International Hod Carriers'

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employees, we find that the engineers are not supervisors as defined in the Act 2 Accordingly, the Employer's motion to dismiss is denied We find, on the basis of the above, that the operating engineers constitute a functionally distinct and separate group of employees with related tasks and interests such as are entitled to separate rep- resentation, if they so desire 3 We, therefore, find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act All operating engineers at the Employer's St Louis, Missouri, hotel, excluding office clerical employees, professional employees, guards, all other employees, and supervisors as defined in the act [Text of Direction of Election omitted from publication ] 2 United States Gypsum Company, 119 NLRB 1415, 1418 s Westinghouse Electree Corporation, 117 NLRB 520, 521, Olin Mathseson Chemxcai Corporation, Olin Works, 117 NLRB 1441, 1443-1444, American Potash if Chemical Cor- poration, 117 NLRB 1508, 1509, Montgomery Ward & Company, 110 NLRB 256, 259, of Seville-Sea Isle Hotel Corporation Operating the Seville Hotel, 125 NLRB 299 International Hod Carriers', Building and Common Laborers' Union of America, Local IJiiion No. 78, AFL-CIO [Knowlton Construction Company] and Leon Parsley International Hod Carriers', Building and Common Laborers' Union of America, Local Union No 78, AFL-CIO and Robert J. Haley. Cases Nos 8-CB-296 and 8-CB-299 December 14, 1959 DECISION AND ORDER On May 25, 1959, Trial Examiner W Gerard Ryan issued his In- teriediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support of its exceptions 1 I On June 12, 1959, the Respondent filed a motion, and a supporting memorandum, to reopen the record for the limited purpose of adducing testimony with regard to the financial hardship and other adverse effects which would be caused by enforcement of the Trial Examiner's recommended order requiring reimbursement of dues in accord with United Association of Journeymen if Apprentices of Plumbing Z Pvpefittang Industry, etc (J S Brown Olds Plumbing if Heating Corporgtwan), 115 NLRB 594 As the Board and the courts have consistently held, financial hardship is no defense to a violation of the Act. E g, N L R B v Star Publishing Company, 97 F 2d 465 (C A 9) The Respondent's con- 125 NLRB No 80 INTERNATIONAL HOD CARRIERSLOCAL UNION NO. 78 705 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 Interme- diate Report, the Respondent's exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Interna- tional Hod Carriers', Building and Common Laborers' Union of America, Local Union No. 78, AFL-CIO, its officers, agents, repre- sentatives, successors, and assigns, shall : 1. Cease and desist from : (a) Maintaining, performing, or enforcing any agreement, under- standing, or practice with Knowlton Construction Company or any other employer over whom the Board would assert jurisdiction which requires membership in or referral from the Respondent Union as a condition of employment except as authorized by the proviso to Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. . (b) Causing or attempting to cause the said Company or any other employer over whom the Board would assert jurisdiction to discrimi- nate against employees or applicants for employment in violation of Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (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, 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) Reimburse all employees of the aforesaid Company 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." (b) Make whole Robert J. Haley and Leon Parsley for any loss they may have suffered as the result of the discrimination against tentions , if relevant, are matters for consideration only at the compliance stage of the proceeding. Accordingly, the motion is hereby denied. The Respondent 's request for oral argument is also hereby denied as , in our opinion, the record, including the Respondent's motion, memorandum, exceptions, and brief, adequately presents the issues and the positions of the parties. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all membership, dues, permit, and other records necessary to compute the moneys illegally exacted from employees of the said 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.7'1 2 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the Respondent's representative, be posted immediately upon receipt thereof and be maintained by the Respond- ent for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Mail to the said Regional Director copies of the notice attached hereto marked "Appendix" for posting by Knowlton Construction Company, if willing, likewise for 60 days, in all places where notices are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being signed by the Respondent's rep- resentative, be forthwith returned to the Regional Director for such posting. (f) Notify the Regional Director for the Eighth Region in writ- ing, -within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. MEMBERS JENKINS and FANNING took no part in the consideration of the above Decision and Order. 2In the event that this Order is enforced by a decree of a United States Court of Ap- peals, 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." APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL HOD CARRIERS', BUILDING AND COMMON LABORERS' UNION OF AMERICA, LOCAL UNION No. 78, AFL-CIO, AND TO ALL EMPLOYEES OF, AND APPLICANTS FOR EM- PLOYMENT WITH, KNOWLTON CONSTRUCTION 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 with Knowlton Construction Com- INTERNATIONAL HOD CARRIERS ', LOCAL UNION NO. 78 707 pany, or any other employer over whom the Board would assert jurisdiction, which requires membership in or referral from any labor organization as a condition of employment, except as au- thorized in the proviso to Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT cause or attempt to cause Knowlton Construction Company, or any other employer over whom the Board would assert jurisdiction, to discriminate against employees or appli- cants for employment in violation of Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. WE WILL NOT in any other manner restrain or coerce employees or applicants for employment in the exercise of the rights guaran- teed 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 Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL reimburse all employees of Knowlton Construction Company for the initiation fees, dues, permit fees, assessments, and other moneys they were unlawfully required to pay our union as the result of the illegal hiring agreement, understanding, or practice with the aforementioned Company. WE WILL make whole Leon Parsley and Robert J. Haley for any loss of pay suffered as a result of the discrimination against them. INTERNATIONAL HOD CARRIERS', BUILDING AND COMMON LABORERS UNION OF AMERICA, LOCAL UNION No. 78, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding with all parties represented was heard before W. Gerard Ryan, the duly designated Trial Examiner, in Cambridge, Ohio, on January 13-14, 1959, on the consolidated complaint of the General Counsel and the answer of Interna- tional Hod Carriers', Building and Common Laborers' Union of America, Local Union No. 78, AFL-CIO, herein called the Union or the Respondent. The issues litigated were whether the Respondent violated Section 8(b)(1) (A) and (2) and Section 2(6) and (7) of the Act. The parties presented oral argument and the Respondent has filed a brief. Upon the entire record and my observation of the witnesses, I hereby make the following: 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY Knowlton Construction Company, herein referred to as the Company, is an Ohio corporation with its principal office at Bellefontaine, Ohio, where it is engaged in the business of general contracting. During the calendar year 1958 it received ma- terials, which it had purchased from sources outside the State of Ohio, of a value of approximately $488,000 at its warehouse and various jobsites in Ohio. During the same year it also received payment in the amount of $188,000 for construction work it had performed in the State of Nebraska. I find that the Company is engaged in commerce within the meaning of the Act and that assertion of jurisdiction is warranted. II. THE LABOR ORGANIZATION INVOLVED International Hod Carriers ', Building and Common Laborers ' Union of America, Local Union No. 78, AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleged in substance and the answer denied that in or about the month of February 1958, the Respondent entered into and at all times thereafter to date has maintained in effect an arrangement, agreement, or practice with the Com- pany which provides that the Company shall hire or retain as employees only those individuals who are members of Respondent in good standing and/or who have obtained clearance from Respondent in the form of a referral slip, work order, or similar authorization; and that pursuant to the illegal arrangement, agreement, or practice above referred to, the employees of the Company since on or about Decem- ber of 1957, to date, have paid moneys, initiation fees, dues, permit fees, and assess- ments to Respondent which General Counsel contends should be refunded to said employees. The complaint further alleged and the answer denied that on or about April 15, 1958, Robert J. Haley applied for employment as a hod carrier and the Company offered to hire him on condition that he obtain clearance from the Re- spondent; and that Respondent on said date and at all times thereafter attempted to cause and did cause the Company to refuse to hire him because he was not a mem- ber of Respondent in good standing and/or because he had not obtained clearance from Respondent in the form of a referral slip, work order, or other such authoriza- tion, pursuant to the arrangement, agreement, or practice above referred to. Similar allegations were set forth with respect to Leon Parsley as having occurred on or about and after June 6, 1958. The complaint further alleged that by such acts the Respondent-attempted to cause and did cause the Company to discriminate in regard to the hire or tenure or terms or conditions of employment of Haley, Parsley, and others in violation of Section 8(a)(3) of the Act, thereby encouraging membership in the Respondent and Respondent did thereby engage in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act. Introduction The Company and the Union do not have a collective-bargaining agreement. When the Company began operations in Cambridge, Ohio, the Union furnished it with a "courtesy" copy of the contract the Respondent had with other contractors in the area. Article 6 of the Respondent's constitution entitled "Business Representative" provided: The business representative shall be the recognized representative of the Local Union to the employers and the public generally. He shall keep informed of all work within the jurisdiction of the Local and report the same to the Local. He shall appoint and supervise stewards and shall generally be charged with the duty of having working conditions observed by the employer as well as the members of the Local. He shall at least once a week turn over to the financial secretary all moneys collected by him, with a detailed statement thereof, and obtain a receipt therefor. He shall give a bond for the faithful performance of his duties in such sum as fixed by the Local, the premium of which shall be paid by the Local. Robert J. Haley testified that he was hired as a hod carrier by Foreman Don Hopper in November 1950, and has worked for no one except the Company since INTERNATIONAL HOD CARRIERS', LOCAL UNION NO. 78 709' then to April 1958. Foreman Hopper was his boss on nearly all the company jobs during that time. Haley has been a member of Local 483 of the International Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO, at Columbus, Ohio, during such employment. In December 1957, Haley was employed as a hod carrier in Chillicothe, Ohio, and Hopper was his foreman. At Hopper's suggestion Haley worked temporarily in Columbus, Ohio, from December 1957 to April 1958, under the supervision of Theodore Bland who was then bricklayer foreman. In April 1958, Bland telephoned from Columbus to Hopper in Cambridge, Ohio, and asked Hopper if he could use Haley. Hopper replied in the affirmative, whereupon Bland told Haley that Hopper wanted him to go to work pn the job at Cambridge where the Company was building a high school. Haley reported, ready to work, to Hopper on the next day, April 10, 1958, in Cambridge. Hopper had a job as mortar tender for Haley but told Haley that Haley would first have to obtain clearance from the Respondent's Business- Representative Dusz. Haley met Joe Dusz, the business representative for the Re- spondent, who inquired if Haley was going to work there and when Haley replied. in the affirmative Dusz answered that Haley was not going to work there. Haley told Dusz that he had his transfer card from the Columbus Local and his dues were paid but Dusz proceeded to the company office about 10 feet away and told Super- intendent Weeks and Foreman Hopper that if Haley were put to work Dusz would pull all the men off the job. After Weeks, Hopper, and Dusz discussed the matter outside the office, Hopper returned to the office and told Haley he could not let him work because Dusz said he would pull all the men off the job if Haley were per- mitted to work. Haley thereupon told Hopper he would return to work in Columbus. When Haley reported to Foreman Bland in Columbus what had occurred in Cam- bridge, Bland told him to return to Cambridge because Haley was a paid-up union member and the Union could not prevent him from working. On the following Monday morning, Haley reported the situation to a Mr. Kistermaker, the Interna- tional representative, who advised Haley to return to Cambridge, present his trans- fer book to Dusz, and go to work. Haley reported to the job site in Cambridge the next morning, reported to Hopper that he had seen Kistermaker, and inquired for the job steward. Hopper replied that he was around somewhere, and Haley went to look for him. Haley showed the job steward, John Gavala, his transfer card but Gavala said he could not go to work until he saw Dusz. Around 9 a.m. Dusz came on the job and Haley presented him with his transfer card from the Columbus Local and his union book and paid dues for 1 month to Dusz for which Dusz gave him a receipt. Then Haley told Dusz what Kistermaker had said but Dusz replied that he did not care what Kistermaker had said because "they" do not run his union down here (Cambridge). Dusz further told Haley that if Virgil Knowlton, the traveling superintendent for the Company, went against his word about bringing in more men from out of town to work there, he, Dusz, would pull all the men off the job. Dusz further told Haley the reason he could not put Haley to work was that there were 75-80 members of the Local out of work and if Haley were put to work he would pull all the men off the job. Haley then reported to Hopper that he was. returning to work in Columbus. He never returned to Cambridge to seek work. When Haley reported a week later for work in Columbus, Foreman Bland told him he had been replaced and there was no job for him. Leon Parsley testified that he has been a member of Local 1103, in Chillicothe, Ohio, of International Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO, since 1956. In June or July 1957, he was hired by Foreman. Hopper as a tender and scaffold builder on a job which the Company had in Chilli- cothe, Ohio, and worked there until May 1958. In April 1958, Hopper told himi that he was leaving for a job in Cambridge, Ohio, and told Parsley that he had been a good worker and that Hopper would give him a job there. Parsley's job lasted 5 weeks more in Chillicothe. On June 5, 1958, Parsley arrived in Cambridge and saw Hopper at the high school jobsite. He shook hands with Hopper, said he was, looking for work, and Hopper replied, "You have a job." Hopper pointed out Andrew Haschak as the business agent of the Union and told Parsley to clear with Haschak and start to work immediately.' Parsley presented his union book to Haschak who replied that the book was all right, but there were 45 members of the Local out of work and until they were employed he could not let Parsley go to work. On Friday morning, June 6, Hopper told Parsley that he had a job out there and to 1 Haschak had succeeded Joe Dusz as part-time business agent and was also an employee of the Company. 535828-60-vol. 125-4 6 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD keep on with that business agent to see if he would not let Parsley start to work because Hopper needed him. Parsley repeated his requests to Haschak several times but Haschak always told him that he could not go to work because there were 45 men in the Local out of work and Parsley could not go to work until those men were employed. On June 9, Hopper at Parsley's request sent a telegram to the Inter- national Hod Carriers' Union of America, Washington, D.C., as follows: Dear Sir Leon Parsley Book No 2932 has his transfer in this Local 78 Cam- bridge Ohio I have him a job Local Union 78 wont let him work. I want this investigated at once. H D Hopper Foreman Knowlton Const Co a Cambridge Ohio No reply was received. Parsley continued daily thereafter to try to obtain permis- sion to work from Business Agent Haschak but was refused for the same reason given originally. Finally, on June 19 Parsley told Haschak he was filing a charge with the National Labor Relations Board and made no further attempts to secure the Union's permission to work. Foreman Don Hopper testified that he has been a masonry foreman for the Company since 1937 and it always has been company practice that before a man is put to work he has to have clearance through the Local Union which has jurisdiction over that particular job, that he is the foreman on the high school job in Cambridge, Ohio, and that was the hiring policy of the Company there and on every other project he has worked on. The high school project in Cambridge was begun in January 1958 and had not been finished at the time of the hearing herein. Hopper corroborated Haley and Parsley as to their testimony that he had jobs for them and had instructed them that they would have to get clearance from the Respondent before they could go to work, that such clearance was refused and they were not hired. Hopper testified that he did not hire Haley because Dusz had threatened a strike if Haley were put to work; and in view of that strike threat he did not hire Parsley when Parsley reported to him that Haschak refused clearance because there were unemployed men in the Local and Parsley would have to go to the bottom of the unemployed list 2 Hopper testified that in an attempt to obtain the Respondent's consent to employing Parsley, he asked Gavala if it would be possible to hire Parsley as a "pusher" but Gavala replied that if he did he could not perform any work. The Respondent called as witnesses Joseph Dusz, a member of the Union and its business representative for approximately 51/z years, serving until June 3, 1958; and John Gavala, a member of the Union and job steward for the Union at all times material until August 1958. Gavala at the time of the hearing was employed by the Company as a foreman. During the investigation conducted by the Regional Director preceding the hearing, Dusz and Gavala each executed sworn statements before a field examiner of the Board.3 In his testimony at the hearing, Dusz denied Haley's testimony that Dusz refused to approve him for clearance and denied that he had said the laborers would be pulled off the job if Knowlton hired more men from out of town. Dusz further denied telling Superintendent Weeks or Foreman Hopper that if Haley were hired the men would be pulled off the job. Dusz on cross-examination testified that it was not necessary for a man to transfer to the Union before he was hired, nor was it necessary for him to clear a man before hire and that he did not clear or approve the Company's employees for hire; and testified that he had no knowledge with respect to company policy regarding clearance. Dusz further testi- fied that at the time the affidavit was taken he told the field examiner that Haley "could go to work, there was no way for us to stop him, and we didn't have no intention of stopping him" but that statement was not included in the affidavit. On cross-examination, Dusz, when confronted with his affidavit, at first denied his signature thereto, but later admitted that he signed it; denied hat he read the statement before he signed it; and denied initialing on pages 1 and 2, but later admitted his initials. He testified that the field examiner wanted him to put his initials there, so he did; denied that he read the statement or that it was read to 2 Respondent claims there is a variance between the testimony of Parsley and Hopper when Parsley testified that Hopper had a conversation with Haschak in Parsley's presence in which Haschak also threatened a strike if Parsley were hired. Hopper testified he did not recall such conversation with Haschak. Haschak testified that at no time did he ever talk with Hopper about Parsley. Hopper did not deny such conversation ; his testimony is only that he does not recall it. 3 Dusz was no longer business representative when he executed the affidavit. INTERNATIONAL HOD CARRIERS', LOCAL UNION NO. 78 711 him; and further testified that the field examiner did not ask him to, but later admitted that he wanted him to, swear to it which he did not do. When he was .asked on cross-examination to tell the entire story as to how the affidavit came into being. Dusz replied that the field examiner asked if he knew anything about it, and Dusz told him to the best of his knowledge; that he thought that the field examiner was one of the Company's men "and I just told him just whatever went on as near as I could remember." Dusz denied statements in the affidavit that the foreman told him he wanted to put the colored boy to work; and that he told the foreman that the colored boy would have to have a transfer before he could go to work. Gavala testified that he went to work on the high school job in the second or third week in January 1958, having been transferred from the hospital job by Superintendent Weeks, and that he was job steward on the high school job during the spring of 1958 until August 1958. He testified that he did not talk to Haley on the first day he saw him at the job in April but that his first conversation with Haley was about 3 or 4 days later, approximately April 15 or 16. He testified that ,on April 15 or 16, about 5 minutes before starting time at 7 o'clock, Haley handed him a transfer from a Local in Columbus, that he accepted the transfer and Haley asked if it was all right to go to work. Gavala testified that he replied, "I don't know, because I do not do the hiring"; and that was all there was to the conversation. Gavala in his testimony denied that in the above conversation he said anything to Haley about the men walking off the job if he was hired, or that he told Haley he could not go to work until he got an approval or okay from Dusz. Gavala also testified that he had not known Haley was coming on the job and had not been told by the superintendent or either foreman that Haley would be there; and that he never had any conversation with Hopper about Haley. Gavala further testified with respect to Parsley that he first saw Parsley at the high school job site about June 5, 1958, but he had not been told nor had he known that Parsley was to be there. Gavala testified that on June 5, 1958, there was a conversation between Gavala and Foreman Hopper which was "more or less directed to Mr. Parsley" at which Parsley and Haschak were present. In the conversation, Hopper asked Gavala if it was all right to put Parsley on as a labor pusher, or scaffold foreman. Gavala testified that he replied to Hopper, "That is perfectly all right, but according to the Local agreement , the labor foreman does not perform any work." Hopper replied, "In that case, I can't use a man like that." Gavala testified that Parsley said nothing and Haschak said nothing; that the conversation was more or less between Gavala and Hopper but it was directed at all three men there, including Parsley. On cross-examination, Gavala, when confronted with his prehearing affidavit, admitted his signature and that he swore to it but repudiated the part which states that before he went to work on the high school job for the Company he obtained a referral slip from Dusz, the business representative , and that all the laborers on the high school job came with referral slips signed by the business agent and the procedure before going to work is for each of them to bring to Gavala their referral :slips which he accepted and then returned to the business agent; and that when the new business agent took over, Gavala had nothing more to do with checking referral slips unless on occasions when the new business agent was not there. He testified that the field examiner must have been composing that language because he did not make those statements . He testified that he told the field examiner that he would :sign the statement with the exception of the foregoing matter about referral slips, and then he did the contrary and signed it "because I didn't know what all this was leading to." The Respondent also called as witnesses Mike Veselanic , John P. Smalley, and Don L. Larick who testified they were hired by the Company without clearance or referral from the Respondent. Veselanic testified that he began work for the Com- pany on the high school job about February 21, 1958. On cross-examination, he testified that he has been )a member of the Respondent since 1951. Smalley testified that he is a member of and the recording secretary of the Respondent and that he was hired about February 20, 1958, by Superintendent Weeks at the same time Veselanic was hired, and that he did not get any referral slip from Joe Dusz. Larick testified that he has been a member of the Respondent since before he went to work for the Company in 1957 on the hospital job in Cambridge, and that he went to work on the high school job for the Company on March 18, 1958, without referral or clearance from Dusz. Andrew Haschak, called by the Respondent, testified that he has been part-time ,business agent for the Respondent since June 3, 1958, succeeding Joe Dusz, and de- 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,_ . votes about 1 day per week to those duties. He testified that he first started to work for the Company at the hospital job on March 10, 1958, as a bricklayer tender and that about a month later, sometime in April, he was told to work at the high school job. He testified that the chartered territorial jurisdiction of the Respondent is Guernsey County but there are some members who live in Noble County. Haschak testified that after he became business representative he never had occasion to discuss working conditions with Hopper but discussed working conditions with Superin- tendent Weeks and Wilson, foreman of the laborers. Haschak testified that about June 5, 1958, he was at work in the basement part of the high school when Parsley approached him and said that Hopper would put him to work if Haschak would give him the okay to which Parsley replied that he was not doing the hiring nor the firing; that he was just working there. Haschak testified that Parsley showed him his book and he saw that he was in good standing. Haschak denied stating to Parsley that he could not go to work until all the Respondent's unemployed mem- bers had jobs. He said that Parsley asked how many men he had that were un- employed and that Haschak told him there were between 45 and 50 men loafing.. Haschak denied telling Parsley that he would have to go to the bottom of the list before he got work. Haschak denied ever talking to Hopper about Parsley but said he did have four or five conversations thereafter with Parsley. That same evening, after quitting time, Haschak testified that Gavala, Hopper, and Parsley were near the office building, and that he overheard a conversation between Hopper and Gavala in which Hopper said he would like to make parsley a pusher and Gavala replied that if he wanted to make him a pusher it was perfectly okay, "but that our agreement says that a pusher must not perform no work, and Hopper says, 'If that is the case, if I can't work the man, I can't use him.' " Haschak, according to his testimony, said the next time he talked with Parsley was when Parsley brought his transfer and Parsley asked how far down the line he was, to which Haschak replied that he "didn't know nothing about it, that I didn't have no line, I just said that 45 or 50 men were out of work and that was it." Haschak denied that there was anyhing said about hiring or not hiring and that Parsley had said anything about filing a charge with the Labor Board. Haschak testified that he never made any statements to any of the company supervisors that the men would walk off the job if Haley or Parsley were hired. Haschak testified that since he has been business. representative he has never issued referral slips to men who were hired on the high school job and that the Union does not use referral slips. On cross-examination, Haschak testified that in the agreements with other contractors in the area it was provided that there should be one pusher for six laborers but that there was no agreement with the Company and the terms of the agreement with other companies. were not enforced against the Company; the Company had asked for a copy of the agreement with others, and the Respondent furnished it with copies. He continued that the Respondent had no rule against nonmembers of the Respondent coming into the area and going to work and that he had never had any discussion with anyone with the Company on that subject. On the testimony of Hopper, Haley, and Parsley, which I credit, and upon the entire record, I find that, although there was no written collective-bargaining agree- ment between the Respondent and the Company, there was in effect between them an arrangement, agreement, or practice whereby the Company would hire only those employees who were able to secure referrals or approval from the Respondent. In furtherance of that illegal arrangement, Haley and Parsley were denied employ- ment by the Company when the Respondent not only refused to consent to their employment because there were members of the Respondent out of work but also threatened to strike if they were employed. I have not considered the repudiated affidavits of Dusz and Gavala as probative evidence in arriving at the above findings. The Board has held that where, as here, the essential purpose of Respondent's activity was obviously to obtain preference in employment for its own members as against employees from outside its terriorial jurisdiction-in all probability mem- bers of a sister local-the Respondent violated Section 8(b)(1)(A) and (2) of the Act? Accordingly, I further find that by participating with the Company in an agree- ment, understanding, and practice that required employees who were not members of the Respondent to obtain referrals or clearance from the Respondent as a condi- tion of employment, the Respondent has caused the Company to discriminate against • International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 92, AFL-CIO (Pittsburgh Des Moines Steel Company), 119 NLRB 1605. INTERNATIONAL HOD CARRIERS', LOCAL UNION NO. 78 713 its employees and against Haley and Parsley in violation of Section 8(a)(3) of the Act; and I conclude that by engaging in such conduct, the Respondent has vio- lated Section 8(b) (1) (A) and (2) of the Act.5 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 the Company, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY In order to remedy the unfair labor practices found, I shall recommend that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The General Counsel has requested application of the Brown-Olds 6 remedy to expunge the effect of the illegal closed-shop condi- tions of employment. By enforcing closed-shop conditions of employment, the Respondent has inevitably coerced employees to pay the dues, fees, and assessments necessary to achieve and retain membership in the Respondent Union or to receive a permit or clearance for them to work within the Union's jurisdiction, In order adequately to remedy the unfair labor practices found, and to encourage compliance with the Act in the future, the Respondent should be required to reimburse em- ployees of the Company for any dues, fees, assessments, or other moneys that were unlawfully exacted from them as a condition of obtaining or retaining em- ployment with the Company. Accordingly, I shall recommend that the Respondent refund to all employees of the Company the initiation fees, assessments, dues, and other moneys paid by them as the price of their employment. The liability of the Respondent for reimbursement should include the period beginning 6 months prior to the filing and service of the charges herein and shall extend to all such moneys thereafter collected. Robert J. Haley and Leon Parsley, against whom the Re- spondent caused and Company to discriminate, as found, should be made whole by the Respondent for their resulting pay losses suffered as a result of the discrimina- tion against them, in accordance with the formula in F. W. Woolworth Company, 90 NLRB 289. It appears from the record that prior to the hearing the Respondent notified Haley and Parsley that they were free to accept employment with the Company without reference to their membership or nonmembership in the Union; and counsel for the Respondent stated that the Company had also been advised to that effect. It will be left to the compliance stage of these proceedings to establish the dates when such notifications were effective. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of the Act. 2. The Respondent is a labor organization within the meaning of the Act. 3. By causing the Company to discriminate against Leon Parsley and Robert J. Haley in violation of Section 8(a)(3) of the Act, thereby also restraining and coercing employees in the exercise of their rights under Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 4. By maintaining and enforcing an understanding or practice wherein member- ship in or clearance from the Respondent is required as a condition of employment, and by requiring employees or applicants for employment to pay dues or other moneys to the Respondent in order to obtain and retain employment, the Respondent has violated Section 8(b)(1)(A) and (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Local 715, United Brotherhood of Carpenters and Millwrights, AFL-CIO ( Charles S. Wood and Co.), 121 NLRB 543. E United Association of Journeymen & Apprentices of Plumbing & Pipe fitting Industry, etc. (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115 NLRB 594, 597-602.