The H. K. Ferguson Co.

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereof is to force or require Joseph P. Cuddigan, Inc., or any other employer or person to cease doing business with E. Turgeon Construction Co., Inc., or any other company or person. LOCAL 476, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE- FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Labor Organization. Dated--- ---------------- By------------------------------------------- (Representative ) ( Title) Dated------------------- By------------------------------------------- (WILLIAM O'BRIEN, Buseness Agent) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. The H. K. Ferguson Company and Herbert F. Roberts and United Brotherhood of Carpenters and Joiners of America , AFL-CIO, The Tuscaloosa and Vicinity District Council of Tuscaloosa and Selma, Alabama, and Carpenters and Millwrights Local Union No. 1337, Parties to the Contract United Brotherhood of Carpenters and Joiners of America, AFL-CIO, The Tuscaloosa and Vicinity District Council of Tuscaloosa and Selma, Alabama , and Carpenters and Mill- wrights Local Union No. 1337 and Herbert F. Roberts and The H. K. Ferguson Company, Party to the Contract. Cases Nos. 15-CA-1025 and 15-CB-195. August 18, 1959 DECISION AND ORDER On April 30, 1959, Trial Examiner Alba B. Martin issued his Inter- mediate Report in the above-entitled proceeding finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents filed exceptions to the Intermediate Report. A brief in support of its exceptions was also filed by the Respondent Company. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Jenkins]. 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 Inter- mediate Report, the exceptions and brief, and the entire record in the 124 NLRB No. 70. THE H. K. FERGUSON COMPANY 545, case, and hereby adopts the Trial Examiner's findings, conclusions,, and recommendations.' ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Respondent The H. K. Ferguson Company, Cleveland, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Maintaining, enforcing, or giving any effect to any agreement, understanding, or practice with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, The Tuscaloosa and Vicinity District Council of Tuscaloosa and Selma, Alabama, Local Union 1337, or any other labor organization, which gives exclusive control over the employment of employees to a labor organization, or which requires membership in or referral from a labor organization as a condition of employment, except as authorized in the proviso to Sec- tion 8 (a) (3) of the Act. (b) Encouraging membership in United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO, or any of its subordinate unions, or any other labor organization of its employees, by discrimi- nating in regard to hire or tenure of employment or any term or con- dition of employment, except to the extent permitted by the proviso to Section 8(a) (3) of the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with Respondents United Brotherhood, District Council and Local 1337, make whole Herbert F. Roberts, Morris Grace, W. R. Vice, N. T. Steadham, E. M. Peacock, J. E. Mathers, B. S. Irvin, and Robert Hartman for any loss they may have suffered as a result of the discrimination against them in the I In his Intermediate Report, the Trial Examiner concluded that all eight discriminatees were acceptable to the Company for reemployment. Elsewhere, however, the Trial Ex- aminer apparently credited Business Agent Goodman 's testimony to the effect that Goodman had , in fact, been told by a company representative that one of these eight, Vice, was not acceptable . Assuming that Goodman had been so informed by the Company, this does not affect our finding of discrimination against Vice on the part of the Union since it is clear from the record that Goodman's denial -of a referral to Vice was based on the latter 's refusal to return to work on January 2 , 1957, in opposition to Goodman's wishes. Again assuming that the Company had informed Goodman that Vice was not acceptable, such action does not free the Company from the consequences of its having delegated complete control of the hiring process to the Union. 525543-60-vol. 124-36 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Jointly and severally with said three Respondents reimburse all millwrights and millwright apprentices who worked at the Demopolis project for moneys illegally exacted from them in the manner and to the extent set forth in the section of the Intermediate Report entitled, "The Remedy." (c) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to compute the amount of back pay due the above-named eight employees and the moneys illegally exacted from them and other employees. (d) Post at its offices and at all of its construction projects within the territorial jurisdiction of Respondent United Brotherhood and Respondent District Council copies of the notice attached hereto marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), shall, after being duly signed by Respondent Company's representa- tive, be posted by Respondent Company immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Company to insure that said notices are not altered, de- faced, or covered by any other material. (e) Post at the same places and under the same conditions as set forth in (d) above, and as soon as they are forwarded by the Regional Director, copies of Respondent United's notice, Respondent District Council's notice, and Respondent Local's notice herein, marked "Ap- pendix B," "Appendix C," and "Appendix D." (f) Notify the Regional Director for the Fifteenth Region, in writ- ing, within 10 days from the date of this Order, what steps it has taken to comply herewith. B. Respondent United Brotherhood of Carpenters and Joiners of America, AFL-CIO, its officers, representatives, and agents, shall: 1. Cease and desist from : (a) Maintaining, enforcing, or giving any effect to any agreement, understanding, or practice with The H. K. Ferguson Company, or any other employer over whom the Board would assert jurisdiction which gives exclusive control over the employment of employees to it or any of its subordinate units or which requires membership in or referral from it or any 'of its subordinate units as a condition of em- n 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," THE H. K. FERGUSON COMPANY 547 ployment, except as authorized by the proviso to Section 8(a) (3) of the Act. (b) Causing or attempting to cause Respondent Company, or any other employer over whom the Board would assert jurisdiction to discriminate against employees or applicants for employment in vio- lation of Section 8 ( a) (3) of the Act. (c) In any other manner, restraining or coercing employees or applicants for employment in the exercise ' of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8(a) (3) of the Act. . 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Jointly and severally with Respondent Company, Respondent District Council, and Respondent Local 1337, reimburse the above- named eight employees for any loss they may have suffered as a re- sult of the discrimination against them in the manner set forth in the section of the Intermediate Report entitled, "The Remedy." (b) Jointly and severally with Respondent Company, Respondent District Council, and Respondent Local 1337, reimburse all mill- wrights and millwright apprentices who worked at the Demopolis project for moneys illegally exacted from them in the manner and to the extent set forth in the section of the Intermediate Report entitled, "The Remedy." (c) Preserve and make available to the Board or its agents upon request, for examination and copying, all dues, initiation fees, assess- ments, permit fees, "dobie" and other records necessary to compute the moneys illegally exacted from employees of Respondent Company. (d) Post at its offices, in conspicuous places, including all places where notices to members are customarily posted, copies of the notice attached hereto marked "Appendix B." 3 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by Respondent United's representative, be posted immediately upon receipt thereof and be maintained by Re- spondent United for 60 consecutive days thereafter . Reasonable steps shall be taken by Respondent United to insure that said notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director signed copies of Appendix B, for posting by Respondent Company as provided , above herein. Copies of said notice, to be furnished by the said Regional Director, shall, after being signed by Respondent United's representative , be forth- with returned to the Regional Director for such posting. 8 See footnote 2, supra. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Notify the Regional Director for the Fifteenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. C. Respondent District Council, The Tuscaloosa and Vicinity Dis- trict Council of Tuscaloosa and Selma, Alabama, its officers, repre- sentatives, and agents, shall: 1. Cease and desist from: (a) Maintaining, enforcing, or giving any effect to any agreement, understanding, or practice with The H. K. Ferguson Company, or any other employer over whom the Board would assert jurisdiction. which gives exclusive control over the employment of employees to it or any of its affiliated locals or which requires membership in or referral from it or any of its affiliated locals as a condition of employ- ment, except as authorized by the proviso to Section 8(a) (3) of the Act. (b) Causing or attempting to cause Respondent Company or any other employer over whom the Board would assert jurisdiction to discriminate against employees or applicants for employment in vio- lation of Section 8(a) (3) of the Act. (c) In any other manner restraining or coercing employees or appli- cants for employment in the exercise of the rights guaranteed in See- tion 7 of the Act, except to the extent that such rights may be affected. by an agreement requiring membership in a labor organization as a. condition of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with Respondent Company, Respondent United Brotherhood, and Respondent Local 1337, reimburse the above- named eight employees for any loss they may have suffered as a result of the discrimination against them in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Jointly and severally with Respondent Company, Respondent United Brotherhood, and Respondent Local 1337, reimburse all mill- wrights and millwright apprentices who worked at the Demopolis project for moneys illegally exacted from them in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy." (c) Preserve and make available to the Board or its agents upon request, for examination and copying, all dues, initiation fees, assess ments, permit fees, "dobies" and other records necessary to compute the moneys illegally exacted from employees of Respondent Company. (d) Post at its offices, and at the meeting places of each of the three local unions within its jurisdiction, in conspicuous places, in- cluding all places where notices to members are customarily posted, THE H. X. 1'ERGUSON COMPANY 540 copies of the notice attached hereto marked "Appendix C." 4 Copies of said notice, to be furnished by the Regional Director for the Fif- teenth Region, shall, after being duly signed by Respondent District Council's representative, be posted immediately upon receipt thereof and be maintained by Respondent District Council for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent Dis- trict Council to insure that said notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director signed copies of Appendix C, for posting by Respondent Company as provided above herein. Copies of said notice to be furnished by the said Regional Director shall, after being signed by Respondent District Council's representative, be forthwith returned to the Regional Director for such posting. (f) Notify the Regional Director for the Fifteenth Region, in writ- ing, within 10 days from the date of this Order, what steps it has taken to comply herewith. D. Respondent Local Union 1337, its officers, representatives, and agents, shall: 1. Cease and desist from : (a) Maintaining, enforcing, or giving effect to any agreement, understanding, or practice with The H. K. Ferguson Company or any other employer over whom the Board would assert jurisdiction which gives exclusive control over the employment of employees to it or which requires membership in or referral from it as a condition of employment, except as authorized by the proviso to Section 8(a) (3) of the Act. (b) Causing or attempting to cause Respondent Company or any other employer over whom the Board would assert jurisdiction to dis- criminate against employees or applicants for employment in viola- tion of Section 8(a) (3) of the Act. (c) In any other manner restraining or coercing employees or applicants for employment in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with Respondent Company, Respondent United Brotherhood, and Respondent District Council, reimburse the above-named eight employees for any loss they may have suffered as a result of the discrimination against them in the manner set forth in the section of the Intermediate Report entitled "The Remedy." 4 See footnote 2, supra. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Jointly and severally with Respondent Company, Respondent United Brotherhood, acid Respondent District Council, reimburse all millwrights and millwright apprentices who worked at the Demopolis project for moneys illegally exacted from them in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy." (c) Preserve and make available to the Board or its agents upon request, for examination and copying, all dues, initiation fees, assess- ments, permit fees, "dobie" and other records necessary to compute the moneys illegally exacted from employees of Respondent Company. (d) Post at its office and meeting hall in Tuscaloosa, Alabama, in conspicuous places, including all places where notices to members are customarily posted, copies of the notice attached hereto marked "Ap- pendix D." 5 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region shall, after being duly signed by Respondent Local 1337's representative, be posted immediately upon receipt thereof and be maintained by Respondent Local 1337 for 60 consecutive days thereafter. Reasonable steps shall be taken by Re- spondent Local 1337 to insure that said notices are not.altered, defaced, or covered by any other material. (e) Mail to the Regional Director signed copies of Appendix D, for posting by Respondent Company as provided above herein. Copies of said notice to be furnished by the said Regional Director, shall, after being signed by Respondent Local 1337's representative, be forth- with returned to the Regional Director for such.posting. (f) Notify the Regional Director for the Fifteenth Region, in writ- ing, within 10 days from the date of this Order, what steps it has taken to comply herewith. 5 See footnote 2, supra. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT maintain, perform, or enforce any agreement, understanding, or practice with United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO, or any of its subordinate District Councils or Locals, or any other labor organization, which gives exclusive control over the employment of employees to a labor organization, or which requires membership in or re- THE H. K. FERGUSON COMPANY 551 ferral from a labor organization as a condition of employment, except as authorized in the proviso to Section 8 (a) (3) of the Act. WE WILL NOT encourage membership in United Brotherhood of Carpenters and Joiners of America, AFT,-CIO, or in any other labor organization of our employees, by discriminating in regard to hire or tenure of employment or any term or condition of em- ployment, except to the extent permitted by the proviso to Sec- tion 8(a) (3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. WE WILL reimburse all our millwrights and millwright appren- tices at our Gulf States Paper Corporation project at Demopolis, Alabama, for all dues, initiation fees, assessments, permit fees, and/or "dobies" they were unlawfully required to pay to United Brotherhood of Carpenters and Joiners of America, or any of its subordinate District Councils or Local Unions, as a result of the unlawful hiring provisions in our contracts with the afore- mentioned labor organization dated April 3, 1956, and January 3, 1957, and our practices under these contracts at the aforemen- tioned project. WE WILL make whole Herbert F. Roberts, Morris Grace, W. R. Vice, N. T. Steadham, E. M. Peacock, J. E. Mathers, B. S. Irvin, and Robert Hartman for any loss of pay suffered by them as a result of the discrimination practiced against them. All our employees are free to become or remain, or to refrain from becoming or remaining, members in good standing of United Brother- hood of Carpenters and Joiners of America, or any of its subordinate District Councils or Local Unions or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the National Labor Relations Act. THE H. K. FERGUSON COMPANY, 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. .552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B .NOTICE TO ALL MEMBERS OF UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA , AFL-CIO, AND TO ALL EMPLOYEES OF, AND APPLICANTS FOR EMPLOYMENT WITH, THE H. K. FERGUSON COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT maintain, perform, or enforce any agreement, understanding, or practice we may have with The H. K. Ferguson Company or any other employer over whom the Board will assert jurisdiction, which gives exclusive control over the employ- ment of employees to us or any of our subordinate District Councils or Local Unions, or which requires membership in or. referrals from us or any of our subordinate District Councils or Local Unions as a condition of employment, except as authorized in the proviso to Section 8(a) (3) of the Act. WE WILL NOT cause or attempt to cause The H. K. Ferguson Company, or any other employer over whom the Board will assert jurisdiction to discriminate against employees or applicants for employment in violation of Section 8(a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees or applicants for employment in the exercise of the rights guar- anteed in Section 7 of the Act , except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. WE WILL reimburse all millwrights and millwright apprentices of The H. K. Ferguson Company, at its Gulf States Paper Cor- poration project at Demopolis, Alabama, for all dues, initiation fees, assessments, permit fees, and/or "dobies" they were unlaw- fully required to pay to us or to any of our subordinate District Councils or Local Unions, as a result of the illegal hiring provi- sions in our contracts with The H. K. Ferguson Company dated April 3, 1956, and January 3, 1957, and our practices under these contracts at the aforementioned project. WE WILL make whole Herbert F. Roberts, Morris Grace, W. R. Vice, N. T. Steadham, E. If. Peacock, J. E. Mathers, B. S. Irvin, THE H. K. FERGUSON COMPANY 553 and Robert Hartman for any loss of pay suffered by them as a result of the discrimination practiced against them. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX C NOTICE TO ALL MEMBERS OF UNITED BROTI-IERI3OOD OF CARPENTERS AND JOINERS OF AMERICA , AFL-CIO, WITHIN THE JURISDICTION OF THE TUSCALOOSA AND VICINITY DISTRICT COUNCIL, OF TUSCA- LOOSA AND SELMA, ALABAMA , AND TO ALL EMPLOYEES OF, AND APPLI- CANTS FOR EMPLOYMENT WITH, THE H. K. FERGUSON COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT maintain , perform, or enforce any agreement, understanding, or practice we may have with The H. K. Fergu- son Company or any other employer over whom the Board will assert jurisdiction, which gives exclusive control over the employ- ment of employees to us or any of our affiliated Local Unions, or which requires membership in or referrals from us or any of our affiliated Local Unions as a condition of employment, except as authorized in the proviso to Section 8(a) (3) of the Act. WE WILL NOT cause or attempt to cause The H. K . Ferguson Company, or any other employer over whom the Board will assert jurisdiction to discriminate against employees or applicants for employment in violation of Section 8(a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees or applicants for employment in the exercise of the rights guar- anteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. WE WILL reimburse all millwrights and millwright apprentices of The H. K. Ferguson Company at its Gulf States Paper Cor- poration project at Demopolis, Alabama, for all dues, initiation fees, assessments, permit fees , and/or "dobies" they were unlaw- fully required to pay to us or to any of our affiliated Local 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unions, as a result of the illegal hiring provisions in our con- tracts with The H. K. Ferguson Company dated April 3, 1956, and January 3, 1957, and our practices under these contracts at the aforementioned project. WE WILL make whole Herbert F. Roberts, Morris Grace, W. R. Vice, N. T. Steadham, E. M. Peacock, J. E. Mathers, B. S. Irvin, and Robert Hartman for any loss of pay suffered by them as a result of the discrimination practiced against them. THE TUSCALOOSA AND VICINITY DISTRICT COUNCIL OF TUSCALOOSA AND SELMA, ALABAMA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX D NOTICE TO ALL MEMBERS OF MILLWRIGHTS LOCAL UNION No. 1337 AND TO ALL EMPLOYEES OF9 AND APPLICANTS FOR EMPLOYMENT WITH, THE H. K. FERGUSON COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT maintain, perform, or enforce any agreement, understanding, or practice we may have with The H. K. Fergu- son Company, or any other employer over whom the Board will assert jurisdiction, which gives exclusive control over the employ- ment of employees to us or which requires membership in or re- ferrals from us as a condition of employment, except as author- ized in the proviso to Section 8(a) (3) of the Act. WE WILL NOT cause or attempt to cause The H. K. Ferguson Company, or any other employer over whom the Board will assert jurisdiction to discriminate against employees or appli- cants for employment in violation of Section 8(a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees or applicants for employment in the exercise of the rights guar- anteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. WE WILL reimburse all millwrights and millwright apprentices of The H. K. Ferguson Company at its Gulf States Paper Cor- poration project at Demopolis, Alabama, for all dues, initiation THE H. K. FERGUSON COMPANY 555 fees, assessments, permit fees, and/or "dobies" they were unlaw- fully required to pay to us, as a result of the illegal hiring pro- visions in our contract with The H. K. Ferguson Company dated April 3, 1956, and January 3, 1957, and our practices under these contracts at the aforementioned project. WE WILL make whole Herbert F. Roberts, Morris Grace, W. R. Vice, N. T. Steadhain, E. M. Peacock, J. E. Mathers, B. S. Irvin, and .Robert Hartman for any loss of pay suffered by them as a result of the discrimination practiced against them. MILLWRIGHTS LOCAL UNION No. 1337, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented , was heard before Alba B. Martin, the duly designated Trial Examiner, in Tuscaloosa, Alabama, on November 19 and 20, 1958, on complaint of the General Counsel and answers of The H. K. Fergu- son Company, the Respondent Company, and the United Brotherhood, the District Council, and Local Union No. 1337, the Respondent Unions. The issues litigated were whether Respondent Company and the Respondent Unions were parties to unlawful hiring agreements, arrangements, understandings, or practices requiring membership and/or referrals from the Respondent Unions as a condition of employ- ment as millwrights at Respondent Company's project in Demopolis, Alabama (re- ferred to herein as the Demopolis project); and whether eight named individuals were denied employment by Respondent Company because they did not have re- ferrals from Respondent United Brotherhood, Respondent District Council, or Respondent Local. The General Counsel contended that Respondent Company has violated Section 8(a) (1) and (3) and Section 2(6) and (7) of the Act; I and that Respondent Unions'have violated Section 8(b)(1)(A) and 8(b)(2) and Section 2(6) and (7) of the Act. The General Counsel and Respondent Company filed briefs, which have been carefully considered. Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT COMPANY The H. K. Ferguson Company, an Ohio corporation with its principal office in Cleveland, Ohio, is engaged in general construction and related work in the State of Ohio, and in several of the States of the United States. In the course and conduct of its business operations during the year 1957, which period is representative of all times material herein, Respondent Company received in excess of $10,000,000 for services performed for customers located in various States other than the State of Ohio. During the same period of time, Respondent Company performed construc- tion services for the Gulf States Paper Corporation at Demopolis, Alabama (the Demopolis project), which services were valued in excess of $1,000,000. In con- nection with this project, Respondent Company purchased materials and supplies valued in excess of $500,000 which were shipped to the project from points outside the State of Alabama. I find that the Respondent Company is engaged in commerce within the meaning of the Act and that assertion of jurisdiction is warranted. ' The National Labor Relations Act, as amended , 61 Stat. 136. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATIONS INVOLVED All of the Respondent Unions, the United Brotherhood , the District Council, and the Local Union, are labor organizations and are affiliated with one another. III. THE UNFAIR LABOR PRACTICES At Respondent Company's request, Business Manager Goodman of Respondent District Council, supplied millwrights to Respondent Company for its Demopolis project. The controlling issue in the proceeding is whether Respondent Company voluntarily and unilaterally used the District Council as a source of skilled labor, or whether its use of the District Council was controlled by contracts, understand- ings, arrangements , or practices which gave control over the selection of millwrights for employment at the Demopolis project to Respondent District Council, thereby maintaining and using an exclusive hiring arrangement which did not include the safeguards required under the Board's Mountain Pacific 2 decision. A. The contracts The Demopolis project began in about January 1956, and ended in November or December 1957. The events of particular concern herein occurred in late December 1956 and early January 1957. On April 3, 1956, Respondent Company and Respondent United Brotherhood entered into a written contract which contained no duration clause and which pre- sumptively continued until it was superseded by another written contract dated May 31 , 1958 . (The legality of the latter contract is not in issue under the com- plaints or the General Counsel's contentions.) In pertinent part the 1956 contract set forth that Respondent Company agreed "to recognize the jurisdictional claims of the United Brotherhood ...." Respond- ent Company agreed further- to work the hours , pay the wages and abide by all lawful rules and regulations established or agreed upon by the United Brotherhood . and the recognized bargaining agency of the locality in which any work of our Company is being done, with respect to members of the United Brotherhood employed by our Company. (Emphasis supplied.) No change is to be made in the hours and wages in any locality, and no conditions imposed other than are enforced on all Local firms. The contract provided further that- in consideration of the foregoing, the United Brotherhood . . . agreed to fur- nish competent Journeymen as requested and, further, that no stoppage of work or any strike of its members, either collectively or individually , shall be entered into pending any dispute being investigated and all peaceable means taken to bring about a settlement. The parties hereto agree that in the event any provisions of this Agreement are held unconstitutional or be void as in violation of any laws, rules or regula- tions, nevertheless , the remainder of the Agreement shall remain in full force and effect unless the parts so found to be void are wholly inseparable from re- maining portions of this Agreement. In November and again in late December 1956, the millwrights at the Demopolis project walked off the job in an effort to get higher wages. All pertinent testimony establishes that all directly concerned considered the going rate per hour for mill- wrights too low. Nothing but wages was in dispute. On January 2 , 1957, effective the following day, Respondent Company and Respondent United Brotherhood en- tered into the following "memo of understanding": In order to avoid any further disputes over wages on the above -named project the following understanding is reached which will be a supplement to the International agreement signed by the above parties and the working rules of the Tuscaloosa and vicinity district council of carpenters. 1. The rate of pay of Journeyman Millwrights will be $3 per hour. 2. This agreement is for the duration of the above -stated project. 3. All other provisions of the International agreement and the Tuscaloosa District Council working rules shall apply on this project. 4. This agreement is to be effective as of January 3, 1957. 2 Mountain Pacific Chapter of the Associated General Contractors, Inc., et at., 119 NLRB 883, 893. THE H. K. FERGUSON COMPANY 557 Respondent District Council's "Trade Rules" in effect at all times of concern herein until November 1, 1958, provided in part that "in no case shall a member or steward be discharged for upholding these Bylaws and Trade Rules. . . ... Respond- ent District Council's bylaws in effect at all times of concern herein until Novem- ber 1, 1958, provided in part: "No member of the United Brotherhood . . . in this District shall work for a nonunion carpenter, nor shall he work for a contractor who employes a nonunion carpenter nor shall he be allowed to work on any job where laborers perform work requiring the skill, knowledge or ability of a carpenter to perform." B. The general practice under the 1956 and 1957 contracts At the Tuscaloosa project the parties used a referral system, the referrals being issued by W. E. Goodman, business agent of Respondent District Council, and being presented at the project when the applicant millwrights first reported for work. Mill- wright Superintendent John C. Harvey credibly testified that when he went to work for Respondent Company in that capacity in September 1956, the project manager of the Demopolis project, F. C. Paterson, Jr., "told me I would get my men through the Tuscaloosa Local." Harvey testified when he needed millwrights he "first talked to Mr. Paterson. Then, I called Mr. Goodman in Tuscaloosa." Tuscaloosa is about 60 miles from Demopolis. A number of General Counsel's witnesses testified that when they first presented themselves at the personnel office at the entrance to the project they showed their referrals to one Betty Garrett,3 following which and following her preparation of employment documents, they went into the project. Millwright Superintendent Harvey testified that the new employees did not have to show the referrals to him, but that they showed them to the union steward in Harvey's presence. Other testimony showed that Harvey sometimes asked to see the referrals or if they had referrals. Harvey testified that to his knowledge no mill- wrights were hired who did not have a referral. Harvey customarily checked the toolboxes of the new millwrights to be sure that the men had the proper tools to do the work. Harvey testified no men were sent to him who were not qualified to do the work. Goodman, who served as the District Council's business agent during the entire Demopolis project up until July 1, 1957, and who customarily visited the proj- ect about once a week, testified that to his knowledge three men were hired at the gate without referrals from him. (A list of millwright and millwright apprentice employees who were hired on this project, which list was supplied by Respondent Company under subpena, discloses that during the project prior to July 1, 1957, Respondent Company hired 192 millwrights.) Asked the purpose of the referral card, Business Agent Goodman, who signed the referrals to the Demopolis project, testified at first that "I don't believe I have that knowledge." Then in substance he testified that the referral card was an introductory card to the Company. As is seen more particularly below, in a number of instances millwrights who had been work- ing for the Company until they walked off the job a few days before, were given referrals to return to work-showing that in practice the purpose of the referral card was not to introduce a new man to the Company. In late November 1956, the approximately 24 millwrights then working on the Demopolis project walked off the job in the protest over what they considered a low hourly wage-$2.571/2 an hour. After remaining off the job for a few days, most of the millwrights returned to work, relying on the assurance of Business Agent Goodman and Blaine T. Durham, an International representative of Respondent United Brotherhood who works principally in the State of Alabama, that they would try to get the men a wage increase. Goodman told the men they had a con- tract which set the wage scale and all they could do was to "apply" to the Company for more money. On this occasion Respondent Company accepted them back to work and gave termination papers recommending rehiring to three millwrights from Macon, Georgia, who did not return to work at this time. s Mrs. Betty Garrett worked for Respondent Company from almost the beginning until the end of the project. At first she served as secretary to the personnel manager of the project, but when he left in October 1956 no personnel manager was named to succeed him and in January her title changed from secretary to personnel assistant-with no change in duties. From October 1956 on, she alone occupied the small building at the gate to the project, referred to as the personnel office. Although nothing would have stopped men from walking onto the project without presenting referrals to Mrs. Garrett, in practice the referrals were first shown to her in the personnel office. After the de- parture of the personnel manager she took her orders 'from the chief accountant and from Project Manager Paterson. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A few days before Christmas 1956, the millwrights then on the job, through their union steward notified Project Manager Paterson that they were going to walk off the job because they had not gotten a wage increase. Paterson assembled the mill- wrights, asked them to stay on the job a week, during which he would try to get them an increase, told them in substance that he knew their wage rate was lower than that of other crafts on the job of comparable skills. According to the credited testimony of R. P. McCracken, who impressed me as a credible witness, Paterson also told the men that if he could not get a raise for them he would not blame them for leaving the job and that if, after they left, a raise came through and the men wanted to return, the Company would be glad to have them all back. In sub- stance this testimony was corroborated by witnesses Robert Hartman and Herman McGilberry. Paterson pointed out that before the men could get a raise his superiors in the Ferguson Company would have to be contacted at the home office and also the Gulf States Paper Company for whom the Demopolis project was being carried on. Paterson also pointed out that there was an agreement setting the wage rate and that the men would have to do something about that part of it. After working about a week, on Friday, December 28, 1956, the millwrights again walked off the job, no raise having come through by that time. Some advance notice having been given the Company, on the way out, after checking in all the company equipment they had, the men picked up termination papers which had been prepared and which indicated that they were discharged. Two of the millwrights, Steadham and Grace, testified in substance that the termination papers indicated that the Company would rehire the men. On this occasion approximately 20 to 30 millwrights walked out. Insofar as the record shows only the union steward re- mained on the job. Twenty-one were released by the Company on December 28 and one on December 29. There is some indication in the testimony that the millwrights walked off after they had been told that Project Manager Paterson had said that he could not get a raise for them. When Paterson heard about the walkoff at about the time it occurred, he sent a wire to Business Agent Goodman in Tuscaloosa requesting that Goodman send 50 millwrights to the job the following Monday, December 31, 1956. Goodman did not receive this wire until Monday, when he first went to his office following a short Christmas vacation the previous week from Tuesday, Christmas Day, on. Goodman testified that there were not 50 millwrights in the area. After receiving the telegram Goodman tried to contact those millwrights who had walked off the previous Friday and who lived around Tuscaloosa, and also got in touch with the local in Sheffield, Alabama, and ascertained that there were about 17 idle millwrights in that local who were available. He tried to persuade the local men to return to work on Wednesday morning, January 2, Tuesday being the New Year's Day holiday. Goodman gave R. P. McCracken, a foreman, referrals signed by Goodman for a number of the former employees, and gave some referrals directly to the former employees them- selves. At the hearing Goodman's point was in substance that these. referrals were good for January 2 only, but McCracken's referral, which is in evidence, does not so state. It is dated "1-2-57," but nothing on the referral indicates that the man would have to report to work on that particular day or the referral would be canceled. According to the credited testimony of R. P. McCracken, on December 31, at the office of Respondent District Council where Goodman had his office, McCracken met a group of millwrights from the Sheffield local who indicated to him that they were going to work at Demopolis. McCracken tried to persuade them not to go to work there on the ground that a group of millwrights had just quit work down there trying to increase the wage rate. Some of the Demopolis men and also some of the local men who had just quit, went to Demopolis that day, but none reported for work at the Company. Insofar as this proceeding is concerned the project was shut down on New Year's Day. On January 2, 1957, a group of the old millwrights who had quit their jobs December 28, appeared at the gate of the project with their referrals. Steward Hartman, who was at work, came out to the gate and told them that Millwright Superintendent Harvey was not on the job. This was Harvey's birthday and he had taken the day off. Thereafter none of the former employees presented their re- ferrals or asked to go back to work that day. As R. P. McCracken explained it in testifying: The superintendent there is the one that lays out the work for us; the superin- tendent is the one that give us the work. The company pays out the money, but if we're not' having any work to do, no superintendent there, we are just spending out a bunch of money.' THE H . K. FERGUSON COMPANY 559 A number of men from the Sheffield local did present their referrals and did go to work that day. A list of millwright and millwright apprentice employees prepared for the Company, which is in evidence, shows that nine new employees began work- ing for the Company on that day, and other evidence indicates that they were the men, or at least some of them, from Sheffield. Learning in a telephone conversation with Betty Garrett that the former em- ployees had been at the gate but had not gone to work, and having learned from another telephone conversation that Hartman had tried to prevent the Sheffield men from going to work, Goodman went to the Demopolis project and relieved Hartman of his stewardship, appointing one of the Sheffield men, Dewberry, in Hartman's place as steward. Then Goodman witnessed the negotiation of the supplemental agreement between Respondent Company and Respondent United Brotherhood, which was negotiated at the project by Project Manager Paterson for the Company and Henry W. Chandler for the United Brotherhood-Durham and Goodman also being present. As has been noted above, in this agreement the parties raised the rate of pay of journeymen millwrights to $3 per hour. In an 11-page statement prepared by the General Counsel in the presence of Paterson during the investigation of this proceeding several months before the hear- ing, which statement Paterson refused to sign, appears the statement: Goodman was present when I signed the agreement with Chandler and I be- lieve I said: "When the hell are you going to send the men back?" He said: "I'll have them back tomorrow." Having read the statement at the hearing Paterson testified that the statements in it were substantially correct, but that he did not remember the truth or falsity of the sentences in it quoted above. Paterson allowed that Goodman "already had had a telegram. It would seem obvious that the fact that he had come down there, that possibly we did discuss the return of the men, but what happened or what we said I have no recollection." Paterson stated, however, that be never did tell Goodman or anyone else that he would not rehire any of the millwrights who had previously walked off the job. In substance Goodman denied discussing the old men with Paterson, but he admitted that shortly after the signing of the agreement on January 2, he had a discussion with Bill Bullock, the mechanical superintendent who was above Millwright Superintendent Harvey in the Company hierarchy, about the possibility of the former millwrights return to work. Bullock said that all of the old men were acceptable to the Company except one apprentice millwright. From the statements set forth in this paragraph, I conclude only that Goodman learned during the course of this day that all of the former millwrights were completely acceptable to the Company except one, who was an apprentice. During the course of this day, January 2, Goodman learned also that none of the previous employees had returned to work that morning and that not very many of the Sheffield men had reported either and that the Company was in need of millwrights. Whereupon he called his office and requested Financial Secretary Stone of Local Union 1337 to telephone the Chattanooga local and ask them to send down some 30 millwrights. Later that day he learned that the Chattanooga local would comply with the request. Early the following morning, January 3, 1957, Business Agent Goodman tele- phoned Betty Garrett at the personnel office on the project and told her that "all of the referrals he had issued were voided and new ones were being issued." Although Goodman testified to a different version of this conversation, Mrs. Garrett impressed me as a more creditable witness than Goodman and her testimony as quoted above is credited. As the former employees reported for work that morning-and there must have been a sizable group , according to the credited testimony of R. P. McCracken-Mrs. Garrett refused their referrals and said that she could not accept them, that they had all been canceled. On the witness stand, Mrs. Garrett admitted that as the old men came in to go to work that day, she gave them Goodman's message to the effect that the referrals were canceled. In substance, she gave the same reason to Union Steward Hartman, when he came in to inquire why the old men were not being hired. W. E. Simmons, a member of Respondent Local 1337 and a member of Respond- ent District Council for some 5 or 6 years prior to June 1957, impressed me as a very honest and credible witness, and his testimony was uncontradicted. According to Simmons' credited testimony, on about January 3, 1957, he overheard a conversa- tion between Business Agent Goodman and some of the former employees con- cerning Goodman's canceling their referrals. As the reason why he canceled their referrals, Goodman told these men that he canceled them because "you didn't go back to work when I told you to go to work." Then they got into what Simmons 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD characterized as a "racket" or a "cuss fight." During the conversation, Goodman also told the men that "they was not going back on that job while he was business agent or as long as he could keep them off." On behalf of his stepson, Morris Grace, who was one of the group being thus addressed by Goodman, Simmons the follow- ing day spoke with Millwright Superintendent Harvey. Simmons asked Harvey if Harvey would put his stepson and any of the others back to work if they could "get in there," and Harvey replied that "he would take every one of them if they would refer them back in here, every man I had." When Simmons told Goodman what Harvey had said-presumably soon thereafter-Goodman replied "Well, I am not going to send any of them down there this time anyhow . . . I don't know as I ever will." According to the credited testimony of Morris Grace, several times thereafter Grace spoke to Goodman presumably about receiving a referral, and he did not re- ceive any up until February 1, 1957, when Grace had a serious automobile accident and was thereafter incapacitated. During one of these occasions Goodman told Grace "that the Company didn't want none of the men back that was involved in the walkout down there." Foreman Herman McGilberry was on vacation with the permission of Millwright Superintendent Harvey from December 21, 1956, until January 3, 1957, on which day he reported to Harvey at about 11 o'clock in the morning and told him that he would return to work the next day-and Harvey approved. According to McGilberry, shortly thereafter he overheard Goodman tell a group of the former employee mill- wrights standing out in the road presumably at the entrance to the project, that he was riot going to let any of the former employees go back on the job. McGilberry spoke up and told Goodman that he had just talked with Harvey who had said that he could go back to work. Goodman replied, "I'm not going to let you go back to work either." The following day when McGilberry reported to Harvey to go to work, he was not allowed to keep his job because, as Harvey testified, "Mr. Goodman told me that Mr. McGilberry was involved in that walkout as much as anybody else and he wanted him off the job." When Harvey asked his superior, Mechanical Superin- tendent Bullock, what to do about it, Bullock replied that "if Mr. Goodman re- quested for that man to leave, to put it on his termination slip that was why he was terminated and let him go." So Harvey caused the following to be put on McGilberry's termination notice dated January 3, 1957, which is in evidence: "Re- quested not to be put back to work by Mr. Goodman of Tuscaloosa Local." While trying to save his job that morning, at Harvey's suggestion, McGilberry went to see Bill Jennings , who was in charge of all construction on the project and was the top man in the hierarchy on the project under Project Manager Paterson. Jennings told him to tell the job steward that Jennings wanted to talk with him and that Jennings wanted McGilberry returned to work. McGilberry then told Harvey that he had talked with Jennings and then located the newly appointed union steward, Dewberry. Presumably he told Dewberry what Jennings had said. Dewberry said "Mr. Goodman has given orders for you not to go back to work, not to be put back to work." McGilberry asked if Dewberry had told Jennings that and Dewberry replied that he had 4 Goodman denied that he ever talked with anybody about McGilberry's termina- tion. He testified further that on January 5, 1957, McGilberry asked Goodman for a referral to that job and Goodman replied that he would give him one but that he did not have any call for men just now. Goodman added "You get me a written statement that they want you back on that job as a foreman and I will be glad to do what I can to get you back." Goodman did not attempt to explain why, if he did not have control of hiring at the project, McGilberry should furnish him with a written statement from the Company that the Company wished to employ McGilberry as a foreman. On Saturday, January 5, 1957, R. P. McCracken went to Birmingham, Alabama, looking for work, and while there he saw Blaine T. Durham, international repre- sentative of the United Brotherhood. Durham asked McCracken why he was not working at Demopolis. McCracken replied "Mr. Goodman won't let us work down there," to which Durham replied "You go and tell Mr. Goodman I said let you go back; he can't keep you off the job." McCracken returned to Tuscaloosa and told Goodman what Durham had said. Goodman replied "Durham ain't running this end of it. I am running this end, and when I get room for you boys, I will send you down there." On Monday morning, January 7, 1957, a committee of the former employees talked with Project Manager Paterson in his office at the Demopolis project. The 4 The findings in this paragraph are based upon the testimony of McGilberry and Mill- wright Superintendent Harvey and McGilberry 's termination notice, which is in evidence. THE H. K. FERGUSON COMPANY 561 committee's purpose was to try to get the old men back to work. According to R. P. McCracken, Paterson said that there was nothing he could do about it, that he had ordered men from Goodman and he was the one to send them down and "I have to use whoever he sends. I am not going to call them in personally." Robert Hartman testified that when the committee told Paterson that Goodman had said Paterson would not hire them, Paterson replied "Mr. Goodman is a liar. I want you down here and he won't give any of you referrals and I can't hire you unless he does." Paterson denied altogether having any meeting with any committee of the former millwrights to discuss their possible return to the job. As Paterson was a frequently unresponsive and sometimes evasive witness, and a witness who did not impress me as having a clear remembrance concerning some of the events about which he testified, I do not credit his denial in this instance. To be noted is that the versions of both Hartman and McCracken have Paterson placing the control of the employment of millwrights in Goodman rather than in the Company. As McCracken had a clearer memory of the events concerning which he was testifying than did Hartman, and as McCracken impressed me generally as more certain of his testimony than did Hartman, I credit the testimony of McCracken concerning what Paterson said to the employee committee on this occasion. At about this time, probably on January 7, some eight of the former employees, including McCracken and Herbert F. Roberts, signed their names to a telegram to the Respondent United Brotherhood asking for an investigation as to why they were being kept off the job. At a union meeting on Tuesday night, January 8, pre- sumably of Local 1337, Business Agent Goodman read that telegram to the meet- ing and said in substance that as far as he was concerned, the men who had signed that telegram were done and finished in this area. In substance, Goodman's position was that as the former employees came to him and asked for referrals-the large group of them came he believed on January 4, Goodman told them that there were no openings at the present but that he would keep any who wished to be kept on a list and would refer them to the job as soon as there were any openings. It is true that from time to time after the crisis had passed, Goodman gave referrals to some of the old employees and they presented the referrals and went to work. C. The refusal to hire eight individuals Herbert F. Roberts, Morris Grace, W. R. Vice, N. T. Steadham, E. M. Peacock, J. E. Mathers, and B. S. Irvin were among the millwrights who walked out of the Demopolis project on December 28 in protest against the existing hourly wage. (Vice was an apprentice millwright.) Robert Hartman quit at noon on January 2 in protest over being relieved of his stewardship on the job. Following the December 28 walkout, Respondent Company began to hire new millwrights on January 2, when it hired 10. On January 3 it hired 11. On Janu- ary 4 it hired 11. On January 7 it hired nine. The next millwright hired was on February 1, when one man was taken on. The next was on February 12 when three were hired, and the next on the following day when one millwright was hired. As has been seen above, immediately after the walkout Project Manager Paterson ordered 50 millwrights from Goodman. This number was never reduced. Yet dur- ing January 2, 3, 4, and 7, during which none of the former employees were per- mitted to return to work, the Company hired only 41 millwrights, leaving 9 va- cancies yet to be filled. Between January 7 and February 1 none of these nine vacancies were filled, even though during this period Goodman knew the Company needed men and that the eight men named in the complaints and named above wanted to return to work, and even though Paterson knew generally, after his conversation with the employees on January 7, that the former employees who wanted to return were being kept from returning by Goodman. On January 3, Roberts asked Goodman for a referral at the jobsite, and Goodman refused his request on the ground that Roberts was one of the "fellows who walked out." Again on January 5 Goodman refused him a referral. Roberts was one of those who signed the telegram to the United Brotherhood asking for an investigation of the Tuscaloosa situation, one of those whom Goodman announced were done in the area at the union meeting January 8. It is clear from this evidence that Roberts was kept from returning to the job by Goodman's refusal to give him a referral. Grace was one of the former employees who had a referral on January 2 but who did not present himself to the Company for employment. He was one of those who presented his referral to Betty Garrett the following day and was turned away on the ground that his referral had been canceled. That evening he was among those told by Goodman that the latter had canceled their referrals because "you didn't go 525543-60-vol. 124-37 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD back to work when I told you to go to work." Grace was the stepson on whose behalf his stepfather, W. E. Simmons, the following day, January 4, asked Millwright Superintendent Harvey if Harvey would take him back-Harvey replying that he would take all the old men back, including Grace, if they would get referrals from Goodman. It is clear that Grace was not returned to work because he lacked a referral and that Goodman withheld a referral. Steadham asked Goodman for a referral during the period the Chattanooga men were coming in and receiving referrals, which was roughly between January 3 and 7. At first Goodman refused on the ground that he did not need any men. Later the same day, according to the credited testimony of Steadham, Goodman told Steadham to go to the local at Demopolis and Goodman would see about getting him onto the job in a few days. Steadham cleared into the Demopolis local, paid a month's dues and was given by Financial Secretary Seale of the local a working card for January issued by Respondent District Council. He stayed around Demopolis for about 2 weeks during which he asked Seale each day if Goodman had sent a referral, which he had not, and during which several times he went to the entrance gate of the project with his tools ready to go to work and was stopped by the guard, pre- sumably for want of a referral. (Mrs. Garrett testified that the one guard always on duty at the gate "would answer the questions (of people who came up to him) and direct them to where they wanted to go, to the main office or to my office.") Dur- ing this 2-week period Steadham never received a referral and never went back to work. Peacock telephoned Goodman several times asking for a referral beginning about January 2 or 3 and ending sometime in April 1957. Goodman's replies were that he had called other locals for men, or had all the men he needed just then. Good- man was antagonistic because Peacock had been among those who had "quit up there." In April Goodman told Peacock he could put him to work in September. Never after December 28, 1956, did Peacock receive a referral to the Demopolis job. Peacock was telephoning Goodman from Macon, Georgia, but it is clear on the record that he was available to return to Demopolis and return to work from at least January 3 through January 7, during which there were nine vacancies unfilled. Mathers 5 and Irvin were both at the jobsite trying to get back to work during the week beginning December 31, 1956, when the Sheffield and Chattanooga men were receiving referrals and going to work. They spoke to Millwright Superintendent Harvey, who told them to get a referral from Goodman. When they reported Harvey's word to Goodman, the latter replied that they were "through down there." About 5 or 6 weeks later Goodman gave them referrals and they returned to work. Hartman, as has been seen above, was one of the committee of millwrights who called on Project Manager Paterson on January 7 to try to get the former employees back to work-Paterson replying, as found above, "I have to use whoever he [Goodman] sends. I am not going to call them in personally." Under the circum- stances of this case, this was Hartman's application to return to work. It is clear that he was not returned to work because he did not have Goodman's approval. Vice first went to work for Respondent Company in November 1956. To get the job he first went to the jobsite and talked with, among others, Mrs. Betty Garrett, who told him that "you had to have a referral card from the business agent to go to work here." Goodman sent him to Financial Secretary Seale of the Demopolis local. An apprentice, Vice then went to "school" for 2 weeks, after which Seale handed him a referral slip from Goodman, with which he got a job. After walking out December 28 with the other millwrights, one day the following week he was at the jobsite when Goodman refused referrals to the former employees. Goodman's stated reason was that they had "crossed" him. Although later Goodman told Vice he would get a referral because he was an apprentice, Vice never received one. In substance Goodman testified that Mechanical Superintendent Bullock told him that all the former employees were acceptable to the Company except Vice, who did not work but just stood around wiping his wrench with a rag; and that in slough- ing off Vice, Goodman gave him a "pretty good reason." Vice's testimony, which was uncontradicted, did not give any reason except as stated above. Under all the circumstances of the case I find that Vice was deprived of a referral and a job in implementation of the unlawful hiring contract and arrangement and for the same reasons as the other former employees-as found below. B The list of millwrights prepared by Respondent Company lists "blathers, S. E." and "J. E. Mathis." Tinder the circumstances it is clear that the person who testified and whose name the court reporter caught as "J. E. Mathis" was in fact the J. E. Mathers who previously worked for the Company and who walked out with the other millwrights on December 28. THE H. K. FERGUSON COMPANY 563 D. Conclusions 1. Under well-established law concerning savings clauses the 1956 master contract between Respondent Company and Respondent United Brotherhood imposed closed- shop provisions not permitted under the amended Act and was an exclusive hiring agreement. As written, this contract incorporated by reference all lawful rules and regula- tions of the Respondent District Council, which the record shows was the "recognized bargaining agency" for the Demopolis area. In meaning this was the same as though it had been written: "All rules and regulations except any which are un- lawful." As has been seen above, the District Council's bylaws prohibited any mem- ber of the United Brotherhood from working for a "nonunion carpenter" or from working "for a contractor who employs a nonunion carpenter," and its trade rules provided that "in no case shall a member or steward be discharged for upholding these Bylaws and Trade Rules. . . Thus the bylaws and trade rules established closed-shop conditions which were unlawful. As the master contract did not specify what were the lawful rules and regulations it was incorporating, employees reading the contract could not know what unlawful provisions of the bylaws and trade rules, if any, were being excluded, and would disobey any of them at their peril. Under the circumstances the use of the word "lawful" in the contract did not neutralize the unlawful provisions in the bylaws and trade rules which were being incorporated into the contract. The word "lawful" as used in the contract was in the nature of a general savings clause, and was as ineffective as was the savings clause of the con- tract in excluding from the contract the closed-shop provisions of the bylaws and trade rules.6 2. The area practice revealed in the record was related to and pursuant to and under the authority of the master agreement. As had been seen above, in talking to employees concerning the wage problem both Paterson and Goodman referred to the contract. As has been seen, in solving the strike and wage question, at his request Goodman was assisted by a representative of the United Brotherhood and also the parties to the master agreement negotiated and executed another agreement for local application which referred to itself as a "supplement to" the master agreement. The exclusive hiring practice of the parties at the Demopolis project did not change after the execution of this 1957 supplemental agreement, and Project Manager Paterson who negotiated and signed it for the Company, testified in substance that no change except wages was intended by it. Under these circumstances it is clear that at the Demopolis project the parties gave exclusive control over hiring of millwrights to Goodman under the color of authority of the master contract. Indeed, under the circumstances of this case, it is unrealistic to suggest that the arrangements of the District Council's business agent at the project have no relationship to the master agreement between the United Brotherhood and the Company. Rather I find, in keeping with Board precedent,7 that the 1956 master agreement and the unlawful hiring agreement, arrangement, understanding, or practice at the area level of the Demopolis project, "dovetailed so precisely so as to reveal a single comprehensive scheme for complete evasion of the statutory ban on all closed shops." Under the circumstances the United Brotherhood was as responsible as was the Respondent District Council for the unlawful practices followed at this project. 3. Irrespective of whether the practice revealed in the record was related to the master agreement, Respondent United was responsible for it as a cosponsor of it_ United's constitution and laws required, among other things, that "Members who . become foremen, must comply with Union rules and hire none but members of the United Brotherhood." Although John C. Harvey, a member of a "millwrights local," and therefore of the United, was above the rank of foreman, as millwright super- intendent he obeyed the requirements of the United's constitution and hired only union members. As the practice at the Demopolis project imposed closed-shop employment conditions, which was what United's constitution and the District Council's bylaws contemplated, I find that United was cosponsor of the unlawful hiring-hall arrangement and is liable for the unfair labor practices committed under it. Galveston Maritime Association, Inc., et al., 122 NLRB 692 and cases cited in footnote 14 thereof. See, also, Enterprise Industrial Piping Company, 117 NLRB 995. 4. Irrespective of whether the 1956 master contract was unlawful as written, it 9 Cf. Argo Steel Construction Company, 122 NLRB 1077, and cases cited in footnotes 7 and 8 thereof ; News Syndicate Company, Inc., 122 NLRB 818 ; Honolulu Star-Bulletin, Ltd., 123 NLRB 395. 7 Cf. The Morley Company, 117 NLRB 107 ; Mechanical Handling Systems, Ineorpcrated, 122 NLRB 396. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and its 1957 supplement were clearly unlawful as enforced and administered at the local level in the Tuscaloosa-Demopolis area, where they were clearly regarded as exclusive hiring contracts, as establishing closed-shop conditions, and as giving un- fettered control over the hiring of millwrights at the Demopolis project to Business Agent Goodman. The record is replete with actions and statements which impel this conclusion. Thus, of the 192 millwrights who worked on the project, all but possibly 3 were hired upon referral from Goodman. As has been seen above, Project Manager Paterson told Superintendent Harvey to get his millwrights through the Tuscaloosa local and Harvey always got them through Business Agent Goodman. Harvey knew of no millwrights hired except through Goodman, and no millwrights referred by Goodman were refused by Harvey. That the referral card was more than an intro- ductory and was, in fact, a device for keeping control of hiring in the business agent, was shown by the fact that the former millwrights, who were completely acceptable to the Company, were not allowed to go to work without a referral from Goodman. Even a foreman, McGilberry, was not allowed to return to work because Goodman vetoed him. Project Manager Paterson expressed helplessness about get- ting the former employees back to work without Goodman's approval, saying "I have to use whoever he sends." Mrs. Garrett, who took at least some of her orders di- rectly from Paterson and who presided over the personnel office at the gate and there received all applicants on behalf of the Company, was certainly held out by the Company to have authority to process or not to process applicants for hire. Thus, she had either authority or apparent authority to reject the former employees when they presented themselves for work on and after January 3, and Paterson in effect ratified her rejection of them when on January 7 he refused to step in on their behalf-even though, as of that date, Goodman had supplied only 41 of the 50 mill- wrights requested of him a few days before and there were still 9 vacancies. In addition to the above there is much other evidence establishing that the final say-so as to what millwrights should work on the project was in Goodman. Conclusive proof of this is that when, after the December 28 walkout, a number of former millwrights asked Harvey to take them back, Harvey told them that he would if they could get referrals from Goodman. Also there were several cases of men who tried to get back on the job and were refused, and then later received referrals from Goodman and were accepted on the job and put back to work. Also there were at least two cases where new applicants first asked Harvey or Betty Garrett for a job and he or she sent them to Goodman for a referral before putting them to work. 5. The 1956 contract, and the 1957 supplement, as written and as interpreted, enforced and administered in the Tuscaloosa-Demopolis area, provided, at the very least, for a hiring-hall arrangement without including the safeguards necessary under the Board's Mountain Pacific 8 decision to make the hiring arrangement lawful. Thus, (a) selection of applicants for referral to jobs was not made on a non- discriminatory basis; (b) Respondent Company did not retain the right to reject any job applicant referred by the District Council; (c) insofar as the record reveals, the parties did not post any notices concerning the functioning of the system which included a statement of the necessary safeguards. 6. Assuming, as found above, that as written or as enforced, the 1956 contract was an exclusive hiring agreement without the Mountain Pacific safeguards, the record establishes that the eight named discriminatees were excluded from employ- ment 9 on and after January 3 in implementation of the unlawful agreement, and were victims of its, the responsible parties thereby violating the Act. 7. Assuming, however (contrary to the findings above), that the hiring-hall agree- ment was lawful because it was not exclusive, the record establishes that the eight named former employees were discriminated against by Goodman for reasons con- nected with union membership or obligations, Respondent District Council thereby violating the Act. Thus, on and after January 3 Goodman refused these eight men referrals for the same reason or reasons that he refused the other former em- ployees-because they had had referrals for January 2 but had not used them, because they had "crossed" him, because if he issued to them referrals it would em- barrass him with other locals from whom he had ordered millwrights, because they 8 Supra, footnote 2. 9 Although Peacock and Roberts did not after December 28 apply directly to the Com- pany for employment, the record establishes that if they had they would have been re- ferred to Goodman for a referral before being put to work. The Board has held that under such circumstances it makes no difference which of the two parties, the Company or the District Council, an applicant first approached, that his unlawful exclusion from employment was a joint act -by both Respondents. 119 NLRB 883, 889. THE H. K. FERGUSON COMPANY 565 had sent a telegram to the United Brotherhood asking in effect that Goodman be investigated, because he wanted to show them he was the "boss." Each of these reasons imposed obligations which the business agent in effect required be met before he would issue the former employees another referral : To receive a referral the former employees must report for work on a day for which a previous referral was given, they must not "cross" the business agent or embarrass him in his relations with other locals, they must not ask the United Brotherhood to investigate him and they must acknowledge that he is the "boss." Each of these obligations being actual or apparent union requirements for referrals, the discrimination practices against these eight employees tended to encourage or discourage union membership, Re- spondent Unions thereby causing or attempting to cause the Comany to discriminate against these eight employees in violation of Section 8(a) (3) of the Act, Respondent Unions thereby violating Section 8(b)(2) and (1) (A).10 Knowing that the former employees including these eight were acceptable to the Company and that the former employees were being denied referrals while the new men from Sheffield and Chattanooga were receiving them , Respondent Company necessarily knew that the old men were being denied referrals for reasons connected with union member- ship or obligations . By condoning Goodman's conduct and refusing to employ the eight applicants under these circumstances , Respondent Company violated Section 8(a)(1) and (3) of the Act. George D. Auchter Company, et al., 102 NLRB 881, enfd. 209 F . 2d 273 (C.A. 5). To be noted is that Respondent Company could have used the 7 named mill- wrights and presumably also Vice, the apprentice , during January when it asked for 50 men and received only 41. To be noted also is that by about January 7 Goodman must have known and Project Manager Paterson could have learned that no more men were coming from the Sheffield or Chattanooga locals. Failure thereafter by Goodman to give or send referrals to them, for the reasons set forth above, was discriminatory treatment of them designed to make them more subservient to his wishes and his control and his interpretation of the terms and conditions under which they could work on the project. To be noted further is that none of the discriminatees were deprived of a referral or of a job because he had gone on strike in contravention of the no-strike clause of the contract between the Company and the United Brotherhood . The record estab- lishes that in November when all of the millwrights struck for several days , both the District Council and the Company approved their rehire without reference to the no-strike clause. Again, after the December 28 strike, Goodman issued referrals to a sizable group of the strikers to report to work , as he said , on January 2; and none of Respondent Company's officials took the position , then or at the hearing, that any of the strikers were unacceptable because they had violated the no-strike clause. In fact, insofar as the record shows no official of the Company ever men- tioned the no-strike clause to any of the strikers . Further, on both occasions the strikers were given discharge papers which indicated that they would be rehired. In substance , Respondent Company urges as a defense the unavailability of some of the discriminatees , who left the Demopolis and Tuscaloosa area and /or ceased trying to get a job at the Demopolis project when they became convinced that to do so was futile . As has been seen above there were jobs for the seven millwrights dur- ing the first week or two after the strike while they were still seeking jobs and before they had abandoned hope and left the area. As they were entitled to jobs at this time, we do not get to the problem of their rights being diminished by their later possible unavailability. The record does not show a specific job opening for an apprentice millwright, Vice, after the December 28 strike. The Board has held that "- It is equally immaterial that there is no evidence that on the particular days when he (the discriminatee ) was rejected there were job openings with the Respondent Employers . . The Board and the courts have held that neither unavailability of work or lack of application for a particular job serves as a defense to a discriminatory hiring policy when it is clear that no job would be proffered in any event. 8. The next question is whether Respondent Local 1337 is responsible for Good- man's unlawful conduct. On the entire record I conclude that it is . The District 10 Cf. International Longshoremen's and Warehousemen's Union, et al. (Pacific Maritime Association), 121 NLRB 938: Daugherty Company, Inc.. 112 NLRB 986, 989. n Mountain Pacific Chapter, etc., 119 NLRB 883, 899. See, also, cases cited in foot- note 13 thereof. See, also, United Association of Journeymen & Apprentices, etc. (J. S. Brown-E. F. Olds), 115 NLRB 594-596. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Council's bylaws which imposed closed-shop conditions, as found above, provided in section 1 as follows: These By-Laws shall apply to all Local Unions and members of the United Brotherhood . . ., and shall replace and supersede all Local Union By-Laws in this District. The record establishes that these bylaws, as well as the trade rules, were approved by Local 1337 as well as the United Brotherhood, and in fact, that they were written by a committee consisting of representatives of only Local 1337. In approving these documents, including their unlawful closed-shop provisions, Respondent Local 1337 signified in advance its approval of the enforcement of the closed-shop provi- sions. The bylaws made clear that it was the business agent of the District Council who was to enforce the closed-shop provisions, for they provided that- Any member of the United Brotherhood coming into this District shall be re- quired to deposit his clearance card with the Business Manager or [sic] the District Council before going to work under penalty of ten dollars fine upon conviction. However, any member coming into this District who wishes to leave his card in his home local shall before going to work pay in foreign dues to the Business Manager a sum equal to one month's dues plus any assessments that are legally levied by this Union and in effect. [Emphasis added.] Thus, in approving the bylaws and the trade rules the Respondent Local made the business manager of the District Council its own agent as well as the District Council's for the purpose of enforcing the closed-shop provisions. Under these circumstances Goodman's actions under the contract and the unlawful provisions of the bylaws and trade rules incorporated into the contract, were imputable to Local 1337. 9. As has been found above, Respondent United Brotherhood was responsible for the maintenance and enforcement of the 1956 agreement 12 and the general practice under it by Respondent District Council within its jurisdictional area. The remaining question is for what chronological period violations the complaint could be properly issued against United. The United was first named as a party respondent in the second amended charge against the unions, which was served on the United on July 17, 1957. Without question under Section 10(b) of the Act, the complaint was properly issued against the United for all violations beginning 6 months before July 17, which was January 17, including the enforcement of the contract and the general practice on the project after that date, and including the refusal to refer the former employees after that date, when the Company still had 9 vacancies in its order for 50 millwrights. In substance, the General Counsel contends that Respondent United Brotherhood became a party respondent prior to the service of the first charge upon it, on the theory that earlier service of the earlier charges upon the District Council was serv- ice upon the United because the District Council was a mere administrative arm of the Brotherhood. The General Counsel urges the further theory that as the United was a cosponsor with the District Council of the unlawful hiring contract and practices under it, Business Agent Goodman, who performed the practices, was an agent of the United as well as of the District Council, so that earlier service of the earlier charges upon him was service upon United. Both of these theories over- look the fact that the earlier charges made no accusations against the United Brotherhood and that Section 10(b) requires service of the charge upon the per- son "against whom such charge is made." All of the charges were filed by the same individual, who was a member of United Brotherhood, knew the difference between the parent body and the District Council, and chose to file the original and first amended charges against only the Local and the District Council-and not the United. Flere the earlier charges were made against Respondent Local and Re- spondent District Council and were not made against Respondent United Brother- hood, and no theory of agency or administrative arm or cosponsorship could have apprised United that it was being accused of violations-thereby making it a proper party respondent-until a charge naming it as the culpable party was filed against it. Under these circumstances I find and hold that the complaint could properly be issued against United only for violations on and after January 17, 1957, the be- ginning of the 6-month period prior to the filing of a charge against it and the service of the charge against it upon it. 10. The proof sustained the allegations in the complaints that by their agree- ments and acts Respondents unlawfully caused the employees at the Demopolis 2 This contract was executed prior to the 6-month period under Section 10(b) of the Act. THE H. K. FERGUSON COMPANY 567 project to pay dues, initiation fees, assessments , and/or permit fees to the unions as a condition of employment . The constitution and laws of the United Brotherhood contained elaborate requirements concerning just what members who work in other jurisdictions than their own should pay for working permits, monthly dues, initiation fees, and assessments . As has been set forth above, the bylaws of the District Council required "before going to work" within its jurisdiction either the depositing of a clearance card or payment of foreign dues plus any assessments , to the business manager. Further, Peacock paid a month's dues, presumably to Local 1337, before receiving his first referral ; Steadham, from a local in Mobile, Alabama , had to pay a "dobie"-foreign dues of $4 per week , as the price of employment at the Demopolis project ; Mathers and Irvin had to join one of the three locals within the District Council, presumably Local 1337, as the price of employment. On the entire record I hold that by requiring employees to pay dues , initiation fees, assessments , permit fees and/or "dobies" in order to obtain job referrals and employment and retain employment at the Demopolis project, Respondent Company further violated Sec- tion 8 ( a)(3) and ( 1) and Respondents United Brotherhood , District Council and Local further violated Section 8(b)(1) (A) and (2) of the Act. Argo Steel Con- struction Company, 122 NLRB 1079; Millwrights' Local 2232, United Brotherhood of Carpenters etc. (Farnsworth & Chambers, Inc.), 122 NLRB 300. 11. Final conclusions: On the basis of the entire record considered as a whole I hold that by maintaining and enforcing closed-shop hiring-hall agreements and practices giving exclusive control over the employment of millwrights at the Demopolis project to the District Council, at all times of concern herein Respondent District Council and Respondent Local 1337 have violated Section 8(b)(1)(A) and 8 (b)(2), and Respondent Company has violated Section 8(a)(1) and (3) ; and at all times on and after January 17 , 1957, Respondent United Brotherhood has violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act. In implementation of the unlawful agreements and practices found above, dis- criminatorily by denying referrals to the eight former employees named in the complaints , and by refusing them employment knowing that they had been dis- criminatorily denied referrals , at all times on and after January 3 , 1957, Respond- ent District Council and Respondent Local 1337 have violated Section 8(b) (1) (A) and 8 (b)(2) and Respondent Company has violated Section 8(a)(1) and ( 3); and at all times on and after January 17 , 1957 , Respondent United Brotherhood has violated Section 8(b)(1)(A) and 8 (b)(2) of the Act. By requiring all millwrights and millwright apprentices at the Demopolis project to pay dues, initiation fees, and/or "dobies" in order to obtain job referrals and em- ployment and to retain employment at the Demopolis project, Respondent Company has further violated Section 8(a) (3) and ( 1) and Respondents United Brotherhood, District Council, and Local 1337 have further violated Section 8(b) (1) (A ) and (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of Respondent Company described in section I, above, have a close, intimate , and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that certain of the Respondents have engaged in the unfair labor practices set forth above, I recommend that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. As the agreements and practices of Respondents Company, United Brotherhood, District Council, and Local prevented Herbert F. Roberts, Morris Grace, W. R. Vice, N. T. Steadham, E. M. Peacock, J. E. Mathers, B. S. Irvin, and Robert Hartman from being employed on the Demopolis project on and after January 7, 1957, the date when no more men were due from Sheffield or Chattanooga and there were still nine vancancies, I recommend these four Respondents jointly and severally make each of these employees whole for any loss he may have suffered as a result thereof by paying to each of them an amount equal to that which he would have earned as a millwright (in the case of Vice, as an apprentice millwright) from January 7, 1957 (in the case of Respondent United, from January 17, 1957), until the employee was again hired on the Demopolis project ( as in the case of Mathers and Irvin), or until Respondent Company ceased using millwrights at or near the end of the Demopolis project, less the net earnings of each during said period (Crossett Lum- 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ber Company, 8 NLRB 440, 497-498), said back pay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. As provided in the Woolworth case, I recommend further that Re= spondent Company make available to the Board on request payroll and other records, in order to facilitate the checking of the amount of back pay due. Furthermore, as I find that dues, initiation fees, assessments, permit fees, and/or "dobies" were collected under the illegal 1956 contract and the practice of the parties under it, as the price employees paid in order to obtain or retain their jobs, it would not effectuate the policies of the Act to permit the retention of the payments which' have been unlawfully exacted from the employees. In addition therefore, I recom- mend that Respondents Company, United Brotherhood, District Council, and Local, jointly or severally, refund to all millwrights and millwright apprentices employed at the Demopolis project, the dues, initiation fees, assessments, permit fees, and/or "dobies," paid by the employees as a price for their employment. Respondents' liability for reimbursement shall include the period beginning 6 months prior to the filing and service of the initial charge against each Respondent and shall extend to all such moneys thereafter collected during the remainder of the project until its completion in November or December 1957. These remedial provisions are appro- priate and necessary to expunge the coercive effect of Respondents' unfair labor practices. United Association of Journeymen & Apprentices of Plumbing & Pipe Fitting Industry (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115 NLRB 594, 597-602; Broderick Wood Products Company, 118 NLRB 38, enfd. 261 F. 2d 548 (C.A. 10); Los Angeles-Seattle Motor Express, Incorporated, 121 NLRB 1629; Lakeland Bus Lines, Incorporated, 122 NLRB 281; Indianapolis and Central Indiana District Council, et al. (Mechanical Handling Systems, Incorpo- rated), 122 NLRB 396; Argo Steel Construction Company, 122 NLRB 1077; Carpenters' District Council of Rochester, et al. (Rochester Davis-Fetch Corpora- tion), 122 NLRB 269. In substance, Respondent Company contends that the General Counsel should not be permitted to request the Brown-Olds remedy because of certain steps taken by Respondents during 1958 to eliminate unlawful security clauses from their 1958 master agreement. The Board has said, "The remedy to be applied for the correc- tion of unfair labor practices lies within the exclusive discretion of the Board. We' believe that where an employer and a union have flagrantly ignored the closed- shop prohibitions of the Act, the Brown-Olds remedy is required." Argo Steel' Construction Company, supra. Further, in attempting to adjust the case-against the Company by settlement prior the issuance of the complaint against it, the Gen- eral Counsel pointed out that if the case was settled the full application of the Brown-Olds remedy might be avoided. The case was not settled. Under all the circumstances, as found above the Brown-Olds remedy is appropriate and necessary at this time. Upon the basis of the foregoing findings of facts, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The H. K. Ferguson Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Brotherhood, District Council, and Local 1337 are labor organizations within the meaning of Section 2(5) of the Act. 3. By maintaining and enforcing closed-shop hiring-hall agreements and prac- tices giving exclusive control over the employment of millwrights at the Demopolis project to the District Council, Respondent Company has violated Section 8(a)(1) and (3) and Respondents United Brotherhood, District Council, and Local 1337 have violated Section 8(b)(1)(A) and 8(b)(2) of the Act. 4. In implementation of the unlawful agreements and practices found above, by discriminatorily denying referrals to the Demopolis project to Herbert F. Roberts, Morris Grace, W. R. Vice, N. T. Steadham, E. M. Peacock, J. E. Mathers, B. S. Irvin, and Robert Hartman, Respondents United, District Council, and Local 1337 have violated Section 8(b)(1)(A) and 8(b)(2) of the Act; and. by refusing them employment knowing that they had been discriminatorily denied referrals, Respond- ent Company has violated Section 8(a) (1) and (3) of the Act. 5. By requiring all millwrights and millwright apprentices at the Demopolis project to pay dues, initiation fees, assessments, permit fees, and/or "dobies" in order to obtain job referrals and employment and to retain employment, Respondent MICHIGAN SCRAP COMPANY 569 Company has violated Section 8(a)(3) and ( 1) and Respondents United, District Council, and Local 1337 have violated Section 8 (b) (1) (A) and (2) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] David Goldstein, Leonard Goldstein and Manny Goldstein, Co- Partners, d/b/a Michigan Scrap Company and Chauffeurs, Teamsters and Helpers Local Union No. 7, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. Cases Nos. 7-CA-2003 and 7-CA-006. August 18, 1959 DECISION AND ORDER On May 18, 1959, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor prac- tices as alleged in the complaint and recommended that the allegations of the complaint relating thereto be dismissed. Thereafter, the Re- spondents and the General Counsel filed exceptions to the Intermedi- ate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in cormection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Jenkins]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in this case and hereby adopts the findings, conclusions, and recommen- dation of the Trial Examiner. ORDER Upon the basis of the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, David Goldstein, Leonard Goldstein and Manny Goldstein, Co- :Partners, d/b/a Michigan Scrap Company, Benton Harbor, Michi- gan, their agents, successors, and assigns, shall: 124 NLRB No. 74.