Honolulu Star-Bulletin, Ltd.

HONOLULU STAR-BULLETIN, LTD. 395 V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative .action designed to effectuate the policies of the Act. Having found that the Respondent has engaged in interrogation of employees -concerning the Union, I shall recommend that it cease and desist therefrom. Having found that the Respondent promulgated and enforced instructions deny- ing union representatives access to crews on its tugs in derogation of the rights guaranteed to its employees under Section 7 of the Act, I shall recommend that the Respondent rescind immediately its instructions to that extent.3 Although the evidence here concerns events occurring in respect to the tug Joe-Ed, Richard Bludworth admitted the foregoing instructions were applicable to all its tugs. Thus, to limit rescission of the instructions to the Joe-Ed and permit them to stand as to Respondent's other tugs would render remedial relief meaningless and futile. Consequently, I conclude that the only manner in which the Respond- ent's unlawful instructions can be remedied effectively is to require the Respondent to post appropriate notices on all its tugs. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent by discharging Edward Leo Collier has not engaged in any unfair labor practice in violation of Section 8(a)(3) or (1) of the Act. [Recommendations omitted from publication.] 8 N.L.R.B. v. Waterman Steamship Company, 309 U.S. 206, 224-229; Cities Service Oil Company, 25 NLRB 36, 47-58, en'fd. as modified, 122 F. 2d 149 (C.A. 2) ; Richfield Oil Corporation, 49 NLRB 593, 598-604, enfd. as modified 143 F. 2d 860 (C.A. 9). See also, N.L.R.B. v. National Organization of Masters, Mates tt Pilots of America, Inc., AFL-CIO, 253 F. 2d 66, 70 (C.A. 7). Honolulu Star-Bulletin, Ltd. and Kenneth Tamanaha and Hono- lulu Typographical Union No. 37, International Typographical Union, AFL-CIO, Party to the Contract Honolulu Star-Bulletin, Ltd. and Anthony van Kralingen, Jr., and Honolulu Typographical Union No. 37, International Typo- graphical Union, AFL-CIO, Party to the Contract. Cases Nos. 37-CA-108 and 37-CA-109. March 26, 1959 DECISION AND ORDER On August 23, 1957, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter exceptions to the 123 NLRB No. 51. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report and briefs in support of such exceptions were filed by the Respondent, by the General Counsel, and jointly by Honolulu Typographical Union No. 37, International Typographical Union, AFL-CIO, and International Typographical Union, AFL- CIO-1 The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, the oral argument, and the entire record in these cases, and hereby adopts the findings,, conclusions, and recommendations of the Trial Examiner to the, extent they are consistent herewith. 1. The Trial Examiner found the current contract between Re- spondent and Local 37 per se unlawful in that it provides a greater degree of union security than is permitted under the Act. While we agree with this conclusion, we do not adopt the balance of the Inter- mediate Report insofar as it relates to this contract, but, rather, base.. our findings on the following facts and conclusions. The complaint, as amended at the hearing, alleges, in substance, that Respondent has violated Section 3 (a) (1) and (3) of the Act by maintaining its current contract 2 With Local 37, which, inter alia, includes and incorporates "the Laws" of the NTU; provides that such laws shall not be subject to arbitration, that the foreman must be an active member of the Union, that only the foreman may employ and discharge, and that only members of the Union may be employed in performing work coming under the jurisdiction of the ' Hereinafter referred to individually as Local 37 and ITU and jointly as the Union. Neither Local 37 nor the ITU appeared at the hearing before the Trial Examiner , although both were served with the complaint and notice of hearing . Subsequent to the issuance of the Intermediate Report, the ITU moved to intervene , and the Board granted that motion but only to the extent of granting leave to file exceptions to the Intermediate Report and' a brief. The ITU argues that it was denied due process on the ground that the complaint con- tained no allegations directed to the ITU, the ITU was not made a party to the cases, and' the ITU was therefore not obligated to intervene. We find this contention without merit.. While the ITU was not named as a party, such joinder was not required where its sub- ordinate local, which was the only contracting union, was joined and given notice.. Cf. Consolidated Edison Co . of New York v. N.L.R.B., 305 U.S. 197 ; Worstell, et al. (Baker & Coombs, Inc.), 114 NLRB 503, 507-508. Further, a copy of the complaint was served upon the ITU, and , in -alleging the maintenance of the contract and by describing- in detail the specific aspects of the contract deemed illegal by the General Counsel, the complaint gave ample notice of the issues to be litigated. Therefore, contrary to the ITU's position , it was incumbent on the ITU to seek to participate if it believed its interests might be involved . In any event, it has presented its position at length and in detail by brief and by oral argument , and the Board has fully considered each of its contentions. 2 The current contract was entered into on May 21, 1956, and expires on May 17, 1959.. We reject the Union's contention that Section 10(b) of the Act bars any attack on the contract . The execution of the current contract antedates the filing of the charges herein, by more than 6 months, and therefore a violation of the Act may not be founded upon such execution by reason of the time limitation in Section 10(b). However , that section does not preclude an unfair labor practice finding based upon the maintenance of a con- tract containing illegal terms , as such maintenance is a continuing violation of the Act every day the parties continue the unlawful arrangement in effect. City Window Clean- ing Company, 114 NLRB 906, 917. HONOLULU STAR-BULLETIN, LTD. 397 Union;' and requires the payment of dues and assessments. That contract consists of a document dated May 21, 1956, together with the General Laws of the ITU 3 in effect January 1, 1956, which are in- corporated therein by virtue of Section 24(c) of the May 1956, document.4 The General Counsel contends that it is by virtue of the incorporated provisions that the current contract is illegal. It is clear that, absent a showing that they are ineffective, article V, section 10; 5 article VII; 6 and article VIII 7 of the General a For purposes of distinguishing between the two parts of the current contract, the May 1956 , document is referred to herein as the contract and the incorporated material is referred to as the General Laws. The General Counsel contends that !there was a complete incorporation by reference of the constitution and bylaws of both the ITU and Local 37 in addition to the General Laws of the ITU. We do not agree, in view of the specific reference to "the general laws" in section 24 ( c) of the contract. ( See footnote 4, infra. ) Moreover , it is the established practice in the industry, well understood by employers , employees , and the Union, to incorporate the general laws of the ITU. However, the constitution and bylaws of the ITU or of Local 37 may have to be referred to for purposes of interpreting the general laws when there is something in the general laws incorporated in the contract which re- quires explanation. To this extent the constitution and bylaws of the Union can and will be considered in connection with the contract . See M. B. Morgan Painting Contractor, 111 NLRB 395, 400. 4 Section 24 ( c) provides : ". . . It is understood and agreed that the general laws of the [ITU] in effect January 1, 1956 , not in conflict with federal and territorial ( state) law or this contract , shall govern relations between the parties on conditions not specifically enumerated herein. . . . Since this section of the contract specifically incorporates the general laws in effect January 1 , 1956, and does not provide for the incorporation of any possible amendment of such laws, we limit our consideration to the general laws as of that date . We note, however, that the same provisions appear in the laws effective January 1, 1957. Section 24 (c) also provides that "the laws of the [ITU ] shall not be subject to arbitra- tion" and article II, section 3 of the general laws provides that "It is imperatively ordered that the executive officers of the [ITU ] shall not submit any of its laws to arbitration . Nor shall any subordinate union arbitrate whether or not any general law of the [ITU ] is effective." The General Counsel contends that this portion of section 24(c) is per se illegal under Pacific Intermountain Express Company, 107 NLRB 837, because its effect is to delegate to Local 37 complete control over conditions of employment. We find it unnecessary to resolve this question , since it cannot affect the scope of our order. s "All ,persons performing the work of foremen or journeymen, at any branch of the printing trade, in offices under the jurisdiction of the [ITU], must be active members of the local union of their craft and entitled to all the privileges and benefits of membership." 6 "Section 1. None but members of the [ITU ] shall be permitted to operate typesetting, typecasting, linecasting, phototypesetting or material -making machines and all devices used to process the product emanating from said machines . . . . The [ITU] also claims jurisdiction over the operation of all duplicating machines , such as typewriters and varitypers , etc., the product of which is a substitute for type used in the printing and publishing process. "Section 2. In machine offices under the jurisdiction of the [ITU ], no person shall be eligible as a `learner' on machines who is not a member of the [ITU]. .. . "Section 5 . It is the unalterable policy of the [ITU ] that only members in good stand- ing shall be employed in installing, operating , maintaining, servicing and repairing all typesetting, linecasting , typecasting, phototypesetting, tape perforating and material- making machines and all other mechanical devices used in composing , imposing, processing and casting of type, type matter, slugs and other material of any kind whether operated manually or automatically and wherever located. "Section 6 . It is 'the policy of the [ITU] that only members shall be employed upon all work necessary to process the product emanating from phototypesetting machines, including its development, waxing, paste make-up, ruling, photo-proofing, correction and alteration of the paste make-up serving as the completed copy for the plate -making camera." 7 "Section 1 . All machine tenders and machinists , members engaged in the adjustment, repair and maintenance of all mechanical devices used in the performance of compos- 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laws require that only members of the Union be employed by the Respondent in the composing room. The Respondent and the Union contend, however, that because section 24(c) of the contract provides. that "the general laws ... not in conflict with federal or territorials (state) law or this contract, shall govern relations between the parties on conditions not specifically enumerated herein," any illegal pro- visions of the general laws have become a "nullity." 8 In support of this position they rely on the Trial Examiner's dictum in The- Kansas City Star Company,° involving a similar incorporation clause,, to the effect that only those general laws which are valid were incor- porated and that, therefore, no unlawful union-security provisions: were either expressed or reasonably to be implied from the character- of the incorporation by reference. It is well settled that where a contract otherwise contains unlawful', provisions, a general "savings clause" which does not specify which, provisions are intended to be ineffective, will not purge such pro-- visions of their illegal character.1° The dictum of the Trial Exam- iner in Kansas City Star is in direct conflict with this general rule,. and, accordingly, we must reject his view. To hold otherwise would be inconsistent with the established rule of contract interpretation that "a writing is interpreted as a whole, and all writings forming part of the same transaction are interpreted together"; 11 and would: result in an impractical and unworkable rule which would create- great uncertainty as to which provisions were or were not incorpo- rated into a contract.12 ing . . . room work , shall be members of the [ITU], . . . and they shall at all Mimes be- under the control and amenable to all laws and regulations of said local unions.. . . All work pertaining to maintenance and care of machines to be performed exclusively by- machine tenders who are journeymen or apprentice members of the [ITU]." s The Union also points to article XIV, section 1 of the general laws, which provides : "In circumstances in which the enforcement or observance of provisions of the General' Laws would be contrary to public law, they are suspended so long as such public law- remains in effect." Our findings as to the effect of section 24(c) are equally applicable to article XIV, section 1. U 119 NLRB 972. That . case also was concerned with an ITU contract which incorpo- rated the general laws. 10 See, e.g., Red Star Express Lines of Auburn, Inc. v. N.L.R.B ., 196 F. 2d 78 (C.A. 2) ; Daugherty Company, Inc., 112 NLRB 986 ; M. B. Morgan Painting Contractor, supra;- N.L.R.B. v. Broderick Wood Products Company, et at., 261 F. 2d 548 ( C.A. 10). 11 Restatement of Contracts , sec. 235 ( c). Further, such a holding would be contrary to prior decisions of this Board and of the courts which treat this type of contract as a. single document. . See, e.g., Philadelphia Iron Works, Inc., etc., 103 NLRB 596, enfd.. 211 F. 2d 937 -( C.A. 3), where the Board held that a contract otherwise valid which incorporated the union's working rules containing illegal provisions was invalid "on its face" notwithstanding contract provisions analogous to those in the instant case, and' Bernard L . Alpert v. International Typographical Union, 161 F. Supp. 427 (D.C. Mass.), where the court rejected a contention similar to that raised here and refused to make a distinction "between incorporation by reference , subject to a general exclusion clause, as here, and a contract all in one document, with a general savings clause, as in the more usual case." 12 Equally without merit is the contention that the contracting parties could question the- effectiveness of any of the general laws, since section 24 (c) of the contract and article II,. section 3 of the general laws emphatically prohibit any arbitration of such a question. HONOLULU STAR-BULLETIN, LTD. 399' The Respondent and the Union also point to the language of* section 2 of the contract to the effect that "the term `journeymen' and `apprentices' shall in no way be understood to apply exclusively to members of the [ITU]," contending that it is in conflict with any General Laws which may be illegal and, therefore, supersedes them by virtue of the language of section 24(c). However, we believe that the language of section 2 does not render the contract valid, despite the fact that if taken literally it appears to provide that both members and nonmembers may be employed. For, this apparently nondiscriminatory definition of the terms "journeymen" and "ap- prentices" must be viewed in light of the other provisions of the contract, particularly the incorporated sections, in order to ascertain the extent to which it is inconsistent with those provisions and hence overrides them. Such an examination13 reveals that there are a number of • clauses with which section 2 is not in conflict and which are,- therefore, not superseded. Thus, article VII states that "none but members of the [ITU] shall be permitted to operate" various machines and that only a member of the ITU shall be eligible as a "learner" on machines; that "it is the unalterable policy of the [ITU] that only members in good standing shall be employed in installing, operating, maintaining, servicing and repairing" all mechanical devices; that "it is the policy of the [ITU] that only members shall be employed upon all work necessary to process the product emanating from phototypesetting machines" ; and that only members of the Union shall be employed in the paste makeup opera- tion. Article VIII, section 1 requires that "all machine tenders and machinists . . . shall be members of the [ITU] . . ." and "all work pertaining to maintenance and care of machines to be performed exclusively by machine tenders who are journeymen or apprentice members of the [ITU]." Reading the contract and incorporated provisions together, it must be concluded that the contract provides that although both members. and nonmembers of the Union may be employed in the composing room, only members may do work on or pertaining to the various machines. 14 But the work described as to be performed solely by members comprises the entire scope of the work of the employees 13 We limit our examination and findings to those clauses which have been cited and relied on by the General Counsel. In doing so, we do not pass upon the validity or in- validity of any other provisions of the contract or its incorporated matter. 14 Article VII , section 2 further provides that "Local unions may grant permits to apprentices during the last two years of their apprenticeship , during which they may learn the machines, and such apprentices shall be subject to the rules and regulations of such local unions." Local 37 's constitution provides , in article XII, section 4, that "At the beginning of the first year, all apprentices shall be required to pass a physical examina- tion . . Such apprentices shall be considered probationary apprentice members for one year : . ." and in article XIII , section 1 , that "At the beginning of his second year, an apprentice shall file application for apprentice membership in the Union . . . It is, thus , further apparent that union membership is required to work on or around machines. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the unit as set forth in section 2 of the contract.15 It is there- fore clear that the apparently nondiscriminatory definition of jour- neymen and apprentices, when read in the context of the entire con- tract, does not nullify the discriminatory requirement that only members of the Union be employed in the composing room, and therefore plainly violates Section 8 (a) (1) and (3) of the Act.16 It might be possible to argue that if the above provisions were read in reverse order, section 2 would be in conflict with the sections referring to the employment of members only. Thus read, the con- tract would state that only members shall perform the work in the composing room, that all such members would be employed as jour- neymen or apprentices,17 but that "journeymen" or "apprentices" need not be members of the Union, and hence the last-stated pro- vision conflicts with and supersedes the first by virtue of section 24(c). However, the mere statement of this possible argument and the attempt to state the reasoning in support thereof reveals the onerous burden which would be imposed upon employees should they attempt to determine what the contract in fact provides and their inability to predict with any degree of certainty what interpretation should be placed on its provisions.' The Union complains that it may be required, at its peril, to determine which of its laws are valid and which invalid, and under what circumstances, as a condition of maintaining lawful agreements. Of course, the order in this case will be directed only against the Company, but even if it be suscep- tible of the interpretation feared by the Union, we find no inequity in a requirement that the contracting parties analyze the terms of their agreement rather than place the burden on the employees. As between the Employer and the Union on the one hand and the em- ployees on the other, the former are far better equipped to make such a determination. And, if the Employer and the Union are unable 15 The pertinent portion of section 2 provides as follows : "Jurisdiction of the Union and the appropriate unit for collective bargaining is defined as including all composing room work and includes classifications such as : Hand compositors ; typesetting machine operators ; make up men ; bank men, proofpress operators ; proofreaders ; machinists for typesetting machines ; operators and machinists on all mechanical devices which cast or compose type, slugs, or film ; operators of tape perforating machines and recutter units for use in composing or producing type ; operators of all phototypesetting machines . . . , employees engaged in proofing , waxing and paste-makeup with reproduction proofs , process- ing the product of phototypesetting machines . . . paste-makeup of all type, . . . , ruling ; photoproofing ; correction , alteration , and imposition of the paste-makeup serving 11 as the completed copy for the camera used in the plate -making process. . . . "The Trial Examiner found the maintenance of the contract to be a violation of Sec- tion 8 ( a) (1) only, and the General Counsel contends that Respondent has also violated Section 8 ( a) (3) by this conduct . We agree with that contention . The maintenance of discriminatory contractual provisions is also violative of Section 8(a) (3), whether or not they are enforced , unless there is an actual agreement between the parties not to enforce them. Carty Heating Corporation, etc., 117 NLRB 1417 ; County Electric Co., Inc., 116 NLRB 1080. No such agreement has been shown to exist in this case. 17 Section 2(b) of the contract provides that "All composing room work shall be per- formed only by journeymen and apprentices. . . . 15 See Red Star Express Lines of Auburn, Inc. v. N.L.R.B., supra. HONOLULU STAR-BULLETIN, LTD. 401 to predict which provisions of the contract may be violative of the Act, the employees certainly could not be expected to do so. The Respondent and the Union take the position that there is no evidence in the record which indicates that the Respondent has interpreted or applied the contract in a manner which violates the Act. In support of this contention they point out that for a period of 8 years five nonunion men have been employed by the Respondent and that during the year preceding the hearing Foreman Larson had hired four nonunion men. However, the General Counsel has alleged that the provisions of the contract are per se violative of the Act. We must therefore base our conclusion entirely on the language of those provisions. Having found that the terms themselves provide a greater degree of union security than is permitted by the Act, they are unlawful, notwithstanding the fact that they may not have been applied or enforced in every instance.19 Moreover, it has been held that where a discriminatory hiring agreement has been shown to exist, the fact that nonunion employees were also hired did not nullify the unfair labor practice which existed, especially where, as here, there was a shortage of qualified workers in the area.20 Two specific contentions of the General Counsel relating to the contract remain for consideration, i.e., the allegations that the Re- spondent violated the Act by making the payment of dues and assessments a condition of employment and by agreeing that the foreman must be an active union member and that only the foreman may employ and discharge. While the only specific provision requiring the payment of dues and assessments appears in the ITU's bylaws'21 the relevant sections must be consulted in order to interpret the above-quoted provisions 10N.L.R.B. v. Gottfried Baking Co ., Inc., 210 F. 2d 772, 780 (C.A. 2) ; N.L.R.B. v. E. F. Shuck Construction Company, Inc., et al., 243 F 2d 519 (C.A. 9). Cf. Port Chester Electrical Products Corporation, 97 NLRB 354. 20 See, e.g., N.L.R.B. v. F. H. McGraw and Company, 206 F. 2d 635 , 640 (C.A. 6). See also Nassau and Suffolk Contractors' Association, Inc., 118 NLRB 174; M. B. Morgan Painting Contractor, 111 NLRB 395, 402. It is clear from the record here that experienced composing room employees were difficult to secure in Hawaii. 21 Article VII, section 1 provides that "Every member . . . shall pay the [ITU] per capita tax and assessments for any given dues month . . . and on payment of the same shall receive from the local union in which membership is held an International working card or due [sic] stamp . . ; section 3 of that article provides that "Every member must demand, and shall receive, on payment of the proper sum, due stamps or a working card for each month's dues paid. The card shall show the sum paid for per capita tax, local dues , old age pensions and mortuary assessments, and such other assessments as may be levied by the local or International Union .. ." ; and section 6 thereof provides that "Any member who is not in possession of an International working card for the current month, or to whose card International due stamps showing all dues up to the current month to have been paid . . . are not attached, shall be deemed as delinquent to the International Union, and shall not be entitled to any benefits. . . Section 7 of that article provides that "Members .. . shall stand suspended when four months in arrears for local or International dues or assessments. Members suspended for non- payment of dues shall have no standing in the organization and shall not be entitled to benefits." 508889-60-vol. 12 3-2 7 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the General Laws which require that only "members," "members in good standing," or members entitled to all benefits be employed. Examination of the pertinent sections of the bylaws quoted in foot- note 21, supra, leaves no doubt that the payments of dues and assess- ments is essential to be a union member, to maintain membership in good standing, and to be entitled to the benefits of membership. Hence, the payment of such dues and assessments has been made a condition of employment. The payment of assessments may under no circumstances constitute a condition of employment, and a re- quirement for the payment of dues may be valid only under a union- shop agreement which meets the requirements of Section 8(a) (3) of the Act. The current contract does not purport to be such a union-shop agreement, nor could it be, since the Union has con- sistently declined to comply with the filing requirments of Section 9(f), (g), and (h) of the Act. Accordingly, the imposition of this condition of employment constitutes a violation of Section 8 (a) (1) and (3) of the Act. With respect to the provisions relating to the foreman'22 the Union has argued vigorously that the mere requirement that the foreman be a member of the Union and that only the foreman may hire and discharge is not per se a violation of the Act. However, that question is not presented in this case, because the requirement is coupled here with the unlawful union-security provisions of the contract. Con- sideration of the contractual provisions, including the General Laws as explained by the Union's constitution and bylaws, leads us to the conclusion that the foreman clauses are in violation of Section 8(a) (1) and (3) of the Act. Thus, article XII of the ITU's con- stitution and article I, section 5 of Local 37's bylaws set forth the duties of membership, including ". . . the duty of every member of the [ITU] to comply with all the laws, rules, regulations and de- cisions of the [ITU] and of any subordinate union thereof...." 23 The "laws" referred to in this passage include the general laws cited above as requiring the employment of only union members. In addi- . 22 Section 18 of the contract : "Foreman. The foreman is the only recognized authority in carrying out the instructions of the Employer in the composing room . Assistants may be designated to direct the work, but only the foreman may employ and discharge." Article V. Sections 1 and 10 of the general laws : "Section 1. In union shops the foreman is the only recognized authority. Assistants may be designated to direct the work, but only the foreman may employ and discharge.. . "Section 10. All persons performing the work of foremen or journeymen , at any branch of the printing trade, in offices under the jurisdiction of the [ITU], must be active members of the local union of their craft and entitled to all the privileges and benefits of membership." Contrary to the position of the Respondent , the negotiations leading to the inclusion of an identical provision in its prior contract with Local 37 cannot negate the requirement of these provisions , considered together, that the foreman must be a union member. 23 Article III, section 2 of the Local's constitution also provides that "it shall be the duty of members to comply with contracts , agreements and laws of this Union and of the [ITU]," and article XVIII thereof incorporates "the laws" of the ITU. The ITU's constitution , in article II, section 2, defines "the laws" of the ITU as its constitution, bylaws, general laws, and convention laws. HONOLULU STAR-BULLETIN, LTD. 403 tion, section 10 of each of the above articles provides that "any vio- lation, evasion or failure to perform the duties of membership .. . may be the subject of charges and trials. . . ." These provisions indicate that the Union could proceed against any foreman who employed nonmembers. It is thus clear that Respondent is obligated to select a foreman from among union members and to delegate to such foreman com- plete authority to hire and discharge employees, and the foreman, in turn, is obligated to abide by the Union's laws which require that only union members be employed. Under these circumstances the foreman's agency is of a dual character-he acts not only for Re- spondent in the hiring of employees, but also for the Union in his capacity as foreman in enforcing the Union's rules-and he is the agent of both the Respondent and the Union.24 Accordingly, we find and conclude that Respondent has unlawfully delegated its hir- ing authority to an agent who is obligated to employ only members of the Union. We further find that the Respondent, by entrusting its hiring to the foreman who was also the Union's agent and bound by its laws, agreed in effect to operate under an illegal closed-shop hiring arrangement.25 By virtue thereof, the Respondent clearly delegated to the Union complete unilateral control over the hiring process.21' Such an arrangement constitutes an inherent and unlaw- ful encouragement of union membership unless such control is sub- ject to safeguards which the Board deems essential.27 No such safe- guards have been shown to exist here. In view of the foregoing, we find that the Respondent has violated Section 8 (a) (1) and (3) of the Act by maintaining its current con- tract with Local 37 which requires the employment of union members only, unlawfully delegates to the Union complete unilateral control over the hiring process, and makes the payment of dues and assess- ments a condition of employment. 2. We agree with the Trial Examiner that Tamanaha was dis- criminatorily discharged on demand of Local 37 because of his failure to carry out a condition of his union membership and not, as Re- spondent and the Union contend solely because he broke a promise to Respondent that he would complete the lessons.28 We reach this conclusion although we believe that Tamanaha did make such a commitment to Respondent, through Foreman Larson, as a condition of retaining his employment. 24 See, e.g., Enterprise Industrial Piping Company, 117 NLRB 995 ; Grove Shepherd Wilson <6 Kruge, Inc., at at., 109 NLRB 209. 2, Houston Maritime Association, Inc., at al., 121 NLRB 389. 2e That the foreman does in fact abide by the Union' s decisions is evidenced by Foreman Larson's conduct at the time Tamanaha was discharged. n Houston Maritime Association, Inc., at al., supra. ^ The lessons involved are part of the training of all apprentices under the contract. There is no allegation in this case that the apprenticeship clauses are illegal. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is undisputed that at the time Tamanaha was employed as a journeyman linotype news setter 29 he did not have 6 years of experi- ence, required to qualify as a journeyman under the terms of the contract.30 This fact came to the attention of Almond, secretary- treasurer of Local 37, shortly after Tamanaha began work and was thereupon discussed by Almond with Larson, including the fact that he could not be employed as an apprentice because Respondent's apprenticeship quota was full. Their discussion resulted in the October 1954 meeting of Larson, Tamanaha, Almond, and another official of Local 37. In view of what occurred at that meeting, as set forth by the Trial Examiner in his Intermediate Report, and especially in view of Larson's part in that conversation, we conclude that a three-way agreement was reached among Larson, Tamanaha, and the Local.31 Almond then said that Local 37 would provide the necessary material and would write to the ITU for an agreement for Tamanaha to sign. The agreement which he signed was one conditioning his union membership on completion of the lessons. Tamanaha did not complete the course by the end of the 2 years, although he had been urged to do so on a number of occasions by the Local's apprenticeship committee. The chairman of that com- mittee had reported Tamanaha's laxity in this respect to Larson about 6 months before Tamanaha's discharge, but Larson took no steps to investigate on his own behalf or to warn Tamanaha. Despite Tamanaha's failure to finish the lessons, he was advanced sometime during the course of the 2 years to the position of journeyman mixer in the ad department, which job he held at the time of his discharge, at a rate 10 cents per hour in excess of the regular journeyman scale. This indicates that he was performing his duties satisfactorily. Upon receiving information from the ITU at the end of the 2 years to the effect that Tamanaha had completed only 3 of the 50 lessons, Local 37's executive committee voted to recommend revoca- tion of Tamanaha's membership and to notify Larson accordingly. A letter to this effect was prepared on November 22, 1956, and on 29 The Trial Examiner erroneously stated that Tamanaha was hired as a journeyman mixer in the ad department. However, this fact was not material to his determination. 3° The contract provides in section 3 that: . Journeymen are defined as: (a) Persons who prior to the effective date hereof worked as such in the com- posing room of the Employer. (b) Persons who have completed approved apprentice training as provided in this agreement. [Section 22(g) requires 6 years of training.] (c) Persons who have passed an examination recognized by both parties to this agreement and have qualified thereunder as journeymen. (d) Applicants for work in composing rooms who, upon reference to the Joint Conciliation and Arbitration Committee by the Employer secure a certificate of com- petency duly issued under procedure established by said Committee. 91 The Trial Examiner credits the Respondent's witnesses as to the occurrence of this meeting and what transpired there except as to the party or parties to whom Tamanaha made his promise. However, an examination of the full testimony leads to the inescapable conclusion that Tamanaha's promise was made to Respondent, as well as to Local 37. HONOLULU STAR-BULLETIN, LTD. 405 the morning of November 23 Almond delivered that letter to Larson. It is clear that prior to this request by the Local, Tamanaha's dis- charge was not under consideration by Larson. But on receipt of the letter a meeting was arranged for the same afternoon and was attended by Tamanaha, Almond, the chapel chairman, and Foreman Larson, during the course of which Tamanaha was discharged. The letter and meeting are discussed fully hereinafter. The Respondent and the Union contend that Local 37's letter merely called Larson's attention to Tamanaha's failure to keep his promise to Respondent and recommended his discharge for that reason and that Larson in fact discharged Tamanaha solely for that reason. If this were so, the termination of Tamanaha would not have been discriminatory.32 However, consideration of the immedi- ate events leading to his discharge persuade us that Local 37 re- quested Tamanaha's discharge because of his loss of union member- ship and that it was for this reason, and not solely for breaking his promise to Respondent, that Larson terminated Tamanaha's employment.33 Consideration of Local 37's letter clearly reveals the basis for its recommendation. It sets forth the contract definition of "journey- men" and Tamanaha's failure to meet those requirements '34 and describes "the agreement" pursuant to which Tamanaha was retained in the Respondent's employ as being the written one with the Union by which Tamanaha agreed to complete the lessons "under penalty of having his journeyman membership in the Union revoked." The letter makes no reference to any oral agreement between Tamanaha and the Respondent.31 It then reports Tamanaha's failure to com- plete his lessons and the decision "to recommend revocation of [his] journeyman membership" and notify Larson, points out that Ta- manaha had failed to carry out his part of "the agreement," and recommends his discharge "under these circumstances." Since "these circumstances," in this context, can only be Tamanaha's failure to carry out "the agreement" which he made with the Union and the consequent revocation of his membership, his discharge must have $' while it cannot be disputed that Local 37 caused Larson to discharge Tamanaha, a finding of causation does not ipso facto lead to the conclusion that Section 8(a) (3) has been violated . Daugherty Company, Inc., 112 NLRB 986 , 989, 1003. It must first be determined whether Larson acted for a lawful reason or for an unlawful reason which encouraged or discouraged union membership. 33 It is well settled that where, as here , both a justifiable and an illegal reason for dis- charge exist, and the illegal reason is the substantial or moving cause for the discharge, the Act has been violated . National Carpeting Div., National Automotive Fibres, Inc., 116 NLRB 1446, 1460. And see Midwestern Instruments, Inc., 119 NLRB 1690. "'This letter incorrectly states that Tamanaha was hired as a journeyman upon his signing the agreement . However, Tamanaha had actually been employed by Respondent prior to that time, 'and Foreman Larson testified without contradiction that he called this error to Almond 's attention at the time the letter was presented to him. 35 It does, however, refer to an agreement between Respondent and Local 37 that Tainanaha could continue as a journeyman provided he agreed to subscribe to and com- plete,the Union's course of lessons in printing. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been requested because of his failure to carry out a condition of his union membership. Consideration of the events at the November 23 meeting clearly reveals Larson's motive for the discharge. The testimony is con- flicting as to whether Larson during the course of this meeting, made any reference to an agreement between Tamanaha and himself con- cerning the lessons. However, even assuming that he made such a reference, he took a most limited part in the discussion, participating only to the extent of making that reference, inquiring as to whether it was true that Tamanaha had completed only three of the lessons, and stating that whenever one made an agreement it had to be followed through. This latter statement, it is noted, may as well have referred to Tamanaha's agreement with the Union as to the agreement with Respondent. In contrast, Almond took a vigorous part in the discussion and, in fact, seems to have conducted and con- trolled the meeting. Thus, the meeting was opened by Almond's reading of the Local's letter recommending Tamanaha's discharge because he did not perform his promise to the Local. Tamanaha asked Almond whether he (Tamanaha) could work for Respondent without a union card. The testimony is in disagreement as to the actual language of Almond's response to this question,38 but there is no real difference in the import of the two versions, i.e., that Tamanaha could not continue to work for Respondent without a union card. 17 Under these circumstances, Larson turned control of the meeting over to Almond, the Local's representative, and thus placed Almond in the position of appearing to speak with authority for the Respondent as well as for the Local. Therefore, if Larson was not discharging Tamanaha for the reasons stated by Almond, he was under a duty to deny the implications that Tamanaha was being discharged for failing to carry out his agreement with the Local and the consequent loss of his membership and that he could not continue to work for Respondent without a union card. This he failed to do. Accordingly, we find that even if Larson did mention Tamanaha's promise to Respondent during the meeting, the reference was merely incidental; that Larson's statement as to the necessity to live up to any agreement referred to Tamanaha's agreement with the Local, although it may have included the agreement with Respondent if Larson did refer thereto; and that by Almond's statements, in which Larson concurred by his silence, Tamanaha was informed that he was 38 Tamanaha, testified that Almond replied that Tamanaha would give him, Almond, trouble if Tamanaha tried to work without a union card. Almond testified that he replied that Tamanaha was a poor specimen of a imionman if he thought he could work for Respondent without a union card, after having joined the Union. 17 We find it unnecessary to adopt, and therefore do not comment upon the accuracy of, the Trial Examiner's statement that "It is an employer 's duty to resist any domination of its right to employ." HONOLULU STAR-BULLETIN, LTD. 407 being discharged for failing to satisfy a condition of his union membership. Respondent has thus discriminated against Tamanaha in regard to hire or tenure of employment in violation of Section 8(a) (3) of the Act,"' and has thus interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act in violation of Section 8(a) (1) thereof. 3. We agree, for the reasons set forth in the Intermediate Report,39 that Anthony Van Kralingen, Jr., was discharged because of his distribution of his November 12 campaign release and because of the ideas expressed therein,4° rather than for his alleged violation of office rule 15.41 We also agree that in disseminating his ideas by means of his distribution of his letters in connection with his cam- paign for union office, Van Kralingen was engaged, in protected con- certed activities within the Union.42 Although, as the Respondent and the Union contended, some of the policies advocated by Van Kralingen were in conflict with the provisions of the National Labor Relations Act, his efforts were directly solely to expressing his views to his fellow employees within the scope of his campaign. He made no demand upon management, and his activities did not place Re- spondent in any danger of yielding to an unlawful demand.43 ' See National Carpeting Div., National Automotive Fibres, Inc., supra. 39 The Union has excepted to the Trial Examiner's finding that Foreman Larson had refused to discharge Van Kralingen prior to November 13, taking the position that Larson "hesitated" rather than "refused" to take such action. We deem this difference in language of no importance, since, in any event, his discharge was for the unlawful reason found herein, rather than for any justifiable reason which may have existed. Midwestern Instruments, Inc., supra. 40 The Union, in its brief, takes the position that the Respondent had no discriminatory motive and that the issue Is "whether . . . the iespondent was motivated by a desire to discourage union activity or whether Van Kralingen was discharged because he was a thorn in the side of both management and the union." The Respondent also emphasizes this lack of conscious motive and, in addition, takes the position that the Board cannot conclude that the effect of its conduct was to discourage union activity. Clearly neither the absence of -specific evidence of intent nor the absence of independent proof that such discouragement actually occurred is determinative. Radio Officers' Union, etc. V. N.L.R.B., 347 U.S. 17. Further, the alternative reason offered by the Union, i.e., that the discharge occurred because Van Kralingen was a thorn in the side of both management and the Union, appears to admit rather than rebut the Trial Examiner's findings, since there is no indication of why he was a "thorn," except his ideas and the means he used to express them. 41 We note that although office rule 15 had been in effect for many years, it had never previously been invoked as the reason for a discharge. 42 Insofar as the Respondent and the Union may contend that Van Kralingen's conduct was unprotected because he criticized the existing contract and its administration, their position is clearly without merit. See, e.g., Cooper Alloy Corporation (Aircraft Division), 120 NLRB 586; Roadway Express, Inc., 119 NLRB 104. The Union excepts to the Trial Examiner's "failure to find that there is no evidence that the Union . . . in any way participated in" Van Kralingen's discharge. I-Iowever, Foreman Larson testified without contradiction that he got the copy of the November 12 release from the chapel chairman, who is the equivalent of a union steward. 43 Cf. American Rubber Products Corporation v. N.L.R.B., 214 F. 2d 47 (C.A. 7) ; N.L.R.B. v. Electronics Equipment Co., Inc., 205 F. 2d 296 (C.A. 2). In these and similar cases overt, aggressive conduct which was otherwise lawful was held unprotected because the immediate purpose was to compel an employer to take some action which would clearly be violative of some legal obligation. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Like the Trial Examiner, we reject the contention that the arbi- tration award upholding Van Kralingen's discharge is binding upon the Board.44 As set forth by the Trial Examiner, the Board has paramount jurisdiction to prevent unfair labor practices which is not affected by the existence of any other means of adjustment or prevention. However, the Board may, in its discretion, refrain from concerning itself with certain controversies between management and labor. Where it can do so without abandoning its duties to protect rights which the statute guarantees to employers, bargaining repre- sentatives, individual employees, or the public, the Board, as a matter of policy, favors the adoption of arbitration awards. But, the Board refuses to honor an arbitration award which is at odds with or repugnant to the Act. Such a situation exists where, as here, the Board is not satisfied as to the fairness and regularity of the arbitration proceeding,45 and the decision is clearly repugnant to the purposes and policies of the Act.46 Accordingly, we find that Respondent, by discharging Van Kra- lingen because of his activities within the Union,47 has discriminated against him in regard to hire or tenure of employment in violation of Section 8(a) (3) of the Act,48 and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act in violation of Section 8(a) (1) thereof. THE REMEDY The General Counsel has requested that, in addition to the remedy recommended by the Trial Examiner, we follow Broderick Wood Products Company 4° and apply the Brown-Olds remedy,50 i.e., that "The Union contends that the proceeding was an investigation under the contract rather than an arbitration. If this is so, the committee's decision is even more clearly not the type of award which the Board will recognize as binding upon it. 4b The Trial Examiner undoubtedly intended to set forth this standard when he char- acterized the committee proceeding in this case as failing to accord to the dischargee "the due process and fair procedures of a Board hearing." The Board has not required that the strict standard of a Board hearing be met in order that an arbitration award be honored. See, e.g., Spielberg Manufacturing Company, 112 NLRB 1080; International Association of Machinists, AFL-CIO, et al. (New Britain Machine Tool Co.), 116 NLRB 645. 49 Cf. Spielberg Manufacturing Company, supra. 47 Cooper Alloy Corporation ( Aircraft Division), supra; Nu-Car Carriers, Inc., 88 NLRB 75, enfd. 184 F. 2d 756 ( C.A. 3), cert. denied 342 U.S. 919. 48 The Respondent contends that there is a patent inconsistency in the Trial Examiner's findings that it discharged Van Kralingen to discourage union activity , discharged Tamanaha to encourage such activity , and maintained a contract which also encourages union activities. However, these findings are not in fact conflicting , since (1) Van Kralingen's discharge occurred because of activities which were in conflict with Local 37's policies and, hence , his discharge had the inherent effect of discouraging such conflicting activities and of encouraging adherence to union policies 'and the performance of union obligations or practices ( see Radio Officers' Union v. N.L.R .B., supra ), and (2 ) Tamanaha's discharge also had the inherent effect of encouraging union activities by encouraging, the performance of obligations to the Union . Therefore, these findings are in accord and are consonant with the finding that the maintenance of the contract encourages union activity. /9118 NLRB 38, enfd. 261 F. 2d 548 ( C.A. 10). e° United Association of Journeymen and Apprentices of the Plumbing and Pipehtting Industry of the U.S. and Canada, Local 231, AFL-CIO ( J. S. Brown-E. F. Olds Plumbing A Heating Corporation ), 115 NLRB 594. HONOLULU STAR-BULLETIN, LTD. 409 we require the Respondent to reimburse all its employees for all dues and assessments paid pursuant to the contract during the period covered by the charges. The record shows that, by the unlawful provisions of the contract involved herein, the Respondent has un- lawfully encouraged employees to join the Union in order to obtain and maintain work in the Respondent's composing room, thereby inevitably coercing those employees to pay dues and assessments to the Union.- Therefore, to expunge the effects of these unlawful exactions, we shall order the Respondent to refund to its present and former employees the dues and assessments which the employees have thus been required to pay. The period of liability shall begin 6 months before the date of the filing and service of the initial charges against the Respondent and shall extend to all moneys thereafter paid which have not heretofore been refunded.52 In all other respects we shall adopt the remedy recommended by the Trial Examiner, as modified hereinafter. 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 Respondent Honolulu Star-Bulletin, Ltd., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Encouraging membership in, and adherence to, Honolulu Typographical Union No. 37, International Typographical Union, AFL-CIO, or any affiliated labor organization, by discharging em- ployees because they have engaged in protected activities or because they have not performed a condition of union membership ; granting unlawful preferences to union members, or members in good stand- ing, with respect to hiring and placement, or in any other manner discriminating against employees or prospective employees in re- gard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8(a) (3) of the Act. (b) Giving effect to, maintaining, or entering into any contract or understanding with Honolulu Typographical Union No. 37, International Typographical Union, AFL-CIO, insofar as it condi- tions employment on membership or membership in good standing in said Honolulu Typographical Union No. 37 or any affiliated labor organization, except to the extent permitted by Section 8(a) (3) of the Act. (c) Enforcing or giving effect to any contract provision requiring composing room foremen, who do the hiring, to be union members, 61 Los Angeles-Seattle Motor Express, Incorporated, 121 NLRB 1629. 52 News Syndicate Company, Inc., 122 NLRB 818. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unless and until said foremen have been directly informed by the above-named Union that they are not obligated to comply with specified provisions of the International Typographical Union, AFL-CIO, General Laws or the said Honolulu Typographical Union Local 37 constitution and bylaws calling for closed shop or union preferential hiring. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be validly affected by an agreement entered into in accordance 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) Specify, in the current contract with the above-named Union, that the provisions of the International Typographical Union, AFL- CIO, General Laws which are found illegal herein are not incor- porated therein, and specify which of the provisions of the General Laws are incorporated therein, and currently operative. (b) Notify all composing room employees that they are not bound to follow specified provisions of the International Typographical Union, AFL-CIO, General Laws which call for closed shop or union preferential hiring. Such notice shall be in addition to that con- veyed by the posting of the notices specified in paragraph 2(f) of this Order. (c) Offer to Anthony Van Kralingen, Jr., and Kenneth Tamanaha immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of the discrimination against them, in the manner set forth in "The Remedy" section of the Intermediate Report. (d) Reimburse all its employees and former employees in its com- posing room, who have unlawfully been required to pay dues and assessments to the Union, in the manner and to the extent set forth in "The Remedy" section of this Decision and Order. (e) Preserve and make available to the Board, or its agents, upon request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back pay due and the rights of employment under the terms of this Order. (f) Post at its plant at Honolulu, Territory of Hawaii , copies of the notice attached hereto marked "Appendix A."," Copies of said 13 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." HONOLULU STAR-BULLETIN, LTD. 411 notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by Respondent's authorized rep- resentatives, be posted by Respondent immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for the Twentieth Region in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. MEMBER BEAN took no part in the consideration of the above De- cision and Order. APPENDIX A N'OTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT encourage membership in, and adherence to, Honolulu Typographical Union No. 37, International Typo- graphical Union, AFL-CIO, or any affiliated labor organiza- tion, by discharging employees because they have engaged in protected activities or because they have not performed a con- dition of union membership; granting unlawful preferences to union members, or members in good standing, with respect to hiring and placement; or in any other manner discriminating against employees or prospective employees in regard to their hire or tenure of employment or any term or condition of em- ployment, except to the extent permitted by Section 8(a) (3) of the Act. WE WILL NOT give effect to, maintain, or enter into any con- tract or understanding with Honolulu Typographical Union No. 37, International Typographical Union, AFL-CIO, insofar as it conditions employment on membership or membership in good standing in said Union or any affiliated labor organization, except to the extent permitted by Section 8(a) (3) of the Act. WE WILL NOT enforce or give effect to the provision in our agreement With the above-named Union, requiring composing room foremen, Who do the hiring, to be union members, unless and until said foremen have been directly informed by said 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union that they are not obligated to comply with specified pro- visions of the International Typographical Union, AFL-CIO, General Laws or the above-named Union's constitution and by-laws calling for closed shop or union preferential hiring. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be validly affected by an agreement entered into in accordance with Section 8(a) (3) of the Act. WE WILL specify, in our current agreement with the above- named union, that the provisions of the International Typo- graphical Union, AFL-CIO, General Laws which have been found by the National Labor Relations Board to be illegal are not incorporated therein, and specify which of the provisions of the General Laws are incorporated therein and currently operative. WE WILL notify all our composing room employees that they are not bound to follow specified provisions of the International Typographical Union, AFL-CIO, General Laws which call for closed shop or union preferential hiring. WE WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suf- fered by reason of the discrimination against them : Anthony Van Kralingen, Jr. Kenneth Tamanaha WE WILL refund to all our employees or former employees employed in our composing room who have remitted dues and assessments illegally extracted from them to Honolulu Typo- graphical Union No. 37, International Typographical Union, AFL-CIO, the amount of such payments, and in accordance with the Board's direction. All our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization, except to the extent above stated. HONOLULU STAR-BULLETIN, LTD., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. HONOLULU STAR-BULLETIN, LTD. 413 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding is brought under Section 10(b) of the National Labor Rela- tions Act, 61 Stat. 136, pursuant to a consolidated complaint issued by the Gen- eral Counsel of the National Labor Relations Board against Honolulu Star- Bulletin, Ltd. The complaint, dated April 22, 1957, alleged that Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. Copies of the complaint, the charges upon which it was based, and notice of hearing thereon were duly served upon Respondent and upon the Party to the Contract, Honolulu Typographical Union No. 37, International Typographical Union, AFL-CIO, herein called the Union. The complaint alleged that Respondent (1) discharged Anthony Van Kralingen, Jr., on or about November 13, 1956, because of his union and concerted activities; (2) discharged Kenneth Tamanaha on or about November 23, 1956, at the de- mand of the Union, because his union membership was revoked for failure to complete a union study course; and (3) unlawfully maintained and gave effect to a contract with the Union which included and incorporated the laws of the International Typographical Union, which provide, inter alia, that the laws of the ITU are not subject to arbitration; foremen must be active members of the Union; only foremen may employ and discharge personnel; only members of the Union may be employed in performing work within the jurisdiction of the Union; and that dues and assessments shall be paid. Respondent's duly filed answer denied the commission of any unfair labor prae- tices; alleged that Van Kralingen was discharged for violation of an office rule; and alleged that Tamanaha was discharged for failure to live up to an under- standing, presumably with Respondent, that he would take certain correspondence lessons from the Union. Pursuant to notice, a hearing was held before the duly designated Trial Exam- iner _at Honolulu, Territory of Hawaii, on various dates between May 29 and June 14, 1957. The parties were represented by counsel who were afforded full oppor- tunity to be heard, to examine and cross -examine witnesses, and to introduce relevant evidence. At the close of the hearing, the parties were given an oppor- tunity to argue orally and to file briefs. Oral argument was presented by both parties and a brief has been received from Respondent. 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 RESPONDENT Honolulu Star-Bulletin, Ltd., is a Hawaii corporation which is engaged in the business of printing a daily newspaper and performing commercial printing at Honolulu, Territory of Hawaii. During the course of its business, Respondent subscribes to the interstate news services of the United Press and the Associated Press, and its gross revenue is in excess of $500,000 per annum. I find that the operations of Respondent affect commerce and that it would effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Honolulu Typographical Union No. 37, International Typographical Union, AFL-CIO, is a labor organization admitting to membership employees of Re- spondent. III. THE UNFAIR LABOR PRACTICES A. The discharge of Anthony Van Kralingen, Jr. 1. Sequence of events Van Kralingen entered the employ of Respondent on April 9, 1956, as an ad compositor in the composing room, resigned on April 28 to accept other employ- I Prior to the hearing, a motion by the General Counsel to take the deposition of certain witnesses residing in Los Angeles, California, was granted by the Regional Director for the Twentieth Region, and such depositions were duly taken on May 23, 1957, before another hearing officer. They were subsequently offered and received in evidence at the hearing. This testimony is discussed hereinafter. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment in the Territory and was rehired on July 2 .2 He remained in the employ of Respondent until November 13, 1956, when he was discharged. The General Counsel contends that Van Kralingen was discharged because of his union and concerted activities . Respondent's answer alleges that he was discharged for cause, viz, violation of office rule 15 which states as follows: Disorderly conduct (whether on duty or off duty) in this building, or on the premises, in any form ; loud, profane or indecent language, whistling, wrestling , scuffling, physical violence or threats thereof; visiting , canvassing, personal discussions , arguments , or otherwise interfering with the business of the office or disturbing or taking up the time of workers. The answer further alleges, as is the fact, that Van Kralingen invoked the grievance procedures of the contract between Respondent and the Union after his discharge ; that, pursuant thereto , the joint conciliation and arbitration committee provided for under the contract met and considered the grievance; and that the committee upheld the discharge. The evidence discloses that Van Kralingen took an intense interest in the rela- tionship between the Respondent and the Union ; that he was heard from in great detail at monthly chapel meetings; and that he wrote extensively on the subject in articles intended for posting on the union bulletin board at the paper or for dis- tribution to members.3 It appears that the relationship between Respondent and the Union is an amica- ble one and there is ample evidence to disclose that Van Kralingen 's aggressive union activities endeared him neither to management nor to Secretary-Treasurer Frank Almond of the Union, who is also a linotype operator in the employ of Respondent. These activities need not be set forth in complete detail because they do not affect the resolution of the basic issue herein. Thus, on or about May 21, 1956, Respondent and the Union signed a new con- tract for a 3-year period ending May 17, 1959. Soon thereafter , the application of the overtime work provisions of the contract became a topic of discussion among the employees of Respondent and Van Kralingen was quick to take a forthright position on the matter. On or about July 19, he presented a two-page typed memorandum to Chapel Chairman Stanley Harada. He asked that it be posted on the union bulletin board. This was done and the brochure remained there for at least one night. In essence , the brochure attacked the alleged require- ment for compulsory overtime work and was critical over the alleged eagerness of employees to obtain overtime work. About 1 month later, Van Kralingen wrote a two-page memorandum on the overtime work issue to the chapel chairman for presentation to the membership. Therein, he protested the belated notification to the chapel chairman by the com- posing room foreman that two men would have to work on a particular Sunday. Van Kralingen's letter, which like the previous one was not entirely clear, urged that more control in the selection of men for overtime work be vested in the chapel chairman; criticized the handling of the matter by management; and char- acterized the existing contract as "despicable." On October 11, Van Kralingen appeared at a meeting of the executive com- mittee of the Union ; no management representatives were present with the possi- ble exception of Robert Klinite, a markup man and substitute on week ends for Night Foreman Carl Blade. I deem it unnecessary to determine whether Klinite was a supervisor within the meaning of the Act. Van Kralingen presented written suggestions for improving the overtime distribution laws and urged that overtime should be handled by the foreman merely telling the chapel chairman how many 9 The record contains a number of conflicts, the resolution of which I deem unnecessary, because they do not relate sufficiently to the basic issues. One of them is a conflict as to whether Van Kralingen when rehired cleared through the chapel chairman of the Union or whether , as Chapel Chairman Harada and Foreman Larson testified , he was hired directly by Foreman Larson. 3 The chapel is a subdivision of the Union set up for the employees of Respondent and the chapel chairman is its elected head . Under its contract with Respondent , the Union maintains a bulletin board on the premises of the paper solely for union business ; this bulletin board is distinct from the management bulletin board. The chapel holds monthly meetings on the last Friday of each month on company premises at 3 :30 and the meeting lasts until approximately 3 :45 p.m. The first shift ends at 3 :30 and the night shift starts at that hour. The meeting , insofar as it relates to the second shift, is therefore held on company time. HONOLULU STAR-BULLETIN, LTD. 415 men he needed and the chapel chairman then distributing the overtime work according to union or chapel laws. He urged that overtime work performed outside of regular working hours for another employer be counted in determining eligibility for overtime with Re- spondent, a manifest reference to the Union 's policy of sharing overtime among all eligibles . He attacked the contract at Respondent as giving away too much to management. He argued against any punishment by union law for refusal to work overtime. According to Van Kralingen , Secretary-Treasurer Almond spoke on this occasion and opposed his views. An election of chapel officials was scheduled for the latter part of November and Van Kralingen was one of three candidates nominated at the October chapel meeting. As will appear, he was discharged on November 13 about 1 or 2 weeks before the election. Van Kralingen prepared a two -page document in support of his candidacy on November 12 and distributed copies thereof that same day to several members of the chapel when he reported for work just prior to his usual starting hour of 3:30 p.m.4 This brochure , it may be noted , was an intraunion paper addressed only to his fellow union members. Therein Van Kralingen announced his desire to place "before you my views and platform for your consideration ." He expressed his desire to transform the chapel into an active organization which would "fight the encroachment of contract by the office [Respondent]." Van Kralingen pledged himself to resist these alleged violations of the contract . He urged further use of the chapel bulletin board by posting chapel laws , ITU bulletins , labor peri- odicals , and articles of special interest , as well as reports on chapel business, the chairman's activities , and meetings with management. Van Kralingen then urged that the hiring of personnel be done by the chapel chairman and the executive board , with management merely notifying the chapel chairman of the vacancy, so as to avoid discrimination because of race , age, or union activity . He pledged himself to work for the alleviation of unsatisfactory practices in the apprentice training program. He pointed out that union men were still working beside nonunion men at Respondent , a reference to five em- ployees of long tenure who had been dropped from union membership in 1948 for nonpayment of dues. Van Kralingen urged that an appeal be made to the nonunion men to rejoin the Union so as to improve wages and working conditions, but that if the invitation were rejected , the union men should not associate or talk with these men. Again Van Kralingen urged that the chairman regulate the distribution of overtime. On the following day, November 13, Van Kralingen reported for work at his customary reporting hour of 3:30 p.m. and was discharged by Foreman Larson under the following circumstances . Larson, a union member, testified that he read the November 12 campaign release by Van Kralingen ; indeed, he displayed the document to Night Foreman Blade who variously testified that this took place on November 12 or 13 and elsewhere that it was on November 13. Blade also testified, in essence, that Larson handed him the November 12 release to read and announced that he, Larson , intended to discharge Van Kralingen. It appears that this remark was made in a conversation between the two men at 3 p.m. on No- vember 13. Larson testified that he directed Blade to send Van Kralingen to his office on this occasion and that when Van Kralingen appeared he, Larson, informed him that he was being discharged for violating office rule 15. On the following day, November 14, Larson gave Van Kralingen a letter, at the latter 's request, which repeated this as the reason. 2. Conclusions Larson and Blade agreed in their testimony that Blade had on a number of occasions since September 1956 recommended the discharge of Van Kralingen because of excessive talking with his coworkers , thereby hampering his own as well as the production of others . However, Larson uniformly told Blade on all these occasions that inasmuch as printers were scarce and work was increasing during the holiday season with more overtime being worked , Respondent should try to straighten out the matter without losing the man. Significantly , Van Kralingen was never warned by any representative of man- agement about these alleged derelictions on his part or that his discharge was under consideration. Larson testified that the most recent recommendation by Blade that Van Kralingen be discharged was made about 2 weeks prior to No- vember 13 ; according to Blade, it was some days before. ° The document is a detailed one and only the highlights are herein set forth. . 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I deem it of no great import herein whether Van Kralingen's talking was excessive, as Respondent contends, or routine and carried on by all employees as the General Counsel contends and some evidence discloses. What is germane is the fact that Respondent did not discharge him for this alleged dereliction. For, when Larson was asked why he decided that Van Kralingen had violated office rule 15, he replied that Blade had previously recommended the discharge, as set forth above, and that thereafter "I come in one morning [November 13] and I seen a thing there that had been circulated around the plant, and I read it, [the November 12 release] and at that time, why, after reading that I realized that Carl [Blade] had been right in what he said and in his recommendation . . . there was just no hope of straightening the man out." Larson further testified that he decided at that moment, after reading the Van Kralingen release of November 12, to discharge the man and that it was "the clincher" in his decision. Although he elsewhere testified that he did not discharge Van Kralingen for distributing this literature and that he predicated the discharge on the previous reports from Blade, he again repeated his testimony that his perusal of the November 12 release was the "clincher." It is clear from the foregoing, and I find, that (1) Larson had refused to dis- charge Van Kralingen on Blade's most recent recommendation prior to November 13 and (2) Larson's reading of the November 12 intraunion campaign release by Van Kralingen in support of his candidacy for chapel chairman was the motivating factor that led him to reverse his prior decision and to decide on November 13 to discharge Van Kralingen. There is no escaping the fact that but for Larson's perusal of the document, Van Kralingen would not have been discharged on this occasion. I find, therefore, that he was discharged because of the views he expressed in this document and his distribution thereof. Respondent has argued that the policy advocated by Van Kralingen would have brought it afoul of the provisions of the Act, particularly in the views expressed concerning the hiring of men. The answer to this is that Larson did not raise this claim to Van Kralingen. His own testimony discloses only that he told Van Kralingen there were things in his campaign literature that could not be put into effect and that he, Larson, did not state to Van Kralingen that they would result in any violation of the Act. Similarly, Larson's letter of November 14 to Van Kralingen, gave only the violation of rule 15 as the cause of his discharge. More particularly, and I do not intend hereby to pass upon the soundness or practicality of Van Kralingen's judgment in these matters, this was an intraunion campaign letter intended for the eyes of union members and not a demand upon management by the Union. Van Kralingen, by distributing this release, was engaging in a union and concerted activity and in no way was placing Respondent in danger of yielding to an unlawful demand. It would be certainly speculative to conjecture what the Union's ultimate policy might be on these matters in negotiating with management, particularly in view of the fact that the parties were recently signatory to a contract which stabilized conditions of employment for the next 3 years, ending May 17, 1959. Respondent has further argued that the decision of the joint conciliation and arbitration committee affirming the discharge of Van Kralingen is binding herein. This committee, composed of two management and two union representatives, held hearings on Van Kralingen's appeal of his discharge on November 21 and 26, 1956. Initially it is to be noted that Van Kralingen, who appeared at the hearing accompanied by counsel, was specifically denied the right to have counsel represent him at these sessions; indeed, counsel was not permitted to enter the hearing room. At that point, Van Kralingen introduced a recording machine into the hearing room for the purpose of making a transcript, but was not permitted to utilize it; in the alternative, minutes, although not complete, were taken down by the secre- tary of Respondent's vice president, Porter Dickinson, a member of the committee. Van Kralingen also was not permitted to be present when Foreman Larson or Night Foreman Blade presented testimony concerning the reasons for his discharge. In fact, he was not shown the transcript of their testimony, although the bare gist of the testimony was given to him by a committee member as well as in a letter sent to him on November 23. Van Kralingen was then permitted to ask Larson questions at the November 26 hearing based upon this partial report to him. It is well established that an award by an arbitrator or other fact-finding body does not preclude the Board from asserting jurisdiction and making its own find- ings. For the Act confers exclusive jurisdiction upon the Board to prevent unfair labor practices, and this may not be displaced by arbitration, State agencies, or other means. N.L.R.B. v. International Union, United Automobile, Aircraft and HONOLULU STAR-BULLETIN, LTD. 417 Agricultural Implement Workers of America, CIO (Timken-Detroit, etc.), 194 F. 2d 698 (C.A. 7). The Board has refused to honor an arbitration award which may be at odds with or repugnant to the Act. Stibbs Transportation Lines, Inc., 98 NLRB 422, and Monsanto Chemical Company, 97 NLRB 517. This is particularly so when the arbitration proceedings are not conducted in a manner consistent with Board proceedings which protect the rights of the aggrieved party. Wertheimer Stores, 107 NLRB 1434. Cf. Spielberg Manufacturing Company, 112 NLRB 1080. I find under the circumstances of this case that the committee proceedings failed to accord to the dischargee the due process and fair procedures of a Board hearing, including representation by counsel and confrontation of witnesses. Moreover, to recognize the decision of the committee would be repugnant to the purposes and policies of the Act which protect one who is engaged in union and concerted activities. Hence, the committee decision is found not to be binding upon the Board and is therefore not a valid defense herein. See N.L.R.B. v. Walt Disney Productions, 146 F. 2d 44, 48 (C.A. 9), cert. denied 324 U.S. 877. I find therefore that Respondent did not discharge Van Kralingen for violating office rule 15 or for subjecting Respondent to a charge of unfair labor practices, but rather that it discharged him because he engaged in the dissemination of this literature; that Van Kralingen was thereby engaging in a protected union and concerted activity; and that by his discharge, thereby discouraging union activities, Respondent has discriminated with respect to the hire and tenure of his employ- ment within the meaning of Section 8(a)(3) of the Act. I further find that by this discharge Respondent has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section 8(a) (1) thereof.5 B. The discharge of Kenneth Tamanaha 1. Sequence of events Tamanaha was discharged by Respondent on November 23, 1956. The com- plaint alleges that the Union demanded and that Respondent carried out this discharge because his union membership was revoked for failure to complete a course of study provided by the Union, thereby encouraging membership in the Union. Respondent's answer claims that Tamanaha was discharged for failure to carry out an agreement with Respondent when hired, that he would take and complete correspondence lessons given by the Union. Actually, the parties are not far apart in their positions, and the issue boils down to whether or not the Union caused the discharge for a reason clearly not permitted under the Act or whether Respondent independently discharged the man. Tamanaha originally sought employment with Respondent in 1953, was given a trial assignment and was found unqualified; he was told by Foreman Larson to return in a year. Tamanaha did so late in September or early in October of 1954, was again tried out, and was hired for the night shift as a journeyman mixer in the ad department. This classification pays 10 cents per hour in excess of the regular journeyman's scale because it requires more skill. According to Larson, soon thereafter, Night Foreman Blade reported that Tamanaha was not competent, but Larson urged patience because Tamanaha was a local boy who should be given a full opportunity to succeed. A similar report was made to Secretary-Treasurer Frank Almond of the Union, and he relayed this information to Larson.6 At this time or soon thereafter, Almond pointed out to Larson that Respondent's quota of apprentices was full and that as a result, Tamanaha could not be so classified. On the other hand, Tamanaha had but 41/2 years of experience in this field and as a result, he did not meet the union requirement of 6 years' experience 5 As indicated, I deem it unnecessary on this posture of the case to resolve conflicts as to whether Night Foreman Blade's weekend replacement, Klinite, was a supervisor ; whether Klinite's low opinion of Van Kralingen, in several respects, played a part in the discharge ; and whether Night Foreman Blade expressed an intent to discharge Van Kralingen. These findings, of course, are without prejudice to Respondent's right to discipline Van Kralingen for nondiscriminatory reasons for derelictions of duty should such take place. 9 There are a number of conflicts as to various subsequent incidents, most of which need not be resolved on grounds of nonrelevancy. However, primary reliance has been placed in ensuing findings on the testimony of Almond, a clear, forthright and meticulous witness, who impressed me as having a superior recollection of these incidents and whose testimony is accordingly credited herein. 508889-60-vol. 123-28 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as an apprentice to qualify as a journeyman. As Almond testified, he accordingly suggested to Larson that Tamanaha take a 2-year course of correspondence lessons given by the parent organization of the Union. A meeting was held between Larson, Tamanaha, Almond, and Tait, the latter also a union official. Larson adopted Almond's proposal concerning the union lessons and told Tamanaha that the only way he could remain on the payroll was for him to take these lessons; Tamanaha agreed to do so. In his testimony, Tamanaha did not recall such a meeting, but certain documents that he signed at or about this time persuade me that the recollection of Almond, buttressed by that of Larson, is the superior. It may be noted that there is a major conflict herein as to whether Tamanaha's promise to take the lessons was made to the Union, to Respondent, or to both; this is treated hereinafter. As a result, Tamanaha signed an agreement on October 31, 1954, with the Union, wherein, as a condition of admission to membership in the Union, he agreed to take a course of correspondence lessons for the period ending November 21, 1956. He signed this one day after he filed an application for membership in the Union and paid an initiation fee; significantly, the application for member- ship expressly stated that it was subject to his agreement to take the lessons. The handling of the application for membership in the Union was done solely by union representatives Almond and Tait. Although there is evidence disclosing that Tamanaha's work at the outset was not entirely satisfactory, it is undisputed that at the time of his discharge and for some time previous, Respondent was entirely satisfied with the quality of his work. Accordingly, he remained in his classification as mixer, with a 10-cent premium pay throughout his tenure with Respondent. Tamanaha's approach to the correspondence lessons, however, was one of indif- ference. He turned in the first three lessons, and then dropped the course because of what he later termed laxity on his part. This became a matter of some concern to the Union, although the record discloses that Foreman Larson was not disturbed thereby. According to Tamanaha, one DeMello, chairman of the Union's ap- prenticeship committee, warned Tamanaha in the summer of 1956 that he should get busy with the lessons, and, at a September union meeting, Tamanaha was warned that he might lose his union card if he persisted in this course of conduct. Again, in November, President Brandt of the Union queried Tamanaha on the matter. In all instances, Tamanaha promised to resume the lessons but did not. As indicated, however, his work at the time was judged by Respondent to be entirely competent. About 6 months before the discharge of Tamanaha, DeMello did bring the matter to the attention of Foreman Larson on one or two occasions. This was done in the nature of a report, but Larson merely told DeMello to get after Tamanaha on the matter. No further contact of Larson was made by the Union and there is no evidence to disclose that Larson gave the matter any further thought until it was brought to a head because of union pressure late in November of 1956. On November 20, 1956, the Union contacted its International and verified that Tamanaha had completed but three of the lessons. Its executive committee then voted to recommend to the International the revocation of Tamanaha's membership and to notify Larson accordingly. On November 22, the union officials, including Almond, prepared a letter to Larson wherein they reviewed the history of the case. They reminded Larson that Tamanaha had not met the requisites for a journeyman classification, as set forth in the contract between Respondent and the Union. The letter further stated as follows: 2. After consultation between yourself and representatives of the Union, it was agreed that while Mr. Tamanaha lacked the apprentice training needed to conform to the above-quoted definition, he nevertheless would be per- mitted to work as a journeyman and receive journeyman wages, provided he agreed to subscribe to and complete an approved course of lessons in printing provided by the Union, within a period of two years. 3. Mr. Tamanaha signed such an agreement, made out in triplicate, and expiring November 21, 1956, by which date he solemnly promised to have all lessons completed, under penalty of having his journeyman membership in the Union revoked. . 4. Upon his signing such agreement, Mr. Tamanaha was bired as a jour- neyman by the Star-Bulletin. On Tuesday, November 20, the following telegram was sent to the Bureau of Education of the International Typographical Union: HONOLULU STAR-BULLETIN, LTD. 419 J. Beadle, Bureau of Education, International Typographical Union, Indianapolis, Indiana. Please wire us what lessons completed by Kenneth K. Tamanaha (129631). . . . Carl A. Brandt, president, 37, care Star- Bulletin. to which we received the following reply the same day: Carl A. Brandt, President, Honolulu Typographical Union No. 37, care Star-Bulletin, Honolulu. Kenneth Tamanaha has completed only three lessons of fifty lesson course. Agreement will expire November 21st. His membership subject to revocation upon receipt of recommendation addressed to President Randolph. J. Paul Beadle, director. Immediately upon receipt of the above, the executive officers of the Union conferred and unanimously agreed to recommend revocation of Mr. Tamana- ha's journeyman membership, and to notify you. May we point out that Mr. Tacnanaha during this period now expired has repeatedly been urged and warned to complete the lessons, and it is clear to the Union officers that he has evaded his responsibility and failed to carry out his part of the agreement. Under these circumstances, it is evident that Kenneth K. Tamanaha should no longer be employed as a journeyman in the composing room of the Star- Bulletin, and we respectfully recommend that he be discharged. [Emphasis supplied.] It may be noted that Tamanaha was actually hired by Respondent prior to union approval, although this was done perhaps on a probationary basis. The reference in the letter to "journeyman" is apparently directed to the use of that term by the Union. During the morning of November 23, Almond personally delivered the above- quoted letter to Larson who admitted that prior to its receipt he, Larson, had at no time made any check as to Tamanaha's progress in this correspondence course; and, as indicated, Larson had displayed no interest in the matter. Larson read the letter and stated that he would have to do something about it. He arranged a meeting for that afternoon to be attended by Tamanaha, Almond, Chapel Chairman Katayama, and himself. The meeting was duly held that afternoon, and there is no conflict as to the details except as to one aspect which is set forth below. As Larson and Tamanaha testified, when Tamanaha entered the meeting, Secretary-Treasurer Almond pro- ceeded to read aloud to Tamanaha the letter submitted to Larson by Almond that morning which is set forth above in large part. Larson asked Tamanaha if it was true that he had done but three of the lessons, and Tamanaha admitted that such was the case, assigning laxity on his part as his reason for not continuing with the lessons. Tamanaha and Almond both agreed that Tamanaha asked Almond, on this occasion, if he could keep his job without having a union card. According to Almond, he replied that Tamanaha was a poor specimen of a union man if he thought that he could work for Respondent without a union card, after having joined the Union. According to Tamanaha, Almond stated that Tamanaha would give him, Almond, trouble if he tried. Apparently Larson maintained a silence concerning this exchange because the testimony of the four witnesses attributes no comments to Larson on this aspect of the conversation. This presents the conflict in the testimony as to what was said on the subject of alleged promises to complete the lessons. According to Tamanaha, he pro- tested to Almond that he had made an agreement with the Union, but not with Respondent to take this series of lessons. Larson stated that he, Larson, had made a verbal agreement with the Union concerning the lessons. Tamanaha pro- tested that he, Tamanaha, had made no agreement with Larson. Larson then stated that whenever one made an agreement it had to be followed through. Tamanaha was then presented with his pay check. It is to be noted that the check had been prepared prior to the meeting and was in Larson's possession when Tamanaha entered the room. Moreover, this pay check was not due until the following week. The testimony of Katayama, Almond, and Larson is in substantial agreement that Larson accused Tamanaha of breaking his word to Larson to take the lessons; that Tamanaha protested that his agreement was with the Union and that he had made no written agreement with Larson; and that Larson then said that he was discharging him for breaking his verbal agreement with Larson. I deem it un- 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary to resolve this conflict because, on either version, the conclusions that follow would be identical. It is of interest to note that Tamanaha was reinstated to union membership on or about December 2, subject to his promise to finish the lessons during the ensuing 6-month period. 2. Conclusions On the posture most favorable to Respondent, Larson accused Tamanaha of breaking his promise to Larson to take the lessons and, as he claimed, discharged him for that reason. However, even on that version, it is obvious that the Union caused the discharge of Tamanaha and that but for its express demand in the letter of November 22, delivered personally by Almond on the morning of November 23, Tamanaha would not have been discharged. Initially it is to be noted that the contract between Respondent and the Union which recognizes the Union as bargaining representative for all employees in the unit, contains no union-security clause. Section 24 of the contract expressly states that the general laws of the International Typographical Union, not in con- flict with Federal and Territorial laws or the language of the contract, govern relations "on conditions not specifically enumerated herein." And the General Laws of the ITU provide in article III that its policy is not to execute "union-shop" contracts. The case thus reduces itself to the following, irrespective of whether Tamanaha originally promised both Larson and the Union to take the lessons, or just the latter. Tamanaha was a competent employee with whose work, at the time of his discharge, Respondent was entirely satisfied. His discharge was not remotely under consideration on the morning of November 23. However, later that morning, Secretary-treasurer Almond of the Union pre- sented a letter, supra, to Larson wherein the employment history of Tamanaha was reviewed. The letter stated that: (1) Tamanaha lacked, according to union standards, the 6-year apprenticeship training to qualify as a journeyman when hired; (2) "After consultation between yourself (Larson) and representatives of the Union, it was agreed that while Mr. Tamanaha lacked the apprentice training needed to conform to the above-quoted definition, he nevertheless would be per- mitted to work as a journeyman and receive journeyman wages, provided he agreed to subscribe to and complete an approved course of lessons in printing provided by the Union, within a period of two years"; and (3) Tamanaha signed an agreement with the Union wherein he promised to have all his lessons completed within the indicated period under penalty of having his membership in the Union revoked.? The letter went on to say that after verifying Tamanaha's failure to complete the lessons "the executive officers of the Union conferred and unanimously agreed to recommend revocation of Tamanaha's membership in the Union" and to notify Larson accordingly. The letter pointed out that Tamanaha had failed to carry out his part of the agreement and stated "it is evident that Kenneth K. Tamanaha should no longer be employed as a journeyman in the composing room of the Star-Bulletin, and we respectfully recommend that he be discharged." (Emphasis supplied.) It is clear that the Union recommended this discharge because Tamanaha had failed to carry out a union activity, viz, completion of the course of correspondence lessons, which was made a condition of his application for membership. It is fur- ther apparent that but for the Union's recommendation, Tamanaha would not have been discharged. There is, therefore, no escaping the conclusion that the Union caused the discharge. Indeed, Tamanaha's final pay check was ready and the issue ostensibly decided prior to his arrival at the afternoon meeting on November 23. Accordingly, I reject the contention that Respondent discharged Tamanaha for breaking a promise to Respondent .8 The Act forbids all types of discrimination on the part of an employer except pursuant to a lawful union-security provision, and then only for the limited reasons for nonpayment of initiation fees or dues. In this case the contract contained no union-security provision, and even if it did, the discharge of Tamanaha involved the imposition of a greater degree of union security than is permitted under the 7It is to be noted that this letter makes no reference to an agreement between Tamanaha and Respondent to take the lessons, but solely to one between Respondent and the Union, as well as between Tamanaha and the Union. 8 Indeed, were this solely employer motivated, Almond's presence and the reading of the letter were unnecessary. HONOLULU STAR-BULLETIN, LTD. 421 Act. Tamanaha was discharged by Respondent directly as the result of the Union's demands because he failed to complete his course of union lessons. That this would reasonably tend to encourage membership in a labor organization, viz, the Union, is obvious. N.L.R.B. v. Radio Officers' Union, etc., 347 U.S. 17. Stated. otherwise, Tamanaha did not fulfill the conditions for obtaining member- ship in the Union, viz, completion of the course of union lessons, as expressly provided in his membership application. Having failed to do so, the executive committee of the Union recommended revocation of his union membership; so notified Foreman Larson, himself a union member; and demanded that Larson discharge the man, although insofar as Respondent was concerned, Tamanaha's skill and competency in his job was not in issue. Thus, Respondent discharged Tamanaha because he was no longer a member in good,:standing of the Union, pursuant to the Union's demand therefor. But an employer may not delegate or permit a labor organization to make the decisions as to who shall remain in its employ for reasons connected with union membership or adherence to union policies. J. A. Utley Company v. N.L.R.B., 217 F. 2d 885 (C.A. 6); N.L.R.B. v. Lloyd A. Fry Roofing Company, et al., 193 F. 2d 324 (C.A. 9); Union County Newsdealers Supply Co., 114 NLRB 1575; and Insulation Contractors of Southern California, Inc., etc., 110 NLRB 638. And it is an employer's duty to resist any domination of its right to employ. N.L.R.B. v. International Brotherhood of Teamsters, et al., (Pacific Intermountain Express Co.) 225 F. 2d 343 (C.A. 8); N.L.R.B. v. Goodyear Tire & Rubber Company, 129 F. 2d 661, 664 (C.A. 5); and N.L.R.B. v. Hudson Motor Car Company, 128 F. 2d 532-2 (C.A. 6). I find that by discharging Kenneth Tamanaha on November 23, 1956, thereby encouraging membership in a labor organization, Respondent discriminated in regard to his hire and tenure of employment and engaged in conduct violative of Section 8(a)(3) of the Act. I further find that by the foregoing conduct Re- spondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section 8 (a) (I) thereof.9 C. The contract 1. The facts The complaint further alleges that the current contract between Respondent and the Union is violative of Section 8(a)(1) of the Act because it incorporates the "Laws of the ITU, providing that such Laws of the ITU shall not be subject to arbitration, and further providing that the foreman must be an active member of the Union, that only the foreman may employ and discharge, that only members of the Union may be employed in performing work coming under jurisdiction of the Union, and requires the payment of dues and assessments." The most recent contract between Respondent and the Union was entered into on May 21, 1956, and expires on May 17, 1959. Therein, the Union is recognized as the exclusive bargaining representative for all journeymen and apprentices employed in the composing room; it does not contain any union-security language as such. It also provides that "Jurisdiction of the Union and the appropriate unit for collective bargaining is defined as including all composing room work...." A number of provisions in the contract, as well as in the Book of Laws of the ITU, are cited herein by the General Counsel in support of his contention; the latter, it may be noted, includes bylaws, constitution and general laws. Initially, attention is directed to Section 24(c) of the current contract which provides: " It is understood and agreed that the general laws of the International Typo- graphical Union, in effect January 1, 1956, not in conflict with federal and terri- torial (state) law or this contract, shall govern relations between the parties on conditions not specifically enumerated herein. The laws of the International Typographical Union shall not be subject to arbitration." Section 18 of the contract further provides that "The foreman is the only recognized authority in carrying out the instructions of the Employer in the composing room. Assistants may be designated to direct the work, but only the foreman may employ and discharge." 9 On this posture of the cast it becomes unnecessary to resolve several conflicts, one attributing a statement to Relief Foreman Klinite concerning the discharge several weeks thereafter, and the other by former employee Dwan, attributing a statement to Larson, approximately 1 week after the discharge, that the discharge had been carried out in order to remain in the good graces of the Union ; this was denied by Mr. and Mrs. Larson, both present on the indicated occasion. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the Book of Laws of the ITU, also cited herein by the General Counsel, both the 1956 and 1957 editions are in evidence. It will suffice herein to quote from the 1957 edition, effective January 1, 1957; the sections cited here- inafter also appear in the 1956 edition. Article III, section 5 of the bylaws provides that "Each chapel shall adopt rules for the government of its members. Such rules shall not conflict with local contract, civil law, or the laws of the International or local unions." Article II, section 1 of the constitution provides that: "The International Typo- graphical Union shall exercise complete and unrestricted authority to define its jurisdiction; enact; enforce and amend, as provided in its constitution and bylaws, all laws for the, government of the International Union, its subordinate unions and its officers and members throughout its entire jurisdiction." Article XII, section 5 of the constitution provides that "It is the duty of each and every member of the International Typographical Union to comply with all the laws, rules, regulations and decisions of the International Typographical Union, and of any subordinate union thereof to which the member may belong and to support both in furthering the interests of the union in legal manner and by legal means as adopted by the union; it being understood that no subordinate union laws, rules, regulations and decisions shall be in violation of civil laws, or the laws, rules, regulations and decisions of the International Typographical Union." Article VI, section 1 of the bylaws provides that "In offices under the jurisdiction of the International Typographical Union the foreman is the only person to whom to apply for work... . Article VII, section 1 of the bylaws provides that every member, with an exception not material herein, "shall pay the International Typographical Union per capita tax and assessments. . . .' Article II, section 3 of the general laws provides that "It is imperatively ordered that the executive officers of the International Typographical Union shall not sub- mit any of, its laws to arbitration. Nor shall any subordinate union arbitrate whether or not any general law of the International Typographical Union is effective." Article III, section 1 of the general laws provides that "It is our policy that local unions . . . do not seek to execute so-called `union shop' contracts. . there are features of such a `union shop' that are unacceptable to our members." (Emphasis supplied.) Article V, sec.:on I of the general laws provides that "In union shops the foreman is the only recognized authority . only the foreman may employ and discharge. In filling vacancies, the foreman shall be governed by the provisions of Article X, general laws." (Emphasis supplied.) 10 Article V, section 11 of the general laws provides that "all persons performing the work of foremen or journeymen, at any branch of the printing trade, in offices under the jurisdiction of the International Typographical Union, must be active members of the local union of their craft and entitled to all the privileges and benefits of membership." (Emphasis supplied.)" Article XIV of the general laws provides that "In circumstances in which the enforcement or observance of provisions of the General Laws would be contrary to public law, they are suspended so long as such public law remains in effect." The constitution and bylaws of Local 37 further provide in article 111, of the bylaws, that each journeyman member shall pay local monthly dues of $3 as well as "per capita tax, old-age pension and mortuary assessments provided for by International Typographical Union law"; article XI, section 2 of the constitution provides that the "chapel chairman shall strictly enforce the laws of this Union . . ; and article XVIII of the constitution that "All regulations adopted 10 Article X of the general laws provides in section 1 that "Persons considered capable as substitutes by foremen shall be deemed competent to fill regular situations, and the substitute oldest in continuous service shall have prior right in the filling of the first vacancy. This section shall apply to incoming as well as outgoing foremen." Section 2 treats with the establishment of a system "for registering and recording priority standing of members in all chapels." 11 As set forth above, the general laws of the ITU provide in article V. section 11. that all journeymen must be active union members and the bylaws of Local 37 provide in article I, section 5, that subordinate union laws may not conflict with International policy. Hence the language of section 2 of the contract that the term "journeymen" does not apply exclusively to ITU members is not controlling. Not only was the contention not raised, but in addition, the discharge of Tamanaha, set forth above, discloses that the International policy was applied. HONOLULU STAR-BULLETIN, LTD. 423 by the International Typographical Union for the government of subordinate Unions shall be considered as part of this Constitution, and anything herein con- flicting with the laws of the International Typographical Union shall be considered void and of no effect." (Emphasis supplied.) Article I, section 5 of the bylaws of Local 37 provides that "It is the duty of each and every member of the International Typographical Union to comply with all the laws, rules, regulations and decisions of the International Typographical Union and of any subordinate union thereof . it being understood that no subordinate Union laws, rules, regulations and decisions shall be in violation of civil laws or the laws, rules, regulations and decisions of the International Typo- graphical Union. 2. Conclusions The foregoing references amply demonstrate, as the General Counsel contends, that the contract between the Respondent and the Union, together with its incor- porated matter, contains provisions of the nature described in the complaint. The issue then posed is, does the maintenance of such contractual provisions constitute a violation of Section 8(a) (1) of the Act by Respondent712 Initially, one contention by Respondent may be disposed of. Testimony was adduced that during the negotiation of the previous contract between Respondent and the Union, covering the period from May 17, 1954, through May 1956, the Union submitted a proposal requiring that the composing room foreman be a member of the Union. Objection was made by Respondent to the legality of this proposal and it was withdrawn; the union representatives allegedly committed themselves at the time not to interpret the contract so as to run afoul of the law, presumably the Act; and only then was the contract signed. The union repre- sentatives allegedly stated on this occasion that any provisions of the Book of Laws, also incorporated in that agreement, contrary to the language of the contract would not be given effect. It appears that in the negotiation of the current contract in 1956 the issue was not raised. As indicated, both contracts provided that the general laws of the ITU not in conflict with Federal and Territorial law, or the contract, shall goverrt relations between the parties on conditions not specifically enumerated therein. Totally aside from the fact that this was an oral undertaking made in connection with the previous contract, the Board and the courts have repeatedly held that general language disclaiming any intent to violate the Act or suspending any contract clause, unspecified, which may be violative of the law or the Act, does not go far enough. Nothing short of express contractual language specifically withholding the application of a specific clause is recognized. Accordingly, this contention of Respondent is rejected. Red Star Express Lines of Auburn, Inc., v. N.L.R.B., 196 F. 2d 78 (C.A. 2); N.L.R.B. v. Gaynor News Company, Inc., 197 F. 2d 719 (C.A. 2), affd. 347 U.S. 17; N.L.R.B. v. Gottfried Baking Co., Inc., et al., 210 F. 2d. 772 (C.A. 2); City Window Cleaning Company, 114 NLRB 906; and E. F. Shuck Construction Co., Inc., 114 NLRB 727, enfd. 243 F. 2d 519 (C.A. 9). See also Jersey Contracting Corp., 112 NLRB 660. A consideration of the contract and the language of the general laws incorporated therein impels the conclusion that it provides for a greater degree of union security than is permitted under the Act and what amounts to a closed shop. The contract first spells out what work falls within the jurisdiction of the Union and this, in essence, is all composing room work. It then provides that only members of the Union may perform such work. To insure that said policy is followed, the contract further provides that the foreman must be a member of the Union and that he must do all hiring and firing. Nor is the foregoing dispelled by evidence that Respondent has five nonunion men in its composing room. As set forth, these are employees of long tenure who dropped their union membership in 1948 some years prior to this hearing. The simple answer is that the contract and its incorporated matter is still in existence and constitutes notice to the labor market at large concerning conditions of employment at Respondent. The fact that it has not been enforced in one instance, whether because of the stock ownership in Respondent of some or all of these employees is not controlling, does not offset the plain purport of the con- tractual relationship.13 "The execution of the contract antedates the original charge by more than 6 months. See Section 10(b) of the Act. 13 Contrary to Respondent's contention in its brief, I do not deem the Intermediate Report in Kansas City Star Company, et at., 119 NLRB 972, to be in point. The issue 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The potential of the contractual language concerning foremen is not difficult to ascertain. In N.L.R.B. v. Retail Clerks International Association, AFL, and Retail Clerks' Union, Local 648 (Safeway Stores) 211 F. 2d 759, a case involving another issue, the Court of Appeals for the Ninth Circuit noted as follows: A primary objective of § 2(11) of the Act . . was to assure to the employer his right to procure the loyalty and efficiency of his supervisors and managers. The reports which accompanied the legislative bill which Congress enacted into the Labor Management Relations Act of 1947 made this abundantly clear. . . . Much emphasis was laid upon the desirability of assuring their independence of unions of the rank.and-file.... The. committees noted the tendency to subservience by the foremen in their associations to unions of the rank-and-file, and how as a practical matter the rank-and-file unions were dictating what the foremen might or might not do. The conduct of the unions here furnishes a fair illustration of the sort of thing Congress was trying to get away from when it made these amendments with respect to supervisors. It may fairly be said that an employer would be sharply restricted in his opportunity to obtain loyal and efficient super- visors if he is to be limited to selecting them from a rank-and-file union whose members, by habit and training, may have acquired an anti-employer bias. Here the union proposes to dictate, through its bargaining, what the supervisors may or may not do. . . . Congress obviously did not contemplate that a Union should be able to exercise that much power. In view of the legislative history of the present Act, we must construe the consent decree as having been framed with a view to avoiding just this sort of encroachment upon the rights of an employer to select and control his supervisors and to obtain their loyalty and cooperation. In International Typographical Union, et, al. (American Newspaper Publishers Association), 86 NLRB 951, 958, in treating with Section 8(b)(1)(B) of the Act, the Board stated as follows: Under these circumstances, we find, as did the Trial Examiner, that the foremen here involved constitute employer "representatives for the pur- poses . of the adjustment of grievances" within the meaning of Section 8(b)(1)(B) and that, under the legislative plan projected in this section, the Respondents could not, by applying coercive pressure, attempt to compel the employers to limit the selection of this type of foremen to a class com- posed only of union members.23 0 That the statutory scheme extended the protection of 8 (b) (1) (B) to the right of employers to select foremen having the type of duties above detailed, is indicated not only by the absence of any •exemptive -language in Section 8(b) (1) (B), but also by the legislative history of this provision. See, e.g., Senate Report No. 105 on S. 1126, 80th Cong., 1st secs., at p. 21 ; the remarks of Senator Ellender at 93 Cong. Rec., p. 4266; and the remarks of Senator Taft at 93 Cong. Rec., pp. 3953-3954. It is also obvious that by incorporating the laws of the Union, Respondent has made the payment of dues and assessments a condition of employment. Of course, the payment of assessments may under no circumstances constitute a con- dition of employment, and a requirement for the payment of dues may be insti- tuted only under a valid union shop. The contract does not contain a union shop and indeed, the laws of the ITU, as stated, expressly provide that it is contrary to the policy of that organization to enter into a union-shop agreement.14 I find, therefore, that by the inclusion of language in the contract and its incor- porated matter requiring membership in the ITU of foremen, providing that only there was a different one and in any event, for the reasons heretofore set forth, the Board and the courts have uniformly declined to recognize nonspecific language purporting to suspend the operation of any contract clause, unspecified, that may prove to be illegal. See Nassau and Suffolk Contractors' Association, Inc., etc., 118 NLRB 174. 14 The requirements for payment of dues and assessments appear in the bylaws of the Local and the International, but not in the general laws. Respondent has not contended that these are not incorporated into the contract. It is not clear whether the language in the contract incorporating the general laws of the ITU applies to the entire Book of Laws which includes, inter alia, the constitution, bylaws, general laws or just the last-named portion of the Book of Laws. HONOLULU STAR-BULLETIN, LTD. 425 foremen may hire and fire,15 that only union members may perform work falling within the jurisdiction of the Union, and that dues and assessments shall be paid, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. This is so, because under the Act the employees of Respondent may be subjected to no restraint in, or interference with, their right to engage in, or refrain from engaging in, union activities, except to the extent permitted under the proviso to Section 8(a)(3) of the Act. By subjecting its employees to this contractual relationship, Respondent has gone too far. See Radio Officers' Union,. etc., v. N.L.R.B., 347 U.S. 17. 1 find that by the foregoing Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act.is IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with its operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce within a Territory of the United States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent has discriminated with respect to the hire and tenure of employment of Anthony Van Kralingen, Jr., and Kenneth Tamanaha. I shall therefore recommend that Respondent offer to each.. immediate- and full reinstatement to his former position without prejudice to seniority or other- rights and privileges. See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. I shall further recommend that Respondent make them whole for any loss of pay suffered by reason of the discrimination against them. Said loss of pay, based upon earnings which each normally would have earned from the dates of the discrimination against them, November 13 and 23, 1956, respectively, to the date of the offer of reinstatement, less net earnings, shall be computed in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289. See N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. I shall further recommend that Respondent cease giving effect to the unlawful provisions in its agreement with the Union or any other agreement requiring mem- bership in the Union as a condition of employment, except to the extent per- mitted under Section 8(a)(3) of the Act. On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Honolulu Star-Bulletin, Ltd., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Anthony Van Kralingen, Jr., and Kenneth Tamanaha, Re- spondent has engaged in and is engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(3) of the Act. 3. By the foregoing and by maintaining a contract with a labor organization providing that foremen must belong to said labor organization, that only foremen may hire and fire, that only members of that labor organization may be em- ployed, and requiring the payment of dues and assessments, Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 15 The provision that only foremen may hire or fire is deemed violative of the Act when considered' in conjunction with -the requirement for their union. membership.. 19 As for the General Counsel's attack on the. clause that the laws, of the ITU shall not be subject to arbitration, this clause, per se, is not deemed to be violative of the Act, and the General Counsel has relied on it solely to show that the language incorporated into the contract is not subject to arbitration. If Respondent's contract with the ITU is changed consistent with the ensuing recommendations, this problem is met. Accordingly, no adverse finding is predicated upon this clause.