The Ingalls Steel Construction Co.

584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Ingalls Steel Construction Company and W. R. Ryan Local Union No. 600, International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO and W. R. Ryan Local Union No. 92, International Association of Bridge, Struc- tural and Ornamental Iron Workers , AFL-CIO and W. R. Ryan. Cases Nos. 15-CA-1174, 15-CB-249, and 15-CB-251. February 11, 1960 DECISION AND ORDER On August 21, 1959, Trial Examiner John F. Funke issued his Intermediate Report in the above-entitled, consolidated proceedings, finding that Respondent, The Ingalls Steel Construction Company, herein called Ingalls, had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that Respondent Ingalls had not engaged in certain other alleged unfair labor prac- tices and, further, that Respondent Locals 600 and 92, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, had not engaged in unfair labor practices as alleged in the complaint and recomended that these allegations be dismissed. Thereafter, the General Counsel, the Charging Party, and Respond- ent Ingalls filed exceptions to the Intermediate Report and supporting briefs; Respondent Local 600 filed a brief in support of those portions of the Intermediate Report affecting that Union. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.' 1 The Charging Party, after the hearing had commenced , moved to be allowed to with- draw his charge against Respondent Ingalls . The Trial Examiner denied such motion. Ingalls subsequently filed a motion with the Board which, in part , renews this request for withdrawal of the charge, and which contends that the Trial Examiner abused his discretion in denying the earlier motion. We do not believe that the Trial Examiner abused his discretion in this matter. The fact that a charging party may not wish to pursue a complaint further is not necessarily a ground for dismissal ; for once a charge is filed, the General Counsel proceeds , not in vindication of private rights, but as the representative of an agency entrusted with the power and the duty of enforcing the Act in which the public has an interest . Accordingly, that portion of Respondent Ingall's motion which deals with withdrawal of the charge is hereby denied. We also find without merit the Charging Party 's allegations of bias on the part of the Trial Examiner. There is no basis for finding that bias or partiality existed because the Trial Examiner resolved important factual conflicts arising in this proceeding in favor of Respondents ' witnesses As the Supreme Court has stated, ". . . [T]otal re- jection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact." N L R.B v. Pittsburgh S S Compan7i, 337 U S 656, '659. 'Moreover , as it is the Board's established policy not to overrule a Trial Examiner 's resolutions as to 126 NLRB No. 60. THE INGALLS STEEL CONSTRLCTION COMPANY 585 The rulings are hereby, affirmed. The Board has considered the In- termediate Report, the exceptions, the briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings,' con- clusions, and recommendations with the following additions and modifications. 1. We find, in agreement with the Trial Examiner, that the credible evidence is insufficient to show that Respondent Ingalls discrimina- torily discharged Charging Party Ryan or that either Local 92 or Local 600 caused, or attempted to cause, such discharge in violation of the Act. There being no credible evidence of discrimination, the Gen- eral Counsel has not sustained his burden of proof with respect to this aspect of the case. Therefore, we need not consider the question as to the admissibility of Erection Manager Freeman's testimony, which the Charging Party contends is all hearsay, relating to his investigation of the reason for Ryan's discharge and his knowledge therefrom that the work for which Ryan had been hired had been completed. credibility except where , as is not the case here, the clear preponderance of all the relevant evidence convinces it that the resolutions were incorrect , we find , contrary to the Charging Party 's contention , no basis for disturbing the Trial Examiner's credibility findings. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (CA 3). However, in adopting the finding that the Charging Party, Ryan, was not, for the most part, a credible witness, we do not adopt the epithets utilized by the Trial Examiner as embroidery upon such finding. The Charging Party, in its brief to the Trial Examiner, moved to reopen the record in order to admit certain documentary evidence showing an adjudication that Ryan was entitled to unemployment compensation during the period in which he worked , without pay, for his brother. The Trial Examiner erroneously failed to rule on such motion. This omission , however, was not prejudicial inasmuch as the evidence in question would, at most, affect only one of the many bases utilized by the Trial Examiner in finding that Ryan was not, for the most part, a credible witness Accordingly, the motion is denied herewith. 2 In his Intermediate Report, the Trial Examiner notes that "the hostility of the Charging Party toward Local 92 appears to have been encouraged by his attorney" While the Trial Examiner may well have found the Charging Party to be hostile toward Local 92 on the basis of his testimony as well as his demeanor , a point upon which we find it unnecessary to pass, there is nothing in the record to indicate that such hostility, if extant, was encouraged by his attorney The Charging Party has filed a motion with the Board to expunge from the Intermediate Report that portion which is quoted above as well as several other comments of the same tenor. Inasmuch as these comments of the Trial Examiner are not prejudicial to the Charging Party's case, and inasmuch as it is not the policy of the Board to expunge matter from Intermediate Reports, the Charging Party' s motion is denied herewith. It is not our policy, however, to condone such un- founded remarks , by a Trial Examiner, in an Intermediate Report The Trial Examiner, in his Intermediate Report, takes official notice "of the fact that it is not unusual for construction work to stop because of weather conditions" and "of the fact that it is not unusual to terminate construction workers without prior notice and without reasons assigned " Judicial-or in this case , official-notice is generally taken of the existence of a fact for the purpose of negating the necessity for adducing proof on the point in question . 9 Wigmore On Evidence, section 2565 We do not believe that official notice should be taken of matter such as that quoted above. We believe, on the contrary, that such a matter should be proven in each case , as it may well be an important factor in the ultimate decision We therefore find that the Trial Examiner erred, although not prejudicially , in the instant case, in taking official notice of these matters. We do not adopt the comments of the Trial Examiner with respect to the General Counsel's actions and decision relevant to the issuance of a complaint in this case. We fail to note the wisdom of such comments in view of the Trial Examiner 's subsequent finding of a violation. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. We find further, in agreement with the Trial Examiner, that Respondent Ingalls violated Section 8(a) (1) and (3) of the Act 3 by entering into and maintaining in effect a contract which, in essence, provided for the hiring of union members only.' 3. The Trial Examiner found that Local Union No. 600, which was not signatory to the contract in question between Ingalls and the International Union, had not adopted the agreement and, therefore, was not responsible for the provisions therein. We do not agree. The contract contained the following language : 3. The Employer shall have the right to send Journeymen, who shall be members in good standing in the Association, into any territory where work is being performed or is to be performed strictly in accordance with the general working rules of the As- sociation. All men sent to a locality from other jurisdictions shall report to the local union representative before proceeding to work. Where additional men are required, they shall be secured by Employer from the business agent of the local union in whose jurisdiction the work is being performed. This language clearly indicates, as the Trial Examiner found, that clearance by the local union within whose jurisdiction a project falls is required by the contract. Business Agent Alsup of Local Union No. 600, whom the Trial Examiner credits as a witness, testified that, while he hadn't seen the actual agreement between Ingalls and the International Union, he was "reasonably sure" that it existed. That he was familiar with the content of such agreements is illustrated by the fact that when Alsup was requested to send a copy of the contract between Ingalls and the International Union to an agent of the Board, he submitted a document which delineates hiring practices identical to those contained in the signed agreement. Alsup then testified that it is his duty to see that such agreements executed by the International Union are enforced and to see that those paragraphs which relate to 8 The fact that a new and lawful contract may now be in effect does not alter Re- spondent Ingalls' position with respect to its earlier violation of the Act. The 73, K. Ferguson Company, 124 NLRB 544 . In addition, no proof is necessary that the contract had been enforced. N.L R B. v. Gottfried Baking Co , Inc, et al., 210 F. 2d 772, 780 (C.A. 2). Accordingly, Respondent's motion to dismiss the complaint on the ground that the issue is moot because of the new agreement and on the ground that the contract was never enforced is denied herewith. 4 We do not adopt the Trial Examiner's comments, wherein the Board's decisions hold- ing such contracts as the one in the instant case to be per se violations of the Act, are characterized as the Board's "doctrine of inevitable coercion " Nor do we adopt the Trial Examiner's comparison of the holdings in this line of ca'es with unrelated matter. In addition, we fall to note the necessity for such vacuities in connection with making findings of fact. The Trial Examiner, in the Intermediate Report, refers to the high earnings of Ryan under the unlawful contract and remarks, ". . . employees in other industries governed by lawful contracts would undoubtedly gladly submit to such coercion to obtain such benefits." we do not adopt this view. Rather, we adhere to the belief that the average American citizen does not wish , knowingly, to violate the laws of the United States in return for increased compensation , or for any other reason. THE INGALLS STEEL CONSTRUCTION COMPANY 587 hiring are carried out. Unlike the Trial Examiner, we believe that Alsup's testimony in this regard is sufficient to warrant a finding that Local Union No. 600 adopts the agreements executed by the Inter- national Union as a matter of routine, and did so in the instant case; and we so find. We do not agree with the Trial Examiner's con- clusion that the related testimony of Alsup, that the contract was never enforced as written, negated his admission that the agreement had been adopted. Indeed, it is clear that the contract between the International Union and Ingalls contemplated that the local union, in whose jurisdiction Ingalls' project was located, would implement and administer, among other things, the unlawful clearance and hiring provisions contained therein. Accordingly, we find that Local Union No. 600 violated Section 8(b) (1) (A) and (2) of the Act by its adop- tion and consequent maintenance of an unlawful union-security con- tract. Having found that Respondent Ingalls executed and main- tained, and that Respondent Local Union No. 600 adopted and maintained, an unlawful union-security contract, and because the remedy will not be altered by our so doing, we find it unnecessary to determine whether an unlawful hiring practice existed, or whether Local Union No. 600 required, as a condition precedent to referral or clearance, the payment to the International Union or to itself of dobies and/or working assessments by those employees whom it re- ferred to or cleared with Ingalls. THE REMEDY We agree with the Trial Examiner's application of the Brown-Olds remedy to Ingalls.' For like reasons,' we shall apply the same remedy to Local Union No. 600. Accordingly, we shall order Respondent Ingalls and Respondent Local Union No. 600, jointly and severally, to refund to all employees of Respondent Ingalls at its Marathon Southern Corporation project, Butler, Alabama, the initiation fees, dues, and other moneys paid by them to Local Union No. 600 and/or the International Union pursuant to the unlawful agreement executed and maintained by Respondent Ingalls, and adopted and maintained by Respondent Local Union No. 600. The liability of these Re- spondents for reimbursement shall 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' 5 We do not adopt the comments of the Trial Examiner in which he characterizes the Brown-Olds remedy as a "meat-axe remedy" ; nor do we adopt his remarks with respect to certain alleged inequities "inherent in applying Brown-Olds." ° Argo Steel Construction Company, 122 NLRB 1077 ( and the portion quoted there- from by the Trial Examiner in the section of the Intermediate Report entitled "The Remedy"). 7 Inasmuch as the record shows that members of Local 92 were employed at the project covered by Local 600 's unlawful contract , we shall provide in the Order that Local 92 be requested to post the notices required herein. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. Respondent The Ingalls Steel Construction Company, Birm- ingham, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Maintaining, enforcing, or giving any effect to any agreement, understanding, or practice with International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, its Local Union No. 600, or any other labor organization, which gives exclusive control over the employment of employees to a labor organization, or which requires membership in or referral from a labor organization as a condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with Respondent Local Union No. 600 reimburse all employees employed at the Marathon Southern Corpo- ration project at Butler, Alabama, who have been unlawfully required to pay initiation fees, dues, and other moneys to International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or its Local Union No. 600, pursuant to a contract maintained in effect with the aforesaid International Union. Such reimbursement shall be in the manner and to the extent set forth in the section of the Decision and Order entitled "The Remedy." (b) Post copies of the notice attached hereto marked "Appendix A" s at its place of business and at any project of Respondent Ingalls that may now be in operation, or which may commence operation within 6 months from the date on which compliance with this Order begins, within the territorial jurisdiction of Local Union No. 600. Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by Respondent Ingalls' representative, be posted by Ingalls in conspicuous places, including those places where notices to employees are customarily posted, immediately upon receipt thereof and maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall be taken to see that said notices are not altered, defaced, or covered by other material. 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " THE INGALLS STEEL CONSTRUCTION COMPANY 589 (c) Promptly upon the receipt of unsigned copies of said notice from the Regional Director, return to him signed copies of said notice for posting, Respondent Local Union No. 92 being willing, at the office of said local union in conspicuous places, including those places where notices to members are customarily posted. (d) Upon receipt of information from said Regional Director that said Respondent Local 92 is unwilling to so post, mail to each of the employees employed by Respondent Ingalls at the Marathon Southern project at Butler, Alabama, who was covered by the contract found unlawful herein during the material period, a signed copy of said notice at the address of each such employee shown as his last address on the records of Ingalls. (e) File with the said Regional Director within 10 days from the date of this Decision and Order, a report in writing setting forth in detail what steps have been taken to comply herewith. B. Respondent Local Union No. 600, its officers, representatives, and agents, shall : 1. Cease and desist from : (a) Maintaining, enforcing, or giving any effect to any agreement, understanding, or practice with The Ingalls Steel Construction Com- pany, or any other employer over whom the Board would assert jurisdiction, which gives exclusive control over the employment of employees to it or to the International Union with which it is af- filiated or which requires membership in or referral from it or from the International Union with which it is affiliated as a condition of employment. (b) 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with Respondent Ingalls reimburse all employees employed by Respondent Ingalls at the Marathon Southern Corporation project, Butler, Alabama, who have been unlawfully required to pay initiation fees, dues, and other moneys to Interna- tional Association of Bridge, Structural and Ornamental Iron Work- ers, AFL-CIO, or to its Local Union No. 600, pursuant to a contract maintained in effect with the aforesaid Respondent Ingalls. Such reimbursement shall be in the manner and to the extent set forth in the section of the Decision and Order entitled "The Remedy." (b) Preserve and make available to the Board or its agents upon request, for examination and copying, all dues, initiation fees, assess- ments, permit fees, "dobies," and other records necessary to compute the moneys illegally exacted from employees of Respondent Ingalls. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its offices, in conspicuous places, including those places where notices to members are customarily posted, copies of the notice attached hereto marked "Appendix B." 9 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by Respondent Local Union No. 600's repre- sentative, be posted by Local Union No. 600, immediately upon receipt thereof and maintained by it for at least 60 consecutive days there- after. Reasonable steps shall be taken to see that said notices are not altered, defaced, or covered by other material. (d) Promptly upon the receipt of unsigned copies of said notice from the Regional Director, return to him signed copies of said notice for posting, Respondent Local Union No. 92 being willing, at the office of said local union in conspicuous places, including those places where notices to members are customarily posted. (e) Upon receipt of information from said Regional Director that said Respondent Local 92 is unwilling to so post, mail to each of the employees employed by Respondent Ingalls at the Marathon Southern project at Butler, Alabama, who was covered by the contract found unlawful herein during the material period, a signed copy of said notice at the address of each such employee shown as his last address on the records of Ingalls. (f) File with the said Regional Director within 10 days from the date of this Decision and Order, a report in writing setting forth in detail what steps have been taken to comply herewith. IT IS FURTHER ORDERED that all allegations of the complaint in Case No. 11-CA-1174 which allege violations of Section 8(a) (1) and (3) of the Act, except as specifically found herein, be dismissed. IT IS FURTHER ORDERED that all allegations of the complaint in Case No. 15-CB-249 which allege violations of Section 8(b) (1) (A) and (2) of the Act, except as specifically found herein, be dismissed. IT IS FURTHER ORDERED that the complaint in Case No. 15-CB-251 be dismissed in its entirety. 9 See footnote 8, Supra. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT maintain or give effect to any contract with Inter- national Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any of its affiliated locals, which condi- tions employment upon membership in said union or its affiliated THE INGALLS STEEL CONSTRUCTION COMPANY 591 locals, or which requires referral of employees or applicants for employment by said union or its affiliated locals. WE WILL NOT in any other manner interfere with, restrain, or coerce employees or applicants for employment in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL reimburse all our past and present employees who were employed at the Marathon Southern Corporation project at Butler, Alabama, who were unlawfully required to pay initiation fees, dues, assessments, or other moneys to International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL- CIO or its affiliated Local Union No. 600, for all such initiation fees, dues, assessments, and other moneys. THE INGALLS STEEL CONSTRUCTION COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL UNION No. 600, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO 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 maintain or give effect to any contract with The Ingalls Steel Construction Company, or any other employer over whom the Board will assert jurisdiction, which gives exclusive control over the employment of employees to us or to the Inter- national Union of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or which requires membership in, or re- ferrals from us or from the International Union of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, as a con- dition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees or applicants for employment in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL reimburse all employees of The Ingalls Steel Construc- tion Company at its Marathon Southern Corporation project at Butler, Alabama, who were unlawfully required to pay initiation fees, dues, assessments, or other moneys to us or to International 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, for all such initiation fees, dues , assessments, and other moneys. LOCAL UNION No. 600, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, 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 STATEMENT OF THE CASE This proceeding, with the Respondents, The Ingalls Steel Construction Company, herein called Ingalls or the Company, Local Union No. 600, International Associa. tion of Bridge, Structural and Ornamental Iron Workers , AFL-CIO, herein called Local 600, and Local Union No. 92, International Association of Bridge, Structural and Ornamental Iron Workers, herein called Local 92, and the General Counsel and W. R. Ryan, the Charging Party, all represented, was heard before the duly designated Trial Examiner on June 23 and 24 , in Birmingham , Alabama, upon the amended complaints of the General Counsel and the several amended answers of the Respondents and upon an order consolidating the cases. The issues litigated were whether or not Respondent Ingalls violated Section 8(a)(1) and ( 3) of the Act by terminating the employment of W. R. Ryan on or about October 23, 1957; by maintaining in effect and enforcing a collective -bargaining contract with Interna- tional Association of Bridge, Structural and Ornamental Iron Workers, herein called the International or the Iron Workers, and/or Local 600; and by an oral understanding and/or agreement with Respondent Local 600; whether or not Local 600 violated Section 8 (b)(1)(A) and (2) of the Act by attempting to cause and causing the Respondent Ingalls to terminate the employment of W. R . Ryan; by maintaining, in effect and enforcing a collective -bargaining contract with Respond- ent Ingalls ; and by giving effect to an oral understanding and/or agreement with Respondent Ingalls; whether or not Respondent Local 92 violated Section 8(b)(1)(A ) and (2 ) of the Act by acting together with Respondent Local 600 or by using Local 600 as its agent in attempting to cause and causing Respondent Ingalls to terminate the employment of W. R. Ryan. At the conclusion of the hearing Respondent Ingalls moved to dismiss all allega- tions of the complaint which alleged violation of Section 8(a)(1) and ( 3) of the complaint with respect to the termination of Ryan ; Respondent Local 600 moved to dismiss all allegations of the complaint which alleged violation of Section 8 (b)(1) (A) and (2) of the Act with respect to attempting to cause or causing the termination of Ryan ; and Respondent Local 92 moved to dismiss the complaint in Case No. 15-CB-251 in its entirety. The Trial Examiner reserved decision on each of these motions for the purpose of making a study of the record. Those motions and all motions to dismiss allegations of the complaints are now disposed of in accordance with the findings of fact, conclusions of law, and recommendations made herein . The parties presented oral argument and briefs have been received from Respondent Ingalls, the General Counsel , and W. R. Ryan.' Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT INGALLS The Ingalls Steel Construction Company is a Delaware corporation having its principal place of business at Birmingham , Alabama. It is engaged in a general 3 The brief of Ryan Is in the form of a letter to the Trial Examiner in which he states that copies have been served on the other parties and requests the Trial Examiner to accept it as a brief . It Is so received. THE INGALLS STEEL CONSTRUCTION COMPANY 593 steel construction business in Alabama and several other States. During the annual period preceding January 1, 1958, Ingalls received in excess of $50 ,000 for services performed outside the State of Alabama and received in excess of $100,000 for services performed within the State of Alabama for companies within the State of Alabama which shipped goods or performed services outside the State of Alabama in excess of $50,000 annually . Ingalls concedes and I agree that it is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATIONS INVOLVED It was stipulated by the parties and I agree that Local 600 and Local 92 are labor organizations within the meaning of Section 2(5) of the Act. I take official notice of the fact that International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The termination of Ryan W. R. Ryan appeared on his own behalf. Before testifying he requested leave to withdraw the charge filed by him in Case No . 15-CA-1174. The request was accompanied by a letter from his personal attorney, C. V. Stelzenmuller,2 and was opposed by the General Counsel. Over the objection of Respondent Ingalls the request was refused. Ryan was not a credible witness. His vindictiveness toward C. H. Green, business representative of Local 92, and derivatively toward Local 92, was apparent in his demeanor, his tone of voice, and his choice of language throughout the hearing. He was unable to free his testimony from conclusions and opinions based on his suspicions of motives of representatives of Local 92, suspicions unconfirmed by proof. Apart from the manifest hostility which colored all of his testimony the record herein reveals that he applied for and collected unemployment insurance for 13 weeks starting in November of 1957. His own testimony is that during this period he worked, allegedly without pay, at his brother's welding shop at Birming- ham and that he was also employed by American Brick Company on November 13, 1957, and worked steadily for a period of about 2 months. Pursuant to a formal settlement agreement in Cases Nos. 10-CA-3113, 10-CA-628, 629, and 682, Ryan received compensation for backpay lost through discrimination in the amount of $1,024. The backpay period in the settlement agreement ran from October 2 to December 31, 1957. Thus it appears that during periods of time which were either concurrent or overlapped Ryan received unemployment compensation, received compensation for lost backpay, worked at his brother's welding shop and was employed by American Brick Company. This record reveals a talent for fraud and a desire for easy money which may well have motivated , in part, the charge filed in the instant case. The record also indicates that Ryan quit a job with Associated Contractors at Childersburg , Alabama, on March 21 , 1957, when a guard caught him stealing a caulking gun.3 This record is sufficient to discredit Ryan but in com- pletely discrediting him except where his testimony is corroborated by other witnesses or independent evidence I have placed greater reliance on the personal hostility shown throughout his testimony toward Green and Local 92 4 Ryan testified that during the early part of October 1957 he was laid off by Ingalls at a Birmingham project due to completion of work. He then went to the hall of Local 92 for referral to a job with Rust Engineering, another contractor on the same project. On October 3 he saw Green, who was just returning from the hospital and was refused referral by Green. An argument ensued in which Green told him to "get the hell out of the office " and threatened to "stomp" him. Ryan 'The letter was offered in evidence but the offer was refused and the letter placed in the rejected exhibit file Stelzenmuller is the attorney who received it severe beating from pickets in the Zeigler case ( R. L. Zeigler, Ive, 123 NLRB 464 ), and the hostility of the Charging Party toward Local 92 appears to have been encoui aged by his attorney 3 The clear implication in the testimony that lie was stealing the gun is not denied by Ryan. All that Ryan denied was that he was caught by a safety engineer ; he admitted being caught by a guard. I This hostility , which does not appear to have been reciprocated to an equal degree by Green , originated apparently during a period when Ryan was trustee for Local 92 and Green was its business representative Ryan stated that he "approved but resented" some of the expenditures made by Green during this period. 554461-60-vol 126-39 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted he pulled a knife on Green but no blood was shed and no bruises incurred. Such prior hostility as Ryan harbored toward Green was augmented by this encounter and led to the filing of charges and the settlement agreement to which reference has been made. On October 7 Ryan received a call from Field Superintendent Nicholas A. Griffen of Ingalls who had known Ryan from his work at the job from which he had just been terminated. Griffen asked Ryan if he would be interested in a job with Ingalls at a Marathon Southern Corporation project at Butler, Alabama. When Ryan indicated that he would be interested Griffen contacted the Ingalls' office at Birming- ham and then informed Ryan he could go to work at Butler. According to Ryan he was told by Griffen to report to C. B. Johnson, job steward for Local 600, at the Butler jobsites.5 Griffen, however, a credible witness, testified that he did not know Johnson, did not know who was shop steward at the Butler job, and that he told Ryan to report to the Ingalls' office there. I credit Griffen and find that Ryan's testimony that he was told to report to the job steward is a part of his obvious design to place upon the Respondent Locals responsibility for his subsequent termination at Butler and to establish illegal hiring practices between Ingalls and Local 600. Ryan went to Butler and, together with another applicant, saw Johnson. He did not have his union card with him but nevertheless was taken to the Ingalls' timekeeper by Johnson and hired by the timekeeper. He worked for Ingalls until October 23, when he was terminated. Ryan's testimony is that he was told between 2 and 3 p.m. on that day by W. C. Nolan, his pusher, that he was being laid off; that he was given his paycheck by Ayres, the timekeeper; and that he saw Loghorn the job superintendent, who wished him luck. He made no inquiry of any of them as to the reason for his termination and none of them told him why he was being laid offs Ryan did volunteer to Nolan the information that he thought he was being laid off because he had written a letter to the International about Green. No evidence to support this conjecture was offered by Ryan, although his testimony is that Nolan indicated that the reason for his layoff might be union difficulties. Al- though the General Counsel issued a subpena for Nolan it had not been served and diligent efforts to locate him had been unsuccessful. Since there is no corrobora- tion of Ryan's testimony as to what he was told by Nolan and since such testimony was hearsay as to Nolan it is not credited. Neither is the innuendo testimony of Ryan credited with respect to his conversation with Ayers at this time. All I credit in the testimony of Ryan is that he did not ask and was not told why he was termi- nated. On the other hand I credit the testimony by Business Representative Green that he had no conversation with any official of Local 600 regarding the termination of Ryan; the testimony of Business Representative S. A. Alsup of Local 600 that he never had any conversation with any representative of Local 92 regarding Ryan and Alsup's denial that Local 600 requested the termination of Ryan; the testimony of Johnson, the job steward, that he did not request Ingalls to terminate Ryan and that he did not know why Ryan was terminated; and the testimony of Erection Manager Theodore Freeman that he made an investigation of the termination of Ryan and that Ryan was terminated because the hitensil bolting which Ryan was doing was completed and that another ironworker and a compressor operator were terminated that same day. Apart from Ryan's lack of probity as a witness, I would be reluctant to give more weight to the conjecture of one witness than to the sworn testimony of four witnesses with knowledge of the facts. There is no other testimony relating to the termination of Ryan. The Trial Examiner is thus confronted with a singular situation in which the General Counsel has issued complaint against a company and two labor organiza- tions without sufficient evidence to establish a prima facie case in support of the charge.? It was my tentative conclusion at the close of the testimony that there was 5 Butler, Alabama, is Rithin the jurisdiction of Local 600 0In his brief Ryan refers to the circumstance that he was terminated between 2 and 3 p m as evidence of a discriminatory motive However, he also testified that it was "raining sheets" at the time and I take official notice of the fact that it is not unusual for construction work to stop because of weather conditions I also take official notice of the fact that it is not unusual to terminate construction workers without prior notice and without reasons assigned Ryan's testimony with respect to his prior layoff at the Birmingham project, as to which he made no claim of discrimination, was that he was laid off at 2 p m 7In justice to the Regional Director it should be noted that the record discloses that the charge herein, after full investigation, was dismissed by the Regional Director for insufficient evidence. Upon appeal, and for reasons which are not disclosed, the Region was directed to issue complaint The justification for expending the taxpayer's money THE INGALLS STEEL CONSTRUCTION COMPANY 595 no evidence that the termination of Ryan was discriminatory and that conclusion is fortified by study of the record. Is it apparent that Ryan suspects his termination resulted from his enmity with Green 8 but, despite its ardent advocates, the concept that the suspicion of the accuser is sufficient to establish the guilt of the accused has yet to find acceptance in Anglo-Saxon law. I find those allegations in the several complaints which alleged that the respondent labor organizations attempted to cause or caused the Respondent Ingalls to discharge Ryan in violation of Section 8(a)(3), and that Respondent Ingalls discharged Ryan in violation of said section, without merit. B. The collective bargaining agreement Respondent Ingalls stipulated that during the period between October 1957 and January 1958, it was a party to a collective-bargaining contract with the Interna- tional which provided, inter alia. 2. This agreement shall be effective in all places where work is being per- formed or is to be performed by the Employer-or by any person, firm or corporation owned or financially controlled by the Employer, and covers all work coming under the jurisdiction of the Association. 3. The Employer shall have the right to send Journeymen, who shall be members in good standing in the Association, into any territory where work is being performed or is to be performed strictly in accordance with the general working rules of the Association. All men sent to a locality from other juris- dictions shall report to the local union representative before proceeding to work. Where additional men are required, they shall be secured by Employer from the business agent of the local union in whose jurisdiction the work is being performed. 4. The Company agrees to pay the scale of wages, work the schedule of hours and conform to the conditions of employment in force and effect in the locality in which the Company is performing or is to perform work The Company agrees also to employ only members in good standing in the Union on work coming under its jurisdiction. This contract covered ironworkers employed at the Marathon project at Butler. The clauses cited exceed the limits permitted by the proviso to Section 8(a)(3). By maintaining this contract in effect during the stipulated period Respondent ran afoul of the Board's doctrine of inevitable coercion. That doctrine, like the doctrine of original sin, is a seemingly harsh one but, unlike original sin, it has no exceptions. Briefly, the doctrine holds that when an employer and a labor organization enter into a contract which provides for the hiring of union members only, the employer is in violation of Section 8(a)(3) and (1) and the labor organization is in violation of Section 8(b)(1)(A) and (2). No proof is required that the contract has been enforced or that discrimination has in fact occurred. The contention of the Re- spondent that such proof is required has been answered by the Board in the Honolulu Star-Bulletin case,9 where it stated: The Respondent and the Union take the position that there is no evidence in the record which indicates that the Respondent has interpreted or applied the contract in a manner which violates the Act. In support of this contention they point out that for a period of 8 years five nonunion men have been employed by the Respondent and that during the year preceding the hearing Foreman Larson had hired four nonunion men. However, the General Counsel has alleged that the provisions of the contract are per se violations of the Act. We must therefore base our conclusions entirely on the language of those provisions. Having found that the terms themselves provide a greater degree of union security than is permitted by the Act, they are unlawful, notwith- standing the fact that they may not have been applied or enforced in every instance. [Emphasis supplied.] and putting Respondents to the expense of litigation is at least obscure. It should also be noted that the action which formed the grounds of the charge took place in October 1957, and the hearing was held in June of 1959 This almost inexplicable delay in prosecution presents trial problems quite apart from the deficiency in proof The case was, however, presented by the counsel for the General Counsel with professional skill and diligence worthy of a better cause. 8 Ryan's own testimony is that at the time of the hearing he was employed on a job to which he had been referred by Local 92 Honolulu Star-Bulletin, 123 NLRB 395. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With due allowance for the special conditions found in the Honolulu case (the shortage of qualified umonmen) I take that decision to hold unequivocally that the execution and maintenance of an unlawful union-security contract is a violation independent of any evidence of enforcement in practice. I therefore find that Respondent Ingalls violated Section 8(a)(3) and (1) by maintaining in effect the aforesaid contract during the stipulated period 10 C. Enforcement of the contract and the hiring practice Local 600 was not a party to the contract found unlawful herein, and is not, therefore, guilty of a violation per se. The complaint against Local 600 in Case No. 15-CB-249 alleges that Local 600 maintained, enforced, and gave effect to the clauses of the contract found unlawful and that Local 600 had an oral under- standing or agreement with Ingalls whereby Ingalls delegated exclusive control over hiring of ironworkers at Butler to Local 600 and agreed to hire only members in good standing with Local 600. The allegations with regard to maintaining and enforcing the contract -and with regard to a hiring practice or arrangement will be considered separately. Local 600 is not mentioned in the contract. The contract does, however, employ language in paragraph 3 which clearly indicates that clearance by the local union within whose jurisdiction a project falls is required by the contract. The question presented is whether or not there is sufficient evidence of participation in the un- lawful requirements of the contract by Local 600 to establish its guilt either by adoption or by engaging in joint enforcement of the contract. I do not find that the language alone is sufficient to make Local 600 a participant in the enforcement of the contract, absent evidence of ratification or adoption in practice. The testimony of Business Agent Alsup on this issue is controlling. Alsup was a credible witness who testified freely and without making any effort,to withhold or shade facts which might damage the position of Local 600. Although he stated that he had not seen the contract between Ingalls and the International until the time of the hearing he did assume that such a contract existed and that it was his duty to see that it was enforced. But he also testified, and this I find to be the crucial point, that the contract was never enforced as written. He stated that it was the practice for those members of the Iron Workers who were hired at the Marathon project to clear with Johnson, the job steward and Alsup's representative. The proviso to Section 8(b)(1) (A) specifically permits a union to prescribe its own rules with respect to acquisition and retention of membership. Either the proviso is meaning- less and intended to be ignored or it permits a union to require its members to clear with job stewards. It does not, of course, permit a union to penalize its members for failure,to observe rules by attempting to cause or causing an employer to discriminate against a recalcitrant member.li Alsup further testified that it was the obligation of the Union to furnish ironworkers whether or not they were members of the Union. There is nothing in this record to indicate that the Local 600 was in default of this obligation. There is nothing in this record to indicate that the Union ever refused clearance to any member or nonmember, or that it ever requested the employer to limit his selection of ironworkers to members of the Union. There is, as has been seen, affirmative evidence that Ingalls felt free to send men to Butler without clearance and that the union steward assisted in getting Ryan employment without proof that he was a union member. Crediting Alsup as I do I cannot sustain the General Counsel's contention without accepting that portion of Alsup's testimony which furthers the General Counsel's case and rejecting it where it does not. Agreeable as such a standard of credibility might be to the General Counsel I cannot adopt it. I therefore find insufficient evidence to establish that Local 600 adopted or enforced the unlawful provisions of the contract, to which it was not 10 The contention of the Respondent that the general savings clause protects the un- lawful provisions of the contract I find to be without merit. See Argo Steel Construction Company. 122 NLRB 1077 and cases cited, footnote 7. 11 See NLRB v Local 3, Bloomingdale, District 65, etc, 210 F 2d 285 (C A 2), denying enforcement to 107 NLRB 191, where the court said, "The proviso to § 8(b) (1) (A) of that Act, 29 US Code § 158(b) (1) (A), is a clear indication that Congress did not intend the Board's policing of union unfair labor practices to encompass general super- vision of intraunion administration " See also N L R.B. v. Brotherhood of Painters, etc (Spoon Tile Co.), 242 F. 2d 477 (C.A. 10), where the court stated, "Although the union may prescribe reasonable rules for membership and its retention the Act prohibits the enforcement of such rules by the use of employment as a tool of discrimination as here" (Emphasis supplied l THE INGALLS STEEL CONSTRUCTION COMPANY 597 a party, so as to make it equally responsible with the contracting parties for those provisions. Turning to the allegations that Ingalls delegated exclusive hiring authority to Local 600 and had an oral understanding that only union members would be hired, there is a similar failure of proof. In fact the testimony of the star witness for the General Counsel, Ryan , discredited though it has been , is proof that no such delegation or practice existed. According to his own testimony Ryan was offered his job at Butler by Field Superintendent Griffen without any reference to his membership in the Union, without referral from any union , and with some knowledge by Griffen that Ryan was not in good standing . Nevertheless, he was directed to go to Butler with the assurance that he would be put to work and "get employment without any difficulty from any union." Instead Of reporting to Ingalls as he was told to do, Ryan reported to Steward Johnson who took him to the Ingalls' timekeeper and the timekeeper hired him . He was put to work without proof of membership and again it is his own testimony that he voluntarily got on a line to pay dobies and assessments and that he was not requested to make the payments by anyone. One other witness was produced by the General Counsel in his effort to establish an unlawful hiring arrangement . This was A . C. Bonner, a former officer and business representative of Local 92, and a credible witness. Bonner heard that work was available for ironworkers at Butler and drove to the jobsite. He made no effort to contact any representative of Ingalls but did contact Johnson. Again it should be noted that Bonner was following the customary practice of union mem- bers, which was to contact the job steward . (A sound reason for this practice was that the job steward would ordinarily know which of the contractors at the jobsite were looking for men and also the skills and crafts which a particular contractor required.) Johnson's suggestion was to go to Mobile and clear with Alsup , and this suggestion was followed by Bonner . Bonner made no effort to obtain employment by direct appeal to any employer . Bonner was "cleared" by Alsup despite the fact that he, too, did not have his union book with him, he received a "referral" card from Alsup, returned to Butler and was hired by Ingalls. Again, as in the case of Ryan, all action relating to clearance is shown to have been voluntary on Bonner's part. Bonner, as a union member and past officer of Local 92 followed the practice of union members and conformed to union rules, rules which the Union may lawfully prescribe . This is far from establishing that such a procedure was required to obtain employment with Ingalls and the hiring of Ryan is proof that Ingalls did not require such conformity . The General Counsel apparently contends that voluntary compliance with Union rules by union members is evidence that compliance with such rules is compulsory as to members and non- members alike . To state the proposition is to make manifest its absurdity. On the record herein I find no evidence that the Respondent Ingalls made any delegation of exclusive authority to hire to Local 600 and I find, to the contrary, evidence that Ingalls in practice reserved the right to hire without clearance Nor do I find any arrangement , understanding, or practice whereby Ingalls agreed to hire only union membe sin good standing . There is no evidence that Ingalls refused to hire any nonunion ironworker or that any applicant for employment was told by any representative of Ingalls to clear with any union. While the evidence required to establish that a labor organization and an employer have engaged in an unlawful hiring practice , particularly in the construction industry, may be largely inferential it must be more than spectral.12 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Certain of the activities of the Respondent Ingalls set forth in section III, above, occurring in connection with the operations of said Respondent set forth in section I, 12The courts are not, however , wholly in agreement with the Board as to the extent reliance may he placed inference In N L R .B v. Turner Construction Company, et al, 227 F. 2d 498 ( C A 6), setting aside 110 NLRB 1860, the court suggested limitation by stating, "It is, of course, the function of the Board to draw inferences but they must he based on evidence and they must be reasonable " In Del D Webb Construction Com- pany v N.L R B , 196 F 2d 841 (CA . 8), the court, denying enforcement to 95 NLRB 75, stated , "The Board , in absence of any direct testimony has resorted to a consideration of circumstances which it alleges support an inference that the Company bound itself to employ only union members from the union hall " This inference the court rejected, stating, "Direct testimony refutes the Board's finding The evidence relied on to support the finding consists of suspicious , unfounded conclusions and surmises , and inferences " See also N L R 13 v Brotherhood of Painters, etc (Spoon Tile Co ), 242 F 2d 477 ( CA 10), modifying 114 NLRB 1171. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 obstruct- ing commerce and the free flow thereof. V. THE REMEDY In Argo Steel 13 the Board, in applying the Brown-Olds 14 remedy, used language which indicated its patience with employers and unions who continued to impose unlawful conditions of employment in their bargaining contracts was exhausted. It stated: The General Counsel has requested the application of the Brown-Olds remedy to expunge the effect of the illegal closed-shop conditions of employment. It is now more than 10 years since Congress enacted a staute outlawing certain union security provisions, particularly the closed shop. Notwithstanding the statutory prohibition, the Respondents as late as 1956 entered into a contract which incorporates working rules of the union which have the plain effect of retaining unlawful closed shop conditions of employment. This is not a mere technical oversight to the making of an otherwise lawful union security con- tract. Rather it seems to reflect a policy of deliberately ignoring and flouting the statutory prohibition. These words are equally pertinent to the contract between Ingalls and the Interna- tional in the instant case. The parties have deliberately violated the statute and there is no defense which they may assert. Further, the Board has applied Brown-Olds where there was no proof that the contract was enforced and in the absence of any charge against the labor organization which was a party to the con- tract. Full liability was imposed in that case (Honolulu Star-Bulletin, supra) upon the respondent employer. Again, disregarding the equitable considerations pointed out by the Trial Examiner, the Board, in Morrison-Knudsen Company, Inc.,15 applied the remedy to those employers who contested the charges despite the fact that other Respondents were relieved of such liability in settlement proceedings. It is my conclusion that any Respondent who is found to have entered into and maintained in effect an unlawful union-security contract (except where the contract is unlawful solely because of a failure to comply with the filing requirements) exposes itself to full liability. Brown-Olds is a meat-axe remedy applied in meat-axe fashion,is adopted by the Board as a last resort in its efforts, previously unavailing, to remove unlawful contracts from sphere of collective bargaining. Since the parties could have removed themselves from the impact of Brown-Olds by simple compliance with the statute and the Board's Mountain-Pacific 17 decision, there can be little sympathy with their plight at this late date. Having said this, it may be pointed out that inequities are inherent in applying Brown-Olds. One of these is that it is left to the charging party to determine whether all or only one or more of equally guilty contracting parties will be held liable for reimbursement. In the instant case no charge was filed against the International and yet it is apparent that the International drafted and proposed the contract found unlawful. Instead of being jointly and severally liable with the proponent of the discrimination the Respondent will bear liability alone. Yet the moneys unlawfully collected under the doctrine of inevitable coercion were never received by Respondent even as a transmitter, there being no checkoff, and the sums the Respondent will be required to reimburse will remain in the possession of the International and its locals. This anomalous result does not stem from any policy of the General Counsel, the person given authority by the Act to prosecute com- plaints, or of the Board, but from the whim of the Charging Party. (An irony of the instant case is that the Charging Party had no quarrel with Ingalls and sought to withdraw his charge against Ingalls but was seeking retribution against the local unions.) Neither the General Counsel nor the Board has any control over the 13 Argo Steel Construction Company, 122 NLRB 1077 14 United Association of Journeymen & Apprentices of Plumbing and Pipe Fitting In- dustry (J S Brown-E F Olds Plumbing & Heating Contractors), 115 NLRB 594, 597-G02 ss 123 NLRB 132 ie But see International Union of Operating Engineers, Little Rock Local 382-382A, AFL-CIO (Armco Drainage & Metal Products, Inc ), 123 NLRB 1833, where Members Jenkins and Fanning indicated that in very special situations they would not apply Brown-Olds. The decision indicates the majority would make no exceptions 11 Mountain Pacific Chapter of Associated General Contractors, Inc., et al, 119 NLRB 883 TAE INGALLS STEEL CONSTRUCTION COMPANY 599 selection of the Respondents against whom the remedy will be directed; that control is vested exclusively in private parties and may be used by them for purposes entirely foreign to the effectuation of the policies of the Act.18 A second inequity exists since respondent employers and respondent labor organi- zations are in entirely different positions in meeting the financial burden of reim- bursement. It is the labor organizations who have received the money and they are asked to disgorge only what they have unlawfully collected. The employer, on the other hand, has received none of the moneys and has had no control over fixing the amount of dues, assessments, etc., collected and received. Apart from this, a labor organization has the power to levy special assessments to restore its financial status after complying with reimbursement or, in the alternative, it is not beyond the realm of possibility that union members who have received the benefits of the bargaining contract may gladly waive their right to reimbursement. 19 The first of these reliefs from the burden of reimbursement is not available at all to employers and the second offers slight hope of substantial response to such a request by an employer. Because the cited decisions indicate that no discretion may be exercised in situa- tions which the Board feels call for the application of Brown-Olds, it will be recom- mended that Ingalls reimburse all employees employed by it at the Marathon Southern project at Butler, Alabama, who were covered by the contract found un- lawful herein for all dues, assessments, dobies, and other moneys paid to the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, and to its affiliated Local Union No. 600 during the period when said contract was in effect. Ingalls will not, of course, be required to reimburse its employees for any such moneys paid prior to a period beginning 6 months before the filing of the charge. Neither will Ingalls be required to reimburse for any such moneys paid during the period between the dismissal of the charge and issu- ance of complaint, assuming said contract was in effect during such period 20 There remains the matter of posting of proper notices to employees. The record shows that Ingalls completed work at Butler in January 1958. Posting at the jobsite would therefore be a nullity. Ingalls will, however, be required to post notices in the form attached hereto marked "Appendix" at its office and place of business at Birmingham, Alabama. Since such posting alone is unlikely to give notice to employees who were employed at Butler, Ingalls will further be required to post such notices at the union halls of Locals 600 and 92 at Mobile and Birmingham, respectively, those locals being willing. In the event and only in the event that said locals or either of them are unwilling then Ingalls will be required to mail a copy of each notice to each of its employees employed at Butler covered by the contract found unlawful herein. Such mailing shall be to the address of each employee shown as his last address on the records of Ingalls. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent Ingalls is an employer within the meaning of Section 2 (2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 Respondent Local Union No. 600 and Local Union No . 92 affiliated with the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By maintaining in effect a contract which conditions employment upon mem- bership in and referral by International Association of Bridge , Structural and Orna- mental Iron Workers, AFL-CIO, and its local unions the Respondent Ingalls has engaged in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act. iv As this case establishes, there need not be any merit to the charge itself but the Charging Party may rely on the investigation to establish the existence of an unlawful contract and a consequent windfall 19 General Counsel's Exhibit No. 11 Indicates that wages received by Ryan for the last week of his employment at Butler were in the amount of $204 75 While these wages were received pursuant to a contract which the Board finds inevitably coerces employees, employees in other industries governed by lawful contracts would undoubtedly gladly submit to such coercion to obtain such benefits. so The stipulated period during which the contract was in effect expired In January 1958. There Is, however, nothing in the record apart from the stipulation to establish that the contract either terminated at that time or was replaced by a lawful contract. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Respondents Local Union No. 600 and Local Union No. 92 have engaged in no unfair labor practices. 5. The aforesaid unfair labor practices of Respondent Ingalls are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] The Times Herald Printing Company d/b/a The Dallas Times Herald ' and American Newspaper Guild, AFL-CIO, CLC, Petitioner. Case No. 16-RC-2611. February 11, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Charles H. Steere, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting conunerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. Appropriate unit: The Petitioner seeks to represent all the Employer's news and editorial department employees. Contrary to the Employer, the Peti- tioner would exclude eight desk heads and the head of the Washing- ton news bureau and his staff. It would also exclude the editorial page editor and six correspondents but would include two student correspondents. The Employer takes no position on the editorial page editor and contends that the six correspondents and the two stu- dents should be treated alike. It would include them all. The parties stipulated to exclude the managing and executive editors. The eight desk heads the Petitioner would exclude are the assistant to the managing editor, the news, city, telegraph, women's, executive sports, business, and amusements editors. The Employer's news de- partment is divided into two main sections-general news and special- ized news. The assistant to the managing editor is in charge of gen- eral news and the news editor heads up the specialized news desks. I The name of the Employer appears as amended at the hearing 126 NLRB No. 68.