Millwrights' Local 2232

300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Millwrights' Local 2232, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and District Council of Houston and Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and United Brotherhood of Carpenters and Joiners of America, AFL-CIO [Farnsworth & Chambers, Inc.] and W. W. Legg. Case No. 39-CB-165. December 4,1958* DECISION AND ORDER On July 12, 1957, Trial Examiner A. Bruce Hunt issued his In- termediate Report in the above-entitled proceeding, finding that the Respondents Local 2232 and District Council had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that Respondent Interna- tional had not engaged in any unfair labor practices and that Re- spondents Local 2232 and District Council had not engaged in cer- tain other unfair labor practices alleged in the complaint and recom- mended dismissal of those allegations. Thereafter, the General Coun- sel filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner, with the following additions and modifications. 1. Responsibility of the International: The Trial Examiner found that as the International was not a party to the contract and has had no connection with the closed-shop hiring practices engaged in by the other respondents, there is no basis for holding the International responsible. The General Counsel excepts to this finding on the ground that, as the International's laws were so designed as to bring about these unlawful hiring practices, the International must share responsibility for such practices together with Local 2232 and Dis- trict Council. We find merit in this exception. The. International's constitution, which sets forth the "fundamental principles, policies and objects of the organization," makes it abun- dantly clear that members of the United Brotherhood and its con- stituent bodies are expected and required to conduct themselves in accordance with certain basic principles. Thus, the constitution pro- claims that local unions and members of the United Brotherhood are "subject to its laws and usages ..." (sec. 1, par. A), and that, while 122 NLRB No. 41. MILLWRIGHTS' LOCAL 2232 301 local unions and district councils shall have the power to make by- laws and trade rules, they shall "in no way conflict with the Consti- tution and Laws of the United Brotherhood, and must be approved by the First General Vice President before becoming law . . ." (sec. 25, par. A; see also sec. 6 , par. C). The constitution further vests the International with the power to establish and charter local unions and district councils, and declares that the International's "mandates must be observed and obeyed at all times" (sec. 6, par. A). To compel obedience to the International's mandates and compliance on the part of local unions and district councils with these basic principles, the constitution reserves to the International the right to take over the government of any local union or district council whose affairs are "conducted in such a manner as to be a menace to the welfare of the International body" (sec. 6, par. D) ; and to the general president the power, subject to an appeal to the general executive board, to suspend any local union or district council for "willfully or directly violating the Constitution, Laws, or principles" of the United Brotherhood (sec. 10, par. F). Among the basic principles or policies set forth in the constitu- tion there is a provision which requires that "members . . . who be- come foremen , must comply with the union rules and hire none but members of the United Brotherhood" (sec. 42, par. U). This state- ment of policy was reiterated and further implemented in the bylaws and trade rules of the other Respondents (Bylaws of the District Council, pp. 9-10; Bylaws of Local 2232, sections 12-28, inclusive; and Working Conditions of Local 2232, sec. 7). Therefore, when Local 2232 and District Council entered into a contract with the Association requiring its member-employers to designate from the union millwrights, millwright union foremen, and a millwright union general foreman,' a situation was created in which the application of the constitutional provision requiring union foremen to hire none but members of the United Brotherhood became mandatory. Because of the International's control and supervision over its constituent bodies, Local 2232 and District Council had no choice but to require the union foremen designated by the Company to hire only millwrights who were members of Local 2232, thus creating closed-shop condi- tions on the Company's project.2 Indeed, Business Agent Rushing of 1 The Working Conditions of Local 2232 Incorporated in the contract as an integral part thereof provide, in effect, that if an employer employs two or more millwrights, one millwright must be designated as millwright foreman with the sole authority to hire and fire millwrights under him. And Business Agent Rushing testified that wherever Working Conditions refer to "millwright foremen" or "millwright general foreman" the parties to the contract intended them to mean "millwright union foremen" and "mill- wright union general foreman." 2 Enterprise Industrial Piping Company, 117 NLRB 995 , where the Board found the union responsible for the closed-shop conditions maintained by a member foreman who in hiring men was bound to comply with its laws and hire none but union members in good standing; Booth and Flinn Company, 120 NLRB 545. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 2232 testified that in the performance of his duties as business agent he is guided by the constitution, which he swore to uphold, and that on the jobs where foremen are members of Local 2232 he tries to see that such foremen live up to their obligations as outlined in the constitution and bylaws. In these circumstances, we find that, in establishing the unlawful hiring practices on the projects of members of the Association, where- by millwright foremen who were members of Local 2232 were re- quired to hire none but members of that local, the representatives of Local 2232 and District Council were complying with the mandate of the International, from which they could not deviate, and that therefore they were acting in a dual capacity as agents of both Local 2232 and District Council and of the International. We find, accord- ingly, that the International shares the responsibility for the unlaw- ful hiring practices herein found, together with Local 2232 and District Council.3 2. Reimbursement of dues and the 2-percent working assessments.- We find, contrary to the Trial Examiner, that the Respondents, by requiring the payment of dues and 2-percent working assessment by all members whom they referred to the Company's project pursuant to the unlawful hiring arrangement, violated Section 8(b) (1) (A) and (2) of the Act; and that in accordance with our decision in the Brown-Olds case 4 it will effectuate the policies of the Act to direct the reimbursement of all the dues and 2-percent working assessments so collected by the Respondents. As already stated the record shows, and the Trial Examiner so found, that the Company by its contract in effect obligated itself to hire as millwright foremen only members of Local 2232, and dele- gated to its millwright foremen the exclusive authority to hire under them at its Phillips Chemical project, and that, as members of Local 2232, these millwright foremen were, by the international constitu- tion and the bylaws of the District Council and Local 2232, required to hire, and did hire, at this project only millwrights in good stand- ing who were referred by the local. In so delegating the authority to hire to millwright foremen in these circumstances, the Company, in effect, agreed to operate through millwright foremen under a closed-shop agreement which is prohibited by the Act." The record further shows that the payment of dues and the work- ing assessments by members of Local 2232 was required as a condi- Alexander-Staford, Corporation, 118 NLRB 79; International Typographical Union, et at. (American Newspaper Publishers Association ), 104 NLRB 806. e United Association of Journeymen & Apprentices of Plumbing and Pipefitting Indus- try, etc. (J. G. Brown-E. F. Olds Plumbing & Heating Corporation ), 115 NLRB 594. 6 See cases cited in footnote 2. MILLWRIGHTS' LOCAL 2 2 3 2 303 tion of referral to the Company's job. The constitution of the Inter- national provides that all fines imposed and assessments shall stand. against the member "as regular dues" and must be duly paid to en- title the member to any rights and privileges of the United Brother- hood (Constitution sec. 55, par. H). And the bylaws of District Council require that "all members must have a current quarterly working card with the current month dues paid to work on job" (p. 11, par. 6; see also Bylaws of Local 2232, sec. 38). Business Agent Rushing testified in this connection that the working assessment had to be paid before dues were accepted by the local. Other laws of the Respondents provide for policing of the requirement that all members referred to the job be in possession of a currently paid work- ing card. Thus, the millwright foreman is required to direct the mill- wright, referred to the job, to the steward "for the purpose of having the member's working card and referral slip checked before the- member is eligible to work on his job." The steward, in turn, is re- quired to examine the working card and the referral slip of the man before permitting him to work on the job. (Bylaws of District Council, p. 9, par. 3; p. 10, par. 1; also Bylaws of Local 2232, secs. 38, 39, and 40.) It thus appears that under the Respondent's laws the payment of the dues and assessments was an indispensable condition to obtain- ing a quarterly working card, that the working card had to be cur- rently paid up, and that an applicant would not be referred to a job. and permitted to work unless he was in possession of such a card. Under these circumstances, and in view of the delegation by the Company of the authority to hire to millwright foremen, who are agents of Local 2232, we find that the payment of dues and the 2 percent working assessments was required as a condition of employ- ment on the Company's Phillips Chemical job. We further find that in view of the closed-shop conditions existing on the Company's project, under which no member of Local 2232 could be referred to the job and employed unless he kept his dues and working assessments currently paid and was in possession of a. quarterly working card, no specific proof of coercion would be neces- sary in order to direct the disgorgement of dues and assessments so• collected.6 Accordingly, to expunge the illegal effect of the unfair labor practices, we will direct the reimbursement of all dues and assessments collected from members of Local 2232 whom it referred to the Company's project, provided that our order herein will not be construed as requiring the reimbursement of any such dues anct 0 Brown-Olds case, supra. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assessments collected more than 6 months prior to the date of the amended charge. As it is not clear from the record that the Respond- ents exacted the payment of dues and working assessments from members referred to employers other than the Company under exactly the same conditions as on the Company's project, we will not extend this remedy to employees of other employers. 3. The Trial Examiner found that Local 2232 violated Section 8(b) (2) and (1) of the Act by insisting that its members who work as supervisors shall hire only through the union hall. The General Counsel excepts (1) to the Trial Examiner's failure to find more broadly, as alleged in the complaint, that the Respondents violated Section 8(b) (1) (A) and (2) also by maintaining and enforcing a discriminatory hiring practice, whereby millwrights are hired ex- clusively through Local 2232, which refers only its members in good standing; and (2) to his failure to recommend to the Board a broad cease-and-desist order restraining the Respondents from engaging in such discriminatory hiring practices not only on the Company's project but also on projects of other employers within the jurisdic- tion of Local 2232. Since, as already indicated, the record contains ample evidence of such unlawful hiring practices, we find that the Respondents, by performing, maintaining, or otherwise giving effect to such unlawful hiring arrangement or practices, violated Section 8(b) (1) (A) and (2) of the Act. As the record further indicates that the Respondents engaged in such practices not only on the Company's project, but also on the projects of other employers,? we will also direct the Respondents, in accordance with our well-established prac- tice," to cease and desist from engaging in such unfair labor practices not only on the Company's project, but also on projects of other em- ployers within the jurisdiction of Local 2232, over whom the Board would assume jurisdiction. 4. Back pay to Legg: The General Counsel excepts to the Trial Examiner's finding that since Legg refrained from requesting a re- ferral slip from Business Agent Rushing on January 2, although 7 Rushing, business agent of Local 2232, testified that on "union " jobs of other em- ployers within the jurisdiction of Local 2232 , the local would have the Employer designate a foreman , a member of the local, who would be bound by the constitution of the Inter- national and the bylaws of Local 2232 and the District Council to hire none but union millwrights referred by the local; that there are at least three big construction jobs in the area which are "union " jobs; and that a "union" job is the one where , if millwrights are engaged, the company would not be employing anyone but a millwright foreman, who is a member of Local 2232 . General Counsel 's witness Spiers testified without contra- diction that, while working as millwright foreman at Tellepsen Construction Company, which is a member of the Houston chapter of the A.G.C. and a party to the aforesaid contract with the Respondents , he and General Millwright Foreman Legg, both members of Local 2232, followed the same hiring practice as at Farnsworth & Chambers, Inc. 8 Enterprise Industrial Piping Company, 117 NLRB 995 ; The Great Atlantic and Pacific Tea Company, 117 NLRB 1542 ; and The Marley Company, 117 NLRB 107. MILLWRIGHTS' LOCAL 2 2 3 2 305 Legg would have received it, an award of back pay to Legg would not effectuate the policies of the Act. We find merit in the General Counsel's exception. As Legg, but for Foreman Wilhelm's unlawful requirement that he obtain a referral slip from Local 2232 before commencing employment with the Company, would have begun his employment the next morning, January 2, rather than on January 3, we do not regard Legg's failure to speak to Rushing on January 2, particularly in view of his other efforts to secure such referral from Rushing's secretary, as such a circumstance as would relieve the Re- spondents from their obligation to recompense Legg for the conse- quences of their unlawful. conduct. Accordingly, we will direct the Respondents jointly and severally to make Legg whole for the loss of pay he may have suffered as a result of discrimination against him by paying to him a sum of money which he would have nor- mally earned on January 2 on the Company's job. ORDER Upon the entire record in the case and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Millwrights' Local 2232, District Council of Houston and Vicinity, and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, their officers, representatives, and agents, shall : 1. Cease and desist from : (a) Performing, maintaining, or otherwise giving effect to any employment arrangement or practice with Farnsworth & Chambers, Inc., Tellepsen Construction Company, or any other employer within the territorial jurisdiction of Local 2232, over whom the Board would assert jurisdiction, which requires membership in or clearance by Local 2232 as a condition of employment, except as authorized by Section 8(a) (3) of the Act. (b) Requiring any of their members, who are or who become em- ployed in supervisory capacities by employers within the territorial jurisdiction of Respondent Local 2232 over whom the Board would assert jurisdiction, to hire only persons who are referred for employ- ment by Local 2232. (c) In any other manner causing or attempting to cause an em- ployer over whom the Board would assert jurisdiction to discrimi- nate against employees or applicants for employment in violation of Section 8(a) (3) of the Act. (d) In any other manner restraining or coercing employees of, or applicants for employment with, Farnsworth & Chambers, Inc., 505395-59-vol. 122-21 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tellepsen Construction Company, or any other employer within the territorial jurisdiction of Respondent Local 2232, over whom the Board would assert jurisdiction, in the exercise of their rights guar- anteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement in conformity with 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 whole W. W. Legg for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth in paragraph numbered 4 of this Decision. (b) Reimburse all millwrights employed by Farnsworth & Cham- bers, Inc., at the Phillips Chemical project in the full amount of any dues unlawfully collected from them pursuant to the Respondents' unlawful hiring arrangement or practice with Farnsworth & Cham- bers, Inc., provided, however, that this Order shall not be construed as requiring reimbursement for any such dues collected more than 6 months prior to the date of the amended charge herein. (c) Reimburse all millwrights employed by Farnsworth & Cham- bers, Inc., at its Phillips Chemical project for any working assess- ments collected from them pursuant to the Respondents' unlawful hiring arrangement or practice with Farnsworth & Chambers, Inc., provided, however, that this Order shall not be construed as requir- ing reimbursement for any such assessments collected more than 6 months prior to the date of the amended charge herein. (d) Post in conspicuous places in business offices and meeting halls of Local 2232 and the District Council in Houston, Texas, and wherever notices to members are customarily posted, copies of the notice attached hereto marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by these Respondents, be posted by them immediately upon receipt thereof, and maintained by them for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by these Respondents to insure that said notices are not altered, defaced, or covered by any other material. (e) Promptly after receipt of copies of said notice from said Regional Director, return such copies, duly signed, to him for posting, if Farnsworth & Chambers, Inc., be willing, at that employer's opera- tions at the Phillips Chemical project in Houston, Texas. OIn 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." MILLWRIGHTS' LOCAL 2 2 3 2 307 (f) File with. said Regional Director, within ten ( 10) days from date of this Order, a written report setting forth in detail the steps which have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that any Respondent engaged in unfair labor practices with respect , to Dumas Spiers , and delay in. giving a referral slip to W. W. Legg. MEMBER RODGERS took no part in the consideration of the above Decision and Order. APPENDIX NOTICE TO ALL OUR OFFICERS, AGENTS, REPRESENTATIVES AND MEM- BERS AND TO ALL EMPLOYEES OF FARNSWORTH & CHAMBERS, INC. 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, you are notified that : WE WILL NOT 'perform, 'maintain, or otherwise give effect to any employment arrangement or practice with Farnsworth & Ch"ambers, Inc., Tellepsen Construction Company, or any other employer within the jurisdiction of Local 2232, over whom the Board would assert jurisdiction, which requires membership in, or clearance by, Local 2232 as a condition of employment, except as authorized by Section 8 (a) (3) of the Act. WE WILL NOT require any of our members, who are or who be- come employed in supervisory capacities by employers over whom the Board would assert jurisdiction, to hire only persons who are referred for employment by Local 2232. WE WILL NOT in any other manner cause, or attempt to cause, an employer over whom the Board would assert jurisdiction to discriminate against employees or applicants for employment in violation of Section 8(a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees of, or applicants for employment with, Farnsworth & Chambers, Inc., or any other employer over whom the Board would assert jurisdiction, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be af- fected by an agreement in conformity with Section 8(a) (3) of the Act. WE WILL make W. W. Legg whole for any loss of pay he may have suffered as a result of the discrimination against him, as set forth in the Order. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL reimburse all millwrights employed by Farnsworth & Chambers, Inc., for any dues and assessments collected from them pursuant to our unlawful hiring arrangement or practice with that Company as set forth in the Order. AfILLWRIGIITS' LOCAL 2232, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) DISTRICT COUNCIL OF HOIISTON AND VICINITY, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By---=--------------------------------- (Representative) (Title) UNITED BROTHERHOOD OF CARPEN- TERS 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Charges having been duly filed, a complaint and notice of hearing" thereon having been issued and served by the General Counsel, and an answer having been filed by the Respondents,' a hearing involving allegations of unfair labor practices in violation of the National Labor Relations Act, 61 Stat. 136, herein called the Act, by the Respondents, was held upon due notice at Houston, Texas, on April 9, 10, and 11, 1957, before the duly designated Trial Examiner. The allegations in substance are that: (a) On January 2, 1957, the Respondents caused, and at- tempted to cause, Farnsworth & Chambers, Inc., an employer, herein called the Company, to refuse temporarily to hire W. W. Legg and D. R. Spiers for the reason that said individuals were unable to obtain job referral slips from the Respondent, and/or for reasons other than the failure of said individuals to tender periodic dues and initiation fees; (b) since August 20, 1956, the Respondents entered into, maintained, performed, and enforced an agreement, understanding and/or practice with the Company and other employers which "set up and oper- ated" closed shops and/or other illegal employment conditions; (c) since August 20, 1956, the Respondents enforced and gave effect "to certain specified provisions of their constitution and bylaws which implemented and enforced the closed shop and other illegal employment conditions; (d) since July 3, 1956, Local 2232 has required its members who were referred by it to construction jobs to. pay Local 2232 a "working or wage assessment" of 2 percent; and that the Respondents ' These three labor organizations are herein called, respectively, Local 2232, the Council, and the International, and collectively they are called the Respondents. MILLWRIGHTS' LOCAL 2232 309 thereby violated Section 8 (b)(1)(A) and (2) of the Act. All parties were repre- sented by counsel or pro se, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record and to file briefs and proposed findings and con- clusions. The Respondents' motions to dismiss, made at the close of the hearing and taken under advisement by me, are disposed of in accordance with the deter- minations below. 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 THE COMPANY Farnsworth & Chambers, Inc., a Delaware corporation, has its main office in Houston, Texas, and is engaged in general construction work in 40 States. During the 12-month period immediately preceding the hearing, the Company' s business exceeded $50,000,000, of which more than $10,000,000 represented services ren- dered to concerns engaged in commerce. Additional millions represented services performed for the U.S. Government. There is no dispute, and I find, that the Company is engaged in commerce within the meaning of the Act. II. THE RESPONDENTS United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the International, has its offices in Indianapolis, Ind. Millwrights' Local 2232 and District Council of Houston and Vicinity, both with offices in Houston, Tex., are affiliates of the International, and Local 2232 is also an affiliate of the District Council. All three Respondents are labor organizations. III. THE UNFAIR LABOR PRACTICES The subject matters of this case are four: (1) the contract which governs the employment of millwrights at the Company's construction projects in certain coun- ties in Texas, (2) various provisions of the Respondent's constitution and bylaws, (3) the delay which W. W. Legg and Dumar Spiers experienced in receiving job referral. slips from Local 2232 for employment with the Company, and (4) a 2-percent assessment which Local 2232 receives from the wages of its members who work on construction projects. We shall consider these subjects in that order. A. The contract On July 14, 1955, Local 2232 and the Council entered into a collective labor agreement with Construction Employers Association of Texas, herein called the Association, and Houston Chapter of Associated General Contractors of America, Inc., herein called A.G.C., which fixes certain wages, hours, and working condi- tions of millwrights who were, and who would become, employed by members of the Association and A.G.C. in various counties in Texas. The expiration date of the contract is March 31, 1958. The contract provides inter alia: In order to economically and efficiently serve the building public it is im- portant to have experienced and skilled workmen. Contractors subject to this agreement recognize that Local Union No. 2232 is a source of such skilled manpower, and will, therefore, use it as a source when in need of Mill- wrights. The Union [Local 2232 and the Council] agrees that when Con- tractors subject to this agreement request mechanics, it will exert every effort to supply skilled Millwrights. The contract also provides for the employment of general millwright foremen and millwright foremen under specified circumstances, with the provision that the latter "shall have the sole authority to hire and fire men under them," and it provides too for the employment of millwright stewards who, although employed by management, are designated by Local 2232's business agent. According to the testimony of A.G .C.'s labor relations manager, in bargaining for the contract A.G.C. represented approximately 70 active members and 84 associate members, but he did not know the number of members who employ millwrights. One of the contractors which utilizes millwrights and which is bound by the contract is the Company. Insofar as the record discloses , however, few of the 154 members of A.G.C. and none of the members of the Association have employed millwrights during the life of the contract , and W. L. Rushing, business 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agent of Local 2232, testified that, insofar as he could recall, only 3 of A.G.C.'s active members had called upon him for millwrights during a year preceding the date of the hearing.2 Rushing testified also that some of those employers utilize members of other crafts to perform millwright work. Neither A.G.C. nor the Association is a party to this proceeding and neither was served with a copy of the complaint. The Company, although served with a copy, is not named in that document as a party and did not participate in the hearing. The General Counsel did not place in issue the validity of the contract.3 B. The Respondents' constitution and laws Numerous provisions of the constitution and laws of the International and the bylaws of the Council and Local 2232 are set forth in the complaint. The com- plete documents are a part of the record. It is unnecessary, however, to recite particular provisions. It suffices to say that the provisions, insofar as pertinent here, collectively are designed to restrict employment opportunities to members in good standing. Certain provisions are applicable to members who work as fore- men and who are supervisory employees within the meaning of the Act, restricting them to hiring only members in good standing. Referral slips of members to job vacancies are required, and the job stewards participate in enforcement of the provisions. Local 2232 does not maintain hiring lists or other systems of rotation of mem- bers for the purpose of spreading available jobs. Frequently, and perhaps in most instances, the foreman or foremen on a project will call Local 2232's office, herein called the union hall, and request that it refer a particular man or men who are known to the foreman to be qualified to fill the vacancies. If a foreman does not designate a particular man, Business Agent Rushing will seek to locate a member who is unemployed and who possesses the necessary qualifications for the job, first inquiring of members in the union hall whether they are interested. In some instances a foreman , before calling the union hall, will communicate directly with a member and offer employment. All members, whether notified of the job vacancies by a foreman or by the business agent, are required to obtain referral slips from Local 2232 before reporting to work. C. Local 2232's delay in referring Legg and Spiers for employment by the Company . At times material, the Company was engaged on a construction project for Phillips Chemical Company at Houston, Texas. At an undisclosed date, the Com- pany hired Claude Dailey, a member of Local 2232 , as general millwright fore- man and it asked Rushing to supply Dailey with "some men." One of the mill- wrights who was hired is C. A. Wilhelm, also a member of Local 2232, and during July 1956, Wilhelm was promoted to the position of millwright foreman. The millwright steward on the job at times material was J. S. Wells, Jr., who worked as a millwright . The record does not disclose any instance when a non- member of Local 2232 applied to the Company for employment as a millwright or applied to Local 2232 for referral to such employment , and all millwrights who worked on the project were members of that Respondent. The procedure by which the Company hired millwrights was for Dailey to agree with Wilhelm or another millwright foreman upon the number of men to be hired. Generally they also agreed upon the particular man or men whom they desired. Thereafter Dailey or a foreman gave Wells a list of the men, and Wells called the union hall and placed orders for them. During the evening of January 1, 1957, Legg, a member in good standing of Local 2232, telephoned Wilhelm and asked for a job with the Company. Wilhelm told him that there was a vacancy and that Wilhelm "was pretty certain" that he could be hired. Legg suggested that Wilhelm clear the matter with Dailey the 2 A.G.C.'s labor relations manager is also named Rushing, but the use of that surname herein is a reference to Local 2232's business agent. 3 Although the complaint speaks of "an agreement, understanding and/or practice," the validity of the written contract was not litigated. Not only is there an absence of essential parties (Consolidated Edison Co. of New York, Inc. v. N.L.R.B., 305 U.S. 197), but early in the hearing counsel for the General Counsel stated that he did not believe that the contract "by its own terms on its face" provided for a closed shop or other unlawful employment conditions and that "generally speaking" it was his position that invalid employment practices have arisen under the contract, not that any portion of the contract is invalid. MILLWRIGHTS' LOCAL 2232 311 next day and then call the union hall where Legg would be waiting? On Janu- ary 2, about 7:45 a.m., Legg called the hall and talked with Margaret Ellington, secretary to Rushing. He asked if a call had been received for his services and she responded, "Not to my knowledge." Legg said that he would be at the hall shortly.5 Soon after 8 o'clock Wilhelm cleared with Dailey the matter of employ- ing Legg. Although Dailey was not a witness and Wilhelm did not testify con- cerning employment of Spiers, a member in good standing of Local 2232, they apparently discussed that matter also, following which Wilhelm told Wells, the Steward, to call the union hall and request referral of the two men.6 At or before 9 o'clock, Wells made the call and talked with Rushing, asking that Legg and Spiers be given referral slips to the job "today or tomorrow." 7 About 9 o'clock, Legg arrived at the hall and asked Ellington if there had been a call for him. She replied that she did not know of one. Rushing had been on vacation since shortly before Christmas, and January 2 was a busy day for him. Ellington, the only other paid employee of Local 2232, was not fully experienced in her job, having been employed on November 26, 1956, and her inexperience coupled with Rushing's tasks on that day account in part for Local 2232's delay in giving Legg and Spiers referral to the jobs. As we shall see, the delay as to Legg is also partly accounted for by his failure to speak to Rushing when an opportunity was presented about 11 o'clock. Sometime after Wells' call to Rushing, Rushing told Ellington to contact Legg and Spiers "and get them out to the Farnsworth-Chambers job," as he testified, or simply to contact them, as she testified. She informed Rushing that Legg had been in the hall and had said to her that he would return that afternoon. Elling- ton telephoned Legg's home and was informed by Mrs. Legg that he was at the hall but the record does not disclose what, if any, efforts she made to contact Spiers. Spiers was at the union hall that morning and he and Legg talked. Legg told Spiers of his conversation with Wilhelm on the preceding evening when he had sought employment, and he said to Spiers that he would telephone General Fore- man Dailey and request employment for Spiers.8 As noted, Wells already had asked Local 2232 to refer Spiers, but Spiers was unaware that there was employ- ment available for him with the Company and, as he testified, he did not talk with Ellington or seek a referral slip that morning. The record contains a sharp conflict concerning whether Rushing was at the union hall between 9 and 11 o'clock that morning. Legg testified that Rushing was not at his desk.9 Spiers testified that he looked in the window to Rushing's i Both Legg and Wilhelm were witnesses for the General Counsel. 5 Ellington testified for the Respondents and there is some conflict between her testi- mony and that of Legg. She impressed me as having endeavored honestly to state the truth and I find no reason to discredit her testimony. The findings concerning her conversation with Legg are based upon it. On the other hand, according to Legg, he did not ask Ellington if there had been a call for his services, but asked instead if Rushing had arrived at the union hall, and she answered in the negative, following which he said that he would arrive at the hall "after awhile." As will appear, there is reason to discredit Legg's testimony. O Wells. a witness for the General Counsel, testified that Wilhelm told him to call the union hall and place an order for Legg and Spiers, that Dailey had approved their hire. 4 There is a conflict at this point in the testimony of witnesses for the General Counsel. The contract described above provides in section 11(a) : A millwright reporting for work on his first day of employment shall receive a full day's pay, weather permitting, provided that lie reports for work at the time and place ordered, otherwise lie shall be paid only for the hours worked. Wilhelm testified that lie told Wells to call the union hall and have Legg referred for employment that day. On the other hand, Wells testified that, when Wilhelm told him to call the hall, lie pointed out to Wilhelm that the Company objected to having a man referred after the beginning of the workday because of having to pay the man for a full day's work, that it was the Company's practice to have men report for work on the day after a call to the ball, and that Wilhelm then said that Wells should request the referrals for "today or tomorrow." s The findings concerning Legg's conversation with Spiers are based upon the latter's testimony. Legg did not testify concerning it. 9In connection with one event at the union hall on the morning of January 2, not recited herein, Legg testified that he "could be a little confused because . . . [he] was just a little bit upset" for the reason that "mighty near every time . . . [lie] changed 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office and that Rushing was not there. On the other hand, Rushing and Ellington testified that Rushing was there. This conflict need not be resolved because, according to Legg's testimony, about 11 o'clock he saw Rushing. The Council's office is across a corridor from the union hall. Sometime that morning Rushing was in the Council's office for a brief period. When he came out he spoke with Conard Marsh, president of Local 2232, who had assumed some of Rushing's duties during the latter's vacation and who was waiting to talk with Rushing. Rushing asked Marsh to return the next day because it was doubtful that Rushing would have time to talk with him earlier. Rushing then left the hall for the day to attend to matters elsewhere. Rushing testified credibly that he did not observe anyone with Marsh and that he has substantially no vision in his left eye, even with the use of glasses. Legg, however, according to his testimony, was a few feet away, having been talking with Marsh.10 Rushing, not having seen Legg, did not speak to him. Legg, although he saw Rushing and although, so he testified, only "a few minutes" earlier Ellington had told him that he would have to see Rushing about the referral, did not speak to Rushing. Instead, Legg embarked upon action intended to secure the job without a referral slip. During the early afternoon of that day, according to Legg, he telephoned the local office of the Board and talked with a person whom he identified by name but not by position, if any, with the Board.li Legg testified further that, upon the instruction of that person, he went to the jobsite. Spiers also went there and they had separate conversations with Steward Wells in which Wells pointed out to each of them that Local 2232's bylaws prohibit solicitation of employment at jobsites. Wells also said to Legg that he would have to report the infraction. Legg said that he had been "instructed by NLRB to come out here." Legg asked Wells to accompany him to the job superintendent, but Wells declined to go be- cause he had "no business with the superintendent" and was simply carrying out his "duties as a steward." 12 Following their separate conversations with Wells, Legg called upon the Company's job superintendent, one Remsburg, and Spiers returned to the union hall where he spent the afternoon awaiting Rushing's return.13 Remsburg was not a witness. According to Legg, he explained to Remsburg that there had been a call to the union hall for his services but that he had not received a referral slip, and he asked Remsburg for employment. Legg testified further that he did not recall "just exactly how everything happened" at that point, that there "was kind of a stir-up there for a little while," that Remsburg "didn't know what to say," and that Legg made another telephone call to the individual at the Board's local office, following which he returned to Remsburg and was offered employment. By this time, according to Legg, it was about 3 o'clock in the afternoon and Remsburg directed an unidentified person to put Legg on the jobs . . . [he] had trouble getting" a referral slip and that on January 2 when he arrived at the union hall he "just knew" that he would not receive a referral slip. See footnote 17. 10 Legg testified that he was standing on Rushing's right. As noted, it is Rushings left eye which has greatly impaired vision. Nevertheless, the record does not furnish a basis for discrediting Rushing's testimony that he did not see Legg or for finding that Rushing sought or desired to delay or prevent Legg's employment by the Company. "According to Legg, he has been a member of the International for 11 years and has "talked to the NLRB off and on for years" and "would get in contact with them any place . . . [lie] could," but the instant proceeding represents the first time that he was "ever able to make a case out of it." "'There is a conflict in the testimony of the General Counsel's witnesses, Wells, Legg, and Spiers, concerning Wells' remarks. The findings above are based upon Wells' testi- mony. On the other hand, Legg testified that Wells said that Legg would be fined $10 for the infraction, and Spiers testified that Wells said that Wells could fine Spiers $10 for the infraction. Local 2232's bylaws provide for a fine of $10 under certain circumstances where a member solicits employment at a jobsite, but the steward cannot levy it. I do not believe that Wells, in the conversation with Legg, forecast that Legg would be fined, or that Wells, in the conversation with Spiers, professed to be empowered to assess the fine. Moreover, no charge or fine was made against Legg or Spiers. 13 As noted above, Rushing did not return to the union hall that afternoon. Spiers testified that upon his return there he asked Ellington, Rushing's secretary, if there had been a call for him and that she responded in the affirmative, saying also that she could not give him the referral slip, that Rushing "would have to do that." Ellington, who had been employed by Local 2232 little more than a month, testified that on January 2 she would not have known either Spiers or Legg by sight and that she had no recollec- tion of having talked with Spiers on that day. MILLWRIGHTS' LOCAL 2232 313 payroll but the hiring process was not completed by the end of working hours that day. During the evening of that day, Steward Wells telephoned Rushing and inquired whether Rushing had given referral slips to Legg and Spiers, and Rushing replied that he had told Ellington to do so. Wells then said that something was wrong because both men had been on the jobsite without referral slips, and Rushing said that he did not understand and that he would look into the matter. Thereupon, Rushing telephoned Legg and asked whether Legg had received a referral slip. Legg answered in the negative. Rushing apologized, saying also that he had told Ellington to give a referral slip to Legg and that one was available, but Legg responded that he had been hired, that he did not need the slip, and that he would not go to the union hall to receive it. On January 3, when work began at 8 o'clock, Legg reported to the jobsite with- out a referral slip and was put to work by Wilhelm. About the same time, Spiers went to the union hall where he talked with Rushing and Ellington. It developed that Ellington had not understood in her conversation with Rushing on the pre- ceding day that she was to fill out referral slips for Legg and Spiers, and she apologized to Spiers. He was given a referral slip for himself and another for Legg, both of which he promptly took to the jobsite where he went to work.14 After Legg completed work on January 3, he went to the Board's local office where he filed the initial charge in this proceeding. Both Legg and Spiers con- tinued in their employment with the Company until it was terminated under circumstances not here material. At the time of the hearing, Legg was employed as general foreman, and Spiers was employed as Millwright foreman, on a con- struction project for another employer. According to Legg, membership in Local 2232 is a requirement for persons holding those positions. During March 1957, when Legg telephoned the union hall to request the referral of millwrights, he talked with Ellington. She took his request and then apologized for the mistake of 2 months earlier, saying that she would relay the request to Rushing and that she hoped that Legg understood that referral slips were the responsibility of Rushing. Legg answered that it "was quite all right, that . . . [the incident in- volving him had been] an error and it happened in the best of . . . families." is D. Conclusions concerning the Respondents' laws and practices and the referral of Legg and Spiers With respect to the delay in issuance of referral slips to Legg and Spiers, the record dictates the conclusions that the cause was a combination of three factors: (1) Rushing was unusually busy on January 2 because of work which had accumu- lated during his vacation, (2) Ellington was not thoroughly familiar with the operations of the office, and (3) Legg's failure to speak with Rushing when Legg was standing nearby while Rushing spoke with Marsh during the morning of January 2, at which time Legg easily could have requested a referral slip and when, according to his own testimony, only a few minutes earlier Ellington had told him to speak with Rushing about it. In particular, the record does not war- rant a finding that Rushing or Ellington sought to delay Legg's or Spiers' employ- ment by the Company. Those two men were members in good standing of Local 2232 and there is no evidence that Rushing or Ellington had any motive for seeking to hinder such employment.16 Legg himself testified that since becoming a member of Local 2232 about 1954 he always had been in good standing and that he did not know the reason for the delay in issuing a referral slip for him.17 "Ellington testified that prior to January 2 she had prepared referral slips only at Rushing's direction, that on that date she was not acquainted with the qualifications of Local 2232's various members, that neither before nor after that date had she prepared such slips on her own initiative, and that it was not her responsibility to decide upon the issuance of such slips. 18 The findings concerning this conversation are based upon Ellington's testimony. On the other hand, Legg testified that he imagined that he had talked with Ellington several times since January 2 but that he could not recall that she had spoken of the incident of that date or that she had apologized. "There is no evidence that a representative of any Respondent disapproved of Legg's visits to Regional Offices of the Board, as set out in footnote 11, or indeed that a repre- sentative even knew of the visits. 14 There is unreliable testimony by Legg concerning his dissatisfaction with Local 2232. He testified that in the several years of his membership in that Respondent he had held about 30 jobs, that he had been referred to all of them except the one with the Company, but that "on quite a few" of the jobs, in fact on "mighty near" all of them, there'had 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the third factor above, when considered in the light of Legg's actions and testimony, the inference is warranted that Legg was less interested in receiving a referral slip that he was in having a situation develop which would warrant the filing of a charge against Local 2232. See footnote 11. I conclude that there was no effort on January 2 by Rushing or Ellington to avoid or delay giving referral slips to Legg and Spiers and that the Company 's requests for their referral were handled with reasonable promptness under the circumstances of the day. I conclude also that Legg would have received a referral slip from Rushing if he had spoken to Rushing on the morning of January 2, when Rushing was engaged in conversation with Marsh, and that Legg's failure to speak to Rushing precludes a finding that any of the Respondents , by the delay in issuing a referral slip for Legg, caused or attempted to cause the Company to discriminate against him in violation of the Act. Moreover, since Spiers did not apply to the Com- pany for employment on January 2, it cannot be said that the Company would have refused to him him without a referral slip.1 8 These conclusions do not dis- pose of the matter in favor of the Respondents , however. As we have seen, Wilhelm and other millwright foremen were entrusted by the Company with ex- clusive authority to hire millwrights at the Company 's work on the Phillips Chemi- cal project. They were given that authority by a provision in the contract, and in exercising it they acted as representatives of management . Their conduct as such representatives is not alleged herein as an unfair labor practice . They also acted under direction of Local 2232 in that they were required as members of that local to hire only millwrights who were referred by the union hall. As we have seen too, those foremen complied with that requirement and all of the Company's millwrights on the project were members in good standing of Local 2232. The circumstances that no nonmember applied to a millwright foreman for employ- ment or to Local 2232 for referral does not alter the fact that an invalid hiring practice exists whereby millwrights are hired exclusively through Local 2232, which refers only its members in good standing. Local 2232 , by its successful insistence that its members who work as supervisors shall hire only through its union hall, thereby violated Section 8 (b)(2) and ( 1)(A) of the Act . The Council , which is a party to the contract under which the hiring practice was established and which exercises a substantial measure of control over Local 2232 by virtue of its super- vision of Local 2232 's business agent, Rushing,19 thereby shares responsibility for the hiring practice and likewise has violated Section 8 (b)(2) and ( 1)(A). On the other hand , the International is not a party to that contract and, insofar as the record discloses, has had no connection with the events recited above. The facts that Local 2232 and the Council are affiliates of the International and that the International has certain rules which are designed to bring about hiring prac- tices of the nature described will not alone support a finding that the International has engaged in the unfair labor practices found herein . Cf. W. T. Smith Lumber Company, 116 NLRB 507. With respect to Legg and Spiers, it has been found that Local 2232's delay in giving them referral slips was not an unfair labor practice . Since, however, Legg applied for employment to Wilhelm and was required to seek referral through Local 2232 under the invalid hiring practice , that requirement constitutes a viola- tion of Section 8(b)(2) and ( 1)(A) of the Act . On the other hand, Spiers did not apply for employment to the Company and, for the reasons related above, it cannot be said that on January 2, had he applied , a representative of the Company would have required him to seek referral as a condition precedent to employment . I conclude that there was no unfair labor practice as to Spiers. been delays in receiving referral slips, and that he "couldn 't name" all the occasions when there had been delays . Legg named only one such alleged occasion , and he testified that it occurred in December 1956. On the other hand, the Respondents assert that that particular job became available to Legg during January 1957 , after lie had begun work for the Company, and they produced telegrams hearing the purported signature of the prospective employer to establish their contention . The Respondents assert too that that employer's request for Legg's services was handled properly . Additional evidence in this connection need not be recited and the conflict need not be resolved . This is so because, as related , the record will not support a finding that any representative of the Respondents sought to treat Legg differently from other members. Is As appears herein , when Spiers went to the jobsite on January 2, he talked with Steward Wells. Ile did not talk with any supervisory employee or representative of management . Moreover, since Legg was hired when he talked with Remsburg on that day, I cannot conclude that an application for employment by Spiers to the Company would have been rejected. 19 Rushing is under the supervision of the Council 's business manager. MILLWRIGHTS' LOCAL 2232 E. Local 2232's 2-percent assessment on members' wages 315 At undisclosed times after the formation of Local 2232, there were special assess- ments of a fixed number of dollars upon each member . Dissatisfaction followed because the assessments applied to unemployed members as well as to those at work. In order to correct the situation and to obtain needed revenue , an assess- ment of one-half of 1 percent was voted to apply to the gross earnings of each member. Sometime later the amount of the assessment was raised to 1 percent and still later, in or about December 1955 , it was raised to 2 percent . The action was by a vote of the membership . In that month or earlier , the assessment was limited to members who worked on construction jobs, while those on maintenance jobs became exempt because they did not earn as much as the former 20 The assessment is payable quarterly and the funds derived therefrom are used to defray the operating expenses of Local 2232, the monthly dues having been insufficient. About 2 weeks before the hearing, at a membership meeting, a motion was ap- proved to abolish the assessment, but the officers of Local 2232, with approval of the membership , referred to the International the question whether the rules had been followed in taking the vote. At the time of the hearing, the Interna- tional had not passed upon the quesetion and the assessment was still in effect. The complaint alleges that since July 3, 1956, Local 2232 has violated Section 8(b) (1) (A ) and (2 ) of the Act by requiring the payment of the assessment by all members whom it referred to the Company's construction project. In support of his contention, the General Counsel relies upon J. S. Brown-E. F. Olds Plumb- ing & Heating Corporation, 115 NLRB 594 . He asserts correctly that the assess- ment is in addition to the members' monthly dues, but he asserts too that the assessment is outside the scope of the term "periodic dues ... uniformly required as a condition of acquiring or retaining membership " as that term is used in Section 8 (b)(2) and in a proviso to Section 8(a)(3) of the Act. He asserts further that the proviso to Section 8 (b) (1) (A ), which permits a labor organiza- tion to prescribe its own rules for the retention of membership , is of no effect here. The burden is upon the General Counsel to show that the assessment does not represent "periodic dues ... uniformly required" (N.L.R.B. v. Bakery & Confec- tionery Workers International Union, 245 F. 2d 211 (C.A. 3)). The assessment's "primary purpose is . to create revenue" ( Great Atlantic & Pacific Tea Com- pany, 110 NLRB 918), it is payable "periodicly," and it is uniformly required of all members who work on construction projects. Nevertheless, the assessment is outside the scope of the term "periodic dues" for reasons recited in Anaconda Copper Mining Company, 110 NLRB 1925. The General Counsel's contention respecting the assessment must fall for other reasons , however. This is so because (1) there is no evidence that any member failed to pay the assessment voluntarily, and thus no evidence that anyone was denied referral for having failed to pay it (Bakery and Confectionery Workers' etc. (National Biscuit Company), 115 NLRB 1542, 1568-69), and (2) the Company did not make payment of the assessment a condition of employment by including a provision therefor in the contract. For these reasons the assessment has not breached Section 8 (b)(1)(A) or ( 2) of the Act, and is protected by the proviso to Section 8(b)(1)(A ). Minneapolis Star and Tribune Company, 109 NLRB 727; see also the discussion in Nassau and Suffolk Contractors' Association, Inc., 118 NLRB 174. Brown-Olds, cited by the General Counsel, is inapposite because there the contract made payment of the assessment a condition of employment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above , to the extent found to have been unlawful, occurring in connection with the operations of the Company described in section I, above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to 'labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that certain Respondents have engaged in unfair labor practices, I shall recommend that they cease and desist therefrom and that they take affirma- tive action designed to effectuate the policies of the Act. Although I have found 20 Rushing testified that when the assessment began It was applicable to maintenance workers also , if he recalled correctly , but that it was later made inapplicable to them. The monthly dues reflect the lower earnings of maintenance men, such dues being $3.50 for them and $5 for construction workers. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that certain Respondents violated Section 8(b)(1) (A) and (2 ) in connection with the requirement that Legg seek referral through Local 2232, any back pay for Legg would amount at most to remuneration for 1 day' s work. Under the cir- cumstances set forth wherein Legg refrained from requesting a referral slip of Rushing, although Legg would have received it, I believe that an award of back pay to Legg would not effectuate the policies of the Act. During the hearing the General Counsel offered evidence respecting the hiring practices of certain employers who are not named in the complaint and with whom Local 2232 has contractual relations. After appropriate objections, the evidence was excluded upon the ground that the General Counsel had not shown that those employers were engaged in commerce. The General Counsel thereupon made several offers of proof. Subsequently I reversed my ruling to the extent that I would receive evidence concerning the hiring practices of employers who are rep- resented in collective bargaining by the management-signatories to the contract described in section III, A, above, but the evidence was not offered again. In any event, my recommendations below would not be broadened if the record estab- lished that the hiring practices herein described are followed by other employers, the Council, and Local 2232 in the area in which Local 2232 functions. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The operations of the Company constitute trade, traffic, and commerce among the several States within the meaning of Section 2(6) and (7) of the Act. 2. The Respondents are labor organizations within the meaning of Section 2(5) of the Act. 3. By causing and attempting to cause the Company to discriminate against employees in violation of Section 8(a)(3) of the Act, Local 2232 and the Council have engaged in unfair labor practices within the meaning of Section 8(b)(2) thereof. 4. By restraining and coercing employees in the exercise of the rights guaran- teed in Section 7 of the Act, Local 2232 and the Council have engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) thereof. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. The International has not engaged in unfair labor practices as alleged in the complaint. 7. Except by their requirement affecting the conduct of millwright foremen employed by the Company, Local 2232 and the Council have not engaged in unfair labor practices as alleged in the complaint. [Recommendations omitted from publication.] C. F. Baker & Co., Inc. and International Union, United Auto- mobile, Aircraft & Agricultural Implement Workers of America (UAW), AFL-CIO, Petitioner. Case No. 1-RC-5306. December 4, 1958 DECISION AND DIRECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted under the direction and super- vision of the Regional Director for the First Region, on August 29, 1958, among certain employees of the Employer. At the conclusion of the election, a tally of ballots was furnished the parties. The tally shows that, of the approximately 41 voters, 40 cast ballots, of which ,18 were for the.Petitioner, 17 were against the Petitioner, and 5 were challenged. 122 NLRB No. 47.