Indianapolis and Central Indiana District Council

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enterprises which exert, or tend to exert, a pronounced impact on commerce. Keeping in mind the significant increase in its caseload which may be expected not alone under this standard but under other standards as well, the Board does not believe it to be adminis- tratively feasible at this time to extend its jurisdiction further in this area. As the Employer derives in excess of $50,000 gross revenues for the transportation of mail in interstate commerce, we find that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The Petitioner, an employee of the Employer, asserts that the Union is no longer the representative, as defined in Section 9(a) of the Act, of the employees designated in the petition. The Union is the certified bargaining representative of such employees. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act: All motor vehicle drivers and me- chanics employed by the Employer at its Charleston, W. Va., termi- nal, including those employees stationed at Buckhannon, W. Va., but excluding all guards, office clerical employees, professional em- ployees, and supervisors as defined in the Act. This is the unit for which the Union was certified and is currently recognized. [Text of Direction of Election omitted from publication.] Indianapolis and Central Indiana District Council, United Brotherhood of Carpenters and Joiners of America , AFL-CIO and Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Mechanical Handling Systems, Incorporated, Party to the Contract and Hafford B. Carter and Elza Stevenson United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Mechanical Handling Systems, Incorporated, Party to the Contract and Hafford B. Carter. Cases Nos. 35-CB-203, 35-CB-203-1, and 35-CB-220. December 15, 1958 DECISION AND ORDER On January 30, 1958, Trial Examiner Louis Plost issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents, Indianapolis and Central Indiana District Council, United Brotherhood of Carpenters and Joiners of America, AFL- 122 NLRB No. 51. INDIANAPOLIS AND CENTRAL INDIANA DISTRICT COUNCIL 397 CIO, hereafter referred to as the Council, and Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, hereafter referred to as the Local, have engaged in and are engaging in certain unfair labor practices in violation of Section 8(b) (1) (A) and (b) (2), 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. He further found that the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, hereafter referred to as the Interna- tional, had not engaged in any of the unfair practices alleged in the complaint and recommended the dismissal of the complaint in Case No. 35-CB-220. None of the Respondents filed exceptions. However, the General Counsel filed exceptions, and a supporting brief. On May 9, 1958, the International filed a motion to dismiss and a memorandum in support thereof, to which the General Counsel filed suggestions in opposition to Respondent's motion to dismiss. 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 In- ternmediate Report, the exceptions and briefs, and the entire record in the case, and adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent consistent herewith. The motion to dismiss, filed by the International, seeks to have the Board dismiss the proceedings insofar as the International is concerned, on the ground that the exceptions filed by the General Counsel on February 21, 1958, were not served on the International "immediately" as prescribed by Section 102.46 of the Board's Rules and Regulations. The order transferring the cases to the NLRB stated that "Exceptions to the Intermediate Report must be received by the Board in Washington, D. C., on or before February 24, 1958." In acknowledgement of the International's motion to dismiss, the Board's Assistant Executive Secretary wrote McGowan, on May 22, 1958, carbon copy to the International, granting an extension until June 11, 1958, to file exceptions and brief in this proceeding. The General Counsel asserts in opposition to the motion to dismiss that exceptions and a brief in support thereof were mailed to the Board on February 21, 1958, and at the same time copies were served upon each of the parties by duly mailing said copies by certified mail pursuant to Sections 102.46 and 102.89 of the Board's Rules and Regulations. In support thereof, the General Counsel submits an affidavit that such mailing was made by certified mail; that the certified article number is C 255895; that efforts to trace said certi- fied letter have been unavailing; that no certified return receipt has been received by the General Counsel from the International, but 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that such receipts have been received from Local 60 and the Council which mailings were made at the same time. William A. McGowan is the assistant general counsel of the Inter- national and appeared at the hearing for Local 60 and the Council. Also, he, with Francis X. Ward, the International's general counsel, appeared at the hearing for the International. Both McGowan and Ward signed the motion to dismiss. Undisputed is the fact that both Local 60 and the Council received the exceptions and brief mailed by the General Counsel. Because of the inability to trace the certified mailing of the ex- ceptions and brief, personal service of such items was obtained on the general counsel of the International on the 18th day of April, 1958. It is this service which the International contests, contending that such service 51 days after the due date for exceptions does not constitute "immediate" service within the Board's Rules and Regu- lations. As urged by the International, the Board's Rules and Regulations, Section 102.46, requires that the parties be served with copies of the exceptions immediately after filing same with the Board. However, Section 102.90 provides that the date of service shall be the day when the matter is deposited in the mail, and that failure to make proof of service does not affect the validity of service. The General Counsel used an authorized method of service by depositing in the United States mail, duly certified, copies of its exceptions and brief properly addressed. After failing in its attempt to trace the documents, personal service was made on the general counsel of the International. Thus it appears that the General Coun- sel has done all that could be done under the circumstances. There- after, the Respondent International was granted adequate additional time to file an answer to the exceptions and brief. It is clear that the exceptions and brief were filed timely on Local 60 and the Council, both represented by the International's assistant general counsel who also represented the International in these proceedings. The International makes no contention nor showing that it was prejudiced in any manner, and due to the extension of time here- tofore granted the International, we find no prejudice nor lack of due process. Under these circumstances, we deny the International's motion to dismiss and find that valid service was made on the International. The Trial Examiner found that the Respondents, the Council, and Local 60, had violated 8(b) (1) (A) and (b) (2) of the Act. No exceptions were filed by either of the Respondents. Therefore, we adopt the findings of the Trial Examiner, not for the reasons he ascribes, but for the reasons hereinafter stated. INDIANAPOLIS AND CENTRAL INDIANA DISTRICT COUNCIL 399 The Trial Examiner found that the International's agreement of May 10, 1956, with the Employer is illegal. But, he found no con- nection between this agreement and the agreement made later be- tween the Employer and the Respondents, the Council and Local 60. We disagree. The International's agreement in this case is identical to the agree- ment involved in the Marley case.' As the Board said in that case, it is unrealistic to suggest that the arrangements of the Local and Council at local projects have no relationship to the master agree- ment between the International and the Employer. We find that the two agreements, one nationwide and with the parent union, and the other, areawide with the Local and Council, dovetailed so pre- cisely so as to reveal a single comprehensive scheme for complete evasion of the statutory ban on all closed shops. The Respondent International filed no exceptions to the finding that the agreement of May 10, 1956, was illegal. By its terms the Agreement binds the Company to employ members of the Car- penters International. In view of the reference therein to rules and regulations established by the Local of any particular area, the working rules and regulations of the Council and Local 60 were also incorporated into the contract as if "they had been physically em- bodied in the document itself." The rules of the Council provide, inter alia, that no member is permitted to work with a member or ex-member who has been suspended or fined until the fine is paid; and, that no member is permitted to work with nonmembers with- out permission of the Council. The constitution of the Council, which also provides working rules, provides for a clearance card committee to examine all clearance cards and recommend their ac- ceptance to the Local ; that the finances of the District Council were to be derived, from the sale of working cards and permits, etc. ; that the District Council has sole right to issue quarterly working cards to Locals for members "together with such extra cards as may possibly be required in addition thereto, taking a receipt therefrom, and the Local Union shall be held strictly accountable therefor"; for the Council's right to full control over working cards with au- thority to revoke; that members coming into the district are required to procure working cards before seeking employment; that mem- bers of construction [sic] whether following trade actively or not, are required to secure working cards; that carpenters are subject to fine if the working card is not presented to the steward before going to work; and, the requirement of a foreman for every three journeymen-who must be a member in good standing and is charged with the responsibility of enforcing the trade rules. We find that 1 The Marley Company, 117 NLRB 107. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working rules which provide such limitations on hiring as do these set out above, together with the contract, are outlawed by statute in that they establish closed-shop conditions. The Trial Examiner found the existence of an oral agreement be- tween Local 60 and the Council and the Employer concerning the employment conditions of employees to be hired, and that they were aware that a denial of a clearance or referral by them would deprive an applicant of employment in violation of 8(b) (1) (A) and (b) (2). It is our opinion that such oral agreement between the Employer and Local 60 and the Council was to implement the existing master contract between the Employer and the Respondent International, and was a part of a single comprehensive scheme for complete eva- sion of the statutory ban on closed shops. Accordingly, we find that the three Respondents, the International, Council, and Local 60, violated Section 8(b) (1) (A) and (b) (2) of the Act in maintaining and enforcing an agreement which established closed-shop preferential hiring conditions. Furthermore, we find that by causing or attempting to cause the Company to refuse to hire Elza Stevenson, the Respondents, Council and Local 60, violated 8(b) (1) (A) and (b) (2) ; and that the Respondents, International; the Council, and Local 60, by causing or attempting to cause the Company to refuse to hire Hafford B. Carter violated 8(b) (1) (A) and (b) (2).z THE REMEDY In addition to the Trial Examiner's finding that the Respondents, Local 60 and the Council, have engaged in unfair labor practices, we have found that the International also engaged in the same unfair labor practices. It will be recommended that all the Respondents cease and desist therefrom and take certain affirmative action, de- signed to effectuate the policies of the Act. As part of the remedy, therefore, we shall order the Respondents jointly and severally, to make whole Hafford B. Carter '3 and the Re- spondents, excepting the International, to make whole Elza Steven- son, for any loss of pay they may have suffered as a result of the discrimination against them by payment to each of them a sum of money equal to that which would normally have earned as. wages but for the discrimination, less his net earnings during such period, the back pay to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289. Since it has been found that the Respondents have maintained and enforced an unlawful agreement which involves terms and condi- 2 Elza Stevenson did not file a charge against the International. 3 However, as the Trial Examiner recommended dismissing the complaint filed by Carter against the International , we shall exclude the period from the date of the Intermediate Report to the date of the Order herein in computing the award of back pay for which the Respondent International is responsible. INDIANAPOLIS AND CENTRAL INDIANA DISTRICT COUNCIL 401 tions of employment and practices pursuant thereto violative of 8(b) (1) (A) and (b) (2), it will be ordered that they refrain from maintaining and enforcing its unlawful agreement with Mechanical Handling Systems, Incorporated. Furthermore, since the Board has had before it a similar agreement executed by the Respondents and another employer,4 we shall require the Respondents" to cease and desist from maintaining and enforcing such agreements, understand- ings, or practices, not only with Mechanical Handling Systems, In- corporated, but with any other employers, provided that any such employers which are parties to such agreements or arrangements, are employers over which the Board would assert jurisdiction in an ap- propriate proceeding. Furthermore, as we find that dues, nonmembership dues, assess- ments, and work permit fees, were collected under the illegal contract as the price employees paid in order to obtain or retain their jobs, we do not believe it would effectuate the policies of the Act to permit the retention of the payments which have been unlawfully exacted from the employees. In addition therefore, we shall order the Respondents, jointly or severally, to refund to the employees involved the dues, nonmember- ship dues, assessments, and work permit fees, paid by the employees as a price for their employment.5 These remedial provisions, we be- lieve, are appropriate and necessary to expunge the coercive effect of Respondents' unfair labor practices.6 ORDER Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondents, Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Indianapolis and Central In- diana District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and United Brotherhood of Car- penters and Joiners of America, AFL-CIO, their officers, representa- tives, agents, and assigns shall : 1. Cease and desist from : (a) Executing, maintaining, performing, or enforcing any agree- ment, understanding, or practice with Mechanical Handling Sys tems, Incorporated, or any other employer which requires member- ship in its organization as a condition of employment, except as au- thorized by Section 8(a) (3) of the Act. 4 The Marley Company, supra. 5 Respondents' liability for reimbursement shall include the period beginning 6 months prior to the filing and service of the initial charge against each Respondent herein and shall extend to all such moneys thereafter collected. s See Los Angeles -Seattle Motor Express, Incorporated, 121 NLRB 1629. 505395-59-vol. 122-27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Causing and attempting to cause the Employer, Mechanical Handling Systems, Inc., its officers, agents, or assigns, or any other employer, to refuse to hire employees unless they have obtained re- ferral slips from or have been cleared by either of them, or to dis- criminate against the employees in any term or condition of employ- ment, except to the extent permitted by Section 8(a) (3) of the Act. (c) In any like or related manner restraining or coercing em- ployees of the Mechanical Handling Systems, Inc., or of any other employer in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement permitted 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) Jointly and severally make Hafford B. Carter whole in the manner set forth in "The Remedy" section of this Decision and Order. (b) Reimburse all employees of Mechanical Handling Systems, Incorporated, in the full amount for all moneys illegally exacted from them provided, however, that this Order shall not be construed as requiring reimbursement for any such dues, nonmembership dues, assessments, and work permit fees collected more than 6 months prior to the date of service of the original charge against each Respondent herein. (c) Post at their offices in Indianapolis, Indiana, at all locations where notices to members are customarily posted, copies of the notice hereto attached marked "Appendix A." 7 Copies of said notice to be furnished by the Regional Director for the Ninth Region shall, after being duly signed by a representative of the Respondents, In- dianapolis and Central Indiana District Council, United Brother- hood of Carpenters and Joiners of America, AFL-CIO and Local 60, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, be posted by them immediately upon receipt thereof and con- spicuously maintained by them for a period of sixty (60) consecu- tive days thereafter in all places where notice to members are cus- tomarily displayed at International, Council, and Local headquar- ters. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by other ma- terial. (d) Additional copies of the said notice hereto attached marked "Appendix All shall be signed by a representative of each Respond- ent and forthwith returned to the Regional Director for the Ninth Region. These notices shall be posted, Mechanical Handling Systems, 7 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." INDIANAPOLIS AND CENTRAL INDIANA DISTRICT COUNCIL 403 Incorporated, willing, in places where notices to the employees of Mechanical Handling Systems, Incorporated, are customarily posted. (e) Notify, in writing, Mechanical Handling Systems, Incorpo- rated, and Hafford B. Carter that the Respondents have withdrawn their objection to the hiring or continued employment of Carter by Mechanical Handling Systems, Incorporated; and also notify Haf- ford B. Carter, in writing, that henceforth they will not coerce him or restrain him by unlawfully denying to him a work referral slip or by otherwise interfering with the rights guaranteed to him by Section 7 of the Act. (f) Notify the Regional Director for the Ninth Region in writ- ing, within ten (10) days from the date of this Order, as to what steps the Respondents have taken to comply herewith. B. The Respondents Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and the Indianapolis and Cen- tral Indiana District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, in addition to the above shall: (a) Jointly and severally make Elza Stevenson whole in the man- ner set forth in "The Remedy" section of this Decision and Order. (b) Notify, in writing, Mechanical Handling Systems, Incorpo- rated, and Elza Stevenson that the Respondents have withdrawn their objection to the hiring or continued employment of Stevenson by Mechanical Handling Systems, Incorporated; and also notify Elza Stevenson, in writing, that henceforth they will not coerce or restrain him by unlawfully denying to him a work referral slip or by otherwise interfering with the rights guaranteed to him by Sec- tion 7 of the Act. (c) Notify the Regional Director for the Ninth Region, in writing within ten (10) days from the date of this Order, what steps the Re- spondents have taken to comply herewith. MEMBER BEAN took no part in the consideration of the above De- cision and Order. APPENDIX A NOTICE TO ALL MEMBERS OF UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO ; INDIANAPOLIS AND CENTRAL INDIANA DISTRICT COUNCIL, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO; AND, LOCAL 60, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, AND TO ALL EMPLOYEES OF AND APPLICANTS FOR EMPLOYMENT 117',TH MECHANICAL HANDLING SYSTEMS, INCORPORATED Pursuant to a Decision and Order of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify all of you that: 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT, jointly or severally , enter into, perform, main- tain, or otherwise give effect to the provisions of any agreement with Mechanical Handling Systems, Incorporated , or any other employer, which requires employees or prospective employees to obtain job referrals or permits , or which unlawfully conditions the hire of applicants for employment or retention of employees in employment by such employer or any other employer, upon clearance or approval by any of us, except as authorized by Sec- tion 8 (a) (3) of the Act. WE WILL NOT, jointly or severally, cause or attempt to cause Mechanical Handling Systems, Incorporated, or any other em- ployer, to discriminate against employees in violation of Section 8(a)(3) of the Act. WE WILL NOT, jointly or severally, in any like or related man- ner restrain or coerce employees or prospective employees of Mechanical Handling Systems, Incorporated, or any other em- ployer, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a) (3) of the Act. WE, the United Brotherhood of Carpenters and Joiners of America, AFL-CIO; the Indianapolis and Central Indiana Dis- trict Council , United Brotherhood of Carpenters and Joiners of America, AFL-CIO ; and Local 60, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, jointly or severally will make Hafford B. Carter whole for any loss he may have suffered as a result of the discrimination practiced against him in his failure to obtain employment from Mechanical Handling Systems, Incorporated, by our refusal to issue a clearance or work permit to him. WE, the Indianapolis and Central Indiana District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, jointly or severally will make Elza Stevenson whole for any loss he may have suffered as a result of the discrimination practiced against him in his failure to obtain employment from Mechanical Handling Systems, In- corporated, by our refusal to issue a clearance or work permit to him. WE WILL notify, in writing, Mechanical Handling Systems, Incorporated , and Hafford B. Carter that we have withdrawn our objection to the hiring or continued employment of Hafford B. Carter, and that henceforth we will not coerce or restrain INDIANAPOLIS AND CENTRAL INDIANA DISTRICT COUNCIL 405 him by discriminatorily denying to him a clearance or a work referral slip or by otherwise interfering with his rights in Sec- tion 7 of the Act. WE, excepting herefrom the Respondent International,' will notify in writing, Mechanical Handling Systems, Incorporated, and Elza Stevenson that we have withdrawn our objection to the hiring or continued employment of Elza Stevenson, and that henceforth we will not coerce or restrain him by discriminatorily denying to him a clearance or a work referral slip or by other- wise interfering with his rights in Section 7 of the Act. WE WILL reimburse all employees of Mechanical Handling Systems, Incorporated for all dues, nonmembership dues, assess- ments, and work permit fees, which we have collected pursuant to our unlawful agreement with the aforementioned Company beginning with all such dues, nonmembership dues, assessments, and work permit fees, collected 6 months prior to the filing to the initial charge against each Respondent. Signed copies of this notice have been mailed to the National Labor Relations Board's Regional Director for the Ninth Region for posting by Mechanical Handling Systems, Incorporated, that company willing, in all locations where notice to employees of Me- chanical Handling Systems, Incorporated, are customarily posted. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Union. Dated---------------- By------------------------------- ------ (Representative) (Title) INDIANAPOLIS AND CENTRAL INDIANA DISTRICT COUNCIL, UNITED BROTHER- HOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Union. Dated---------------- By------------------------------------- (Representative ) (Title) LOCAL 60, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMER- ICA, AFL-CIO, Union. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 1 Elza Stevenson did not file a charge against the International. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed on behalf of H. B. Carter with the Thirty-fifth Subregion of Region 9 of the National Labor Relations Board (Board) on March 19, 1957, and thereafter amended July 31, 1957, and September 10, 1957, by first and sec- ond amended charges duly filed, all docketed as 35-CB-203, and on a charge likewise filed March 19, 1957, on behalf of Elza Stevenson and docketed 35-CB- 203-1 and on a charge filed with said Subregion on September 10, 1957, on behalf of Hafford B. Carter, amended October 7, 1957, by a first amended charge, dock- eted as 35-CB-220, all said charges alleging that: (a) Indianapolis and Central Indiana District Council, United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO; (b) Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; and (c) United Brotherhood of Carpenters and Joiners of America, AFL-CIO (collectively herein called the Respondents, and severally herein called Respondent Council, Respondent Local 60 and Respondent Interna- tional), respectively, engaged in certain unfair labor practices affecting commerce as set forth and defined in the National Labor Relations Act, as amended, 61 Stat. 136, hereinafter called the Act, the General Counsel of the National Labor Rela- tions Board, on October 8, 1957, on behalf of the Board, by the Regional Director for the Ninth Region, issued a consolidated complaint against the Respondents alleging that the Respondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act. With respect to the unfair labor practices the complaint alleged in substance that: (1) on or about May 10, 1956, Respondent Internaional and Mechanical Handling Systems, Incorporated, herein called Party to the Contract, or Mechani- cal Handling, entered into an illegal closed-shop agreement; (2) on or about Janu- ary 9, 1957, the Respondent Council adopted and enforced the agreement above mentioned; (3) the Respondents Council and Local 60 adopted the illegal contract aforesaid, have enforced said agreement as to Mechanical Handling, and have required Mechanical Handling to illegally hire only members of Respondents or others approved by them; (4) on or about February 6, 1957, the Respondents, Council and Local 60, caused Mechanical Handling to refuse employment to cer- tain individuals not approved for employment by the Respondents; and (5) pur- suant to the terms of the illegal agreement above mentioned the Respondents have exacted dues from "unknown employees" of Mechanical Handling "in amounts unknown to the Regional Director." The Respondents duly filed answers denying that they had engaged in any of the unfair labor practices alleged. Copies of the complaint, the charges, and a notice of hearing were duly served on the Respondents, the Charging Parties, and the Party to the Contract. Pursuant to notice a hearing was held at Indianapolis, Indiana, November 25 and 26, 1957, before Louis Plost, the duly designated Trial Examiner. All the parties were represented, their representatives being herein referred to in the names of their principals. All the parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing upon the issues, to argue orally and to file briefs, proposed findings of fact and/or conclusions of law, with the Trial Examiner.' The parties waived oral argument. A brief has been received from the General Counsel. Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Party to the Contract Mechanical Handling Systems, Incorporated, is a Michigan corporation engaged in the manufacture, design, and installation of conveyors and allied equipment, and at all times material herein was engaged in such operations at the Ford Motor Company plant in the city of Indianapolis, Indiana. During the calendar year 1956, which is a representative period, Mechanical Handling sold and shipped, from its plants located in Detroit and Van Dyke, 1 The time for filing briefs was extended by the Chief Trial Examiner to December 26. INDIANAPOLIS AND CENTRAL INDIANA DISTRICT COUNCIL 407 Michigan, directly to points located outside the State of Michigan, products of a value in excess of $1,000,000. It is conceded that now and at all times material to the issues herein, Mechani- cal Handling is and has been an employer engaged in "commerce" or in "opera- tions affecting commerce" as those terms are defined in Section 2(6) and (7) of the Act. II. THE RESPONDENT LABOR ORGANIZATIONS The Respondents admit the allegation set forth in the consolidated complaint that each of them, are, and have been, at all times material to the issues herein labor organizations as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Sherman P. Roberts, field superintendent of Mechanical Handling at its Indian- apolis project, affected by this proceeding, testified that Mechanical Handling was party to an agreement with the Respondent International. This agreement is dated May 10, 1956, and provides: We, the firm of MECHANICAL HANDLING SYSTEMS, INC., AGREE to recognize the jurisdiction claims of the United Brotherhood of Carpenters and Joiners of America, to work the hours, pay the wages and abide by the rules and regulations established or agreed upon by the United Brotherhood of Carpenters and Joiners of America of the locality in which any work of our company is being done, and employ members of the United Brotherhood of Carpenters and Joiners. The agreement is attached hereto as "Appendix A," as a part of this report. There can be no doubt that the agreement between Mechanical Handling and the Respondent International attempts to set up an illegal closed shop and an equally illegal preferential hiring system? Roberts further testified that Mechanical Handling is also party to a collective- bargaining contract with Millwrights Local 1102 of Detroit, Michigan, affiliated with the Respondent International and that: Well, whenever we go out of town, wherever we go we work under the same agreement, you see. We work under the same agreement out of town as we do in. However according to Roberts the jurisdiction of Local 1102 does not extend into Indiana. Field Superintendent Roberts further testified that on January 4, 1957, Mechani- cal Handling started a certain job at the Ford Motor Company's plant in Indian- apolis, he being in charge; that "two or three days" later Ralph R. Smith, busi- ness representative of the Respondent Council, and the business agent for the Iron Workers Union called on him at the Ford job, this being the first time he had ever met Smith; that the two business agents conferred in his presence; that he did not participate in the conversation but "let them do their own talking, make their own decisions" because: Mr. Smith and the business agent for the Steelworkers was deciding who was going to have the jurisdiction of putting the trough sections in the floor. That during Smith's initial visit he told Smith "we wanted millwrights" and "we got four or five millwrights the next day." According to Roberts during this first conversation he agreed with Smith on a procedure to be followed thereafter by which millwrights and carpenters would be hired through Respondent Local 60, the arrangement being: Well, the men of Local 60, Mr. Bereman, or whoever issues this referral card, then it is addressed to Roberts or whoever it is on the job of Mechanical Handling Systems. That on the Ford job no carpenters or millwrights were hired who were not re- ferred to him by the Respondent Local 60, a referral slip being required of every applicant before he was hired. Roberts testified that at no time during his first conversation with Smith or in any subsequent conversation was the matter of Mechanical Handling's agreement with the Respondent International discussed. Ralph R. Smith testified that during all times material herein he was president of Respondent Council as well as its business agent and further that he was and 2J. J. White, Inc., 111 NLRB 1126. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is the only person who "can make an agreement officially" for Respondent Coun- cil and Represent Local 60. . Respondent District Council is "composed of regularly elected delegates" from various local unions "in Indianapolis and vicinity." Respondent Local 60 is a conventional craft union affiliated with Respondent International and has delegate representation in Respondent Council. It is clear that Smith in his capacity of representative of Respondent Council entered into contracts through the Council for and in behalf of Respondent Local 60. Smith further testified: Q. (By Mr. McGowan.) Let me ask you this, Mr. Smith: In connection with the relationship between any particular contractor and the District Council, where you have an agreement in effect, is your relationship controlled by your bylaws? A. Our relationship is controlled by the agreement we have with the Con- tractors Association. Logically this means that the relationship of Respondent Local 60 and employ- ers contracting through Respondent Council is also controlled by the same agree- ment. Business Representative Smith corroborated Roberts' testimony that the agree- ment existing between Mechanical Handling and Respondent Local was not dis- cussed between them, however in an affidavit Smith made for the General Coun- sel's field examiner, Smith, averred that in his first meeting with Roberts "he [Roberts] advised me that his company had an International Agreement with our Union and that he would abide by its terms." This language does not, in the opinion of the Trial Examiner, spell out a dis- cussion, or adoption of an existing contract by the parties. With respect to his first meeting with Roberts, the business representative testi- fied: At that time I gave him a copy of the contract that we had with the Gen- eral Contractors Association, which we asked that he work under. The record is clear that the document given to Roberts at the time was a copy of "Joint Agreement by and between Building Contractors Association and Indi- anapolis and Central District Council." 3 According to Smith: I gave Mr. Roberts the agreement, and I said, "We live by this 100 percent. What is in it we will do. That's our agreement with you." Smith testified that although he and Roberts acting for their principals signed no written agreement they entered into a binding verbal contract which carried union-shop provisions, the oral contract being Mechanical Handling's agreement to abide by the terms of the Respondent's (Council and Local 60) agreement with the Building Contractors Association. Smith testified that at the time the agreement was entered into Mechanical Handling had hired no employees for the Ford job in Indianapolis and had only one employee (other than Roberts) at Indianapolis, a foreman brought from De- troit, who was a member of a Detroit, Michigan, local. Smith testified: The WITNESS: I believe that they had one man from 1102 in Detroit, was on the job. TRIAL EXAMINER: Just one. But anyone from your jurisdiction here on the job? The WITNESS: No. He hadn't hired anybody. TRIAL EXAMINER: He hadn't hired anyone. And at that time when he had not hired and merely had here a man from Detroit who was a member of the craft, he made an agreement with you to abide by the local contract? The WrrNEss: Yes. The record discloses that not only did Mechanical Handling agree to abide by the Respondent's (Council and Local 60) contract with the Indianapolis Building Contractors Association but it did adhere to the closed-shop conditions imposed on it by the Respondent Council and Respondent Local 60. Hafford B. Carter corroborated by Elza Stevenson testified he had been em- ployed for a 21/2 year period by Mechanical Handling on a job at Louisville, e s Respondent's Exhibit No. 1. INDIANAPOLIS AND CENTRAL INDIANA DISTRICT' COUNCIL 409 Kentucky; that on advice of his foreman he came to Indianapolis, together with Elza Stevenson, to seek employment from Roberts on the Ford job there; that late in January 1957, he and Stevenson called on Roberts at the Ford job and asked Roberts for employment. Carter testified: As near as I can remember, sir, he [Roberts] said that he would like to have me especially as I had worked for him before, on the job, it was just begin- ning, but he felt like that I would have an awful lot of trouble getting through the local and getting a clearance card to go to work; and for me to go back down to the local and wait until someone came in to see as to whether or not I could get clearance. According to Carter, he was also told by Roberts that the job had not yet started because of lack of materials; that he and Stevenson then went to the District Council's office, where they asked for referrals to the Ford job but after the person they talked to telephoned Roberts (Carter listening on a connecting phone) and Roberts stating he would have work for them the following week, they left without being given referrals and returned to Louisville; that on February 5, 1957, Carter telephoned Roberts and He told me to come over the next day and get Mr. Stevenson, that he had plenty of work and would definitely like to have us go to work at that time. That on the next day he and Stevenson called on Roberts at the job talked to Roberts and Ernest A. Wallace, the general foreman under Roberts, and He (Roberts) and Mr. Wallace said that we were still going to have trouble trying to get through the union, and didn't know as to whether or not we would, but he was going to give it a try. And Mr. Wallace recommended that he give us a letter of recommendation, and Mr. Roberts said, "Well, that will be all right. Go ahead and write it up and I will sign it." The following letter was given Carter: DEAR MR. R. R. SMITH, I would like to request that these two men, Elza W. Stevenson and H. B. Carter be given a working permit for this job; these men have worked for Mechanical Handling Systems on several occasions. They are both good conveyor men. I would appreciate your coorperation in this matter. Yours very truly, (Signed) S. P. Roberts, MR. S. P. ROBERTS, Gen. Field Supt., Mechanical Handling Systems. Carter and Stevenson then went to the office of Respondent Council, showed the letter to Smith, and asked him for referrals to the Ford job. Smith refused them referrals until he had "investigated"; told them to return the next day which they did, Smith then refused to refer them to the job for work. After Smith's refusal the two men called at the office of the Respondent In- ternational and were told they could not get referrals for work until cleared by the Respondent Local 60. Stevenson who corroborated Carter testified that after being refused referrals to the Ford job he so informed Foreman Wallace. Stevenson testified: Q. And will you tell us about that conversation? A. Well, I told him what had happened, that we hadn't been able to get a permit or wasn't able to go to work for him the next morning-that morning and all. And he asked if we would try to come back and we told him that we might the following week. He said if we come back to get hold of an- other fellow down there, Tommy Craig, and get him to come back and have him to clear in at the same time that we were supposed to clear in. Q. And do you recall whether or not he said anything about your being employed? A. Yes. We had a job if we come back. Superintendent Roberts testified that he told Carter and Stevenson "that they would first have to clear through the Carpenter's union," and that he issued the letter above referred to. Wallace testified with respect to the letter: What I recollect was-I don't know who specifically asked for it. I didn't pay too much attention , but I do know, in fact, I dictated the letter. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusion On the above recited facts the complaint alleges violation of Section 8(b)(1)(A) and (2) of the Act by the three Respondents, jointly and severally. This section reads: (b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaran- teed in section 7: * * * (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3)... . The Trial Examiner has found that the agreement entered into May 10, 1956, between Mechanical Handling and Respondent International is illegal, however the Trial Examiner is not persuaded that except by the most irresponsible infer- ence can this record be thought to show any connection between this illegal agreement and the agreement later made by Mechanical Handling and Respond- ents Council and Local 60. The mere existence of an illegal contract between two parties does not warrant findings and recommendations on it merely because one of the parties to it has executed a different agreement with different parties also alleged to be illegal and the basis of an unfair labor practice complaint. The Trial Examiner is not per- suaded that the theory of the overt act may be scrapped in order to extend the scope of an unfair labor practice charge. The Trial Examiner will therefore recommend that the complaint as to Re- spondent International, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Case No. 35-CB-220) be dismissed. The theory of the General Counsel is that the unfair labor practice herein is grounded upon the illegal contract between Mechanical Handling and Respondent International adopted by Respondents Council and Local 60. In rejecting this theory the Trial Examiner does not consider that the case falls because it can- not be sustained as alleged, for the reason that all acts and conduct of the Respondents Council and Local 60 were fully litigated in the hearing. The Trial Examiner will base his findings on such facts as revealed in the litigation. Upon the entire record the Trial Examiner finds that at the time of their first meeting in January 1957, before Mechanical Handling had hired any employees for its Ford job at Indianapolis, Smith, acting for the Respondent Council and Local 60 jointly, and Roberts, acting for Mechanical Handling, entered into an oral agreement covering the employment conditions of certain classes of labor to be hired by Mechanical Handling for its Ford job. It is clear, and the Trial Examiner finds, that the agreement was the joint and several agreement of both the Respondents aforesaid. It is also clear that in implementing the agreement Mechanical Handling hired through both Council and Local 60 and that both Council and Local 60 referred and cleared applicants to Mechanical Handling for the Ford job. By demanding of and entering into this agreement with Mechanical Handling, at a time when Mechanical Handling had no employees on the job, and binding the employment rights of prospective applicants, the Respondent Council and Respondent Local 60 engaged in conduct violative of Section 8(b)(2) of the Act 4 At the time the agreement was made it is clear that the Respondents, Council and Local 60, knew as a practical matter if they refused to issue clearance or a referral to an applicant he would not be hired by Mechanical Handling, thus they arranged to deprive such applicants of the right of employment. At the time they refused referrals to Carter and Stevenson, after Mechanical Handling had indi- cated it would employ them, the Respondents, Council and Local 60, clearly vio- lated Section 8(b)(1)(A) and (2) of the Act.5 The complaint alleges: Now and at all times since on or about January 9, 1957, pursuant to said contractual provisions and the illegal hiring practice above alleged, the Re- spondents have regularly exacted and collected from all of the employees of Mechanical Handling Systems, Incorporated and of other employers within said territorial jurisdiction, whose names are unknown to the Regional Di- rector, dues, non-membership dues, assessments, and work-permit fees, the 4 N.L.R.B. v. Local Union No. 55, and Carpenters' District Council, 218 F. 2d 226 (C.A. 10) ; N.L.R.B. v. Philadelphia Iron Works, Inc., 211 F. 2d 937 (C.A. 3) ; Radio Officers' Union v. N.L.R.B., 347 U.S. 17. 5J. J. White, Inc„ 111 NLRB 1126. INDIANAPOLIS AND CENTRAL.INDIANA DISTRICT COUNCIL 411 exact amounts of which said exactions and collections are. unknown to the Regional Director. The General Counsel argues in his brief that such collections be ordered re- funded and "any specific person who has been discriminated against pursuant to such practice" be made whole. Again, other than the bare allegation in the complaint there is nothing in the record in the way of proof or even statement with respect to the unfair labor practice so charged, no named individuals suffering thereby, no named individuals who enforced the alleged unlawful provisions for the Respondents or took part in maintaining the alleged closed-shop provision by "check off" or otherwise on be- half of the Respondents by Mechanical Handling. The Trial Examiner sees no merit in an allegation not founded on a charge, not in any way proven but treated merely as a shotgun blast aimed in general direction of quarry hoping that game will be brought down .6 Concluding Findings The Trial Examiner finds that by entering into and maintaining the oral illegal agreement , herein above referred to and by generally issuing and refusing to issue permits to work under the said agreement and by refusing to issue a referral to the Mechanical Handling job at the Ford job in Indianapolis to Carter and Steven- son, the Respondents (Council and Local 60) have engaged in and are engaging in conduct violative of the Act, more particularly Section 8 (b)(1)(A) and (2) thereof. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, Indianapolis and Central Indiana District Council, United Brotherhood of Carpenters and Joiners of America , AFL-CIO and Local 60, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, in connection with the operations of Mechanical Handling Systems, Incor- porated, Party to the Contract, occurring in connection with operations described in section I, above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondents (Council and Local 60) have engaged in unfair labor practices, it will be recommended that each of them cease and desist therefrom and take certain affirmative action, designed to effectuate the policies of the Act. Since it has been found that the Respondents (Council and Local 60) have maintained and enforced an oral agreement understanding and practice which con- tains and involves terms and conditions of employment and practices which are violative of Section 8(b)(1)(A) and (2) of the Act, it will be recommended that they cease and desist from giving effect to the unlawful provisions of said oral agreement and understanding. Since it has been found that on February 6, 1957, pursuant to said oral contractual provisions and illegal hiring practices, the Re- spondent Council and the Respondent Local 60 by and through their agent Ralph R. Smith, attempted to cause and caused Mechanical Handling to discriminatorily refuse employment to Hafford B. Carter and Elza W. Stevenson because said labor organizations refused clearance for employment to the said Carter and Stevenson thereby causing said Carter and Stevenson to lose employment and incur losses it will therefore be recommended that the Respondents aforesaid make them whole for any loss of pay they may have suffered as a result of the discrimination against them by payment to each of them of a sum of money equal to that which each would normally have earned as wages but for the discrimination, less his net earn- ings during such period, the back pay to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289. Upon the basis of the foregoing findings of fact, and upon the record as a whole, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Mechanical Handling Systems, Incorporated, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 0In passing the Trial Examiner points out that had a charge been filed, and a proper complaint issued Mechanical Handling might well have been a proper party to the unfair labor practices herein. 412 :DECISIONS OF :NATIONAL. LABOR RELATIONS. BOARD I 2.. Indianapolis and Central Indiana District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are labor organizations within the meaning of the Act. ' 3. By enforcing and maintaining an oral agreement and/or understanding and .practice with Mechanical Handling Systems, Incorporated, which contains and in- volves terms and conditions of employment requiring clearance or referral of certain applicants of employment by the labor organizations aforesaid before their employment by Mechanical Handling Systems, Incorporated, the said Respondent labor organizations have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the said Respondents have engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 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. The Respondents have not engaged in any unfair labor practices alleged in the complaint other than those specifically found herein. The Respondent named in Case No. 35-CB-220, United Brotherhood of Car- penters 'and Joiners of America, AFL-CIO, has not engaged in any of the unfair labor practices alleged in the complaint. [Recommendations omitted from publication.] APPENDIX A INTERNATIONAL AGREEMENT Memorandum of Agreement between the firm of MECHANICAL HANDLING SYSTEMS, INC., 4600 NANCY AVE., DETROIT 12, MICHIGAN, and the United Brotherhood of Carpenters and Joiners of America We, the firm of MECHANICAL HANDLING SYSTEMS, INC., AGREE to recognize the jurisdiction claims of the United Brotherhood of Carpenters and Joiners of America, to work the hours, pay the wages and abide by the rules and regulations established or agreed upon by the United Brotherhood of Carpenters and Joiners of America of the locality in which any work of our company is being done, and employ members of the United Brotherhood of Carpenters and Joiners. No change to be made in the hours and wages in any locality , and no conditions imposed other than are enforced on all Local firms. In consideration of the foregoing, the United Brotherhood of Carpenters and Joiners of America agree that no stoppage of work or any strike of its members, either collectively or individually, shall be entered into pending any dispute being investigated and all peaceable means taken to bring about a settlement. MECHANICAL HANDLING SYSTEMS, INC., (Signed ) RALPH GRAY, Asst. Director of Manufacturing. For the United Brotherhood of Carpenters and Joiners of America. (Signed) M. A. HUTCHESON, General President. DATED 10 May 1956. Idaho Concrete Products Co. and Teamsters, Chauffeurs, Ware- housemen & Helpers Local Union No. 983 . CaBe No. 19-CA- 1537. December 16, 1958 DECISION AND ORDER On July 29, 1958, Trial Examiner Martin S. Bennett issued his Intermediate Report in this proceeding, finding that the Respondent ,had engaged in certain unfair labor practices and recommending that 122 NLRB No. 65.