United Brotherhood of Carpenters, Etc., Local Union 1281

UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL 1281 565 United Brotherhood of Carpenters and Joiners of America, Local Union 1281 , AFL-CIO and Robert Jelinek, Richard Rapp, Harold Soule, Albert O. Waddell, and Harold Walther and Richard Rapp, Harold Soule, and Albert 0. Waddell and Fuller Paint and Glass Company. Cases Nos. 19-CC-112, 19-CC-117, and 19-CC-118. May 5, 1960 DECISION AND ORDER On May 18, 1959, Trial Examiner Herman Marx issued his Inter- mediate Report in the above-entitled proceedings, 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 cerain 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 alleged unfair labor practices, and recommended that those allegations be dismissed. Thereafter the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the following additions and modifications. 1. We find, in agreement with the Trial Examiner, that the Re- spondent caused the work stoppages at the Fort Richardson and Tucker and Peterson projects.' We do not agree with his finding that the Respondent did not cause the stoppage at Government Hill. CC & R Builders, Inc., was the general contractor at Government Hill, and members of the Respondent were among its employees there in November 1958, when G & J began to perform its subcontract for the installation of marlite with one of its employees, Rapp, a member of Painters. Although the Carpenters' steward learned Rapp's affili- ation that morning, the carpenters did not stop work. However, early that same afternoon, Ingram, the Respondent's business agent, appeared at the project. Asked by the Carpenters what to do, Ingram, by his own admission, showed them a document conceding the installa- tion of marlite to Carpenters. Shortly after this the carpenters left. Ingram, still present, said and did nothing. After Rapp was removed from the job, the carpenters returned. I The Respondent's exception to the finding that it was responsible for the Tucker and Peterson stoppage is substantially an attack upon the Trial Examiner's credibility find- ings. We will not reverse such a finding unless it is shown to be clearly erroneous. Standard Dry Wall Products, Inc., 91 NLRB 544, 545, enfd. 188 F. 2d 362 (C.A. 3). This has not been shown here ; we affirm the Trial Examiner 's finding. 127 NLRB No. 82. .566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the General Counsel points out in his exceptions, it is not reason- able to consider this incident in isolation. Ingram had been waging a campaign to secure this work for the Respondent. The stoppages at the Fort Richardson and Tucker and Peterson projects had been, as we and the Trial Examiner have found, only shortly before this time, caused by Ingram in furtherance of that object. In these circum- stances it is idle to think that Ingram did not cause the stoppage, especially as the men did not stop work until he had spoken with them, but thereafter left almost at once. It is true that Ingram had told the men he would have to replace them-at the contractor's request-if they left. The Trial Examiner conceded that this might have been only a "ritualized gesture" not intended to be heeded by the men, but thought it would be speculative so to find. In view of the consistent tenor of Ingram's actions, we do not doubt that the reasser- tion of the Respondent's claim to this work by Ingram was the effec- tive cause of the stoppage at Government Hill. We so find.' 2. The Trial Examiner found that by causing discrimination against employees of the subcontractors, the Respondent had violated Section 8(b) (2) and (1) (A). We agree.' The General Counsel excepts to the Trial Examiner's failure to find that the Respondent's conduct was also violative of Section 8(b) (4) (B) and (C). We find no merit in this exception. As found by the Trial Examiner, there was no request for either recognition or bargaining, and therefore no violation of these sections.4 ORDER Upon the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, United Brotherhood of Carpenters and Joiners of America, Local Union 1281, AFL-CIO, its officers, representatives, agents, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause Fuller Paint and Glass Com- pany, G & J Flooring Contractors, Tucker & Peterson, Continental g The General Counsel did not except to the Trial Examiner's finding that the Re- spondent did not cause stoppages at Elmendorf Air Force Base and Anchorage telephone exchanges. We adopt these findings pro forma. Because of the nature and extent of the violations found, we reject the Respondent's exceptions to the breadth of the Trial Examiner's recommended remedy. 3 Member Fanning dissents from this finding for reasons stated in his dissenting opinion in Acousti Engineering of Alabama, Inc., 120 NLRB 212, in view of his conclu- sion in a corollary proceeding (127 NLRB 549) that the conduct in the instant case alleged to be violative of Section 8 (b) (2) and (1) (A) may reasonably be violative of Section 8(b)(4)(D). I See United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et at. (Endi- cott Church Furniture, Inc.), 125 NLRB 853. UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL 1281 567 Constructors, Inc., C & R Builders, Inc., or any other employer as to whom the Board would assert jurisdiction, to discriminate against any employee in violation of Section 8(a) (3) of the Act. (b) In any other manner restraining or coercing employees in the exercise of their right to self-organization, to join or assist Interna- tional Brotherhood of Painters, Decorators and Paperhangers of America, Local 1140, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargam- ing or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole Richard Rapp, Albert 0. Waddell, Wainer, and Flynn, for any loss of pay they may have suffered by reason of the discrimination against them with regard to the terms and conditions of their employment caused by the Respondent. (b) Post at its usual membership meeting place, in Anchorage, Alaska, copies of the notice attached hereto marked "Appendix." Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being signed by a duly authorized representative of the Respondent, be posted by the Respondent imme- diately upon receipt thereof, and maintained for a period of 60 con- secutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Forthwith return to the Regional Director for the Nineteenth Region additional copies of said notice, to be furnished by the Regional Director, signed by a duly authorized representative of the Respond- ent, for posting by Fuller Paint and Glass Company, G & J Flooring Contractors, Tucker & Peterson, Continental Constructors, Inc., and C & R Builders, Inc., if they so desire, at places where notices to their employees are customarily posted. (d) Notify the Regional Director for the Nineteenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. 6 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." Q. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent violated the Act other than as found herein. MEMBERS RODGERS and JENKINS took no part in the consideration of the above Decision and Order. APPENDIX NOTICE TO ALL OUR MEMBERS Pursuant to a Decilsion and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that : WE WILL NOT cause or attempt to cause Fuller Paint and Glass Company, C & J Flooring Contractors, Tucker & Peterson, Con- tinental Constructors, Inc., C & R Builders, Inc., or any other employer as to whom the Board would assert jurisdiction, to dis- criminate against any employee in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees in the exercise of their right to self-organization, to join or assist International Brotherhood of Painters, Decorators and Paper- hangers of America, Local 1140, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right 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 make whole Richard Rapp, Albert O. Waddell, Wainer, and Flynn, for any loss of pay they may have suffered by reason of the discrimination against them. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION 1281, 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. 0 UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL 1281 569 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The consolidated complaint in this proceeding,' issued on January 26, 1959, by the General Counsel of the National Labor Relations Board (herein called the Board), alleges that United Brotherhood of Carpenters and Joiners of America, Local Union 1281, AFL-CIO herein called the Respondent or the Carpenters Union), has violated Section 8(b) ( I ) (A), 8(b) (2), and 8(b) (4) (B) and (C) of the National Labor Relations Act, as amended (61 Stat. 136-163; herein referred to as the Act).2 The Respondent has filed an answer which, in substance, denies the commission of the unlawful conduct imputed to it in the complaint. Pursuant to notice duly served by the General Counsel upon all other parties, a hearing was held before me, as duly designated Trial Examiner, on February 16 and 17, 1959, at Anchorage, Alaska. At the hearing, the General Counsel and the Respondent appeared through, and were represented by, respective counsel. All parties were afforded a full opportunity to be heard, examine and cross-examine witnesses, adduce evidence, file briefs, and submit oral argument. I have read and considered briefs that the General Counsel and the Respondent have respectively filed with me since the close of the hearing. No other party has filed a brief .3 Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE EMPLOYERS INVOLVED; JURISDICTION OF THE BOARD The jurisdiction of the Board in this proceeding hinges on operations of two firms, Fuller Paint and Glass Company and G & I Flooring Contractors, each of which is an employer within the meaning of the Act. 'The complaint Is based on three charges, bne filed on August 25, 1958, in Case No. 19-CC-112; another on November 21, 1958, in Case No. 19-CC-117; and the third on December 10, 1958, in Case No. 19-CC-118. A copy of each charge has been duly served upon the Respondent. By an order made pursuant to Section 102 33 of the Board's Rules and Regulations, the cases were duly consolidated on January 26, 1959 Copies of the complaint and order of consolidation have been duly served upon the Respondent and the parties who filed the charges mentioned above. 2 The following are the pertinent provisions of Section 8(b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce .. . employees in the exercise of the rights guaranteed in section 7 . . . (2) to cause or attempt to cause an employer to discriminate against an employee in violation of [Section 8(a) (3) 1 .. . s x r x t a s (4) . . . to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is : R R E X 0 L 4 (B) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9 ; (C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organiza- tion has been certified as the representative of such employees under the provisions of section 9 ; 9 The transcript contains garbled or otherwise erroneous transcriptions at a substantial number of points. These include words and phrases erroneously imputed to me such as, for example, an alleged characterization of certain testimony as "seemingly untruthful." The phrase actually used was "seemingly useless" in the course of a colloquy with counsel on the subject of relevancy of the testimony in question. Nevertheless, as the transcript adequately reflects the material facts and issues raised at the hearing, I deem it un- necessary, particularly, in the absence of a motion in the premises by any party, to enter an order correcting the record. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fuller Paint and Glass Company (herein called Fuller ) is engaged at Anchorage, Alaska, in the business of selling and installing building materials , including products known as marlite and acoustical tile .4 The concern annually purchases products valued at approximately $500,000. The goods are shipped to the company from points outside the State of Alaska. G & J Flooring Contractors (herein called G & J), a partnership consisting of Jesse Morrison and George Paulson, is engaged at Anchorage , Alaska, in the business of installing building materials, including marlite and acoustical tile. The partners are also the principal stockholders of an Alaska corporation described in the record as Brady's Floor Covering (whose correct name probably is Brady Floor Covering Co., Inc., and who will be called Brady herein ); hold office in the corporation; and direct its business affairs, including its personnel and labor policies, as well as those of the partnership. The corporation is engaged in the business of selling wall and floor covering materials . As one witness put it, G & J "is the labor division of Brady's Floor Covering ," or, in other words , in performing its installation work, the partnership acts as an instrumentality of the corporation . All materials so installed are purchased by the corporation and are shipped to it in Alaska from points outside thereof. The value of the products so shipped amounts to at least $200,000 each year. Various categories of employees work interchangeably for both the partnership and the corporation . As the business affairs and operations of the two enterprises are integrated and subject to common management and control, both may be regarded as a single employer at least for the purpose of determining and asserting the Board's jurisdiction. Fuller and G & J are, and have been at all times material to the issues in this proceeding, engaged in interstate commerce within the meaning of the Act, and in operations affecting such commerce. Accordingly, the Board has jurisdiction of the subject matter of this proceeding. It THE LABOR ORGANIZATIONS INVOLVED As the complaint alleges , and the answer admits, International Brotherhood of Painters, Decorators and Paperhangers of America , Local 1140, AFL-CIO ( herein called the Painters Union), and the Carpenters Union are labor organizations within the meaning of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory findings On January 29, 1957, the Carpenters Union and Brady entered into a contract prescribing terms and conditions of employment of employees engaged in the in- stallation of marlite and acoustical tile. The contract had not been terminated prior to the hearing in this proceeding. On May 23, 1957, pursuant to the provisions of the Act, the Board certified the Painters Union as the exclusive bargaining representative of a bargaining unit con- sisting of all employees of Brady and G & J (and two other employers not involved here) "engaged in the installation of soft tile, linoleum, formica, marlite, acoustical tile, venetian blinds and the like material at or near Anchorage, Alaska, excluding office clerical, supervisors as defined in the Act, as amended and all other em- ployees." Also, on June 12, 1957, in accordance with the provisions of the Act, the Board certified the Painters Union as the exclusive bargaining representative of a similar unit of Fuller's employees "engaged in the installation of soft tile, acoustical tile, marlite, linoleum, venetian blinds and like materials and glaziers, excluding office clerical, supervisors as defined in the Act, and all other employees." The material fact to note about both units is that they both include marlite and acoustical tile installers. The certifications are still in effect. For the past 7 or 8 years, the Painters Union and G & J (notwithstanding the contract of January 29, 1957, between Brady and the Carpenters Union) have had contractual relations affecting marlite and acoustical tile installers in G & J's employ. Whether Fuller similarly has had precertification bargaining relations with the Painters Union does not appear, but in any case, both Fuller and G & J, acting through a trade association of which they are members, entered into a collective- bargaining agreement with the Painters Union on July 1, 1958. The contract, which is still in effect, prescribes terms and conditions of employment for employees 4 Marlite is a hardboard product used as an interior finish on ceilings and walls. Acoustical tile is made from various products (glass or wood fibers, for example) and Is similarly used as an interior finish. UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL 1281 571 subject to the certifications mentioned above, including those engaged in the in- stallation of marlite and acoustical tile. The issues in this proceeding basically center upon demands by the Carpenters Union that members of that organization be employed in the installation of marlite and acoustical tile at certain construction projects. At various times in 1957, Vernon Ingram, business representative of the Carpenters Union, made statements to Jerry Willis, manager of one of Fuller's departments, to the effect that members of the labor organization would not work at projects where Fuller employed marlite and acoustical tile installers who were not members of the union. Also, on one occasion (apparently in July 1957, according to the sense of Willis' testimony), Ingram told Willis that unless Fuller employed members of the Carpenters Union in the installation of marlite and acoustical tile, the flim would be denied oppor- tunities for such work; and that "he (Ingram) would definitely take measures to stop any jobs (Fuller) had under contract at the time." In August 1958, a firm named Tucker & Peterson (apparently a partnership) was engaged in remodeling an Anchorage property (known as the Tucker & Peterson Building ), which it owns, and employed members of the Carpenters Union in "general carpentry work" at the project. During the course of the month, Fuller, under contract with Tucker & Peterson, began the installation of acoustical tile at the project, assigning two of its employees (identified in the record only as Wainer and Flynn) to perform the work. (After the iFuller employees had been working at the building for 3 or 4 days, Ingram appeared at the site and told Ralph Peterson, a member of the firm that owns the building, that the acoustical tile installation was "supposed to be our work." Later that day, Ingram returned with a representative of the Painters Union, and the latter, during the course of "a little heated argument" with Peterson and the two Fuller employees, took the position, in effect sharing Ingram's view, that Wainer and Flynn "should leave the job and let the carpenters do the work." At one point or another, while Ingram was at the jobsite, he was observed talking to Sam Mercer, the job steward of the Carpenters Union at the project. The Fuller employees and the carpenters worked until the regular quitting time that day. On the following morning, upon Peterson's arrival at the jobsite, he found the carpenters, including Mercer, standing idle. In response to an inquiry by Peterson about the matter, they replied, in substance, that they could not work until settle- ment of "the acoustical tile question." The carpenters left the project. Later that day, Willis and Peterson went to the headquarters of the Carpenters Union in Anchorage to see Ingram . There they encountered Mercer and the other carpenters who had left the project. Peterson asked Mercer why the carpenters had "walked off the job," and Mercer replied that they had done so upon Ingram's instructions. Mercer also said that it made no difference to him who installed the acoustical tile at the project, but that he had had to leave it because of his con- cern that he "would be fined" if he did not follow Ingram's instructions . Shortly thereafter, Willis and Peterson talked to Ingram in the latter's office, and Willis asked the union representative whether he had instructed the carpenters to leave the project. Ingram denied that he had done so, and denied that he knew of anyone else who had so instructed the men. After some additional discussion (of no con- sequence here), Willis and Peterson left Ingram. Soon after their departure, while still at the union headquarters, in Mercer's presence and hearing, Willis and Peterson agreed that Fuller would suspend the installation of the acoustical tile and assign Wainer and Flynn to the task of in- stalling floor tile at the project (a type of work over which there was no controversy). This was done on the following morning and the carpenters returned to work at the same time. About a week later, Fuller sent two additional employees to resume the acoustical tile work. Upon their arrival at the project, the carpenters quit their work again, and did not return during the 3-day period that it took to complete the installation oftthe acoustical tile. As with Fuller, Ingram has demanded of G & J that it employ members of the Carpenters Union in the work of installing marlite and acoustical tile. So far as the record shows, the first occasion when such a demand was made involved the performance by G & J of a subcontract for the installation of acoustical tile in connection with the construction of a bowling alley at Fort Richardson, Alaska, by a general contractor named Continental Constructors, Inc. G & J assigned two of its employees, Richard Rapp and Albert Waddell, both members of the Painters Union, to install the tile. They began their work on or about March 10, 1958. At that time, the carpenters in the employ of the general contractor were engaged in other aspects of the construction work. They were members of the Carpenters Union, one of them serving as the job steward of that organization at the project. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the morning that Rapp and Waddell reported for work, the job steward made a complaint to Roy Horness, president of Continental Constructors, Inc., concerning the employment of the two tile installers, and told Horness that the carpenters employed at the project "would not work while other men were doing their work." Later that day, about noon, Ingram came to the construction site, at the instance of the job steward, and told Horness that he "would pull the carpenters off the project" unless Rapp and Waddell were replaced with members of the Carpenters Umon. Horness pointed out that it was G & J and not his film that was installing the acoustical tile and rejected Ingram's demand. Ingram then proposed that he and Horness meet with the respective representatives of the Painters Union and G & J, stating that he would wait until 2 p.m. that day before taking any further action, and that if the matter had not been "straightened out" by that time, he would have to pull the carpenters off the job." The "deadline" was subsequently extended by Ingram to 3 p.m. Horness attempted to arrange a meeting by that hour, but was unable to do so, and upon arrival of the "deadline," the carpenters at the project, upon instructions from Ingram transmitted to them through the job steward, "picked up their tools and left the job." Rapp and Waddell continued to work at the project for the balance of the workday. The meeting proposed by Ingram was held at the office of G & J about an hour after the carpenters' departure, and was attended by Ingram, Horness, a business agent of the Painters Union, and representatives of G & J. There Ingram reiterated his demand that the work of installing acoustical tile at the project be assigned to members of his union; and the upshot of the matter was an agreement by those present that G & J would withdraw Rapp and Waddell from the job; and that Con- tinental Constructors, Inc., would itself undertake the task of installing the acoustical tile, and would employ members of the Carpenters Union to do the remaining tile work.5 As matters then stood, it would take two men 2 days to complete the tile work. In accordance with the agreement, G & J assigned Rapp and Waddell to another project on the following morning, and two carpenters in the employ of Continental Constructors, Inc , completed the tile installation. During the early part of November 1958, G & J began performance of a sub- contract for the installation of marlite and other materials at a project known as the Government Hill School (located, apparently, in or near Anchorage), assigning Rapp to do the work. Members of the Carpenters Union were employed there at the time, one of them acting as that organization's steward at the jobsite Rapp reported for work on the morning of November 4 or 5, 1958, and soon after he did so, the steward asked him to specify his union affiliation. Rapp replied that he was a member of the Painters Union and exhibited his union card. That same morning, Marvin Briggs, superintendent for the general contractor at the project, called on Ingram and informed the latter of his wish to avoid a work stoppage by the carpenters at the school project because of Rapp's employment there. Ingram said that he "didn't think it was right" for "soft tile mechanics" (such as Rapp) to do "carpenters' work"; that he would not "like to see" a work stoppage at the project; that he could not predict what the carpenters employed there would do; that he "couldn't blame them if they did walk off"; and that he would take no action against them if they quit the project. He agreed, however, to come to the jobsite at I p m. that day. Ingram, accompanied by a representative of the Painters Union, came to the project shortly after that hour, and talked to carpenters employed there. According to Ingram's uncontradicted testimony, a number of these employees "asked (him) questions as to what they should do" in connection with Rapp's work, and in reply, Ingram showed them a letter from an official of the Painters Union "conceding that marlite and acoustical tile belong to the Carpenters." Ingram also told the men in Briggs' presence that he "would have to replace them" if they left their work. The carpenters nevertheless left the project in a body. It was then midafternoon some 2 or 3 hours before the regular quitting time. Ingram was still at the jobsite and saw the men as they left, but said nothing more to them. Briggs told Ingram that he was "glad it's settled one way or the other," and that he would take the "necessary steps" with Rapp's employer. Rapp worked until the end of the workday, but, by direction of G & J, did not return to the project on the following day G & J assigned another of its employees, a member of the Carpenters Union, to complete the marlite installation. 5Ingram appears to have based his demands on some arrangement or "settlement" (not clearly elaborated in the record) by which "jurisdiction" over the type of work in question was allegedly awarded to the Carpenters Union. The arrangement is irrelevant to the issues, whether or not the Painters Union was a party to it, and I do not pass on its propriety. UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL 1281 573 B. Discussion of the issues; concluding findings It is undisputed that Ingram instigated the work stoppage at the Fort Richardson project, and there can be no doubt that he acted as the agent of the Carpenters Union in that regard. Indeed, the Respondent concedes in its brief that it violated "some sections" of the Act (meaning, presumably, Section 8(b) (1) (A) and (2) ). However, in his testimony Ingram denied that he required the carpenters to quit work at the Tucker & Peterson Building and Government Hill School, and the Respondent disclaims responsibility for the work stoppages at those projects With respect to the Tucker & Peterson job, the disclaimer will not survive total scrutiny of the evidence. To be sure, there is no direct evidence to dispute Ingram's denial that he told the carpenters at the project to leave it, but that is by no means decisive. It is a significant fact that Wainer and Flynn and the carpenters worked at the jobsite without incident for some 3 or 4 days prior to Ingram's appearance there. Bearing that in mind, particularly against the background of Ingram's previ- ous threats to Willis, described earlier, the fact that the carpenters discontinued their work on the morning after Ingram visited the project and talked to the job steward there takes one a long way, to say the least, to a conclusion that Ingram precipitated the work stoppage. What is more, Ingram himself testified that he told the job steward "that the Carpenteis do claim that assignment (to install acoustical tile at the Tucker & Peterson Building), and it is our work, that we should protect it." Although Ingram did not specify when he made that statement, I thing it may fairly be inferred from the sequence of events that it was made at some point prior to the work stoppage, if not, indeed, on the occasion when Ingram visited the project and was observed talking to the steward there. In the per- spective of the whole record, it is reasonable, I think, to view Ingram's statement to the steward, who was also an agent of the Carpenters Union, as a direction that the carpenters seek to enforce the union's work assignment claim by quitting the project. If there were any doubt about the matter, it would be resolved by the fact that the steward told Willis and Peterson, on the occasion when they came to the union hall, that the carpenters had left the project upon Ingram's instructions. Viewing the steward's remarks, as I do, as an admission imputable to his principal, they are, in my judgment, in the light of other factors pointing to the truth of the remarks, a more accurate guide to decision than Ingram's self-serving disclaimer of responsibility for the work stoppage.6 In short, the Carpenters Union, through Ingram, induced and encouraged the carpenters at the Tucker & Peterson Building, like those employed at the Fort Richardson project, to engage in a strike or a con- certed refusal to work. The evidence will not, in my judgment, support a similar conclusion with respect to the work stoppage at the Government Hill School. I think it a suspicious circum- stance that the carpenters at the project, about 10 in number, quit their work in a body not long after their steward verified the fact of Rapp's membership in the Painters Union, and soon after Ingram spoke to them.? But there are counter- balancing factors that point in another direction. One of these, of course, is the lack of any evidence to support a conclusion that Ingram, or any other agent of the Carpenters Union, told the carpenters to leave the project. Another is the affirmative evidence indicating that it was the individual carpenters at the project, rather than Ingram, who raised the question upon Ingram's arrival there "as to what they should do" in connection with Rapp's employment to install marlite at the project. It may be plausibly argued, I think, that Ingram's display of a letter from the Painters Union "conceding" that the work of installing marlite and acoustical tile "belong(s) to the Carpenters" was but a signal to the men to walk off the project, but I am ,also constrained to take into account the undisputed evidence that Ingram told them, 6 The Respondent offered no objection to Willis' testimony describing the steward's re- marks. Thus the testimony should "be considered and given its natural probative effect," even if it be assumed that it would have been excluded as hearsay upon proper objection. American Rubber Products Corporation v N L R B , 214 F 2d 47, 51 (C A 7) Be that as it may, because of the steward's functions as an agent of the Carpenters Union, his statement to Willis and Peterson is not inadmissible hearsay. As Ingram testified the Union's stewards have the duty to "see that (its) trade rules . . are lived up to," and "to protest to the employer . . . any work assignment that is made to another craft which rightfully belongs to . . . the Carpenters " What is more, Ingram, by his own account, expressly told the steward at the Tucker & Peterson project to "protect" the Union's claim that the work in question should be assigned to its members The steward's functions were, in short, of sufficient scope to warrant the imputation of his remarks to the Carpenters Union. 7 Cf. Roane-Anderson Company, 82 NLRB 696. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Briggs' presence, that he "would have to replace them" if they left. Perhaps this was but a ritualized gesture of dissuasion which Ingram did not intend the men to heed, but to reach such a conclusion one would have to substitute speculation for evidence. I think, in other words, that there is at least an equal basis in the record for concluding that the carpenters left the Government Hill project because of their own judgment "as to what they should do," after reading the letter from the Painters Union, as there is for an inference that the Carpenters Union either required or requested them to take the course that they did. The sum of the matter is that the evidence does not preponderantly establish that the Carpenters Union induced or encouraged the work stoppage at the Government Hill School project 8 Turning to the allegations of violation of the Act, there can be no doubt that an object of the work stoppage at the Fort Richardson job was to bring pressure to bear upon the general contractor, Continental Constructors, Inc., to compel the assign- ment of the work of installing acoustical tile to members of the Carpenters Union. As a consequence of the pressure, the general contractor and G & I joined in, and gave effect, to an agreement to remove Rapp and Waddell from the project. By such conduct, it is clear, Continental Constructors, Inc., and G & J discriminated against Rapp and Waddell because they were not members of the Carpenters Union, thus violating Section 8(a) (3) of the Act .9 As at the Fort Richardson job, an aim of the carpenters' walkout at the Tucker & Peterson Building was to compel their employer (Tucker & Peterson), who had overall responsibility for the construction project, to require an acoustical tile contractor (Fuller) to replace two employees (Wainer and Flynn), whom it had assigned to install acoustical tile at the project, with members of the Carpenters Union. The consequence of the work stoppage, somewhat resembling that at the Fort Richardson project, was that Tucker & Peterson and Fuller entered into an arrangement whereby the latter assigned Wainer and Flynn to other work. By their conduct in the premises, Tucker & Peterson and Fuller discriminated against Wainer and Flynn because they were not members of the Carpenters Union, thus violating Section 8(a)(3). Having caused the acts of discrimination described above, the Carpenters Union thereby violated Section 8(b) (2) of the Act, and restrained and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thus violating Section 8(b)(1)(A) of the statute.io The General Counsel maintains that by causing the work stoppages at the Fort Richardson and Tucker & Peterson projects, the Carpenters Union also violated Section 8(b) (4) (B) and (C) of the Act. By force of the relevant statutory language, a basic premise of the claim is that "an object" of the relevant work stoppage was to 8 The record contains evidence dealing with Carpenters' work stoppages related to the installation of marlite or acoustical tile in a bowling alley at Elmendorf Air Force Base, located near Anchorage, and in some Anchorage telephone exchanges With respect to those projects, I deem it sufficient to note that there is no basis in the record for the imputation of legal responsibility for the stoppages involved to the Carpenters Union 9 The finding that the general contractor discriminated against Rapp and Waddell is not precluded by the fact that the two men were not its employees Northern California Chapter, Associated General Contractors, et al, 119 NLRB 1026, 1031-1032. I can see no material difference between that case, where the general contractor, under economic pressure from a union, required a subcontractor and its employees to withdraw from a project, and the conduct of Continental Constructors, Inc, in arranging, by agreement, for the withdrawal of Rapp and Waddell from the Fort Richardson job. "It is sufficient for a finding of a violation of Section 8(a) (3) .. . that an employer, who meets the Act's definition of an employer . . . has accomplished an act which results in a dis- crimination with respect to the 'tenure of employment' . . . of employees who meet the - Act's definition of employees" (id at 1032). I read the cited case (at p. 1031, foot- note 9 ) as overruling prior decisions , such as United Association of Journeymen and Apprentices, etc, Local ¢20, AFL-CIO (Frick Company and Bolger-Parker Company), 116 NLRB 119, to the extent that they conflict with the quoted holding io Northern California Chapter, Associated General Contractors , supra, at pp. 1032- 1033. The finding of the Respondent's responsibility for the discrimination is not pre- cluded by the fact that the relevant allegations of the complaint charge attempts to cause discrimination, instead of alleging that the Respondent caused it. For one thing, the issue of the Respondent's responsibility for the discrimination was fully litigated. For another matter, early in the hearing, the General Counsel stated that "a back pay problem" is "probably" involved in the case. This would reasonably have the effect of putting the Respondent on notice that its responsibility for the discrimination was at issue, since it has been long established that "back pay may be required of a labor organization only where it is responsible for unlawful discrimination against an employee " Colonial Hardwood Flooring Company, Inc., 84 NLRB 563, 567. UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL 1281 575 force or require Fuller or G & J, as the case may be, "to recognize or bargain" with the Carpenters Union. The General Counsel's brief finds proof of such an object in testimony by Ingram to the effect that if he had been successful in persuading Fuller to hire members of his union for marlite and acoustical tile installation he "would have gone into (contractual) negotiations" with the company; and that in the event of employment of such members by G & J for that type of work, he would seek to apply to them the contract between his union and Brady. But this testimony is at best a hypothetical assumption (expressed, be it noted, almost a year after the Fort Richardson work stoppage, and some 6 months after the walkout at the Tucker & Peterson Building), and is not, in my judgment, a probative guide to the "object" of the work stoppage. How risky a business it would be to take any other view of the hypothesis may be demonstrated by other aspects of the record. The General Counsel himself established that G & J substituted one of its employees, who was a member of the Carpenters Union, for Rapp at the Government Hill School project; yet there is not a scintilla of evidence that the Brady contract was applied to the replacement or that the Carpenters Union sought to represent or bargain for him (or for another of its members who was in G & J's employ until about 6 weeks before the hearing) at any time since the certification of May 23, 1957 11 On the contrary, there is undisputed evidence that the two members of the Carpenters Union who worked for G & J in marlite installation after the certification were employed "under the same arrangement" (or, in other words, under the same terms and conditions) as the members of the Painters Union in the company's employ. The sum of the matter is that there is no substantial evidence that the Carpenters Union has at any time since the certifications requested or otherwise sought recognition as the bar- gaining representative of employees subject to them, or has endeavored to bargain on their behalf.12 That being the case, the record will not support a finding that the Respondent has violated Section 8(b) (4) (B) and (C).13 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Fuller and G & I described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(b)(1) (A) and (2) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative measures designed to effectuate the "The General Counsel makes a point of the fact that Fuller made payments into the health and welfare fund of the Carpenters Union for members of that organization whom it employed for acoustical tile installation at the Tucker & Peterson Building in September 1957, following a carpenters' work stoppage there. (The project was a different one from that involved in the walkout about a year later, which has been made the subject of findings above ) The record does not develop the circumstances under which the pay- ments were made, that is, whether by contractual arrangements with the Carpenters Union or because of any demand by that organization. In the posture of the record, even if one assumes the relevancy of the evidence in question, the mere fact of the pay- ments does not give effective support to the claim that an object of the walkout at the building about a year later was to force or require Fuller to recognize or bargain with the Carpenters Union as the representative of any of the firm's employees. li Some 3 months before the hearing, Ingram (for reasons he described , but are not relevant here) rejected a proposal by Rapp that the latter and other members of the Painters Union "transfer as a body" to the Carpenters Union. This, it seems to me, bolsters a conclusion that the work stoppages at the Fort Richardson and Tucker & Peterson projects had but one objective, and that was to compel the assignment of the work of Installing acoustical tile to members of the Carpenters Union. is I am unable to share the General Counsel's view, expressed in his brief, that "a de- mand for recognition and bargaining was implicit in Respondent's demand that its mem- hers be assigned the marlite and acoustical tile work " To accept the quoted position would be tantamount to guessing one's way into a finding Respondent violated Section 8(b) (4) (B) and (C). Cf. The Plumbing Contractors Association of Baltimore, Maryland, Inc, et at, 93 NLRB 1081, where the Board noted (at p 1088) that so long as a non- certified union "was merely seeking to secure a reassignment of work to employees outside (a) unit, and was not seeking or claiming to represent the unit, Section 8(b) (4) (C) would not be applicable " 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policies of the Act. As it has been found that the evidence does not establish that the Respondent has violated Section 8(b) (4) (B) and (C) of the Act, I shall recom- mend that the Board dismiss so much of the complaint as alleges that the Respondent has violated those sections. The Respondent's unfair labor practices strike at the heart of rights guaranteed employees by Section 7 of the Act.14 The rights involved are closely related to others guaranteed by Section 7. In view of the nature of the unfair labor practices found above, there is reasonable ground to anticipate that the Respondent will in- fringe upon such other rights in the future unless appropriately restrained There- fore, in order to make effective the interdependent guarantees of Section 7, 1 shall recommend an order which will in effect require the Respondent to refrain in the future from abridging any of the rights guaranteed employees by said Section 7.15 As it has been found that the Respondent caused Continental Constructors, Inc., and G & J to discriminate against Rapp and Waddell in violation of Section 8(a) (3) of the Act, and caused Fuller and Tucker & Peterson to discriminate against Wainer and Flynn in violation of said Section 8(a)(3), I shall recommend that the Respondent make each of the four employees whole for any loss of pay he may have suffered by reason of the discrimination against him, as found above, by payment to him of a sum of money equal to the amount of wages he would have earned, but for the said discrimination; and that the said loss of pay be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, to which the parties to this proceeding are expressly referred.is Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Fuller, G & J, Tucker & Peterson, and Continental Constructors, Inc., are, and have been at all dimes material to this proceeding, employers within the meaning of Section 2(2) of the Act. 2. The Painters Union and the Carpenters Union are, and have been at all times material to this proceeding, labor organizations within the meaning of Section 2(5) of the Act. 3. All employees of Brady and G & J engaged in the installation of soft tile, linoleum, formica, marlite, acoustical tile, Venetian blinds, and like material at or near Anchorage, Alaska, excluding office clerical, supervisors as defined in the Act, and all other employees, are, and have been at all times material to the issues in this proceeding, members of a unit appropriate for the purposes of collective bargain- ing with the meaning of Section 9(b) of the Act. 4. All employees of Fuller engaged in the installation of soft tile, acoustical tile, marlite, linoleum, Venetian blinds, and like materials and glaziers, excluding office clerical, supervisors as defined in the Act, and all other employees, constitute, and have constituted at all times material to the issues in this proceeding, a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 5 The Painters Union is, and has been at all times material to the issues in this proceeding, the exclusive representative of the employees in each of the aforesaid appropriate units for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. By causing Fuller, G & J, Tucker & Peterson, and Continental Constructors, Inc , to discriminate against employees in violation of Section 8(a)(3) of the Act, as found above, the Carpenters Union has engaged in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 7. By restraining and coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act, as found above, the Carpenters Union has engaged in unfair labor practices within the meaning of Section 8(b)(1) (A) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 9 The evidence does not establish that the Respondent has violated Section 8(b) (4) (B) and (C) of the Act. [Recommendations omitted from publication.] 14 See N.L R B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). 15 See May Department Stores d/b/a Famous-Barr Company v. N L.R.B, 326 U.S. 376; Bethlehem Steel Co. v. N.L.R B., 120 F. 2d 641 (C.A., D C ). is I do not pass on the question whether the four employees, or any of them, actually lost any working time as a result of the respective acts of discrimination against them. That issue can be determined during the compliance stage of this proceeding.