Carpenters District Council of Detroit, Etc.

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear from the above that by reason of the picketing herein the employees of O & G were induced or encouraged to participate in concerted action and that an object of the Respondents' picketing was to force or require 0 & G to cease doing business with Traffic The Respondents' reliance upon Section 8(c) of the Act and the First Amendment with respect to free speech provisions affording them the right to publicize their dispute by peaceful picketing is without support The Supreme Court stated in International Brotherhood of Electrical Workers Local 501, et al (Samuel Langer) v NLRB , 341 U S 694, 704-705 e The remedial function of § 8(c) is to protect noncoercive speech by employer and labor organization alike in furtherance of a lawful object It serves that purpose adequately without extending its protection to speech or picketing in furtherance of unfair labor practices such as are defined in § 8(b)(4) The general terms of § 8(c) appropriately give way to the specific provisions of § 8(b)(4) 5 The prohibition of inducement or encouragement of secondary pressure by § 8(b) (4) (A) carries no unconstitutional abridgement of free speech IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents Local 66(1 and George Sabo set forth in section III, above, occurring in connection with the operation of the Employers set forth 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 commerce and the free flow of commerce V THE REMEDY Having found that Respondents Local 660 and George Sabo have engaged in conduct in violation of Section 8(b) (4) (A) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 Local 660, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act _ 2 George Sabo is an agent of Respondent Local 660 within the meaning of Sections 2(13), 8(b), and 10(l) of the Act 3 On and since November 24, 1958, the above-named labor organization and its agent, George Sabo, have engaged in unfair labor practices within the meaning of Section 8(b)(4)(A) of the Act by inducing and encouraging employees of Oneglia and Gervasmi, Inc, and of other employers, to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on goods, materials, or commodities, or to perform services with an object of forcing or requiring Onegha and Gervasim, Inc, to cease doing business with Traffic Safety, Inc 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication-] Carpenters District Council of Detroit, Wayne, Oakland, Macomb, Sanilac, St. Clair and Monroe Counties and Vicinity of the United Brotherhood of Carpenters and Joiners of America (AFL-CIO) [W. J. C. Kaufmann Company] and Kenneth E. Bissonnette. Case No 7-CR-1F19 December 2, 1959 DECISION AND ORDER On May 28, 1959, Trial Examiner Herbert Silberman issued his Intermediate Report in the above-entitled proceeding, finding that 125 NLRB No 60 CARPENTERS DISTRICT COUNCIL OF DETROIT, ETC. 547 the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel and Respondent filed exceptions and supporting briefs. 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 of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, to the extent that they are consistent with the findings and conclusions set forth below. 1. We agree with the Trial Examiner that Foreman Harrison, in refusing to hire Bissonnette because of his lack of a work permit, acted not only as agent for W. J. C. Kaufmann Company but also as agent' for the Respondent 1 within the scope of authority and duty vested in him by the Brotherhood's constitution and the Respondent's working rules. We therefore find, as did the Trial Examiner, that the Respondent was liable for the discrimination practiced against Bisson- nette in violation of Section 8 (a) (3) of the Act, and therefore violated Section 8(b) (2) and (1) (A) of the Act. As discussed in the Intermediate Report the Brotherhood's consti- tution and working rules impose upon the foreman, who is required to be a member under the rules, the responsibility for their enforce- ment. Included in these rules is one requiring union members from other jurisdictions to secure a work permit from the District Council before going to work. No member is permitted to, work on the job without a current working card or bona fide permit. Further no member of the District Council is permitted to work with any member of the Union who does not possess a card or permit. In these circu n- i Foreman Harrison's status as an agent of the Company is not questioned. In the circumstances of this case, it is clear that he was also an agent of the Respondent Union. It.is to be noted, that paragraph III, C, of the. Respondent's collective-bargaining agree- ment (tile instant Company, although not a signatory, had agreed to be bound by this agreement, provides : The. foreman shall be selected by and be the representative of the Employer. Ile shall not be required to violate any part of this Agreement as a condition of employ- ment. When three (3) or onore members of the Union are employed, one (1) shall act as working foreman and receive the foreman's rate of pay. [ Emphasis supplied.] By thus requiring that the Company appoint one of its members as foreman whenever three or more members had been employed, the Respondent necessarily assured itself a degree of control over the hiring process through the member foremen who were obligated to enforce the provisions of the Brotherhood's constitution and the Respondent's working rules. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stances, it is clear that Foreman Harrison's refusal to hire Bissonnette because of his failure to possess a bona fide work permit fell within the contemplated scope of the authority and responsibility the Respondent placed in him. We are not persuaded, as the Respondent argues, that Harrison's action could not be imputed to it because, at the time Bissonnette sought employment, the Respondent's membership had been instructed, contrary to the provisions of the Brotherhood's consti- tution and the Respondent's working rules, that permits were not required as a condition of employment. Bissonnette was a member of a local which was not within the jurisdiction of the Respondent and there is no evidence that he was ever made aware of the Respondent's intention not to enforce its own rules. Whatever may be the restric- tion that was intended to be placed upon Harrison's authority and duty a under the constitution and working rules, it is sufficient that it was never communicated to Bissonnette. Harrison thus remained cloaked with apparent authority, if not actual authority, to act on behalf of the Respondent and the uncommunicated restriction on this authority cannot serve to relieve the Respondent of its responsibility for Harrison's conduct. Accordingly, we find, as did the Trial Examiner, that the Respond- ent violated Section 8 (b) (2) and (1) (A) of the Act. ORDER Upon 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 Respondent, Carpenters Dis- trict Council of Detroit, Wayne, Oakland, Macomb, Sanilac, St. Clair and Monroe Counties and Vicinity of the United Brotherhood of Carpenters and Joiners of America (AFL-CIO), its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause W. J. C. Kaufmann Company, or any other employer, to discriminate against employees or prospec- 2 Harrison himself did not appear to have any knowledge of any limitation on his authority and duty to enforce the rules. He testified : Q. You knew he [Bissonnette] needed a permit, didn't you? A. I knew according to our rules if I belonged to the Brotherhood I expect to live up to the rules and what not, and I feel that same applies to him. If he belongs to the Brotherhood be expects to live up to the rules. Q. And one of the rules is that in circumstances in which Mr. Bissonnette found himself he needed a permit to work on the job? A. He felt he needed a permit to work. Q. And you felt he needed a permit? A. Yes, I didn't say so. It wasn 't necessary for me to specify that he did . . . . CARPENTERS DISTRICT COUNCIL OF DETROIT, ETC. 549 tive employees by requiring them to obtain working permits, clear- ances, or job referrals from the Respondent as a condition of employ- lr_ent in violation of Section 8 (a) (3) of the Act. (b) In any like Or related manner restraining or coercing employees or prospective employees of W. J. C. Kaufmann Company, or any other employer, in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make Kenneth F. Bissonnette whole for any loss of earnings he may have suffered as a result of the discrimination against him in the manner set forth in the section of the Intermediate Report en- titled "The Remedy." (b) Notify W. J. C. Kaufmann Company and Kenneth F. Bisson- nette, in writing, that it has no objections to Bissonnette's employ- ment; and also notify Bissonnette, in writing, that henceforth it will not coerce or restrain him by unlawfully infringing upon the rights guaranteed to him by Section 7 of the Act. (c) Post at its offices in Detroit, Michigan, copies of the notice at- tached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respondent's representative, be posted im- mediately upon receipt thereof, and maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Additional copies of the notice attached hereto marked "Ap- pendix" shall be signed by a representative of the Respondent and shall be forthwith returned to the Regional Director for the Seventh Region for posting by W. J. C. Kaufmann Company, the Company willing, at its business offices and construction projects within the State of Michigan, where notices to its employees are customarily posted. (e) Notify the Regional Director for the Seventh Region, in writ- ing, within 10 days from the date of this Order, what steps it has taken to comply herewith. 3 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." 535828-60-vol. 125-36 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL MEMBERS OF CARPENTERS DISTRICT COUNCIL OF DETROIT, WAYNE, OAKLAND , MACOMB, SANILAC , ST. CLAIR AND MONROE COUNTIES AND VICINITY OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA (AFL-CIO), AND TO ALL EMPLOYEES OF W. J. C. KAUFMANN 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, we hereby give notice that : WE WILL NOT cause or attempt to cause W. J. C. Kaufmann Company, or any other employer, to discriminate against Ken- neth F. Bissonnette, or other employees or applicants for employ- ment, by requiring them to obtain working permits, clearances, or job referrals from us, as a condition of employment, in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees or applicants for employment with W. J. C. Kaufmann Company, or any other employer, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. WE WILL notify, in writing, W. J. C. Kaufmann Company that we have no objections to the hiring or employment of Kenneth F. Bissonnette. WE WILL notify, in writing, Kenneth F. Bissonnette that we have no objections to his employment with W. J. C. Kaufmann Company, and that henceforth we will not coerce or restrain him by unlawfully infringing upon the rights guaranteed him by Section 7 of the Act. WE WILL make whole Kenneth F. Bissonnette for any loss of earnings he may have suffered as a result of the discrimination against him. CARPENTERS DISTRICT COUNCIL OF DETROIT, WAYNE, OAKLAND, MACOMB, SANILAC, ST. CLAIR AND MONROE COUNTIES AND VICINITY OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA (AFL-CIO), Labor Organization. Dated--------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 clays from the date hereof, and must not be altered, defaced, or covered by any other material. CARPENTERS DISTRICT COUNCIL OF DETROIT, ETC. INTERMEDIATE REPORT 551 STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, 61 Stat. 136, herein called the Act, was heard before the duly designated Trial Examiner in Detroit, Michigan, on March 17, 1959. The General Counsel of the National Labor Relations Board and the Respondent were represented at the hearing by counsel and were afforded full opportunity to participate. Decision was reserved on Respondent's motion, made at the hearing, to dismiss the complaint. The motion is disposed of in accordance with the findings, conclusions, and recommendations made below. The General Counsel and Respondent duly filed briefs with the Trial Examiner which have been carefully considered. With respect to the unfair labor practices, the amended complaint, in substance, alleges that the Respondent has violated Section 8(b)(1) (A) and (2) of the Act by reason of the following: (1) On June 2, 1958, causing W. J. C. Kaufmann Company, herein called the Company, to refuse to hire Kenneth F. Bissonnette be- cause he had not obtained clearance or approval for employment from the Respond- ent, and (2) since December 20, 1957, maintaining an arrangement, understanding, and practice with the Company which requires applicants for jobs, as a condition of employment, to obtain prior clearance, referral, or approval from the Respondent. The Respondent denies it had engaged in the alleged unfair labor practices. Upon the entire record in the case, and from my observation of the demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY W. J. C. Kaufmann Company, a Michigan corporation with its principal office and place of business in Detroit, Michigan, is a general contractor engaged in the construction and maintenance of buildings. During the calendar year 1957, which is representative of all times material hereto, the Company performed work and services within the State of Michigan valued in excess of $100,000 for various manufacturing enterprises, each of which ships products valued at in excess of $50,000 directly to points located outside the State of Michigan. The Respondent admits, and I find, that the Company has been at all times material hereto engaged in commerce within the meaning of. Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent, Carpenters District Council of Detroit, Wayne, Oakland, Ma- comb, Sanilac, St. Clair and Monroe Counties and Vicinity of the United Brother- hood of Carpenters and Joiners of America (AFL-CIO), herein also called the Council, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The first issue in this proceeding is whether Kenneth F. Bissonnette was denied employment at the Company's construction project in Mount Clemens, Michigan, because he had no permit from the Council to work within its territorial jurisdiction. The practice of obtaining working permits has its foundation in the constitution of the United Brotherhood of Carpenters and Joiners of America, herein referred to as the Brotherhood, of which the Council is an affiliate. Section 46 C of the constitution provides: A member who desires to work in another jurisdiction and returns home daily, or who does not desire to transfer membership, shall before going to work, secure a Working Permit in writing from the Local Union or District Council in the jurisdiction where work is secured. This constitutional provision has been specifically implemented in the Council's working rules by the following: Section 4: -Members shall not be permitted to work on a job without the current working card, or bona fide permit, and they shall not be permitted to 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work with any member who does not have a current working card, or a bona fide permit. . Section 5: (A). Any member of the United Brotherhood in good standing and going to work in the jurisdiction of this District Council and not wishing to transfer into this district must secure a working card from the District Council office before going to work. The working rules also impose a specific duty upon foremen to enforce their pro- visions. Thus, it is provided in section 23 (A) that all foremen must be members of the Brotherhood and must be thoroughly familiar with the Council's trade rules. Paragraph (E) of the same section enjoins foremen to work in conjunction with the stewards in an effort to uphold the trade rules. Kenneth F. Bissonnette resides in Clio, Michigan, and is a member of Local 1373 of the Brotherhood which is headquartered in Flint and which is not a member of or within the territorial jurisdiction of the Council. Bissonnette learned about a job vacancy at the Company's Mount Clemens project from Ralph Cain who is also a member of Local 1373. Cain testified without contradiction that when.he told Bissonnette about the Mount Clemens job he also told Bissonnette "he would have to get a permit and would have to go to the district council to get it." 1 According to Bissonnette, he knew he needed a permit to work in Mount Clemens because "I have traveled around quite a bit in different States and different jobs, and I have never seen anybody get by without it." However, he further testified he had never worked within the Council's jurisdiction and had no experience with the practices of the Respondent regarding working permits. In the morning of June 2, 1958, Bissonnette went to the Mount Clemens project where Ralph Cain introduced him to Foreman Carr Harrison. Bissonnette asked for a job and Harrison stated that he could use Bissonnette. Bissonnette then said he had to get a permit. Harrison told Bissonnette to get the permit and return at noon for work. Harrison did not specifically tell Bissonnette that a permit was a pre- requisite to his employment? Bissonnette left the jobsite and went to the Council's office where he asked for but was refused a working permit .3 He then returned to the Mount Clemens job. According to Bissonnette, he explained to Harrison "that I was unable to get a permit, and I thought I had better come back and tell him, and I understood I couldn't go to work without a permit, and he said he was sorry, there. 1 Cain did not testify that any representative of the Council had informed . him that a. permit was a prerequisite to his employment within the Council's .jurisdiction. 2 Cain testified that Harrison told Bissonnette that "he ( Harrison ) would put him. (Bissonnette) to work if he (Bissonnette) got him a permit or got squared away with. the Union , or something like that." Harrison denied he told Bissonnette that the latter needed a permit before he could be employed on the job. I do not credit Cain's version of the conversation . Cain's testimony in this respect was not only contradicted by Harrison but is inconsistent with Bissonnette's description of the event. Bissonnette testified with. respect to his first conversation with Harrison, as follows : After I was introduced to Mr. Harrison I asked him if he could use a plate setter,. and he said be could. And I told him I didn't have no permit. That it would be. foolish to try to get a permit and go out there and not have any job. It was customary to get the job first and then go and get the permit. (As a permit cost $5 Bissonnette meant that it would be foolish to spend $5 for a permit if he didn't have any job to justify the expenditure.) And as near as I can recall, that's about all we talked about, because it was getting late, and he told me if I could get back by noon I could go to work at noon. Although Bissonnette testified that Harrison "said -to go get my permit and get back by noon, to work," he also testified that he did not recall Harrison telling him that he had' to get a permit before Harrison could use him on the project. 3 Bissonnette testified that at the Council's office he spoke to a man whose name he did' not know. Subsequently, he learned from Cain and a Board agent that the man's name is Jack Wood. Wood was present in the hearing room and Bissonnette identified Wood as the man with whom he spoke in the Council's office. Jack Wood is a business representative for the Council. Wood testified that be never refused it permit to a member of the Brotherhood who requested one. Wood denied that he had ever seen Bissonnette prior to the hearing in this case. He also testified that there was another business representative of the Council who bore a general resemblance to himself and might have been mistaken for himself. I credit Wood and find that the conversation Bissonnette had at the Council's office was not with Wood. CARPENTERS DISTRICT COUNCIL OF DETROIT, ETC. 553 was nothing he could do about it." Bissonnette further testified that Harrison did not say in this conversation that Bissonnette could not go to work without a permit .4 Considered together, the Brotherhood's constitution and the Respondent's working rules (1) require members who secure employment outside the jurisdiction of their local or district council to obtain permits before going to work, (2) forbid members to work with any member who does not have a current working card or bona fide permit, and (3) impose a duty upon foremen to uphold these trade rules. Both Bissonnette and Foreman Harrison testified that they understood that under the constitution of the Brotherhood and the working rules of the Union, Bissonnette needed a permit before beginning work at the Mount Clemens project. The conver- sations between the two, summarized above, must be interpreted in the context of their mutual understanding. Harrison testified he was prepared to hire Bissonnette at the very time the latter made application for the job. However, when Bissonnette said he first had to obtain a permit, Harrison told him to do so and return at noon. Although Harrison did not in haec verba tell Bissonnette that a working permit was a prerequisite to his employment, such was the implication of their conversation. This is reaffirmed by their subsequent conversation after Bissonnette returned to the project following his unsuccessful attempt to obtain a permit. Bissonnette ven- tured the opinion to Harrison that he could not go to work without a permit. The reasonable construction of Bissonnette's remark is not that he was withdrawing his application for employment, but that he recognized that without a permit it would be futile to press Harrison for a job. By his failure to correct Bissonnette, Harrison indicated his agreement. Otherwise, the natural thing for Harrison to have done in the circumstances would have been to tell Bissonnette that he could work without a permit. The effect of Harrison's passive assent to Bissonnette's assertions that he needed a permit from the Council to work at the Company's Mount Clemens project was tantamount to a direct refusal to hire Bissonnette. Accordingly, I find that Harrison denied Bissonnette employment on June 2, 1958, because Bissonnette had not complied with the Council's trade rules. As Harrison had authority on behalf of the Company to hire carpenters for work at the Mount Clemens project his refusal to hire Bissonnette because Bissonnette did not have a working permit from the Council was a discrimination within the meaning of Section 8(a)(3) of the Act. In this instance, Harrison was also acting as an agent for the Respondent. Harrison was a member of the Council and testified that he was familiar with his obligations as a member. As a foreman he was under a duty "to uphold the trade rules," one of which barred carpenters without current working cards or bona fide permits from employment. Because the Council's working rules imposed a duty upon Harrison, as a union member and a foreman, to enforce its trade rules, when Harrison did so by refusing to hire Bissonnette he was acting under the authority generally delegated to him by such rules and hence was acting in the capacity of an agent for the Council. Accord- ingly, the Respondent through the agency of Harrison caused the Company to discriminate against Bissonnette and, therefore, violated Section 8(b)(2) and 8(b) (1) (A) of the Act .5 Grove Shepherd Wilson & Kruge, Inc., et al., 109 NLRB 209; Enterprise Industrial Piping Company, 117 NLRB 995. The complaint also alleges that the Respondent and Kaufmann have maintained an understanding and arrangement which require applicants for jobs with the Company, as a condition of employment, to obtain prior clearance, referral, or approval from the Council. The General Counsel's theory is that, when related to the Council's trade rules, the Bissonnette episode alone constitutes proof of such illegal hiring practice on the part of the Company and the Council. See Charles Ostrowski, et al., d/b/a Philadelphia Woodwork Company, 121 NLRB 1642. Re- spondent's defense is that during the period embraced by the complaint it has not been enforcing its trade rules concerning working cards and permits and that it has no understanding with the Company in regard thereto. Jack Wood, a business representative of the Council, testified that for longer than 2 years the Respondent has not prevented carpenters from obtaining employment without a current working card or bona fide permit. According to Wood, "Our 4 As to this conversation Harrison testified, "He came back and said he didn't get a permit so he guessed he couldn't go to work. I didn't say he could or couldn't." 8 Although, as is discussed below, Harrison's conduct was not in accordance with the Council's current policies, nevertheless, as he was acting within the scope of his apparent authority under the working rules, the Council is responsible for Harrison's unlawful refusal to employ Bissonnette. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instructions are to our stewards, to our members at membership meetings, that if there is a man who goes on a job-whether he is a union member or not-if he gets hired on that job or is about to be hired, or whether or not he has a permit, a bona fide permit or not, he is to be allowed to go to work." He further testified that at no time during the period embraced by the complaint in this case had he ever requested the Company to refuse to hire or to discharge any employee on the basis that the employee was not a member of or did not have a permit from the Council 6 Wood's testimony is corroborated by the provisions of the Council's cur- rent collective-bargaining agreement, entered into on May 1, 1958, with three contractors' associations. The agreement contains a union-security clause which meets the conditions of the proviso to Section 8(a) (3) of the Act. In addition, the agreement provides that "The Employer agrees . he will not discriminate against applicants because of membership or nonmembership in the Union," and that the Employer shall not be obligated to discharge or discriminate against any employee for nonmembership in the Union: (1) If he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (2) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. The contract also provides that "The foreman shall be selected by and be the representative of the Employer. He shall not be required to violate any part of this Agreement as a condition of employment." Although no evidence was adduced concerning the negotiations which led to the incorporation in the agreement of the clauses referred to above, it is quite probable that, consistent with Wood's testimony, they were included for the specific purpose of reassuring the employers who are parties to the agreement that the Council's trade rules relating to hirings would not be maintained or enforced on their projects. The General Counsel in his brief concedes that the evidence in this case does not establish any illegal arrangement between the Respondent and the Employers who are parties to the area agreement, but argues, nevertheless, that "a discriminatory hiring practice did exist and was actively engaged in here between the Respondent and the W. J. C. Kaufmann Company." It was stipulated at the hearing that the Company recognizes the Council as the collective-bargaining representative of its carpenters and, although Kaufmann is not a party to the area agreement , it, in gen- eral, follows the terms of the area contract. Business Representative Wood testified without contradiction that the Council has no agreement with Kaufmann concerning the employment of carpenters except as is set forth in the area agreement. Other than the testimony relating to Harrison's failure to hire Bissonnette, there is no evidence of any unlawful understanding or arrangement between the Company and the Respondent. Foreman Harrison alone was responsible for the discrimination against Bissonnette. A violation of the Act has been spelled out from Harrison's tacit agreement with Bissonnette's assertions that be could not work without a permit from the Council. It was Bissonnette, rather than Harrison, who invoked the Respondent's trade rules; Harrison was merely acquiescent in circumstances where he was under a duty to speak. Harrison testified that normally he did not concern himself with questions relating to whether applicants had current working cards or permits from the Council, but left such matters to the steward. Roy Rogers, the Council's job steward at the Mount Clemens project, testified that he would not en- force the provisions of the trade rules which prohibits carpenters from working without a current working card or bona fide permit. This is consistent with Wood's assertion that for the past 2 years the Council has not been enforcing its trade rules relating to working cards and permits. Both Harrison and Rogers are corroborated, in part, by Ralph Cain who testified that neither Foreman Harrison nor Steward Rogers asked him whether he had a permit when he began work at the Mount Clemens project. The Bissonnette episode, at most, is proof only of an isolated and accidental application of the Respondent's trade rules by Harrison. As practice means repeated or customary action, the incident neither proves that it was Harrison's practice to insist upon a current working card or permit from the Council as a prerequisite for employment, nor that such practice was followed by any of the Company's other foremen and supervisors at the Mount Clemens project or at other of its projects in The Council does enforce the union -security provisions of its subsisting contracts. CARPENTERS DISTRICT COUNCIL OF DETROIT, ETC. 555 the Detroit area.? The Bissonnette episode does not suffice to establish that the Company, through practice, agreement, or arrangement with the Council made the possession of a current working card or bona fide permit from the Council a condi- tion of or prerequisite to employment. As the only evidence adduced by the General Counsel in support of his contention that the Company and the Respondent were parties to an illegal hiring practice con- cerns Harrison's refusal to employ Bissonnette on June 2, 1958 , and as this evidence is not indicative of the practices of other supervisors and officials of the Company who may have authority to hire carpenters , or even conclusive as to what Harrison's normal and customary hiring practice was, I find that the General Counsel has failed to prove by a preponderance of the evidence that the Company and the Respondent were parties to any unlawful arrangement, understanding, or practice relating to the hiring of carpenters. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with the operations of W. J. C. Kaufmann Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent caused the Company to discriminate against Kenneth F. Bissonnette within the meaning of Section 8(a)(3) of the Act and therefore has itself violated Section 8(b)(2) and ( 1)(A) of the Act. It will be recommended that the Respondent make Bissonnette whole for any loss of earnings which may have sustained by reason of Respondent's unlawful conduct by paying to him a sum of money equal to the amount he normally would have earned as wages from the date of the discrimination , June 2, 1958 , absent the unfair labor practices of the Respondent . In computing the amount of backpay , the customary formula of the Board set forth in F. W. Woolworth Company, 90 NLRB 289, shall be followed. The Respondent may terminate its liability for further accrual of backpay by notifying the Company , in writing, that it has no objections to the employment of Bissonnette by the Company . The Respondent shall not be liable for any backpay accruing to Kenneth F. Bissonnette after 5 days from giving such notice. It will also be recommended that the Respondent notify Kenneth F. Bissonnette, in writing, that it has no objections to his employment by W. J . C. Kaufmann Company, or any other employer, and that henceforth it will not restrain or coerce him by unlawfully denying him a working permit or by otherwise unlawfully infringing upon the rights guaranteed to him by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By causing W. J. C. Kaufmann Company unlawfully to discriminate against Kenneth F. Bissonnette, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 2. By the aforesaid acts, the Respondent has restrained and coerced employees in the exercise of their rights guaranteed by Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 4. Respondent has engaged in no other conduct constituting unfair labor prac- tices within the meaning of the Act. [Recommendations omitted from publication.] 7 Harrison hired only the carpenters who were subject to his supervision . It does not appear that he was concerned with the employment of any of the other carpenters who worked for the Company at the Mount Clemens project or at Its other projects within the area of the Council's territorial jurisdiction.