Local 2058, United Brotherhood of Carpenters, Etc.

LOCAL 2058, UNITED BROTHERHOOD OF CARPENTERS, ETC. 1137 Local Union No. 2058, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Harold A. Stockton and Mac Construction Co., Inc.; The Robert Simmons Construc- tion Company; Switzer-Willing Construction Company; John Wile Construction Company; and Fain and Johnston Con- struction Company, Parties to the Contract Local Union No. 2058, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and William C. Stockton and Mac Construction Co., Inc.; The Robert Simmons Construc- tion Company; Switzer-Willing Construction Company; John Wile Construction Company; and Fain and Johnston Con- struction Company, Parties to the Contract. Cases Nos. 9-CB-408 and 9-CB-409. December 23, 1959 DECISION AND ORDER On July 7, 1959, Trial Examiner Arthur E. Reyman issued his In- termediate 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 General Counsel filed exceptions to the Intermediate Report and a supporting brief. 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 Bean and Fanning]. 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 the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following corrections,' additions, and modifications. The Trial Examiner found, in effect, that the Respondent Union violated Section 8(b) (1) (A) and (2) of the Act by: (1) Maintaining contracts with four contractors which had an i1- legal union-security provision and a provision requiring that car- penters were to be hired exclusively through the Respondent Union without complying with the standards established by the Mountain Pacific case.2 1 The Trial Examiner inadvertently stated that the General Counsel did not allege vio- lations of the Act ( by nature of the unlawful contracts ) extending beyond June 27, 1958. The complaint however, alleges that the illegal contracts were maintained in effect until June 30, 1958 . We so find and correct the Intermediate Report accordingly. 2119 NLRB 883. 125 NLRB No. 116. 1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Entering into and maintaining an oral exclusive hiring ar- rangement with Mac Construction without complying with the stand- ards established by the Mountain Pacific case. (3) Preventing Mac Construction from employing Harold A. Stockton and William C. Stockton, pursuant to its oral exclusive hir- ing arrangement. No exceptions were filed to the above findings and we adopt them. The General Counsel excepts to the failure of the Trial Examiner to provide the usual backpay and reinstatement remedy for the Stock- ton brothers. We find merit in this exception and will provide such a remedy in our Order. THE REMEDY In order to remedy the unfair labor practices found, we shall order the Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that Respondent Union unlawfully caused Mac Con- struction discriminatorily to refuse to employ Harold A. Stockton and William C. Stockton on a project at Tyrone, Kentucky. We shall direct the Respondent Union to notify Mac Construction, in writing, and furnish copies thereof to Harold and William Stockton, that it has no objections to their employment. The Respondent Union will make whole these employees for any loss of pay suffered as a result of the discriminatory refusal to employ them between December 16, 1957, and the termination of that project on April 9,1958, less net earn- ings during said period. The amount of backpay in all cases will be computed in accordance with the Board's usual formula.3 We have found that a contract containing an unlawful union- security clause and exclusive hiring provisions has been executed by the Respondent with The Robert Simmons Construction Company, Switzer-Willing Construction Company, John Wile Construction Company, and Fain and Johnston Construction Company. By the existence of such an unlawful contract, the Respondent Union 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 entitling them to work within the Union's juris- diction. In order to expunge the coercive effect of these illegal exac- tions and adequately remedy the unfair labor practices found, we shall require the Respondent Union to reimburse the employees of the above-mentioned employers for any dues, fees, assessments, permit fees, or other moneys that were exacted from them as a condition of obtaining or retaining employment. The liability for reimbursement shall include the period beginning 6 months prior to the filing and service of the amended charges against the Respondent Union, and 3F. W. Woodworth Company, 90 NLRB 289. LOCAL 2058, UNITED BROTHERHOOD OF CARPENTERS, ETC. 1139 shall extend to all such moneys thereafter collected until the expira- tion of the unlawful contract on June 30, 1958. We have found that the Respondent Union was a party to an illegal exclusive hiring arrangement with Mac Construction and concluded that these employees were similarly coerced in the payments of dues, fees, and assessments. We shall direct the Respondent Union to reimburse employees of Mac Construction for any dues, fees, assess- ments, permit fees, or other moneys illegally exacted from them as a condition of obtaining or retaining employment. The liability for reimbursement shall apply to all such moneys collected since October 20, 1957, the date of the unlawful hiring arrangement. Finally, we shall direct that the Respondent Union preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll, union, and other records necessary to compute amounts owing to various employees. ORDER Upon the entire record in these consolidated cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : Respondent Union, Local Union No. 2058, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, its officers, repre- sentatives, and agents, shall : A. Cease and desist from : (1) Entering into, enforcing, maintaining, or renewing any collective-bargaining agreement with The Robert Simmons Construc- tion Company, Switzer-Willing Construction Company, John Wile Construction Company, Fain and Johnston Construction Company, or any other employer over whom the Board would assert jurisdiction, whereby membership in, clearance from, or approval by the Respond- ent Union is required as a condition of employment, or which requires that preference in employment be given to members of the Respondent Union, except as authorized by Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (2) Maintaining and enforcing any agreement, or practice with Mac Construction Co., Inc., or any other employer over whom the Board would assert jurisdiction, whereby membership in, clearance from, or approval of Respondent Union is required as a condition of employment or which requires that preference in employment be given to members of the Respondent Union, except as authorized by Section 8 (a) (3) of the Act. (3) Operating an exclusive hiring hall, except under the standards specified in the Mowitain Pacific case.4 119 NLRB 883. 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (1) Notify Mac Construction Co., Inc., in writing, and furnish copies thereof to Harold and William Stockton, that they or any other qualified employee or prospective employee will not be denied employ- ment because of membership or nonmembership in the Respondent except to the extent authorized in Section 8(a) (3) of the Act. Said notification shall include a statement to the effect that the Respondent has no objection to the employment of Harold A. Stockton or William C. Stockton by Mac Construction Co., Inc. (2) Make whole H. A. Stockton and W. C. Stockton for any loss of pay they may have suffered as a result of the discrimination against them in the manner set forth in the section of this Decision and Order entitled "The Remedy." (3) Reimburse all employees of Mac Construction Co., Inc., The Robert Simmons Construction Company, Switzer-Willing Construc- tion Company, John Wile Construction Company, and Fain and John- ston Construction Company for moneys exacted from them in the manner and to the extent set forth in the section of this Decision and Order entitled "The Remedy." (4) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all membership, dues, permit, and other records necessary to compute the moneys exacted from em- ployees of employers mentioned in (3) above. (5) Post at its offices and/or meeting hall at Frankfort, Kentucky, in conspicuous places, including all places where notices to members are customarily posted, copies to the notice attached hereto marked "Appendix A." s Copies of said notice, to be furnished by the Re- gional Director for the Ninth Region, shall, after being duly signed by Respondent Union's representative, be posted immediately upon receipt thereof and be maintained by Respondent Union for 60 con- secutive days thereafter. Reasonable steps shall be taken by Respond- ent Union to insure that said notices are not altered, defaced, or covered by any other material. (6) Mail to the Regional Director for the Ninth Region copies of the notice attached hereto marked "Appendix A" for posting by Mac Construction Co., Inc., The Robert Simmons Construction Company, Switzer-Willing Construction Company, John Wile Construction Company, and Fain and Johnston Construction Company, if willing, likewise for 60 consecutive days, in all places where notices are cus- tomarily posted. Copies of said notice, to be furnished by the Re- gional Director, shall, after being signed by the Respondent's 5In 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." LOCAL 2058, UNITED BROTHERHOOD OF CARPENTERS, ETC. 1141 representative, be forthwith returned to the Regional Director for such posting. (7) Notify the Regional Director for the Ninth Region, in writing, within 10 days from the date of this Order, what steps they have taken to comply herewith. APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL UNION No. 2058, UNITED BROTH- ERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, AND TO ALL EMPLOYEES OF AND APPLICANTS FOR EMPLOYMENT WITH MAC CONSTRUCTION CO., INC., THE ROBERT SIMMONS CONSTRUC- TION COMPANY, SWITZER-WILLING CONSTRUCTION COMPANY, JOHN WILE CONSTRUCTION COMPANY, AND FAIN AND JOHNSON CON- STRUCTION 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 notify you that : WE WILL NOT enter into, enforce, maintain, or renew any col- lective-bargaining agreement with The Robert Simmons Con- struction Company, Switzer-Willing Construction Company, John Wile Construction Company, Fain and Johnston Construc- tion Company, or any other employer over whom the Board would assert jurisdiction, whereby membership in, clearance from, or approval by our Union is required as a condition of employment or which requires that preference in employment be given to members of the Respondent Union, except as authorized in Section 8 (a) (3) of the Act. WE WILL NOT maintain or enforce any agreement, understand- ing, or practice with Mac Construction Co., Inc., or any other employer over whom the Board would assert jurisdiction, where- by membership in, clearance from, or approval of our Union is required as a condition of employment or which requires that preference in employment be given to members of our Union, except as authorized in Section 8(a) (3) of the Act. WE WILL NOT operate an exclusive hiring hall except under the standards specified in the Mountain Pacific case. (119 NLRB 883.) WE WILL NOT cause or attempt to cause Mac Construction Co., Inc., or any other employer over whom the Board would 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- 5 35 82'8-60-val. 125-73 14142 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD 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, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL reimburse all employees of Mac Construction Co., Inc., The Robert Simmons Construction Company, Switzer-Willing Construction Company, John Wile Construction Company, and Fain and Johnston Construction Company for the initiation fees, dues, permit fees, assessments, and other moneys they were re- quired to pay our Union as the result of the illegal hiring provisions in our contracts or understandings with the afore- mentioned companies. WE WILL make whole Harold A. Stockton and William C. Stockton for loss of pay resulting from the discrimination against them. WE WILL notify Mac Construction Co., Inc., that we have no objection to the employment of Harold A. Stockton and William C. Stockton. LOCAL UNION No. 2058, UNITED BROTHER- HOOD 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended,' commenced by the issuance on February 13, 1959, of a complaint, order consolidating cases, and notice of hearing by the General Counsel of the National Labor Relations Board, on behalf of the Board, by the Acting Re- gional Director for the Ninth Region, against Local Union No. 2058, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, the Respondent herein, alleging in substance that the Respondent Union has engaged in unfair practices affecting commerce as defined in Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act. Prior thereto, Harold A. Stockton, an individual, had filed a charge on January 24, 1958, and an amended charge on June 4, 1958 (Case No. 9-CB-408); and William C. Stockton, an individual, had filed a charge and an amended charge on identical dates. The charges and amended charges so filed asserted that the Respondent had engaged in unfair labor practices in violation of the same sections of the Act subsequently alleged in the complaint. The Respondent Union (hereinafter sometimes called Local 2058) filed timely answer to the com- plaint, effectively denying contraventions of the Act as alleged.2 161 Stat. 136, 29 U.S.C., sec. 151, et seq., herein called the Act. .1 Mac Construction Co., Inc., by counsel, after service of the complaint upon it, filed a motion for a more' definite statement. Responding thereto, the Regional Director addressed a letter to counsel for this company, stating in part : ". . . Inasmuch as none of the Parties to the Contract in these cases are Respondents and no remedial Order may LOCAL 2 0 5 8 , UNITED BROTHERHOOD OF CARPENTERS, ETC. 1143 Mac Construction Co., Inc., is alleged to have entered into an oral exclusive hiring arrangement with Local 2058 under which that company was caused to hire and did hire exclusively through Local 2058, only employees, as carpenters, who were cleared for employment by or sponsored by Local 2058, and further, that pursuant to this exclusive hiring arrangement the Respondent attempted to cause and did cause the Company to refuse employment to Harold A. Stockton and William C. Stockton (the Charging Parties in these cases), because they were neither cleared for nor sponsored by Local 2058 for employment. Further, it is alleged that pursuant to the terms of written contracts between The Robert Simmons Construction Company, Switzer-Willing Construction Company, John Wile Construction Company, and Fain and Johnston Construction Company, the Respondent Union and these com- panies maintained and enforced closed-shop preferential hiring conditions of employ- ment throughout the territorial jurisdiction of Local 2058 under which the com- panies were caused to hire, and did hire, exclusively, through the hiring hall of the Respondent Union, only employees, as carpenters, who were members of or who were approved by Local 2058 for hiring. It further is said in the complaint that pursuant to these written contracts, the Respondent Union, throughout its territorial jurisdiction, regularly collected from the carpenter employees of these companies, "the names of said employees being unknown to the Acting Regional Director," initiation fees, dues, nonmembership dues, assessments, dobie and work permit fees, "the exact amounts of which collections are unknown to the Acting Regional Di- rector"; and also, under the oral exclusive hiring arrangement with Mac Construction Co., Inc., the Respondent Union regularly collected from the carpenter employees of that company on a certain construction site in Tyrone, Kentucky, initiation fees, dues, nonmembership dues, assessments, dobie and work permit fees, "the names of such employees land] the exact amounts of the alleged collections being unknown to the Acting Regional Director." The General Counsel does not allege violations of the Act extending beyond June 27, 1958, although, as the Trial Examiner understands his position, assuming the proving of violations within the Section 10(b) period, the General Counsel is entitled to appropriate remedy for those violations, including an order requiring remittance by Local 2058 for the period from June 27 back to the Section 10(b) time limitation, of all dues, initiations fees, work permit money, and so on, paid by any employee who was working during the time of the alleged illegal exclusive hiring agreements between the Respondent Union and the named parties to such contracts. On the issues raised by the complaint and answer and pursuant to notice, a hearing was held before the duly designated Trial Examiner at Frankfort, Kentucky, beginning on April 21, 1959. At the hearing, the General Counsel and the Respond- ent Union each was represented by counsel, as was Mac Construction Co., Inc. Full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue orally upon the record, to file proposed findings of fact and conclusions of law, and to file briefs was afforded each party. Upon the entire record in the case, from his observation of the witnesses, and after careful consideration, the Trial Examiner makes the following: FINDINGS OF FACT I. THE EMPLOYERS NAMED AS PARTIES TO THE CONTRACT (a) Mac Construction Co., Inc., herein called Mac, is a Kentucky corporation having its offices and principal place of business at Lebanon Junction, Kentucky, where it is engaged in the building and construction industry as a general contractor. During the calendar year 1957, Mac performed services of a value in excess of $50,000 within the State of Kentucky for the James B. Beam Distilling Company, and J. S. T. Brown's Son Company, each of which shipped goods of a value in excess of $50,000, from places of business located in the State of Kentucky directly to points located outside the State of Kentucky. (b) The 'Robert Simmons Construction Company, herein called Simmons, is a Kentucky corporation having its offices and principal place of business at 840 be issued as to them since no charges had been filed against them, I am herewith return- ing your Motion for a More Definite Statement and have accepted and filed the Answer as your client's statement or position in these cases." At the hearing herein, counsel for this company offered its motion into evidence . The Trial Examiner has not had the benefit of seeing the answer referred to in the letter of the Regional Director to counsel for the Company. 1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Barret Avenue, Louisville, Kentucky, where it is engaged in the building and con- struction industry as a general contractor. During the calendar year 1957, Simmons purchased and had shipped directly to its place of business in Louisville, Kentucky, from points located outside the State of Kentucky, goods in excess of a value of $50,000. (c) Switzer-Willing Construction Company, herein called Switzer, is a Kentucky corporation having its offices and principal place of business on Trafton Avenue, in Lexington, Kentucky, where it is engaged in the building and construction industry as a general contractor. During the calendar year 1957, Switzer performed services of a value in excess of $50,000 within the State of Kentucky for National Distillers Products Corporation, Frankfort, Kentucky, which shipped goods of a value in excess of $50,000 from places of business located in the State of Kentucky directly to points located outside the State of Kentucky. (d) John Wile Construction Company, herein called Wile, is a Kentucky corpo- ration having its offices and principal place of business at 826 Humler Avenue, Louisville, Kentucky, where it is engaged in the building and construction industry as a general contractor. During the calendar year 1957, Wile purchased and had shipped directly to its place of business in Louisville, Kentucky, from points outside the State of Kentucky, goods of a value in excess of $50,000 and also performed services outside the State of Kentucky of a value in excess of $50,000. (e) Fain and Johnston Construction Company, general contractors, herein called Fain, is a corporation having offices in Lexington, Kentucky, where it is engaged in the building and construction industry as a general contractor. During the year 1957, Fain performed services of a value in excess of $50,000 within the State of Kentucky, and received at various locations goods and materials of equal or more amount from without the State of Kentucky.3 H. THE LABOR ORGANIZATION INVOLVED Local Union No. 2058, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Preliminary Findings A. The hiring arrangement between Local 2058 and Mac With respect to the hiring arrangement, never reduced to writing, between Local 2058 and Mac, there is little dispute as to the actual agreement made between Presi- dent McGuire of the company and Business Agent Robert L. Rodgers of the Union. On or about October 18, 1957, President McGuire, whose home and place of busi- ness was in Lebanon Junction, Kentucky, called at Rodgers' home and in the absence of Rodgers, informed the latter's wife that Mac had contracted to undertake the con- struction of a new distilled spirits warehouse for the J. S. T. Brown's Son Company of Lawrenceburg, Kentucky, at Tyrone, Kentucky, and that he wished to consult with Business Agent Rodgers for the purpose of making arrangements regarding the furnishing of carpenters to the job, and at that time told Mrs. Rodgers that he would later communicate with Rodgers himself. On October 20, McGuire telephoned Rodgers and inquired whether Rodgers would be in a position to supply carpenters at the construction job, and was told that Rodgers could and would furnish such carpenters as might be necessary. McGuire then requested Rodgers to furnish him with one carpenter to commence work on the following morning (Monday); on Monday, Henry Gray, a member of Local 2058, was sent by Rodgers to the con- struction job at Tyrone. On November 4, Rodgers sent a carpenter, Lou Smith, to the job; and on December 3, McGuire notified Rodgers that he would require three more carpenters on the following morning; in response to this request William Clark, Garrett Carter, and Roger Crittenden were sent to work at this distillery warehouse job. In the first telephone conversation between McGuire and Rodgers, the latter told McGuire that he kept a list of unemployed carpenters as they registered in, and he would like to send them out in the order of their entry upon his so-called "unem- ployment" or "out-of-work" list; McGuire at this time mentioned the name of one carpenter he knew and asked if he was available and Rodgers said he would find out; he later reported by telephone to McGuire that the carpenter asked for, one Paul Stephen, was working on a job, but would be available for work in about a week. McGuire also informed Rodgers that he had a number of men who had been work- 8 The complaint was amended at the hearing to include Fain as a Party to the Contract LOCAL 2058, UNITED BROTHERHOOD OF CARPENTERS, ETC. 1145 ing for him; that he would like to bring them to this particular job, to which Rodgers replied that that would be all right and for them to bring their dues books so that they could be cleared through the office of Local 2058 and be in good standing with the Carpenters while at work in that work jurisdiction. As soon as four carpenters had been employed on the Lawrenceburg distillery warehouse project, Gray, as the first man from Local 2058 on the job, automatically became job steward. Eugene Kirsch was superintendent and job foreman at the project, having super- vision of the carpenters working on the job as well as other workmen. On or about December 6, 1957, Roger Crittenden and Garrett Carter, carpenters who had been working on the job, came to see Rodgers and told him they had been laid off the job, effective that date, and told Rodgers, too, that in their opinion they had been laid off in order to provide job openings for Harold A. Stockton and Wil- liam C. Stockton. They asked Rodgers to try to help them to obtain reemployment on the job. Rodgers said he refused to do this, telling them that he exercised no control whatsoever as to who should or should not be released or laid off from work. A day or two later, Rodgers telephoned McGuire to ask whether or not he had been satisfied with the carpenters sent to him, to which McGuire replied "Yes, with the exception of Crittenden and Carter"; when McGuire asked him what was wrong, Rodgers informed him that Kirsch had told him they "remind him of some guys on a cost-plus job, and he said of course I am operating on a contract, and I have got to have fellows to do a day's work." During the course of this conversation, Rodgers informed McGuire that he had heard that the two Stockton brothers were going to work and that he had been told they were good carpenters, to which McGuire replied "Well, I don't know anything about that . .. I came to you and asked you to furnish carpenters, Mr. Rodgers, and that's the way I wanted it handled; I have been well pleased with the men with the exception of the two men I just mentioned." During the course of this conversation, McGuire advised Kirsch that he had neglected to inform the latter of the. arrangement made by him with Rodgers with regard to calling upon Rodgers for carpenters when needed, and told McGuire he would im- mediately instruct Kirsch to ,follow the procedure agreed upon for obtaining the serv- ices of carpenters when needed. Immediately following his conversation with Rodgers, McGuire telephoned Kirsch and instructed him to call Rodgers "and get it straightened out, and if he needed men to ask Mr. Rodgers to send them out." On December 9 the Stockton brothers had approached Kirsch at the project site and inquired for work; again on Friday, December 13, they talked to Kirsch, who then told them he needed two carpenters to start work and for them to report on the following Monday, December 16. When the Stockton brothers reported to work at the J. S. T. Brown Sons site in Tyrone on Monday morning, December 16, about 7 or 7:15 a.m., they were met by Superintendent Kirsch and Steward Gray, at which time Gray informed them that he was sorry, but that Business Agent Rodgers had informed him that they were not at the top of the unemployment list, and that he (Rodgers) had sent two other carpenters to fill the two jobs. The Stockton brothers were not employed on the project and it appears that two other carpenters did go to work on that day. The Trial Examiner finds that the Stockton brothers were prevented from going to work for Mac by reason of the oral agreement or arrangement made by President McGuire and Business Agent Rodgers. Local 2058 has no regular office, the business of the Local Union in connection with employment, referrals, collection of dues, and so on being generally transacted at the home of the business agent. This local meets regularly on the first and third Thursday of each month at the Odd Fellows Hall in Frankfort. As noted above, the offices of Mac are in Lebanon. Upon questioning by the General Counsel, both McGuire and Rodgers said that no notices were posted by either of them concerning the arrangement between them for the furnishing of carpenters by the local to Mac. B. The written agreement between Local 2058 and other Parties to that Contract- adoption of Respondents' proposed findings of fact Each of the Parties to the Contract named in the complaint herein was signatory to a written agreement dated July 1, 1956, to cover the period from that date through June 30, 1958. This agreement required all employees covered to be mem- bers and to remain members in good standing of Local 2058 and provided that the local furnish to the contractor "the required number of qualified and competent workmen." The exact provisions in these respects are set forth below? 4 This agreement was superseded on July 1, 1958, by another agreement to run for a period of 2 years. The new agreement substituted a maintenance-of-membership clause, .1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the times material hereto, each contractor, signatory to the contract with Local 2058 , had the recognized right to employ whomever it pleased as a carpenter, whether he be a nonunion man, a man from another jurisdiction of the United Brotherhood of Carpenters and Joiners, or an individual of its own choice. The right of the employer to fire without consultation with the Union seems to have been absolute. James A. Morton, secretary -treasurer of Switzer, Robert F. Simmons, president of Simmons, Robert N. Arnold , office manager of Wile, and Lewis Johnston, secretary-treasurer of Fain and Johnston , whose companies all were parties to the ,agreement with Local 2058 (that is, each having a separate agreement ), all were -agreed that as to custom and practice, his company had the right to hire nonunion men, men of its own choice, to bring men from other jurisdictions into the jurisdic- tion of Local 2058 if they so desired , and in general were accustomed to call upon Local 2058 when they were in need of a carpenter or carpenters and had no par- ticular man in mind of their own whom they desired to hire. The Trial Examiner believes, and finds, that as a matter of convenience the employers called upon the business agent of Local 2058 to supply them with carpenters as needed. Local 2058 as a matter of course, when members of the Union from a jurisdic- tion other than its own were employed within the jurisdiction , accepted clearances in dues and fees from carpenters from the outside. Upon questioning by the General Counsel , each of the above-named witnesses, representatives of Parties to the Contract, said that during the times material to this case no notices were posted to their knowledge as to the arrangement or agreement with the Union concerning hiring hall practices. Pursuant to right under Section 102 .42 of the Rules and Regulations of the Board, Series 7, as amended, proposed findings of fact and conclusions of law were timely filed with the Trial Examiner on behalf of the Respondent Union. The Trial Examiner, having reviewed the official report of proceedings herein and having read the proposed findings of fact as submitted on behalf of the Respondent Union, hereby adopts the findings of fact as proposed as his own with the exception of finding III ( 14). These findings, including the one just excepted , are as follows: 1. (1) At all times between July 1, 1956, and June 30, 1958 , there were in existence and in effect written collective bargaining agreements between the Union and the following named corporations (hereinafter referred to as "the Contractors"), each of which was at all of said times engaged in the business of a building and construction contractor and in operations "affecting com- merce" as defined in Section 2, sub-section (6) and (7) of The Labor Man- agement Relations Act of 1947 , as amended October 22 , 1951, to-wit: (a) The Robert Simmons Construction Company; Switzer -Willing Construction Com- pany; John Wile Construction Company and Fain and Johnston, Inc. (2) Each of the aforementioned written collective bargaining agreements was identical with the other, and it was the object and purpose of each of said agreements to define and regulate conditions of employment , working condi- tions and wages of all carpenter labor employed by any of the contractors within the territorial jurisdiction of the Union during the period of time that said written agreements were in effect. (3) Each of the aforesaid written collective bargaining agreements con- tained, among other things, the following terms and provisions: SECTION I. (A) That the Contractors hereby recognize Carpenters Local No. 2058 which is signatory hereto, as the sole and exclusive Bar- gaining Representative of the Contractors who are in the jurisdiction of Carpenter's Local No. 2058. It is further agreed that said Contractors shall abide by the working rules of Carpenter's Local No. 2058. It is understood that Local No. 2058 does not at this time, nor will it during the term of this agreement , claim jurisdiction over the following classes of Employees, Executives, Civil Engineer, and/or their helpers. valid on its face, in place of the closed -shop and hiring hall provisions of the 1956-58 agreement. Rodgers , who relinquished his position as president and business agent of Local 2058 in April 1959 , testified that the wage provisions contained in such an agree- ment, when executed with three employers in the industry, became the prevailing rates of pay for job classifications as listed therein for the State of Kentucky . As noted above, the General Counsel does not claim violations of the Act by reason of the existence of the collective-bargaining agreement between Local 2058 and any contractor after June 30, 1958. LOCAL 2058, UNITED BROTHERHOOD OF CARPENTERS, ETC. 1147 (B) That during the term of this agreement, and during the perform- ance by the Contractors of any work or contract to which this agreement relates, all employees covered hereby shall be members of Local No. 2058 and shall remain in good standing in Local No. 2058. (C) It is understood that the Contractors shall have the right to dis- charge any employee for cause, provided that there shall be no discrimi- nation on the part of the Contractor against any employee, nor shall any such employee be discharged by reason of any union activity nor inter- fering with the proper performance of his work. (D) The Contractor shall call upon Local No. 2058, or their Agent, for such men as they need from time to time. The Union or its Agent shall immediately furnish to the Contractor the required number of quali- fied and competent workmen. Reasonable advance notice shall be given (but not less than 48 hours) by the Contractors to the Union, or its Agent when ordering said workmen. (4) At all times during the period from July 1, 1956, to June 30, 1958, and while engaged in the prosecution of work within the territorial jurisdiction of the Union, each of the contractors consistently followed the practice of "on- the-job" hiring of carpenter labor without reference to or regard for the question of whether the individuals thus employed by said Contractors had or had not been sent to them by the Union. No objection was ever made by the Union to such hiring procedures. (5) During the same period of time, and while engaged in the prosecution of construction work within the territorial jurisdiction of the Union, each of the Contractors sought to employ specified or named individual members of the Union through the means of requests or applications to the president and business agent of the Union. In all instances where such specified or named individual member of the Union was not otherwise engaged and was available, such named individual member of the Union was sent by the president and business agent of the Union to the requesting Contractor without objection or comment. (6) During all of the time that said written collective bargaining agree- ments were in effect each of the Contractors exercised freely the right to reject for employment any individual member of the Union who had been sent to them by the Union, its officers or agents, for the purpose of seeking employ- ment. In no instance was the rejection for employment of such member of the Union objected to by the Union, or any of its officers or members in its behalf. (7) During the period of time in question, some, at least, of the Contractors engaged in the practice of employing individuals to perform carpenter labor who were not at the time of such employment members of the Union, or of any other union. No objection to such practice was made by the Union, or by any of its officers or members in its behalf. (8) The Record contains no evidence whatsoever that, during the period of time covered by the aforesaid written collective bargaining agreements, any person ever sought and was denied employment as a carpenter by any of the Contractors for the reason or upon the ground that such persons were non- members of the Union or of some other labor organization. II. (1) For many years prior to the filing of the charge and the issuance of the complaint in the above captioned matter, the president and business agent of the Union had followed the practice of keeping and maintaining an "out-of- work" list, which contained the names of a portion of the unemployed members of the Union and which was kept and maintained for the purpose of assisting such unemployed members to obtain employment. This practice was a matter of common knowledge among the membership of the Union. The mechanics of this operation were as follows: Any member of the Union who was without work was privileged, but not compelled, to report his name to the president and business agent. The name of such unemployed member was then placed by the president and business agent on an "out-of-work" list. The sequence of names on this list was determined by duration of the period of each in- dividual member's unemployment , the name of the eldest in terms of idle time appearing at the top of the list. As calls or requests were received by the president and business agent of the Union for the furnishing of a specified number of carpenters to a prospective employer, and where such prospective 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer did not request to be furnished with a specified individual or individ- uals by name, it was the practice of the president and business agent of the Union to notify and dispatch to the prospective employer the member or mem- bers whose names appeared at the top of the list, in the order of their seniority in point of unemployment. (2) In all such instances, the requesting employer possessed the unquali- fied right and privilege to reject any or all of the persons thus furnished to him by the president and business agent of the Union. No objection was ever raised to the rejection for employment of such persons, either by the Union or by any of its officers or members in its behalf. (3) In every instance where services of a particular or named individual was sought or requested of the president and business agent of the Union, such named individual was notified and dispatched by the president and business agent of the Union to the requesting employer, if not otherwise employed and available. (4) Such "out-of-work" list was kept and maintained by the president and business agent of the Union solely as a convenience and aid to the unemployed members of the Union. No member of the Union was ever compelled to seek employment exclusively through the use of the "out-of-work" list or the medium of having his name placed thereon. Many of the members of the Union never utilized the "out-of-work" list but consistently sought and obtained employment from various and sundry employers on their own initiative. (5) The record contains no evidence that any nonmember of the Union ever requested or sought and was refused the privilege of having his name placed on the "out-of-work" list kept and maintained by the president and business agent of the Union. III. (1) On or about October 15, 1957, the Mac Construction Company, a corporation then engaged in the building and construction business and in operations "affecting commerce," as defined in Section 2, Sub-Section (6) and (7) of the Labor Management Relations Act of 1947, as amended October 21, 1951, began the construction of a distilled spirits warehouse for the J. T. S. Brown's Sons Company at Tyrone, Anderson County, Kentucky. (2) On or about the last mentioned date, J. F. McGuire, President of the Mac Construction Company, called Robert Rodgers, then President and Busi- ness Agent of the Union, at Frankfort, Kentucky, to inquire of the said Rodgers if the Union could and would furnish such carpenter labor as might become necessary to the construction of the distilled spirits warehouse mentioned in paragraph 1 immediately above. The said Rodgers replied that the Union both could and would furnish such carpenter labor to the aforesaid project as the Mac Construction might require. The said Rodgers then requested of McGuire that he be notified or contacted whenever carpenters might be needed for the job. The foregoing telephone conversation constituted the entire agreement or arrangement, and the only agreement or arrangement, ever ar- rived at or entered into between the Union, its officers or members, and the Mac Construction Company which relate in any way to the subject matter and the allegations of the complaint herein. (3) Prior to November 19, 1957, Harold A. Stockton and William C. Stock- ton were members in good standing of the Union. On or about the last mentioned date, Harold A. Stockton and William C. Stockton obtained "clearance cards" from the Union for the purpose of transferring their affiliation to another local chapter of the same international union. On the same date, Harold A. Stockton and William C. Stockton terminated their affiliation with the Union (Local No. 2058). (4) As of November 19, 1957, Harold A. Stockton and William C. Stockton had paid to the Union in advance monthly dues, in the amount of $4.50 per month, up to and including January 31, 1958. On November 19, 1957, at the same time they obtained "clearance cards" and terminated their affiliation with the Union, the Treasurer of the Union refunded to Harold A. Stockton and William C. Stockton the monthly dues paid in advance by each of them for the months of December, 1957, and January, 1958. (5) Subsequent to November 19, 1957, no further monthly dues were paid to the Union by either Harold A. Stockton or William C. Stockton until February 4, 1958. at which time each of said persons paid to the Union their monthly dues for the month of February, 1958. LOCAL 2058, UNITED BROTHERHOOD OF CARPENTERS, ETC. 1149 (6) Subsequent to November 19, 1957, neither Harold A. Stockton nor William C. Stockton gave to any officer of the Union notice of their intention to "clear back into," or reestablish their affiliation with, the Union (Local No. 2508), until December 17, 1957. (7) During the period between July 1, 1956, and June 30, 1958, Sections 16 and 17 of the "Working Rules and By-Laws of Carpenters Local Union, No. 2058" were in full force and affect. Section 16 of the aforesaid by-laws pro- vided, in full, as follows: All carpenters working out of this Local must have current month (dues) paid. Any member wilfully refusing to take out his working card or complying with this Section shall be subject to charges and if found guilty shall be reprimanded and fined not to exceed Five ($5.00) Dollars, at the discretion of the Local Union. Section 17 of said "Working Rules and By-Laws" provides, in full, as follows: Members shall have their new working cards or permits on the morning after the first monthly meeting of this Local. (8) At all times relevant to the charges contained in the complaint herein, the Union held two regular meetings each month, which occurred on the first and third Tuesdays of each successive month. (9) On December 13, 1957, Harold A. Stockton and William C. Stockton applied for employment as carpenters to Eugene Kirsch, Job Superintendent for the Mac Construction Company at the construction job-site of the latter in Anderson County, Kentucky. On this occasion, the said Harold A. Stockton and William C. Stockton were directed by Eugene Kirsch to report at the aforementioned job-site for work on the following Monday morning, December 16, 1957. (10) On or about December 9, 1957, Robert Rodgers, President and Business Agent of the Union, was advised by one Roger Crittenden and one Garrett Carter, two members of the Union who were then employed by the Mac Con- struction Company on its job in Anderson County, Kentucky, that they were being laid off. (11) On December 15, 1957, Robert L. Rodgers telephoned J. F. McGuire, President of the Mac Construction Company, for the purpose of inquiring whether or not the carpenters that had been furnished by the said Rodgers to the construction job of the Mac Construction Company at Tyrone, Anderson County, Kentucky, had proven and were proving satisfactory; and specifically to inquire if Roger Crittenden and Garrett Carter, referred to in paragraph 10 immediately above had been found to be unsatisfactory. During the course of this telephone conversation, Rodgers advised McGuire that Harold A. Stockton and William C. Stockton had been instructed by Eugene Kirsch to report for work on the following morning. McGuire replied that he knew nothing about the matter, but that he desired that Rodgers refer to him such carpenters as he might need, and that he would so advise his job superintendent, Eugene Kirsch, and request that the latter get in touch with Rodgers whenever he needed carpenters. Further, and during the course of the same telephone conversation Rodgers remarked to McGuire that the two Stockton brothers were, he had been told, "good carpenters" and that it made no difference to him who was or was not hired on the job. At no time during this telephone conversation did Rodgers make any threats to McGuire of trouble with the Union in the event the Stockton brothers were hired, nor did Rodgers state, either directly or by inference, that he would prefer that the Stockton brothers not be hired. (12) On December 15, 1957, immediately following the telephone conversa- tion between Robert Rodgers and J. F. McGuire, Eugene Kirsch telephoned Robert Rodgers and engaged in a conversation with him. At no time during this conversation did Rodgers request that Kirsch not employ the two Stockton brothers, nor did he say or infer that he would prefer that Kirsch not put the Stockton brothers to work, nor did he make any threat or statement to Kirsch that employment of the Stockton brothers by the Mac Construction Company would cause or create differences between the Company and the Union. (13) On the morning of December 16, 1957, Harold A. Stockton and William C. Stockton reported to Eugene Kirsch for employment at the job-site of the Mac Construction Company at Tyrone, Kentucky; at which time the Stockton brothers were refused employment by Kirsch. 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (14) The decision not to employ Harold A. Stockton and William C. Stock- ton on the Tyrone construction job of the Mac Construction Company was made by Eugene Kirsch, Job Superintendent; and nothing that Robert Rodgers had theretofore said to Eugene Kirsch influenced or prompted him to make such decision. Further Findings Some question arose during the hearing as to whether, under the union constitu- tion and bylaws, the Stockton brothers were cleared back into Local 2058 after their request for clearance out of that local on November 19, 1957. It appears that on or about December 10, the wife of one of the Stockton brothers called the wife of Business Agent Rodgers and asked her to advise Rodgers that they were interested in obtaining work at the Tyrone project, and asked that Rodgers place their names on his out-of-work list. As shown above, the Stockton brothers were not permitted to go to work on December 16, on advice by Steward Gray that he had been advised by Business Agent Rodgers that there were men ahead of the Stockton brothers on his out-of-work list. The question as to the good standing of the Stockton brothers and their right to employment on the Tyrone project was raised at a union meeting on December 17. The Stockton brothers testified that at that meeting they asked why they had not been permitted to go to work, and were told by Rodgers first, that they were not on the out-of-work list, and second, that if Mac were to be permitted to hire anyone who came along it would be no use for Mac to call upon the Union for carpenters when it needed them. The remarks at- tributed to Rodgers were denied by him and two members of the local, who were said by the Stocktons to be in a position to hear the alleged remarks of Rodgers. Were it necessary for the Trial Examiner to determine the question of credibility on this point, he would decide that the testimony of Rodgers is more credible in this respect than the testimony of the Stockton brothers, simply on the testimony cor- roborating that of Rodgers. There is a lack of showing in the record that any nonunion man ever was refused employment because of the fact that he was not a member of the Union; there is adequate proof in the record that employers did hire men according to their indi- vidual selection and without regard to the out-of-work list maintained by Rodgers as business agent of Local 2058; and there is at least a prima facie showing made that the men employed by the Parties to the Contract during the times material hereto were, without exception, members of the Carpenters' Union, except for Fain. In whole context, however, these negative and positive facts do not have too much bearing on the essential issues herein involved. Concluding Finding It is argued on behalf of the Respondent, with force, that the mere consumma- tion or execution of an agreement containing an illegal or prohibited clause is not in itself sufficient to constitute a violation of the Act, as shown by the complaint itself, because the complaint asserts that the contractors who were Parties to the Contracts maintained and enforced a closed-shop preferential hiring; and that it is not the mere act of executing a contract which contains a provision that contravenes the act of itself which constitutes a violation of the Act, but that there must be some proof of the companion allegation that, pursuant to the terms of that contract, unfair labor practices were indulged in. With respect to the out-of-work list main- tained by the Respondent Union's business agent, it is argued that it has been clearly established that the only purpose of maintaining such a list was for the convenience of those members of the Union who desired to use the business agent as an employ- ing agent, or as a central agent for dispensing employing information; that this list is simply a device which the president and business agent maintained for the con- venience of the men. The Trial Examiner believes, and finds, that the arrangement between Mac and Local 2058 was an illegal arrangement and that the execution of the written agree- ments between Local 2058 and the several contractors standing alone constitutes per se a violation of the Act, under principles heretofore established by the Board. The instructions of McGuire to Kirsch and the subsequent arrangement between Kirsch and Business Agent Rodgers show conclusively that it was the implied, if not the express, intent of the parties that the hiring of carpenters by Mac be accom- plished through the Union insofar as Mac was concerned. The existence of the admittedly illegal clauses within the 1956-58 written agreement during the 'Section 10(b) period raises a conclusive presumption that these provisions, being- illegal per se, notwithstanding the fact that Fain did hire some nonunion men at its con- LOCAL 2058, UNITED BROTHERHOOD OF CARPENTERS, ETC. 1151 venience, and that the contractors intended and did almost invariably . abide by the provision contained within the closed-shop, union hiring hall provisions, of that written agreement, as a. matter of fact and law show illegal intent. The criteria established by the Board in Mountain Pacific Chapter of the Asso- ciated General Contractors, Inc., 119 NLRB 889, are applicable here. In that case, the Board set forth standards under which unions and companies could continue to operate exclusive hiring halls within the framework of the Act: (1) Selection of applicants for referral to jobs must be on a nondiscriminatory basis and shall not be based on, or in any way affected by, union membership, bylaws, rules, regulations, constitutional provisions, or any other aspect or obligation of union membership, policies, or requirements; (2) the employer shall retain the right to reject any job applicant referred by the union; and (3) the parties to the agreement must post in places where notices to employees and applicants for employment are customarily posted, all provisions relating to the functioning of the hiring arrangement, including safeguards deemed essential to the legality of an exclusive hiring agreement-that employees know how the hiring hall operates. Here, the Union and the contractors have failed to meet the first and third of these standards: first, the mere existence of the out-of-work list maintained by Local 2058 necessarily would act to create a presumption that a union man on that list had priority of employment over men whose names were not on the list, as witness the refusal of Rodgers to permit the Stockton brothers to go to work on December 16; and second, the failure of the parties to post required notices concerning the hiring arrangement. This is equally true both with respect to the oral arrangement of Mac and the Union and the written agreement between the Union and the several contractors.5 The facts in this case disclose, in full context, that the Respondent Union has violated the provisions of Section 8(b)(1) (A) and (2) of the Act, as alleged in the consolidated complaint. IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the operations of the Parties to the Contract 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 Having found that the Respondent Union has engaged in unfair labor practices, the Trial Examiner shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It shall be further recommended that the Respondent Union cease and desist from in any manner requiring employees or prospective employees to obtain clearances or job referrals from the Respondent Union as a condition of employment, from restraining or coercing employees or prospective employees of any 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 or- ganization as a condition of employment as authorized by Section 8(a)(3) of the Act; and that the Respondent Union reimburse each and every employee of Parties to the Contracts mentioned in section III hereof for dues and all other moneys illegally exacted from them, in accordance with the decision of the Board as set forth in Local 138, International Union of Operating Engineers, AFL-CIO, 123 NLRB 1393. CONCLUSIONS OF LAW 1. Local Union No. 2058, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Mac Construction Co., Inc., The Robert Simmons Construction Company, Switzer-Willing Construction Company, John Wile Construction Company and Fain and Johnston Construction Company are employers and are and were during the r, See Carpenters Local - Union No. 1028 , 111 NLRB 1025; Marley Company, 117 NLRB 107; at. Fluor Company, Ltd., 122 NLRB 1374. See also International Hod Carriers, Building and Common Laborers Union Local No. 300 , 123 NLRB 1231 ; Local 1.48, Inter- national Union of Operating Engineers , AFL-CIO and Thomas A. Eichacker (Nassau and Suffolk Contractor's Association ), 123 NLRB 1393. 1152. DECISIONS OF NATIONAL LABOR RELATIONS BOARD times material hereto engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. The Respondent Union , above named, during the times material hereto, en- gaged in activities in violation of Section 8(•b)(1)(A) and Section 8(b)(2) of the Act. 4. The unfair labor practices set forth above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Griggs Equipment, Inc. and United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case No. 16-CA-1171. December 23, 1959 DECISION AND ORDER On May 6, 1959, Trial Examiner James T. Rasbury issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect thereto. 'Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. 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 Intermediate Report, the exceptions and briefs, and the entire record in this case,' and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following modification.' 1. The Trial Examiner found that Waters' interrogation of Henry Karl, as to whether he had changed his mind about the Union, did not violate Section 8(a) (1) of the Act. As this interrogation occurred against a background of union hostility and in context with other conduct herein found violative of the Act, including the subsequent discriminatory layoff of Karl himself, we find that this interrogation constituted interference, restraint, and coercion within the meaning of Section 8(a) (1) of the Act.' 1 The Respondent's request for oral argument is denied because the record and the exceptions and briefs adequately present the issues and the positions of the parties. Member Fanning would not find the discharge of Dayton Lee violative of the Act. The record established, without contradiction, that Lee had the authority to discharge employees. Member Fanning would therefore find Lee to be a supervisor within the meaning of the Act and dismiss the complaint as to him. 8 See Blue Flash Express, Inc., 109 NLRB 591. 125 NLRB No. 108.