained and enforced illegal hiring practices for their benefit, I find that Respondent Local 633 and Respondent Local 377 were parties thereto. C. Discrimination against Hanlon and Michel On September 2, 1954, Harold A. Hanlon and Henry H. Michel applied to Superintendent Thomas J. O'Shea for employment as millwrights on the project of Respondent Company at East Alton, Illinois.3 Both men were experienced journeymen and members in good standing of Respondent Local 633. Superintendent O'Shea admittedly told them that if they could clear with the Local Union he would be glad to hire them, but they never brought him the clearance and he never hired them. Shortly thereafter, on or about September 15, 1954, O'Shea returned to Re- 7 O'Shea could not fix the exact date , and I credit the testimony of Hanlon and Michel that the incident occurred on September 2, 1954. 450553-58-vol. 118-27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent Company's home office in New York City, and Superintendent Walter Riese took charge of the project at East Alton, Illinois. Prior to O'Shea's departure no millwrights had been hired on the job, and he recalled that 1 of the 2 men called him by telephone once or twice to inquire when he would want them to report for work. Harold A. Hanlon credibly testified in substance that members of the local unions must be in good standing and obtain work as carpenters, millwrights, or piledrivers through the office of Respondent District Council. The hiring practice is to report to the business agent when unemployed, and be sent out to the job when work is available. For several years he had not received fair treatment in the referral of jobs, and felt that it was wasted time to sit in the hiring hall and wait for something to turn up. For 12 or 14 weeks prior to September 1954 he had been working as maintenanceman for Darling & Company at Monsanto, Illinois, at a wage con- siderably less than that paid to millwrights, and thought he could do bettter by applying directly to contractors for his own jobs. For that reason he and Henry Michel applied directly to Superintendent O'Shea on September 2, 1954, for employ- ment as millwrights. Following a discussion concerning previous jobs and experience, O'Shea said, "Well, I am satisfied that you men can do the work. I have two men on the job now that are serving as carpenters and part-time millwrights for covering up or protecting machinery, but they are not millwrights, and I would like for you two men to come to work the following Monday." It was finally agreed that they would come in to work 1 week after Labor Day. O'Shea inquired about getting referral slips from the union hall, and "I told Mr. O'Shea that it wouldn't do me any good to go to the hall for a referral slip." So he said, "I have had dealings with Mr. Meyers-I believe I can call and ask for you and Mr. Meyers, the business agent for the Madison County District Council, will send you out." They left O'Shea's home with an understanding to call him on the weekend before reporting to work, so that he could secure the clearance from the union hall. When Hanlon telephoned during the following week O'Shea told him that something had come up-not to report for work on Monday-that he would call him later. Neither of the men called each other again. Consequently Hanlon and Michel never reported to work. Two or three weeks later Hanlon called the new superintendent, Walter Riese, and he said, "I can't talk to you now." That ended the matter. Henry H. Michel credibly testified in substance that since 1940 he has followed the carpenter and millwright trades in Madison and St. Clair Counties, and is familiar with hiring practices in that area. As a journeyman he would be sent out by referral slip from the local union. When acting as a foreman he would call upon the business agent to send them out. If he wanted particular men he called for them by name. During the latter part of August 1954, he was unemployed and reported that fact to the union headquarters. Not being sent out by the Union he went with Harold A. Hanlon to Superintendent Thomas J. O'Shea on September 2, 1954, to apply for work as a millwright on the project of Merritt-Chapman & Scott Corpora- tion at East Alton, Illinois. At O'Shea's home they discussed the work, working rules, referral slips, and clearances by the Union; and he gave O'Shea a typewritten report of jobs that he had supervised and worked on. O'Shea also talked with Hanlon, and agreed to take care of the referral slips and the clearances. Superin- tendent O'Shea said, "You are hired, come in Monday morning and get acquainted with the plans, look over the job and get acquainted and take care of the machinery that's being shipped in, weather protection, and so forth. We won't get a crew of men yet but we will a little later." 4 Finding that the following Monday was Labor Day, they both agreed to come to work on Monday following Labor Day. Hanlon was at the time employed elsewhere, and agreed to call O'Shea about the middle of the following week to report his readiness to go to work. When they were prepared to leave, O'Shea gave Michel his calling card and telephone numbers at which to call him later. The next word Michel received was a telephone call from Hanlon to the effect that he had talked to O'Shea-that his wife was in the hospital, there would be a little delay, and to call him later. Consequently he did not report to work, received no further instructions about the matter, and sometime thereafter heard that O'Shea was no longer on the job at East Alton. Whether or not Respondent Company hired Hanlon and Michel on September 2, 1954, is not essential to a decision in this case. Clear and convincing evidence of discriminatory hiring practices appears from the testimony of Superintendent Thomas J. O'Shea, as follows: I told them the following; based on what at that time I did consider to be more or less requirements of an international agreement , which I find out now my 4 Michel was to be the foreman. MERRITT-CHAPMAN & SCOTT CORPORATION 403 interpretation was wrong, that if they could clear with the local, which happens quite frequently on jobs, that I would be glad to hire them. If they couldn't clear, there wasn't anything I could do about it. D. Charges and countercharges On February 25, 1955, Henry Michel filed with the Fourteenth Region of the National Labor Relations Board a charge in Case No. 14-CB-305 against Respondent District Council, Respondent Local 633, and Respondent Local 377, alleging in substance that since on or about September 2, 1954, said Respondents have restrained and coerced Henry H. Michel and Harold A. Hanlon in the exercise of the rights guaranteed in Section 7 of the Act by prohibiting their employment and causing Merritt-Chapman & Scott Corporation to discriminate in regard to their hire and tenure of employment in order to encourage membership in a labor organization. On May 6, 1955, Henry Michel and Michael J. Lesko filed with the Board a charge against Respondent District Council and Respondent Local 377, alleging in substance that since on or about February 22, 1955, said Respondents have restrained and coerced employees of the John Maag Plumbing & Heating Company at Waterloo, Illinois, in the exercise of the rights guaranteed in Section 7 of the Act by prohibiting their employment and causing said company to discriminate against Henry H. Michel and Michael J. Lesko in regard to hire and tenure of employment and other terms and conditions of employment to encourage membership in a labor organization.5 Subsequent to filing the foregoing charges with the National Labor Relations Board, Respondent Local 377, by its president (Henry Manns) and recording secretary (W. O. Hays), filed separate charges with Respondent District Council alleging in substance that Brother Harold Hanlon, Brother Henry Michel, and Brother Michael Lesko had "by actions, statements or inferences, indicated or implied that Carpenters' Local Union 377 is assuming or attempting to assume or performing the rightful functions of the Carpenters District Council of Madison County, Illinois and Vicinity, as described in Section 26 of the General Constitution of the United Brotherhood of Carpenters and Joiners of America as being the functions of the District Council, and of Article 1 of our local Constitution & By-Laws of the Carpen- ters District Council of Madison County, Illinois and Vicinity, and in so doing is in violation of Section 55, paragraphs A, B, C, and L, and also the obligation for membership to obtain admission into the United Brotherhood of Carpenters & Joiners of America." 6 Before a trial committee appointed by Respondent District Council, a hearing was conducted on June 16, 1955, at which all proceedings were taken down in shorthand by Catharine M. Kelly, reporter, who thereafter, on June 27, 1955, furnished to interested parties a certified transcript thereof under oath. A copy of this transcript appears as General Counsel's Exhibit No. 6 in the record of the instant case. The trial -committee found Hanlon, Michel, and Lesko guilty as charged in violation of paragraphs A, B, C, and L of Section 55 of the General Constitution of the United Brotherhood of Carpenters & Joiners of America, and-reported their verdict verbatim in writing to Respondent District Council. Thereupon, at its regular meeting on July 18, 1955, Respondent District Council approved the verdict of the trial committee, and imposed fines and penalties upon Hanlon, Michel, and Lesko as set forth in a letter dated July 19, 1955, directed to Carpenters' Local Union 633, E. P. Ellberg, financial secretary-treasurer, as follows: In accordance with Section 56, Paragraph A, of the General Constitution of the United Brotherhood of Carpenters and Joiners of America, I am forwarding you a copy of the verdict of the Trial Committee, in the case of Carpenters' Local Union 377 versus Harold A. Hanlon, Henry H. Michel and Michael Lesko, either individually or collectively. This verdict of the Trial Committee was approved by the District Council, at its regular meeting of July 18, 1955; also at the same meeting, the following assessments were duly made and levied: 5 After investigation, the Regional Director refused to issue a complaint thereon be- cause operations of the John \faag Plumbing & Heating Company do not meet the stand- ards set by the National Labor Relations Board for the assertion of jurisdiction. Constitution and Laws of Respondent Brotherhood, Section 26E, provides : District Councils shall have the power to hold trial for all violations by members of Local Unions and impose such penalties as they may deem the ease requires, sub- ject to the right of appeal under Section 57. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. A monetary fine of $125.00, on each of the four counts, making a total of $500.00, was assessed and levied against each of the Defendants, Harold A. Hanlon, Henry H. Michel and Michael J. Lesko. 2. In addition, the mandatory penalty of expulsion was postponed for each of the defendants, Harold A. Hanlon, Henry H. Michel and Michael J. Lesko, in the following manner: 1. That the mandatory penalty of expulsion be postponed, under the follow- ing probationary provisions- a. Defendants each, Harold Hanlon, Henry Michel and Michael Lesko, during a probationary period of five (5) years, be allowed to retain their membership. b. That each be allowed to work at the Trade, and attend the meetings of their Local Union. c. That during this probationary period, each be denied a voice on the floor, or a vote in, the Local Union or District Council. d. That each refrain from discussing any of the affairs of the District Council, or any of its affiliated Local Unions; either in or out of a Local Union meeting, during this probationary period. 2. Evidence of failure to comply with the above conditions will end the period of postponement, and the assessment of the penalty will be im- mediate. 3. Evidence that the above conditions have been complied with, during the full five (5) years of probation being shown, then the postponement shall become permanent, and the penalty be dismissed. You are herewith directed by the Council to assess and collect the above mentioned penalties, in accordance with the terms of the Constitution of the United Brotherhood of Carpenters and Joiners of America. For your guidance, your attention is called to the following parts of the Gen- eral Constitution, as amended April 1, 1955: Page 48, Section 55, Paragraph H. Page 48, Section 56, Paragraph A. Page 50, Section 57, Paragraphs A, B, C. Also on page 38, Section 45, Paragraph B. Your attention is also called to the fact that this District Council is desirous of the Defendants being allowed all of their privileges, extended to them under the Constitution. Trusting that we may have your full cooperation in this matter, I am, Fraternally yours, (Signed) W. 0. Hays, W. 0. HAYS, Sec.-Treas. Testimony adduced at the hearing before the Trial Examiner pertained in large part to union internal affairs, organization and jurisdiction of the Respondent Dis- trict Council and its relationship with and to local unions, officers, and members. It is entirely clear, however, from all the evidence that the gravamen of the charges against Hanlon, Michel, and Lesko was that they filed charges and furnished informa- tion to the Fourteenth Region of the National Labor Relations Board in which Local 377 and Local 633 were accused of coercing employers. In that respect, W. 0. Hays, recording secretary of Local Union 377, one of the charging parties, and also secre- tary-treasurer of Respondent District Council, testified before the trial committee as follows: These three boys, two on one occasion and another pair on another occasion- the evidence is identical-the same in both charges-and they have preferred charges against Local 377 and against Local 633 on another occasion, and they are accusing us of coercing employers. Local 377 is claiming charges ,are not filed against the proper people. Unfair labor practice charges can only be filed against a District Council, and by using our names and the name of our Local 377 in the charges we think they are accusing us of something we do not do. You have never seen Local 377 try to tell a Council what to do and you people who are members of that Local know that. MERRITT-CHAPMAN & SCOTT CORPORATION 405 After Harold A. Hanlon had pointed out that his signature did not appear on charges filed with the Board, W. O. Hays further testified as follows: There is nothing in my testimony that says your signature is on there. How- ever, in these charges it states they are preferred on behalf of Henry H. Michel and Harold A. Hanlon. I am informed by the Board that if we are found guilty of this you will draw any amount of money you are out for it. It is customary and ordinarily the practice in an N. L. R. B. office for charges to be filed by the N. L. R. B. against any individual or any union, that affidavits be made by the complainant, covering and supporting the charges that are to be made by the Board before such complaint will be issued by the Board. At this time, I want to present to you photostatic copies of charges that have been issued by the N. L. R. B., 14th Region Offices, 1114 Market St., St. Louis Mo.-one against "Carpenters District Council of Madison County, Ill & Vicinity affil./w United Brotherhood of Carp. & Joiners of America, A. F. of L., and Locals 633 and 377," in behalf of Henry H. Michel and Harold A. Hanlon. A second against "Madison County District Council & Vicinity and Its Local 377 affil./w United Bro. of Carpenters & Joiners of America, A. F. of L.," in behalf of Henry H. Michel and Michael J. Lesko. . . . These have been presented for the purpose of showing that certain statements must necessarily have been made in following the ordinary procedures of the Board before charges will be issued by the Board, and that these certain statements are ordinarily made by affidavit to the Board. . . We wish to state that Carpenters L. U. 377 is firmly of the opinion that affidavits supporting such charges must have been filed by Harold A. Hanlon and Henry H. Michel in support of the first charge and must also have been filed by Henry H. Michel and Michael J. Lesko in the second case. . With such being true, then we wish to state that the defendants, Harold A. Hanlon, Henry H. Michel, and Michael J. Lesko, either individually or collectively, have violated Section 55, Paragraph A of the General Constitution of the U. B. of C. and J. of A. in part, as fol- lows:-Any officer or member who is guilty of improper conduct or wrongs a fellow member or commits an offense discreditable to the Brotherhood-we submit to you for your judgment that the aforesaid actions show that the above Section has been violated. W. O. Hays also credibly testified that he is chairman of the negotiating com- mittee of Respondent District Council, which negotiates collective-bargaining agree- ments with employers. He identified the constitution, bylaws, and working rules of the Carpenters District Council of Madison County, Illinois, and Vicinity, with all attached documents contained in the pamphlet copy introduced in evidence, as the collective-bargaining agreement which is currently in effect between Respondent District Council, the Construction Employers' Council, the Southern Illinois Builders' Association, A. G. C., and the Collinsville Contractors Association. On the same basis Respondent District Council deals with probably 250 employers, but does not know which of them are members of the respective construction contractors asso- ciations. Respondent District Council also has contracts with mill operators, fixture operators, and two oil companies. E. The problem of enforcement As heretofore shown, Respondent District Council levied a fine of $500 each upon Harold A. Hanlon, Henry H. Michel, and Michael J. Lesko, from which neither of them has appealed or paid. In addition, the mandatory penalty of ex- pulsion from the Union was postponed during a probationary period of 5 years by allowing them to retain their membership, to work at the trade, and to attend meet- ings of their Local Union, but denying them a voice on the floor or a vote in the Local Union or District Council; and providing that they refrain from discussing any of the affairs of the District Council or any of its affiliated local unions, either in or out of local union meetings. Local Union 633 was directed by Respondent District Council to assess and collect the above-mentioned penalties in accordance with the terms of the constitution of the United Brotherhood of Carpenters & Joiners of America? 7 Section 55H (General Laws) provides : All fines imposed and assessments legally levied shall be charged by the Financial Secretary to the member from whom due, and shall stand against the member as regular dues and must be paid within 30 days to entitle the member to any privilege, rights or donations of this United Brotherhood. . . . 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, Hanlon, Michel, and Lesko made valid tenders of the periodic dues uniformly required to retain membership in their Local Union, but all tenders were rejected by Respondent Local 633 because they failed to include payment of the $500 fines. Concurrent with its refusal to accept the tender of dues, as aforesaid, Respondent Local 633 denied them a working card for the last quarter of 1955 and thereafter, indicating that they are no longer members in good standing. F. Interference, restraint, and coercion It is contended by the General Counsel that by reason of the action taken by Respondent Local 377, Respondent District Council, and Respondent Local 633, by virtue of and pursuant to the constitution, bylaws, and working rules of the Car- penters District Council of Madison County, Illinois, and Vicinity, and especially by reason of article XII, section 6, and article V, sections 1 and 2, set forth above, Hanlon, Michel, and Lesko have been effectively debarred from obtaining employ- ment with all employers with whom Respondent District Council have an agreement. Said constitution, bylaws, and working rules contain as an appendage certain "Articles of Agreement" representing the collective-bargaining agreement between Respondent District Council and three employer associations, the Construction Employers Coun- cil, Alton-Wood River District, the Collinsville Contractors Association, and the Southern Illinois Builders Association, A. G. C. In this agreement the contracting parties, as agents of employers, agree to retain and assume the rights and privileges of existing agreements presently in effect in the area described. It was stipulated by counsel for all parties that the constitution, bylaws, and working rules of the Car- penters District Council of Madison County, Illinois, and Vicinity, together with the current agreement plus addendum No. 1 dated December 31, 1953, addendum No. 2 dated December 29, 1954, and addendum No. 3, dated July 12, 1955, constitute the complete agreement as of this date between the Carpenters District Council and Construction Employers Council, Southern Illinois Builders Association, A. G. C., and the Collinsville Contractors Association. As a part of the document, Business Agent George W. Meyers in his testimony identified the blank form for signature of individual contractors entitled "Agreement" as the present agreement or wage scale. That agreement contains also the provision set forth above to the effect that the con- tractor will employ only members of the contracting Local Union. Harold A. Hanlon credibly testified that since being denied a quarterly working card he has been unable to obtain employment in Madison County, where he lives. He filed an application with the National Stamping Works, but heard nothing further from them. He applied to Hallie Rigsby (house contractor), who refused to give him a job unless he had a card from the Union. Rigsby said that if he could get his quarterly working card, he would be glad to put him on the job. In January 1956 he was recalled to work by his former employer, Darling & Company, East St. Louis, Illinois, and has been employed there up to the present time. After going to work he applied to Local Union No. 69, outside the jurisdiction of Respondent District Council, and obtained a work permit upon the payment of $5. Michael J. Lesko credibly testified that since being denied a quarterly working card, he has applied to various contractors for work without success. In November 1955 he applied to John Papp (contractor), and was told that he could not hire him because he was not a member in good standing and did not have a working card from the Union. In December 1955 he applied to M. H. Wolf & Son, Contractors, and was told that they could not afford to hire him without a quarterly working card, and get involved in a situation like that. In January 1956, Steve Clayman, Contractor, refused to hire him for the same reason. Finally he applied to Gus Newman & Son (his former employer), by talking to Elmer Newman on the tele- phone. Newman told him that he had work coming up and would like to hire him again, but did not think they would put him back to work until he got this deal straightened out, and received a working card. Concluding Findings in Case No. 14-CA-1438 Execution of the "International Agreement" on March 12, 1946, is admitted, but Respondent contends that it has long since been abandoned by disuse and forgotten. Paragraph VI of the complaint in this case alleges, and Respondent denies, that: Respondent [Merritt-Chapman & Scott Corporation], at all times material hereto, maintained and enforced, and continues to maintain and enforce, with the labor organization [United Brotherhood of Carpenters and Joiners of Ameri- ca] named in paragraph IV above, the contract provisions described in paragraph V above [ i. e. the provisions of the International Agreement]. MERRITT-CHAPMAN & SCOTT CORPORATION 407 This is the sole charge against Respondent Merritt-Chapman & Scott Corporation, and the General Counsel concedes in his brief that there is no evidence of any inde- pendent act or incident of maintenance or enforcement of the International Agreement occurring within the 6 months immediately preceding the filing of the charge. The charge against this Respondent was filed on November 16, 1955, and served on No- vember 21, 1955. When executed on March 12, 1946, prior to the effective date of the Labor Management Relations Act, 1947, this International Agreement was not a violation of the Wagner Act. Hence, its mere existence cannot be deemed a violation of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, in the absence of maintenance and enforcement within a period of 6 months preceding the filing and service of a charge, as required in Section 10 (b). The burden is upon the General Counsel to prove maintenance and enforcement within that period; and it is not incumbent upon the Respondent to show that the International Agreement has been either revoked or otherwise terminated.8 All of the evidence bearing upon the issue here pertained to hiring practices engaged in by the Respondent Merritt-Chapman & Scott Corporation on a project at East Alton, Illinois, beginning in March 1954 and ending on May 15, 1955, when the project was completed. The record is entirely devoid of its implementation or continuance of any unlawful agreements or hiring practices thereafter. I am, therefore, constrained to recommend that the complaint against Merritt-Chapman & Scott Corporation be dismissed in its entirety. Upon this recommendation, other affirmative defenses raised by said Respondent need not be considered. Concluding Findings in Case No. 14-CB-305 No charge was filed against United Brotherhood of Carpenters and Joiners of America until included in the first amended charge filed on November 16, 1955, which was served on Respondent Brotherhood on November 18, 1955. The sub- stance of the complaint against this Respondent is limited to allegations to the effect that it has continued to maintain and enforce the International Agreement dated March 12, 1956, and an unlawful hiring arrangement with Merritt-Chapman & Scott Corporation. For the same reasons set forth in "Concluding Findings in Case No. 14-CA-1438," supra, and because there is no substantial evidence in the record to support a finding that Respondent Brotherhood has continued to maintain and enforce any agreement or hiring practices with Merritt-Chapman & Scott Corporation since May 15, 1955, more than 6 months prior to the filing of a charge against this Respondent, I shall likewise recommend that the complaint, insofar as it pertains to United Brotherhood of Carpenters and Joiners of America, AFL-CIO, be dismissed. Thereupon, it will not be necesary to consider other affirmative defenses pleaded by that labor organization. Paragraph VII of the complaint herein originally alleged that "Respondents Brotherhood, District Council, Local 633 and Local 377, at all times material here- to, have maintained and enforced and continue to maintain and enforce an unlawful hiring arrangement with Merritt-Chapman & Scott Corporation, by virtue of the contract provision described in paragraph V above." [Emphasis supplied.] 9 By reason of the emphasized words, Respondents insisted that evidence bearing upon the issue of an unlawful hiring arrangement be limited to maintenance and enforce- ment of the International Agreement. General Counsel contended that the issues raised by the complaint were not restricted to that agreement, but extended to any existing unlawful hiring arrangement and practices with Merritt-Chapman & Scott Corporation. Upon that theory of the General Counsel, and over the objection of counsel for Respondent Unions, paragraph VII of the complaint was amended by adding the words "and at all times material hereto maintained and enforced and continue to maintain and enforce an unlawful hiring practice with Merritt-Chap- man & Scott Corporation." It was not the purpose of the amendment to allege any additional unfair labor practices, but to clarify and facilitate the litigation of all issues pertaining to the alleged unlawful hiring arrangement with Respondent Company. Respondent Unions were allowed to amend their answers to the com- plaint, and their standing objection to the entire line of questioning was noted in the record. The initial charge against Respondents District Council, Local 633, and Local 377 was filed on February 25, 1955, and duly served on or about February 28, 1955. As outlined in the brief of the General Counsel, there are three issues per- 8 Paul IV. Speer, Inc., 98 NLRB 212; George D. Auchter Company, 102 NLRB 881 ; United Hoisting Company, Inc., 92 NLRB 1642. "Paragraph V pertained only to the provisions of the international Agreement. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taining to these Respondents. The first issue is whether Respondent District Coun- cil and Respondents Local 633 and Local 377 have maintained and enforced an un- lawful hiring arrangement with Merritt-Chapman & Scott Corporation. The second is whether they caused Merritt-Chapman & Scott Corporation to discriminate in regard to hire or tenure of employment by refusing to hire Harold A. Hanlon on or about September 2, 1954. The third and final issue is whether the disciplinary action taken by these respondent labor organizations against their members, Harold A. Hanlon, Henry H. Michel, and Michael J. Lesko, for furnishing information and filing charges of unfair labor practices against these Respondents with the Na- tional Labor Relations Board constituted restraint and coercion of employees in the exercise of the rights guaranteed in Section 7 of the Act. Since the Respondent District Council was not chartered prior to September 12, 1952, and denies any knowledge of the preexisting International Agreement be- tween Respondent Brotherhood and Merritt-Chapman & Scott Corporation, as to whom it has been recommended that the complaints herein be dismissed, I shall not rely upon the maintenance and enforcement of the provisions of the Interna- tional Agreement of 1946 to support a finding that Respondent District Council, Local 633, and Local 377 have within the 10 (b) period maintained and enforced an unlawful hiring arrangement and practice with Merritt-Chapman & Scott Cor- poration. Apart from the International Agreement there is little or no dispute as to the facts in this case. First Issue When the job superintendent (Thomas J. O'Shea) of Merritt-Chapman & Scott Corporation sought an agreement with Respondent District Council in March 1954 to furnish craftsmen to work on its project at East Alton, Illinois, Business Agent George W. Meyers submitted to him the constitution, bylaws, and working rules of the Carpenters District Council of Madison County, Illinois, and Vicinity, to which was attached "Articles of Agreement," "Agreement Relative to Welfare and Wage Negotiations," with certain employer associations, and a blank form "Agree- ment," customarily entered into with individual employers , containing the current wage scale and agreement to employ only members of a local union. Without signing any written agreement, the provisions contained in those documents were adopted and thereafter faithfully performed by both parties until the project at East Alton was completed on or about May 15, 1955. By reason thereof Merritt- Chapman & Scott Corporation hired only men who were cleared by or issued work permits by the business agent of Respondent District Council. Respondent District Council negotiated, maintained, and enforced this agreement as agent of and for the benefit of Respondent Local Unions 633 and 377. Inasmuch and insofar only that the agreement was maintained and enforced during the period of 6 months im- mediately prior to and after the filing of charges against these labor organizations, respectively, I find that Respondent District Council, Respondent Local 633, and Respondent Local 377 engaged in unlawful hiring practices which restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and caused or attempted to cause Merritt-Chapman & Scott Corporation to discrimi- nate against employees in violation of Section 8 (a) (3) of the Act. Second Issue On September 2, 1954, Harold A. Hanlon and Henry H. Michel applied to Super- intendent Thomas J. O'Shea for employment as millwrights on the project of Merritt-Chapman & Scott Corporation at East Alton, Illinois. By reason of the foregoing unlawful hiring arrangement , Superintendent O'Shea admittedly told them that he would be glad to hire them, if they could clear with the Local; that if they could not clear, there was not anything he could do about it. This conditional offer of employment was clearly discrimination in regard to hire or tenure of employment in violation of Section 8 (a) (3) of the Act, and was caused by the aforesaid unlaw- ful hiring arrangement with Respondent District Council. Whether or not these applicants were members in good standing of a union is not material , in the absence of an agreement requiring membership in a labor organization as a condition of employment as provided in Section 8 (a) (3) of the Act. I am, therefore, con- strained to find that Respondents District Council, Local 633, and Local 377 thereby caused Merritt-Chapman & Scott Corporation to discriminate in regard to the hire or tenure of employment of Harold A. Hanlon on and after September 2, 1954.10 10 No discrimination against Henry H. Michel is alleged in the complaint for the reason that he applied for employment in a supervisory capacity. MERRITT-CHAPMAN & SCOTT CORPORATION 409 Third -Issue Having already found that the unlawful hiring practices of Respondents District Council, Local 633, and Local 377 pertain to employment affecting commerce it is not required that the jurisdiction of the Board be successively established to proceed and provide a remedy for the prevention of similarly related unfair labor practices in regard to the hiring or potential hiring of employees other than Harold A. Hanlon. It is crystal clear from all the evidence that Respondent District Council, for the benefit of its affiliated local unions, is presently maintaining and enforcing within its jurisdiction an unlawful hiring arrangement with more than 250 employer associations, companies, and individual contractors in the construction industry by the implementation of its constitution, bylaws, and working rules, and other written or oral agreements, by means of whch it has created closed-shop conditions and acquired a virtual monopoly of the labor supply of carpenters, millwrights, pile- drivers, and other craftsmen in that area. By hiring-hall methods, an "out of work list," and a system of clearances and permits to work, its business agent seeks to control the jobs and labor of both members and nonmembers of affiliated local unions. By refusing to issue working cards and withholding clearances from its members not in good standing, Respondent District Council and its business agent effectively prohibit their employment within its jurisdictional area by employers and employer associations with whom it has entered into such hiring arrangements and working rules agreements. From uncontradicted evidence it appears, and is not denied by the Respondents, that because of the fact that Harold A. Hanlon, Henry H. Michel, and Michael J. Lesko furnished information and filed charges against Respondent Unions with the National Labor Relations Board, Respondent Local 377 preferred charges against them before Respondent District Council. They were tried by a trial committee and found guilty of violating section 55, paragraphs A, B, C, and L of the constitution and laws of the United Brotherhood of Carpenters and Joiners of America, and also the obligation of membership. Based upon the verdict of the trial committee, Re- spondent District Council imposed upon each of them a fine of $500 and other penalties including conditional suspension of membership in their Local Union. Respondent Local 633 attempted to enforce the payment of the fines and other penalties by refusing to accept their tender of regular dues unless they also paid the fines. Thereupon, they were declared not in good standing, arid Respondents re- fused to issue each of them a quarterly working card for the last quarter of 1955 and thereafter. Thereupon, several contractors in that area denied them employment because they could not present a working card or clearance from Respondent District Council. It is clear that the action taken by Respondent Unions deprived these men of employment opportunities in Madison County and vicinity. It is contended by Respondent and pleaded as an affirmative defense to the complaint that the failure of Hanlon, Michel, and Lesko to exhaust the adminis- trative remedies provided in section 57 of the constitution and laws of the United Brotherhood of Carpenters and Joiners of America by appealing from their convic- tion and penalties imposed by Respondent District Council should prevent them from relying upon the allegations in support of the charges and complaint; and that General Counsel had no authority in that respect to issue a complaint because it constitutes an improper and unwarranted invasion of and interference with the internal affairs of labor organizations, which are protected by the proviso in Section 8 (b) (1) (A) of the Act. Section 8 (b) of the Act provides that it shall be an unfair labor practice for a labor organization or its agents: (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; . . . In Textile Workers Union, CIO (Personal Products Corporation), 108 NLRB 743, the Board held that participation in Board proceedings, whether in support of or in opposition to a union's position, is a right of employees to be exercised for mutual aid, without coercion and restraint, within the purview of the Act; and that threats to dissuade employees from testifying at Board hearings is a violation of Section 8 (b) (1) (A). There is no legal distinction between the right to testify against a labor organization and the right to file charges of unfair labor practices for to furnish information by affidavits to agents of the Board in this case. The contention of Respondents that Hanlon, Michel, and Lesko must 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exhaust all administrative remedies provided in the union constitution and bylaws before the General Counsel may issue a complaint against the Respondent Unions herein is without merit, since the Board's power to prevent unfair labor practices, is not affected by any other means of adjustment, as provided in Section 10 (a) of the Act.' I am convinced from the evidence and the entire record that the disciplinary action taken by Respondents District Council , Local 377, and Local 633, against Harold A. Hanlon, Henry H. Michel, and Michael J. Lesko, herein, consti- tuted reprisal for having filed charges of unfair labor practices and furnished information with the National Labor Relations Board, rather than the exercise of the right of labor organizations to prescribe rules with respect to the acquisition or retention of membership therein. Surely Congress did not intend by adding the proviso to Section 8 (b) (1) (A ) to permit unions by internal disciplinary procedures to restrain and coerce employees in the external exercise of the rights guaranteed in Section 7 of the Act or to estop the Board in preventing any unfair labor practice listed in Section 8 affecting commerce , as provided in Section 10 of the Act. I am, therefore , constrained to find that by the aforesaid disciplinary actions taken and the attempted enforcement thereof against Hanlon, Michel, and Lesko, by reason of their resorting to processes of the National Labor Relations Board, under the circumstances of this case, constituted restraint and coercion of employees in the exercise of the rights guaranteed in Section 7, within the meaning of Section 8 (b) (1) (A) of the Act, and were not protected by the proviso contained in that section' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents District Council, Local 633 , and Local 377, set forth in section III, above, occurring in connection with the operations of Merritt- Chapman & Scott Corporation described in section 1, above, and also in connection with the operations of other employers with whom these labor organizations have unlawful hiring arrangements or agreements, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents District Council, Local 377, and Local 633 have engaged in and are engaging in certain unfair labor practices affecting commerce, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondents District Council, Local 377, and Local 633 entered into, and thereafter maintained and enforced with Merritt-Chapman & Scott Corporation , an unlawful agreement , understanding , hiring arrangement, and practices which required membership in or clearance by a labor organization as a condition of employment ; and whereas it appears that Respondent District Council presently maintains and enforces substantially identical agreements and hiring arrangements with other employers and employer associations not parties to this case, it will be recommended that said Respondents cease giving effect to, main- taining, and enforcing all such unlawful agreements , hiring arrangements , under- standings, and practices with Merritt-Chapman & Scott Corporation and any other employers and employer associations , provided that the parties thereto are employers over whom the Board would assert jurisdiction in an appropriate proceeding." These contracts are in themselves a continuing means of thwarting the policies of the Act, and the Board is empowered to prevent the Respondents herein from engaging in the unlawful practices inherent therein without the involved employers being parties to this proceeding or formally notified of the charges herein. The Board is only concerned here with rights concomitant with the public policy of the Act. Private rights between the Respondents and employer parties to its contracts are matters for appropriate future proceedings , but insofar as such private rights may be inconsistent with the public policy of the United States as announced in the Act, that public policy must prevail. In these circumstances , the Board is 1 See Hall Electric Company, 111 NLRB 68. "The complaint does not allege , and the General Counsel does not contend , that the disciplinary action taken by Respondent Unions constituted a violation of Section 8 (b) (2). 13 Daugherty Company, Inc., 112 :NLRB 986 , 987-988 ; United Association of Journey, men & Apprentices of Plumbing J Pipe Fitting ,.Industry, etc., 115 NLRB 594. MERRITT-CHAPMAN & SCOTT CORPORATION 411 free to restrain Respondents from engaging in such conduct generally and from engaging in like or related unlawful acts.' It has been found that Respondents District Council, Local 377, and Local 633 caused Merritt-Chapman & Scott Corporation to discriminate in violation of Section, 8 (a) (3) against Harold A. Hanlon. I shall therefore recommend that these Respondents jointly and severally notify that Company that they have no objection to the employment of Harold A. Hanlon, and that they make this employee whole for any loss of pay suffered by him as a result of the discrimination by paying to him a sum of money equal to the amount he would have earned from the date he agreed to report for work, September 13, 1954, to May 15, 1955, when the project at East Alton , Illinois, was completed, or to the date on which he would have otherwise been laid off, absent unfair labor practices, less his net earnings 16 to be computed on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other such period. It will be further recommended that Respondent Merritt-Chapman & Scott Corpo- ration preserve and make available to Respondents District Council, Local 377, Local 633, and to the Board and its agents, upon request, so much of its payroll records, social-security payment records, timecards, personnel data, and other records necessary to analyze and compute the amount of back pay and other emoluments to which Harold A . Hanlon may be entitled by reason of the recommendations herein. It has also been found that Respondents District Council, Local 377, and Local 633 for no reason other than the filing of charges and furnishing information against these labor organizations with the National Labor Relations Board , brought Harold A. Hanlon, Henry H. Michel, and Michael J. Lesko to trial before a trial committee within the Union , convicted , fined, and imposed other penalties upon each of them; and upon their failure to pay the fines, denied to them quarterly working cards and other privileges and benefits customarily extended to members in good standing, which deprived them of opportunities for employment by employer parties to the aforesaid unlawful agreements and hiring arrangements with these Respondents. I shall therefore recommend that Respondents District Council, Local 377, and Local 633, jointly or severally, revoke and rescind, and notify Harold A. Hanlon, Henry H. Michel , and Michael J. Lesko that "pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board," they have revoked and rescinded all disciplinary action taken against them including all action flowing therefrom. It will also be recommended that said Respondents , jointly or severally, notify all em- ployers and employer associations with whom they have entered into any agreement, understanding, hiring arrangement, or other practices found herein to be unlawful,. that they have withdrawn all objections to the hiring of Harold A. Hanlon, Henry H. Michel, and Michael J. Lesko, and henceforth will not require membership or clearance by any labor organization or its agents as a condition of employment, except as authorized in Section 8 (a) (3) of the Act. The violations of the Act which Respondents District Council, Local 377, and Local 633 have committed are persuasively related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is to be anticipated from their conduct in the past. The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat. In order to make more effective the interdependent guarantees of Section 7 of the Act, to prevent a recur- rence of aforesaid unfair labor practices , and thereby to minimize industrial strife which burdens and obstructs commerce , and thus effectuate the policies of the Act, I shall recommend that these Respondent Unions cease and desist from in any manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of 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. Merritt-Chapman & Scott Corporation is engaged in commerce within the mean- ing of Section 2 (6) and (7) of the Act. 2. United Brotherhood of Carpenters and Joiners of America , AFL-CIO ; Carpen- ters District Council of Madison County, Illinois, and Vicinity, affiliated with United 1'1 National Licorice Co. V. Y. L. R. B., 309 U . S. 350 ( 1940 ) ; International Brother- hood of Teamsters, et al., 110 NLRB 2S7-290; cf. X. L. R. B. v, Express Publishing Company, 312 U. S. 426 at 436-437. 16 See Crossett Lumber Company, 8 NLRB 440. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Carpenters and Joiners of America , AFL-CIO; Local 633, United Brotherhood of Carpenters and Joiners of America , AFL-CIO; and Local 377, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are labor organizations within the meaning of Section 2 (5) of the Act. 3. By maintaining and enforcing an agreement, understanding, hiring arrangement, -and other unlawful practices with Merritt -Chapman & Scott Corporation, which require membership in or clearance by a labor organization as a condition of em- ;ployment, Respondent District Council , Local 377, and Local 633 have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and Section 8 (b) (2) of the Act. 4. By causing or attempting to cause Merritt-Chapman & Scott Corporation to discriminate against Harold A. Hanlon, applicant for employment , in violation of Section 8 (a) (3) of the Act, Respondents District Council, Local 377, and Local 633 have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and Section 8 (b) (2) of the Act. 5. By imposing intraunion disciplinary action , fines, and penalties upon Harold A. Hanlon, Henry H. Michel , and Michael J. Lesko because they filed charges with, and furnished information against Respondent Unions to, the National Labor Relations Board in the exercise of the rights guaranteed in Section 7 of the Act, which impaired their opportunities for employment, Respondents District Council, Local 377, and Local 633 have restrained and coerced and are restraining and coercing employees, and have thereby engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of -the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Provident Life and Accident Insurance Company and Insurance Agents' International Union , AFL-CIO, Petitioner. Case No. 21-RC-4625. June 28,1957 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 Fred W. Davis, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Murdock and Jenkins]. 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 employees of the Employer. 3. The Petitioner seeks a unit of all full-time and part-time in- surance agents in the western area of the Employer' s railroad department. The Employer contends that the agents are independent contractors and not employees within the meaning of the Act. The Employer is engaged in selling life, accident, and health in- surance throughout the United States. The agents involved herein sell accident and health insurance to employee groups, principally 118 NLRB No, 53.