Carpenters' District Council of Rochester and Vicinity

CARPENTERS' DISTRICT COUNCIL OF ROCHESTER AND VICINITY 269 APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership by our employees in International Association of Machinists, Lodge 1311, AFL-CIO, or any other labor or- ganization, by failing or refusing to employ any employee or applicant for employment, or in any other manner discriminating against any employee or applicant for employment in regard to his hire, tenure of employment, or any term or condition of employment, except as authorized by Section 8(a)(3) of the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce em- ployees in the exercise of the right to self-organization, to form, join, or assist any labor organization, to join or assist International Association of Machinists, Lodge 1311, AFL-CIO, to bargain collectively through represent- atives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, and to re- frain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization .as a condition of employment, as authorized in Section 8(a)(3) of the Na- tional Labor Relations Act. WE WILL offer Henry Goodman and Leonard A. Drake immediate and full reinstatement to their respective former, or substantially equivalent, positions without prejudice to their seniority or other rights and privileges. WE WILL make Henry Goodman and Leonard A. Drake whole for any loss of pay they may have suffered as a result of the discrimination against them. All our employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization, except to the extent that this :right may be affected by an agreement in conformity with Section 8(a)(3) of the National Labor Relations Act. GEO. MYRMO & SONS, Employer. Dated------------------- By------------------------------------------- (EMIL A. MYRMO) Dated------------------- By------------------------------------------- (ARTHUR MYRMO) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Carpenters' District Council of Rochester and Vicinity, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Local Unions 72, 231, 240, 502, 662, 687, 1508, and 2407, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Anthony Schneider, Business Manager and Secretary-Treasurer [Rochester Davis-Fetch Corporation] and Glynn N. Osgood and Building Trades Employers' Division of the Builders Exchange of Rochester, New York, Party to the Contract . Case No. 3-CB-294. Decem- ber 3, 1958 DECISION AND ORDER On February 24, 1958, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair 122 NLRB No. 38. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practices, and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Re- port, the exceptions and brief, and the entire record in this case,, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner.3 ORDER Upon the basis of the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Carpenters' District Council of Rochester and Vicinity, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL- CIO ; Local Unions 72, 231., 240, 502, 662, 687, 1508, and 2407, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, their officers, representatives, successors, assigns, and agents, including the Respondent Anthony Schneider, shall : 1. Cease and desist from : (a) Executing, maintaining, performing, or enforcing any agree- ment, understanding, or practice with Rochester Davis-Fetch Cor- poration, or Building Trades Employers' Division of the Builders Exchange of Rochester, New York, or with any other employer, which requires membership in their organization as a condition of employment, except as authorized by Section 8(a) (3) of the Act. (b) Causing or attempting to cause Rochester Davis-Fetch Cor= poration, or members of Building Trades Employers' Division of the Builders Exchange of Rochester, New York, or any other employer, to discriminate against employees or prospective employees by requir- 1 The Respondents ' request for oral argument is hereby denied , as the record and their brief adequately reflect , in our opinion , the issues and positions of the parties. a In his conclusions of law in the Intermediate Report, the Trial Examiner found, and' we agree , that by maintaining in effect the illegal union -security provision of the con- tract herein , the Respondents have violated Section 8 ( b) (1) (A) and ( 2) of the Act. However , in the text of the Intermediate Report , the Trial Examiner also found that the. execution of the contract violated the Act . As the contract was executed more than 6 months prior to the filing of the original charge herein , we are precluded by Sec- tion 10 ( b) from making such a finding and, accordingly , we do not adopt this finding of the Trial Examiner. In ordering the Respondents to reimburse employees of Rochester Davis-Fetch. Corporation for any dues or assessments illegally collected as the price of their employ- ment , we rely not only on the contract herein , containing an unlawful union -security- provision , but also on the parties ' unlawful practice or understanding , adopted in con- nection with the administration of the contract , requiring the obtaining of working- permits as a condition of employment , as set forth fully in the Intermediate Report. We find further that by maintaining and enforcing such practice or understanding with: Davis-Fetch the Respondents violated Section 8 ( b) (1) (A) and ( 2) of the Act. CARPENTERS' DISTRICT COUNCIL OF ROCHESTER AND VICINITY 271 ing them to obtain work permits or clearances from the Respondents, as a condition of employment in violation of Section 8(a) (3) of the Act. (c) In any other manner restraining or coercing employees or prospective employees of Rochester Davis-Fetch Corporation, or members of Building Trades Employers' Division of the Builders Exchange of Rochester, New York, or any other employer, in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement re- quiring membership in a labor organization as a condition of employ- ment as authorized by Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at their offices in Rochester, New York, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by the Respondents, be posted by them im- mediately upon receipt thereof and maintained by them for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices are customarily posted. Reasonable steps shall be taken by the Respondents to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify, in writing, Rochester Davis-Fetch Corporation and Glynn N. Osgood and Frank E. DeBolt, Jr., that the Respondents have withdrawn their objections to the hiring or continued employ- ment of Osgood and DeBolt by Rochester Davis-Fetch Corporation, or to their employment by members of Building Trades Employers' Division of the Builders Exchange of Rochester, New York; and also notify Osgood and DeBolt, in writing, that henceforth they will not coerce or restrain them by requiring them to obtain work permits or clearance in order to secure or retain employment or by otherwise interfering with the rights guaranteed them by Section 7 of the Act. (c) Notify the Regional Director for the Third Region in writing, within ten (10) days from the date of this Order, what steps the Respondents have taken to comply therewith. IT IS FURTHER ORDERED that the Respondent Carpenters' District Council and its Respondent Local Unions jointly and severally shall : 5 (a) Make whole Glynn N. Osgood and Frank E. DeBolt, Jr., for any loss of pay each may have suffered as a result of the discrimina- tion against him in the manner set forth in the section of the Inter- mediate Report entitled "The Remedy." 4In 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." 6 We shall not hold the Respondent , Anthony Schneider, personally liable for any of the reimbursements ordered herein . J. J. White, Inc., 111 NLRB 1126. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Reimburse all employees of Rochester Davis-Fetch Corpora- tion in the full amount of any dues, assessments, or other moneys, unlawfully collected from them pursuant to the Respondent's un- lawful contract, and practice or understanding adopted in connection with the administration of the contract, with Rochester Davis-Fetch Corporation, provided, however, that this Order shall not be con- strued as requiring reimbursement for any such dues or assessments collected more than 6 months prior to the date of the amended charge herein. APPENDIX NOTICE TO ALL MEMBERS OF CARPENTERS' DISTRICT COUNCIL OF ROCHESTER AND VICINITY, AFFILIATED WITH UNITED BROTHER- HOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO AND LOCAL UNIONS 72, 231, 240, 502, 662, 687, 1508, AND 2407, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, AND TO ALL EMPLOYEES OF ROCHESTER DAVIS-FETCH CORPORATION AND OF MEMBERS OF BUILDING TRADES EMPLOYERS' DIVISION OF THE BUILDERS EXCHANGE OF ROCHESTER, NEW YORK Pursuant to a Decision and Order of the National Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT cause or attempt to cause Rochester Davis-Fetch Corporation to discriminate against Glynn N. Osgood and Frank E. DeBolt, Jr., or any other employees or applicants for employment by discriminatorily requiring Work permits or clearances from us as a condition of employment, in violation of Section 8(a) (3) of the Act. WE WILL NOT execute, maintain, perform, or enforce any agree- ment, understanding, or practice With Rochester Davis-Fetch Corporation, or With Building Trades Employes' Division of the Builders Exchange of Rochester, New York, or with any other employer, which requires membership in any of our or- ganizations as a condition of employment, except as authorized by Section 8 (a) (3) of the Act. WE WILL notify, in writing, Rochester Davis-Fetch Corpo- ration that we have withdrawn our objection to the hiring or continued employment of Glynn N. Osgood and Frank E. DeBolt, Jr. WE WILL notify, in writing, Building Trades Employers' Di- vision of the Builders Exchange of Rochester, New York, that we have no objection to the hiring or employment of Glynn N. Osgood and Frank E. DeBolt, Jr., by its members. CARPENTERS' DISTRICT COUNCIL OF ROCHESTER AND VICINITY 273 WE WILL notify, in writing, Glynn N. Osgood and Frank E. DeBolt, Jr., that we have withdrawn our objection to their em- ployment with Rochester Davis-Fetch Corporation and Builders Exchange of Rochester, New York, and that henceforth we will not coerce or restrain them by requiring them to obtain work permits or clearance from us or by otherwise interfering with their rights in Section 7 of the Act. Carpenters' District Council and its Local Unions will jointly and severally make whole Glynn N. Osgood and Frank E. De- Bolt, Jr., for any loss of pay suffered as a result of the dis- crimination against them. Carpenters' District Council and its Local Unions will jointly and severally reimburse all employees of Rochester Davis-Fetch Corporation for all dues, assessments, and other moneys, which have been collected pursuant to the unlawful contract with the Company, and the practice or understanding adopted in con- nection with the administration of the contract, beginning with all such dues and assessments collected 6 months prior to July 2, 1957. CARPENTERS' DISTRICT COUNCIL OF ROCH- ESTER AND VICINITY, AFFILIATED WITH UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Labor Organization. Dated----------------- By------------------------------------- (Representative ) (Title) LOCAL UNIONS 72, 231, 240, 502, 662, 687, 1508, AND 2407, UNITED BROTHErHOOD OF CARPENTERS AND JOINERS OF AMER- ICA, AFL-CIO, Labor Organization. Dated-------------- -- By------------------------------------- (Representative ) (Title) Dated---------------- By------------------------------------- (ANTHONY SCHNEIDER , Agent) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges, as amended, duly filed by Glynn N. Osgood, an individual, the General Counsel for the National Labor Relations Board, by the Regional Direc- tor for the Third Region (Buffalo, New York), issued a complaint, dated October 11, 1957, against the above-named Respondent District Council, the Respondent Locals, and Anthony Schneider, business manager and secretary-treasurer of Re- 505395-59-vol. 122-19 274 DECISIONS OI' NATIONAL LABOR RELATIONS BOARD spondent District Council, alleging, as more fully set forth below, that the Respond- ents had engaged in and are engaging in unfair labor practices within the meaning of various provisions of the National Labor Relations Act, herein called the Act. Copies of the charges, complaint, and notice of hearing were duly served upon the Respondents. In their answer the Respondents admit certain allegations of the complaint but deny the commission of any unfair labor practices. Pursuant to notice, a hearing was held on November 21, 1957, at Rochester, New York, before the duly designated Trial Examiner. The General Counsel, the Respondents, and the Party to the Contract were represented by counsel at the hearing at which full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues was afforded to all parties. In accordance with the right afforded all parties, the General Counsel presented oral argument at the conclusion of the hearing and counsel for the Respondents submitted a brief, which have been fully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF ROCHESTER DAVIS-FETCH CORPORATION AND BUILDING TRADES EMPLOYERS' DIVISION OF THE BUILDERS EXCHANGE OF ROCHESTER, NEW YORK The complaint alleges and the answer admits: Davis-Fetch is a New York cor- poration with its principal office and place of business in Rochester, New York, where it is engaged in the business of installing accoustical ceilings and related construction work. During the 12-month period ending March 31, 1957, it per- formed services valued in excess of $100,000 for enterprises which ship goods or perform services valued in excess of $50,000 outside the State of New York. Davis-Fetch is a member of Builders Exchange. Builders Exchange is an association of employers engaged in the building and construction industry in and about Rochester, New York, and engages in collec- tive bargaining and negotiates contracts on behalf of its members with various labor organizations which represent employees in the building trades. The mem- bers of Builders Exchange, in the course and conduct of their business operations, annually purchase materials valued in excess of $1,000,000 which are shipped directly to members from places outside the State of New York. I find that Davis-Fetch is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED; ANTHONY SCHNEIDER On the basis of the pleadings and the stipulation of counsel, I find that Re- spondent District Council and each of the Respondent Locals are labor organiza- tions within the meaning of Section 2(5) of the Act. Counsel stipulated, and I find, that Anthony Schneider was and is an agent of Respondent District Council and each of the Respondent Locals within the mean- ing of Section 8(b) of the Act. III. THE UNFAIR LABOR PRACTICES A. The pleadings The complaint alleges that since about October 23, 1956, Respondent District Council in its own behalf and in behalf of the Respondent Locals, has main- tained in effect and enforced an agreement with Builders Exchange which pro- vides that members of, and persons who are willing and eligible to become mem- bers of, and persons who are willing and eligible to become members of, Re- spondent District Council or Respondent Locals be given preference in regard to hire or tenure of employment. Further, that the Respondents have maintained in effect an agreement, arrangement, or practice with Builders Exchange and its members, including Davis-Fetch, which requires that: (a) employees or applicants for employment be members of Respondent District Council or one of the Re- spondent Locals or be cleared, approved, or referred by Respondent District Council as a condition of employment; (b) members of Respondent District Council or Respondent Locals be given preference in regard to hire and tenure of employment; and (c) employees and applicants for employment pay to Re- spondent District Council a sum of money as a condition of employment, al- though none of Respondent Locals were in compliance with Section 9(f), (g), and (h) of the Act either at the time the agreement, arrangement, or practice was entered into or within the preceding 12 months. The complaint further alleges CARPENTERS' DISTRICT COUNCIL OF ROCHESTER AND VICINITY 275 that Respondent District Council, through Schneider, attempted to cause and did cause Davis-Fetch to terminate the employment of Frank E. DeBolt, Jr. and Glynn N. Osgood because they were not members of Respondent District Council or Respondent Locals and were not cleared, approved, or referred in accordance with the foregoing agreement, arrangement, or practice. By these acts the Re- spondents violated Section 8(b)(1)(A) and (2) of the Act. The answer of the Respondents generally denies the above allegations. B. The collective-bargaining agreement between Building Trades Employers' Division of Builders Exchange and Respondent District Council John J. Richards, executive secretary of Builders Exchange, testified, and I find, that Builders Exchange is a trade association of various firms engaged in all phases of the construction industry, including suppliers, banks, insurance com- panies, and contractors. The Building Trades Employers' Division is composed of about 56 employers in the building contracting business who employ carpen- ters, bricklayers, and other persons in the building trades. The principal function of the Building Trades Employers' Division is the negotiation, execution, and administration of agreements with the various building trades unions on behalf of its members. Robert L. Holtby, secretary-treasurer of Davis-Fetch, stated, and I find, the Company is a member of Building Trades Employers' Division and that he was a member of the negotiating committee which executed an agreement between Building Trades Employers' Division and Respondent District Council, represent- ing Respondent Locals, effective from May 1, 1956, to April 30, 1958. The agreement provides that Building Trades Employers' Division "employ members of the party of the second part [Respondent District Council] and persons who, are willing and eligible to become members of the party of the second part, it being understood that such person who may refuse to become a member shall be replaced by a competent member of the party of the second part." The agreement states that all foremen must be members of Respondent District Council. Counsel for the parties stipulated that Respondent District Council has been out of compliance with the provisions of Section 9(f), (g) and (h) of the Act con- tinuously since June 30, 1955, and none of Respondent Locals were in compli- ance with these provisions within 12 months prior to the execution of the agree- ment. Holtby said the Company has but four or five men it considers as steady employees and these men work in several crafts throughout the year. In its opera- tions the Company has a field superintendent and on particular jobs a foreman, where one is required. According to Holtby carpenters are usually obtained by the superintendent, or foreman, in several ways. Thus, if the superintendent knew that a recently laid-off man was out of work he would probably call the man directly and in other instances he might call the carpenters hall or request the job steward for men. When asked by counsel for the Respondents if Davis- Fetch has been complying with the hiring provision of the agreement, Holtby replied, "We consider ourselves a Union job, and to the best of my knowledge it is complied with." Holtby testified that in March 1957, Davis-Fetch was performing work as a subcontractor at the Newark Shopping Plaza, Newark, New York, and that Frank Bonamie was foreman on the job. The job was uncompleted as of the date of the hearing. C. The bylaws and trades rules of Respondent District Council The constitution and laws of the United Brotherhood of Carpenters and Join- ers of America, received in evidence pursuant to stipulation of counsel, provide that where there are two or more local unions in a city they must be represented in a district council composed exclusively of delegates from the locals and they shall be governed by laws and trades rules adopted by the district council and approved by the locals. The laws further provide that members who become foremen must comply with unions' rules and hire none but members of the United Brotherhood. The law also provides: A member who desires to work in another jurisdiction and return home daily, or who does not desire to transfer membership , shall before going to work, secure a Working Permit in writing from the Local Union or District Council in the jurisdiction where worked is secured. The member shall pay for such Working Permit a charge of not less than Seventy-five Cents (.75) per month, nor more than the monthly dues of the Local Union or District 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Council, and if less than two years a member shall pay any difference in ini- tiation fee, and shall be subject to all local assessments levied exclusively for direct trade purposes by and for the use of the Local Union or District Council. (General Counsel Exhibit No. 2, Section 6, par. C) The bylaws of Respondent District Council provide that members coming into the jurisdiction to work on a work permit shall be charged the regular dues and also a $10 assessment for the building fund, at the rate of $2 per month until the entire sum has been paid. The working rules of Respondent District Council require the employment of a union steward on all jobs whose duties include the checking of members' cards to see that dues have been paid for the current month and no member will be allowed to work unless he is a member in good standing. Any member report- ing for work must immediately look up the steward and present his union card for inspection. Foremen must be members of the union, otherwise members are not permitted to work under him, and when hiring men shall ascertain whether they have union cards and if not, to refer them to the steward or business manager. D. The unlawful discharges There is but little dispute as to the circumstances under which the discharges occurred. On the basis of the testimony of Osgood and DeBolt I find that these individuals, who reside at Penn Yan, New York, have for a number of years been members of carpenters local 996 of Penn Yan, and apparently are still members of that local. Penn Yan is situated about 67 miles from Rochester I and is outside the jurisdiction of Respondent District Council. In accordance with the work permit provisions set forth above, Osgood secured about 4 per- mits from Respondent District Council in the period June 1956 to February or March 1957, while DeBolt worked continuously for 8 or 9 months for Emil Mueller Construction Company of Rochester, apparently ending about February 1957, under work permits. DeBolt stated that when a work permit is issued to a member he must inform the representative issuing it that he has a job. In February 1957 Osgood and DeBolt were employed by Mueller, in Roches- ter, and were laid off about the middle of the month. On Friday, March 8, Osgood and DeBolt visited Jud Aberts, superintendent for Mueller, to inquire when they might be recalled and Aberts, who was sick, stated if he was well he would call them the following Wednesday, March 13. Osgood and DeBolt then went to the office of Respondent District Council to obtain permits for the month of March and the girl in the office refused to issue permits because Schneider was not present. However, when they explained they had been working for Mueller and expected to be called back, she said this was a renewal and there- upon issued permits to them. Osgood paid $4 dues for March and a $2 assess- ment for the building fund. DeBolt paid his March dues but not the assessment because he had already paid a total of $ 10 on prior permits issued to him. Osgood and DeBolt then left for home and on their way stopped at the New- ark Shopping Center where Osgood met a friend who told him Davis-Fetch was looking for carpenters to do ceiling work. Osgood's friend introduced them to Bonamie, foreman for Davis-Fetch, and they asked if he was hiring carpenters. Bonamie said he was and in answer to his inquiry as to what local they belonged to, Osgood and DeBolt replied they were members of local 996. Bonamie stated he would hire them if they had work permits and when the men said they had permits, he told them to report for work the following Monday, March 11. Osgood and DeBolt reported about 7:45 the morning of the above date and presented their permits and dues books to Don Greiner, union steward, who told them everything was in order and to go to work. Osgood informed Bonamie they had been cleared by the steward and he put them to work erecting scaf- folds. Later that morning, around 11:55, Schneider, accompanied by 1 or 2 men, came to the job and told Osgood and DeBolt to come down from the scaf- fold, which they did. Schneider, according to Osgood, stated "I have you now" and when he asked what he meant, Schneider said for obtaining a permit under false pretenses and reporting on the job without first notifying him. Osgood told Schneider he had a permit and the job and he did not believe he could do much about it. DeBolt testified that Schneider told them they had obtained permits under false pretenses, that the permit was only good for one job and they were working without his knowledge. DeBolt inquired if this was a new ruling and Schneider replied it was in the bylaws. DeBolt asked to see the bylaws but Schneider did not show them to him. Schneider then told them to 1 Rand McNally Mileage Guide. CARPENTERS' DISTRICT COUNCIL OF ROCHESTER AND VICINITY 277 leave the job and when Osgood asked if he was sure he wanted them to leave, Schneider said to pick up their tools and get out. Schneider then left. After getting their tools Osgood and DeBolt spoke briefly to Bonamie who stated their work was satisfactory and if they settled their dispute with Schneider he would reemploy them. Osgood and DeBolt left the job and 2 or days later received their pay checks from the company. Osgood and DeBolt had no further meet- ings or conversations with Schneider. About March 25, they visited the job at which time DeBolt, in a joking manner, asked Bonamie for a job and Bonamie stated he had a job if he wanted to work. DeBolt said he could not work since he had been chased off previously. Bonamie testified that he became field superintendent for Davis-Fetch about July or August 1957, and for about 6 years prior thereto was employed as fore- man charged with the responsibility of running jobs and with authority to hire and fire carpenters on these projects. Bonamie is, and has been for 10 years, a member of Respondent Local 502 and stated he was familiar with the consti- tution and laws of the United Brotherhood and the bylaws, trades rules, and working rules of Respondent District Council. He stated that on March 8, 1957, while foreman at the Newark Shopping Center project, Osgood and DeBolt ap- plied for work and he informed them he needed men. Bonamie asked if they were "Union men" and when they replied they were, and had work permits, he told them to see the job steward Monday morning, March 11, and report for work. On cross-examination by Respondents' counsel Bonamie was asked if one of the reasons for his inquiry concerning union membership was to obtain expe- rienced carpenters and he answered; "No, being a brother carpenter myself, under our By-Laws I have to abide that, under one of these sections, that I have to hire Union men." Osgood and DeBolt reported on the above date and when they assured Bonamie they had checked with the steward and everything was settled, he put them to work. This was the usual hiring procedure followed by Bonamie. Later that morning, about 11:55, Bonamie saw Schneider, with a couple of men, go to the place where Osgood and DeBolt were working, call them down from the scaffold and engage in conversation with them. A few minutes later Bonamie went over to the group, arriving at the "tail end" of the conversation, at which time Schneider told him the permits granted to Osgood and DeBolt had not been issued for that particular job and they had to leave. Bonamle made no reply to Schneider but as Osgood and DeBolt were picking up their tools he told them, "once they got their Union trouble straightened out that they were welcome to come back to work for Davis-Fetch Company." Bonamie would have retained Osgood and DeBolt, except for Schneider's action and when asked if they had to leave the job, Bonamie replied , "I had no choice" in the matter. Bonamie secured replacements for Osgood and DeBolt from the carpenters local at Newark. Schneider said it was his duty to see that the members of the Building Trades Employers' Division complied with the terms of the collective-bargaining agree- ment with Respondent District Council and to generally police jobs in the area. In the performance of his duties, Schneider went to the Newark Shopping Center project on March 11, accompanied by a union member, where he found Osgood and DeBolt working for Davis-Fetch. Schneider talked to Osgood and DeBolt and he testified that they accurately related his conversation with them. In addi- tion, Schneider stated that Osgood and DeBolt purchased permits to work for Mueller and by working for Davis-Fetch they violated "kind of an unwritten law" and when they questioned his authority in this respect he pointed out that it is the "practice" in the United Brotherhood that when a permit is issued for a particular job the man goes on that job, not any job he may be able to find in the jurisdictional area. Schneider admitted he "advised them to leave the job" and that it was his impression the conversation concluded with Osgood and DeBolt agreeing to leave the job and that he would forget the possibility of pre- ferring charges against them for obtaining permits under false pretenses. Follow- ing the conversation, which lasted 3 or 4 minutes, Schneider left the job. Al- though Bonamie was present toward the end of the conversation Schneider said he did not talk directly to him. Unquestionably, the gravamen of Schneider's complaint against Osgood and DeBolt was the fact that they used their permits to obtain jobs with Davis-Fetch, whereas at the time the permits were issued they informed the girl in Schneider's office that they expected to be called back to the Mueller project. He also admit- ted there was no provision in the constitution of the United Brotherhood, Re- spondent District Council's bylaws or working rules, or the agreement which required a permit member to work on a specified job. According to Schneider, a member must state he has a particular job when issued a permit because he 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wants to know where and for whom the member is working. Schneider admit- ted he "advised" Osgood and DeBolt to get off the job, but considering Schneider's authority and the circumstances under which he was acting, I construe his advice as tantamount to an order to leave the job. Later he sought to qualify this admis- sion by stating he thought the dispute was settled on the basis of Osgood and DeBolt agreeing to leave the job on the condition he would not press charges against them. This inconsistent testimony is neither convincing nor persuasive and at best amounts to nothing more than Schneider's own convenient impres- sion concerning the conclusion of the meeting. Moreover, Schneider was vague and evasive when cross-examined in respect to the basis and nature of any charges to be filed, for he stated while Osgood and DeBolt had permits for one job, "they made a mistake and which is covered, of course, in the Constitution, an officer or member who makes a misstatement. I, therefore, reject his testimony in this respect and accept the testimony of Osgood and DeBolt, as well as that of Bonamie, which completely negates the supposition that they voluntarily left their jobs. I also reject Schneider's denial that he spoke directly to Bonamie and credit Bonamie's testimony that Schneider told him Osgood and DeBolt had to leave the job because their permits had not been issued for that project. I find Osgood and DeBolt were discharged under the circumstances related by these individuals and Bonamie. Concluding Findings Section 8(a)(3) of the Act forbids discrimination by an employer in regard to hire or tenure of employment or any term or condition of employment in order to encourage or discourage membership in any labor organization. The proviso thereto states that an employer is not precluded from making an agreement with a labor organization (excluding those established or maintained in violation of the Act) to require as a condition of employment membership therein on or after the thirtieth day following the commencement or effective date of the agreement, if the labor organization is the representative of the employees in an appropriate unit and has at the time the agreement was made, or within the preceding 12 months, received from the Board a notice of compliance with Section 9(f), (g), and (h) of the Act. Section 8(b)(2) prohibits a union from causing or attempting to cause an employer to violate Section 8(a)(3). I find that the provision in the agreement between Building Trades Employers' Division and Respondent District Council which requires Davis-Fetch and members of the Building Trades Employers' Division to employ only members of Respond- ent District Council and persons willing and eligible to become members, with the right of Respondent District Council to replace any person refusing to become ,a member with a union member, if not an outright unlawful closed shop, clearly exceeds the type of union-security clause permitted under the foregoing proviso. Moreover, the Respondent Locals comprising Respondent District Council, on whose behalf it executed the agreement, were not in compliance with the provi- sions of Section 9(f), (g), and (h) as required by the proviso. For these reasons I find the hiring provision to be illegal. The Respondents contend that to sustain a violation of Section 8(b) (2) it must be established that the hiring clause was enforced in a coercive and discriminatory manner.2 This contention is not only contrary to Board precedent but also the facts in the case. The Board has long held that the mere inclusion of discrimi- natory provisions in a contract, whether or not such provisions have been enforced, is a violation of Section 8(a)(3) and 8(b)(2), as inherent in such discriminatory provisions is the tendency to encourage membership in a union in violation of the Act.3 On the basis of the testimony of Richards, Holtby, and Schneider, I find that the parties executed, maintained, and enforced the unlawful union-secu- rity provision of the agreement and by these acts the Respondents violated Section 8(b)(1)(A) and (2) of the Act. In substance, the Respondents further contend that since Osgood and DeBolt voluntarily left the job when given the alternative of remaining and facing charges under their bylaws or working rules and as they freely paid their permit fees and assessments as good union members, the Respondents in acting as they did were 2 Respondents' counsel cites Local 983, United Brotherhood of Carpenters and Joiners of America, et al., 115 NLRB 1123, as supporting this position. In that case the Board found the Respondents violated Section 8(b) (1) (A) and (2) by attempting to cause the employer to discharge the complainant under an illegal union-security agreement. How- ever, the Board refused to award back pay since the complainant was not in fact dis- charged but remained away from work because of threats of union agents. 3 Carty Heating Corporation, etc., 117 NLRB 141'7, 1418. CARPENTERS' DISTRICT COUNCIL OF ROCHESTER AND VICINITY 279 doing nothing more than exercising their right to conduct and manage their own internal affairs. I find no merit in these arguments.4 There is no dispute as to the manner in which the hiring clause was enforced. Holtby testified "We consider ourselves a Union job" and complied with the terms of the agreement. Foreman Bonamie, who had to be a union member under the contract, stated that pursuant to the laws of the United Brotherhood he had to hire union men exclusively. The working rules of the Respondent Dis- trict Council are to the same effect. Accordingly, Bonamie refused to hire Osgood and DeBolt until he was assured they were union members, had work permits and were cleared by the union steward on the job. Shortly after their employment Osgood and DeBolt were ordered to leave the job under conditions found above. While it is true Bonamie did not specifically state to Osgood and DeBolt that they were being discharged, he was present when Schneider ordered them away, and in fact Schneider advised Bonamie they had to leave because their permits had not been issued for that job. Bonamie asserted he had no choice in the matter for Schneider was his business agent. Immediately following Schneider's declaration, Bonamie told Osgood and DeBolt that when they straightened out their "Union trouble" they could return to work. Manifestly, Bonamie acquiesed in the discharge of Osgood and DeBolt and there is no doubt that in maintaining the unlawful hiring practices, Bonamie acted within the scope of the authority vested in him by the laws of the United Brotherhood and the working rules of Respondent District Council.5 By executing, maintaining, and enforcing the illegal hiring provision of the agreement, by requiring Osgood and DeBolt to purchase permits in order to ob- tain employment and by causing Davis-Fetch to discharge Osgood and DeBolt as found herein, the Respondents violated Section 8(b)(1)(A) and (2) of the Act. There is no evidence to support the contention that Osgood and DeBolt were offered employment by Davis-Fetch on March 25. DeBolt testified he and Os- good visited Bonatnie on that date and he jokingly asked for a job. When Bonamie said he could have a job DeBolt replied he could not work because he had been ordered off the job. There is no indication of any change in Bonamie's position as expressed to Osgood and DeBolt at the time of their discharge, namely, that they could return to work only when they settled their dispute with Schneider. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, set forth above, occurring in connection with the operations of Rochester Davis-Fetch Corporation have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondents have engaged in and are engaging in un- fair labor practices I will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found the Respondents unlawfully caused the discharge of Osgood and DeBolt. I will recommend that they make whole Osgood and DeBolt for any loss of pay suffered by them as a result of the Respondents illegal conduct by paying to each of them a sum of money each would normally have earned as wages from the date of discrimination, March 11, 1957, until each would have been laid off by Davis-Fetch, absent unfair labor practices, less the net earnings of each during said period. Back pay shall be computed in accordance with the Board's customary formula.6 I will also recommend the Respondents notify Osgood and DeBolt, in writing, that they have withdrawn their opposition to their employment by Davis-Fetch or any other member of Building Trades Employers' Division and that hence- forth the Respondents will not restrain or coerce Osgood and DeBolt by unlaw- fully denying them the right to work because of their nonmembership in any of the Respondent Locals or the application of an illegal work permit system, or by * Section 8(b) (1) (A) states that it is an unfair labor practice for a union "to restrain or coerce 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." 6United Brotherhood of Carpenters and Joiners of America, Local $517 (Gil Wyner Construction Company), 112 NLRB 714, 716. 6 F. W. Woolworth Company, 90 NLRB 289. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD otherwise unlawfully interfering with the rights guaranteed them under Section 7 of the Act. I will further recommend that the Respondents may limit their liabil- ity for further accrual of back pay to Osgood and DeBolt by notifying Davis- Fetch and Building Trades Employers' Division that they have no objections to their reinstatement or continued employment, as the case may be, or to their reemployment at anytime in the future. The Respondents shall not thereafter be liable for back pay after 5 days from giving such notice? The General Counsel urges a recommended order in accordance with the rem- edy and order of the Board in the Brown-Olds case.8 In that case the Board ordered the respondent union to cease and desist from maintaining and enforcing its unlawful agreement not only with Brown-Olds, but also as to other employers with whom it maintained and enforced substantially identical contracts, provided any such employer-parties to such agreements were employers over whom the Board would assert jurisdiction in an appropriate pro- ceeding. The Board held that the contracts themselves were a continuing means of thwarting the policy of the Act and that policy could not be made effective without an order which would result in the cessation of the practices found to be unlawful. The Board further ordered the union to reimburse all employees of Brown-Olds for dues and assessments collected pursuant to a contract which contravened the public policy of the Act since dues and assessments thus col- lected constituted the price these employees paid in order to retain their jobs. The union's liability for reimbursement began 6 months prior to the filing of the amended charge and extended to all such monies thereafter collected. The Board did not extend this aspect of the remedy to other contracts found unlawful, as it was not clear that the union admitted enforcement of this provision in agree- ments other than its agreement with Brown-Olds. The facts and violations found herein are substantially identical to those in the Brown-Olds case, so I am of the opinion that the remedy determined therein by the Board is appropriate in this matter in order to effectuate the public policy of the Act. Accordingly, I will recommend that the Respondents cease and desist from maintaining and enforcing its unlawful contract with Davis-Fetch and members of Building Trades Employers' Division, provided any such employer-parties to such agreement are employers over whom the Board would assert jurisdiction in an appropriate proceeding. Having found that the Respondents unlawfully re- quired Osgood and DeBolt to pay dues and assessments for work permits in order to secure and retain employment with Davis-Fetch, I will recommend that the Respondents reimburse Osgood and DeBolt for all such moneys paid to the Re- spondents, and to reimburse all employees of Davis-Fetch who have paid similar dues and assessments to the Respondents pursuant to its unlawful agreement with Davis-Fetch. The Respondents' liability for reimbursement shall begin 6 months prior to the date the amended charge was filed and shall extend to all such moneys thereafter collected. I will not recommend extending this phase of the remedy to other members of Building Trades Employers' Division covered by the illegal agreement for there is no evidence the Respondents extracted dues and assessments under its agreement with members other than Davis-Fetch. I will further recommend that the Respondents notify all Davis-Fetch em- ployees from whom it unlawfully collected such dues and assessments that they are making reimbursement pursuant to the recommendations of a Trial Examiner, and that they will not hereafter require union membership as a condition of employment, except in accordance with the provisions of Section 8(a)(3) of the Act. CONCLUSIONS OF LAW 1. Rochester Davis-Fetch Corporation is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Carpenters' District Council of Rochester and Vicinity, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Local Unions 72, 231, 240, 502, 687, 1508, and 2407, United Brotherhood of Carpenters and Joiners 7 Utah Construction Co., 95 NLRB 196. 8 United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada, Local 331, AFL-CIO (Vernon L. Bryant and J. S. Brown-E. F. Olds Plumbing & Heating Corporation, Party to the Contract), 115 NLRB 594, 597-604. Cited with approval in General Drivers, Chauffeurs and Helper8, Local Union No. 886, etc., 119 NLRB 222, and Triboro Carting Corporation, et at,, 117 NLRB 775, 780. LAK'ELAND BUS LINES, INCORPORATED 281 of America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. Anthony Schneider is an agent of Respondent District Council and each of the Respondent Locals within the meaning of Section 8(b) of the Act. 4. By maintaining in effect an agreement with Davis-Fetch which makes union membership a condition of employment and requires payment of dues and assess- ments as a condition of employment, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b)(1)(A) and 8(b)(2) of the Act. 5. By causing or attempting to cause Davis-Fetch to discriminate against Glyn N. Osgood and Frank E. DeBolt, Jr., in violation of Section 8(a)(3) of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 6. By the aforementioned acts, the Respondents have restrained and coerced the employees of Davis-Fetch in the exercise of their rights guaranteed by Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Lakeland Bus Lines, Incorporated and Robert Gibson Lakeland Bus Operators' Association and Robert Gibson. Cases Nos. 22-CA-34 and 02-CB-23. December 3, 1958 DECISION AND ORDER On January 6, 1958, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaged in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel filed exceptions to the Intermediate Report and a brief in support thereof.' No exceptions were filed by either Respondent. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner to the extent consistent herewith 2 THE REMEDY To remedy the unfair labor practices, we shall adopt the Trial Examiner's recommendations except as modified herein. Having 'The exceptions and brief, as discussed below, relate only to the adequacy of the recommendations of the Trial Examiner as a remedy for the unfair labor practices. O The Trial Examiner inadvertently omitted a recommendation that the Respondent Company preserve and make available payroll records . We have included this customary provision in our Order. 122 NLRB No. 46.