Billings Local No. 1172 of United Brotherhood, Etc.

BILLINGS LOCAL 1172 OF UNITED BROTHERHOOD, ETC . 307 Billings Local No. 1172 of United Brotherhood of Carpenters and Joiners of America, and Montana State Council of the United Brotherhood of Carpenters and Joiners of America and United Brotherhood of Carpenters and Joiners of America and Anthony Ocepek and The Refinery Engineering Company, Billings Contractors Council, Inc., and Montana Contractors Association, Inc., Parties to the Contracts. Cases Nos. 19-CB- 518 and 19-CB-530. Febmuai'y 16, 1961 DECISION AND ORDER On December 9, 1959, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceedings, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also recommended dismissal of the complaint as to Respondent Local because of his inter= pretation of a settlement agreement entered into by it. Thereafter the Respondent Brotherhood filed exceptions, Respondent State Council and the General Counsel filed exceptions and briefs in sup- port, and Respondent Local filed a brief in answer to that of the General Counsel. 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 [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications. 1. We agree with the Trial Examiner that Respondent Brotherhood by maintaining its closed-shop contract with the Company during the period in question violated Section 8(b) (2) and (1) (A) of the Act.' We also agree that Respondent Council by maintaining its hiring hall agreement with the Montana Contractors Association during the period in question violated Section 8(b) (2) and (1) (A) of the Act. In this connection we find no merit in Council's exception that this proceeding should be dismissed because of lack of evidence that the said Statewide contract it negotiated was part of the original con- troversy instituted by the Charging Party against Respondent Local. , See The Marley Company, 117 NLRB 107; Mechanical Handling Systems, Incorporated, 122 NLRB 396. 130 NLRB No. 19. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The original charge was amended on April 14, 1958, by Charging Party to include the Council and specify the objectionable contract. Thereafter the Charging Party's individual claim was settled, but as the Board has said, once a charge is filed, the General Counsel proceeds as the representative of an agency entrusted with the power and duty of enforcing the Act in the public interest, not merely in vindication of private rights.2 We adopt pro forma-as there was no exception-the Trial Ex- aminer's finding that clause 6 of the memorandum concerning pile- drivers attached to the said Statewide contract with the Council does not provide for a closed shop. 2. Contrary to the Trial Examiner, we find that Respondent Local 1172 has engaged in certain unfair labor practices within the meaning of Section 8(b) (2) and (1) (A) of the Act covered by the complaint herein. As alleged in the complaint and set forth in the Intermediate Report, the Local and Charging Party Ocepek executed a settlement agreement in Case No. 19-CB-5181 covering the Local's discrimina- tion against Ocepek individually and the maintenance by the Local of an illegal closed-shop agreement with Billings Contractors. Based upon the broad language of the notices posted pursuant to the settle- ment agreement which stated that the Local would not give effect to any agreement or practice with Billings Contractors Council, or any other employer, the Trial Examiner found that the said settlement was coextensive with the charges filed against the Local including its participation in the Statewide hiring hall contract entered into by the Council in June 1956 for all of the constituent locals including Re- spondent Local. This conclusion, however, attaches no significance to the words "on the issues here settled" which were typed on the printed form used in the amended settlement agreement. The General Counsel in its exceptions contends that the purpose of adding these words was to save the issue of the Local's maintenance of the Council's Statewide contract, apart from discrimination under it against Ocepek as charged, and adverts to the fact that-as the record shows-both the Local and the Council had refused to settle this issue by executing a joint settlement agreement submitted to them in August 1958 by a field examiner of the Board. We find merit in the General Counsel's position. Despite the broad language of the notice, posted by the Local as a part of the settlement, we conclude that maintenance of the Statewide contract by the Local was not covered by the settlement agreement which showed on its face that it did not purport to be a complete settlement of all issues. 2 See The Ingalls Steel Construction Company, 126 NLRB 584, footnote 1. 8 This was an agreement covering the Billings contract and an amended agreement of later date adding the discrimination against Ocepek The complaint herein issued April 30, 1959, the day on which the amended agreement was approved by the Regional Director. BILLINGS LOCAL 1172 OF UNITED BROTHERHOOD, ETC. 309 In its brief the Local refers to the complaint as an attempt to penal- ize it by virtue of its being a constituent of the International and the Council, and because of the existence of objectionable phraseology "of certain documents" without a showing that "the contested language was applied to anyone. . . ." Concerning the latter, the Board has held that contracts, agreements, understandings, and practices which unlawfully require the payment of dues and fees as a condition of ob- taining or retain employment are in themselves coercive of employees' Concerning the former point the Statewide contract was specifically negotiated by the Council "acting" for the "signatory" locals. As it is implicit in this record that Local 1172-a party to the proceeding- did sign that contract, its responsibility under it is not alone that of a constituent of the Council. The contract was in effect at times ma- terial herein until its termination on April 30, 1958, and contained none of the hiring hall safeguard provisions set out by the Board in Mountain Pacific Chapter of the Associated General Contractors, Inc., et al.5 Accordingly, we find that Local 1172 violated Section 8(b) (2) and (1) (A) of the Act by executing said contract and maintaining it during its term.' The Remedy The Trial Examiner, noting that the objectionable contract pro- visions were corrected within the widely publicized moratorium period, did not recommend application of the Brown-Olds remedy' partly because of the exchange of correspondence set forth in the In- termediate Report between the Board's then General Counsel Fenton and President Gray of the Building Construction Trades Depart- ment of the AFL-CIO, plus the fact that the present General Coun- sel is not now seeking application of the remedy in this case. In view of the good faith demonstrated by the parties in revising their con- tracts during the said March 1 to November 1, 1958, period, the Board, pursuant to sound public policy, will not impose the reimbursement remedy. Respondent Brotherhood excepts particularly to the reconnnen- dation of the Trial Examiner that publication of the recommended notice be made in "official publications of general circulation among members" on the ground that publication outside the State of Mon- tana is unnecessary. We find no merit in this exception inasmuch as the Brotherhood has been involved in other proceedings before this 4 See Nassau and Suffolk Contractors' Association, Inc., and its members, 123 NLRB 1393; Motion Picture Operators Union of Essex County, Local 244 , et al (Stanley Warner Corporation), 126 NLRB 376. We note that the record does contain testimony by an employer member of the Montana Contractors Association that it hired its carpenter employees "through the union hall" because it was "required" to by the contract. 6119 NLRB 883. 6 See Funeral Directors of Greater St. Louis, etc., 125 NLRB 241 7 J. S. Brown-E . F. Olds Plumbing and Heating Corporation, 115 NLRB 594. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board involving the application of its closed-shop contract in various parts of the United States .$ In addition, its very contract here in question applies to the Company's construction projects throughout the country. 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 Respondent United Brotherhood of Carpenters and Joiners of America, Montana State Council of said organization, as well as Local 1172 thereof, and the officers, agents, representatives, successors, and assigns of each said Respondent, shall: 1. Cease and desist from : (a) Executing, performing, maintaining, or otherwise giving effect to provisions of any agreement or understanding with The Refinery Engineering Company, or Montana Contractors Association, Inc., and its employer members, or with any other employer whose operations affect commerce within the meaning of the Act, which conditions the hire of employees or the retention of their employment upon clearance or approval by any of the Respondent Unions or by any other labor organization, unless such referral system explicitly provides for the minimum safeguards stated in Mountain Pacific Chapter of the As- sociated General Contractors, Inc., et al., 119 NLRB 883. (b) Performing, manitaining, or otherwise giving effect to pro- visions of any agreement or understanding with The Refinery En- gineering Company or Montana Contractors Association, Inc., and its employer members, or with any other employer whose operations affect commerce within the meaning of the Act, which conditions the hire of employees upon membership in any of the Respondent Unions or subservience to its policies, or conditions the retention of employees in employment upon membership in any of the Respondent Unions or subservience to its policies, except to the extent that membership there- in as the condition of continuing in employment may be required on or after 30 days by an agreement permitted by the proviso to Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (c) In any like or related manner, restraining or coercing employ- es in the exercise of their rights guaranteed by Section 7 of the Act, including the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, and also the right to refrain from any or all 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 8 See cases cited in footnote 1; see also The H. K. Ferguson Company, 124 NLRB 544. BILLINGS LOCAL 1172 OF UNITED BROTHERHOOD, ETC. 311 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) Post at their respective offices in all locations where notices to members are customarily posted, and publish in their official publica- t»ns of general circulation among members, copies of the notice hereto attached marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, Seattle, Wash- ington, shall, after being duly signed by representatives of Brother- hood, Council, and Local 1171, respectively, be posted by them imme- diately upon receipt thereof, and be maintained by them for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily displayed in their respective offices. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by other material. Also the said notices after having been duly signed as directed above, shall be published by the Respondents respectively in the next succeeding issue of whatever publications are normally issued by them and distributed generally among their respective mem- berships. (b) Additional copies of the said notice herein marked "Appendix," to be furnished by the Regional Director for the Nineteenth Region, shall be signed by a representative of each Respondent and forthwith returned to the said Regional Director. These notices shall be posted, Refinery and Montana Contractors willing, in places where notices to employees of Refinery and members of Montana Contractors covered by Respondents' contracts found herein to have incorporated unlawful union-security provisions, are customarily posted. (c) Notify the Regional Director for the Nineteenth Region, in writing, within 10 days from the date of this Order, what steps have been taken in compliance. 0In 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." APPENDIX NOTICE TO ALL MEMBERS OF UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AND OF LOCAL UNIONS AFFILIATED WITH MON- TANA STATE COUNCIL OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, INCLUDING LOCAL 1172 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 members that : 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT, jointly or severally, execute, perform, maintain, or otherwise give effect to provisions of any agreement or under- standing with The Refinery Engineering Company, or Montana Contractors Association, Inc., and its employer members, or with any other employer whose operations affect commerce within the meaning of the Act, which conditions the hire of employees or the retention of their employment upon clearance or approval by any of us unless that agreement or arrangement explicitly provides that : (1) Selection of applicants for referral to jobs shall be on a nondiscriminatory basis and shall not be based on, or in any way affected by, union membership, bylaws, rules, regulations, constitutional provisions, or any other aspect or obligation of union membership, policies, or requirements; (2) the employer retains the right to reject any job applicant whom we may refer; and (3) all parties to the agreement or arrange- ment post in places where notices to employees and job applicants are customarily posted all provisions relating to the functioning of the hiring arrangement, including these provisions. WE WILL NOT, jointly or severally, enter into, maintain, or en- force any contract, agreement, understanding, or practice with The Refinery Engineering Company, Montana Contractors Asso- ciation, Inc., or any other employer over whom the Board will assert jurisdiction, which requires employees or prospective em- ployees to obtain job referrals or permits, or which unlawfully conditions the hire of applicants for employment or retention of employees in employment by such employers or any other em- ployer, upon clearance or approval by us, jointly or severally, except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT, jointly or severally, in any like or related man- ner, restrain or coerce employees or prospective employees of The Refinery Engineering Company, Montana Contractors Associa- tion, Inc., or any other employer, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as author- ized by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. Signed copies of this notice have been mailed to the National Labor Relations Board's Regional Director for the Nineteenth Region for posting by The Refinery Engineering Company and employer mem- bers of Montana Contractors Association, Inc., maintaining contrac- BILLINGS LOCAL 1172 OF UNITED BROTHERHOOD, ETC. 313 tual relations with us, the said employers willing, in all locations where notices to their employees are customarily posted. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) MONTANA STATE COUNCIL OF THE UNITED BROTHERHOOD OF 'CARPENTERS AND JOINERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) BILLINGS LOCAL No. 1172 OF UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly designated Trial Examiner of the National Labor Relations Board, herein called the Board, in Billings, Montana, on June 24 and 25, 1959, and in Great Falls, Montana, on August 13, 1959, on complaint of the General Counsel of the Board and answers respectively of the Respondents herein, namely: United Brotherhood of Carpenters and Joiners of America, herein called Brotherhood; Montana State Council of the Brotherhood, herein called Council; and Billings Local No. 1172 of the Brotherhood, herein called Local. The issues litigated were, in substance, whether the Respondents, respectively, violated Section 8(b)(2) and (1)(A) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, by the maintenance of bargaining contracts containing hiring hall and union-security provisions more restrictive than is permissible under the proviso to Section 8(a)(3) of the Act. General Counsel, Council, and Local each filed briefs. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS The Refinery Engineering Company, herein called Refinery, is a Delaware corpora- tion engaged in the construction of industrial type structures in various States and at times material herein, beginning in 1957, was engaged in the construction of an oil refinery plant at Laurel, Montana, near Billings, at a cost exceeding $2,500,000. Montana Contractors Association, Inc., herein called Montana Contractors, a Montana corporation existing as a chapter of the Associated General Contractors of America, herein called AGC, represents in collective bargaining its members who are engaged principally in heavy construction work, such as the building of industrial plants and commercial facilities in Montana. Its members, at times material herein, provided construction services valued in excess of $10,000,000. Billings Contractors Council, Inc., herein called Billings Contractors, a Montana corporation, represents in collective bargaining its members who are engaged prin- 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cipally in building construction and specialty installations in or near Billings, Mon- tana. Its members at times material hereto annually provided construction services valued in excess of $10,000,000. Refinery, Montana Contractors, and Billings Contractors are each of them em- ployers within the meaning of Section 2(2) of the Act whose operations affect com- merce within the meaning of section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Brotherhood, Council, and Local are, each of them, labor organizations within the meaning of the Act. Council, "organized under the laws and by the authority" of Brotherhood, has "all the powers and exercises all the authority conferred on State Councils" by Brother- hood. It is composed of "all local unions and district councils" chartered by Brother- hood in the State of Montana. At all times material herein, Council functioned as bargaining representative for members of constituent local unions in Montana engaged in heavy construction work. Local is chartered by Brotherhood and is a constituent member of Council. It also functions as collective-bargaining agent of its members. III. THE UNFAIR LABOR PRACTICES A. The contracts The validity of three bargaining contracts is essentially the issue here: (1) Brother- hood's contract with Refinery, executed about May 4, 1956, referred to at times as the International Agreement; (2) Council's contract with Montana Contractors, exe- cuted about June 4, 1956, referred to at times as the Labor Contract; and (3) Local's contract with Billings Contractors, executed about March 14, 1956, referred to at times as the Agreement. None of these contracts has been maintained since August 1958; all of them were maintained during all or some portion of the 6-month period preceding the filing of charges in this case. It is their maintenance during this period that is alleged to be violative of the Act. These contracts will be discussed seriatim. 1. Brotherhood's contract with Refinery The Board has already had before it and has passed on the validity of at least two bargaining contracts made by Brotherhood which are for all practical purposes iden- tical with the contract here in issue. In each case the Board found the contract un- lawful because it required the contracting employer "to employ members of the" Brotherhood. The Board construed this language as imposing closed-shop condi- tions. The same language appears here. I am bound by the Board's decisions and accordingly find that by maintaining its contract with Refinery during all or some portion of the 6-month period preceding the filing of the charge, Brotherhood vio- lated Section 8(b) (2) and (1) (A) of the Act. The Marley Company, 117 NLRB 107; Mechanical Handling Systems, Incorporated, 122 NLRB 396. Under these Board precedents, the maintenance of the contract is further violative of the said sec- tions of the Act because (a) it required Refinery to observe terms of Local's agree- ment with Billings Contractors, and hiring hall requirements of Council's contract with Montana Contractors, agreements containing union-security provisions violative of the Act, as will be noted in detail hereinafter; and (b) required Refinery to abide by the rules and regulations established by affiliated bodies "of the locality in which any work is being done," the said affiliated bodies here being Council and Local, and the said rules and regulations exceeding what is permissive under Section 8(a) (3) of the Act. See citations supra and Millwrights Local 2232, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al. (Farnsworth & Chambers, Inc.), 122 NLRB 300. The facts here, as in Mechanical Handling System, supra, according to Board precedent "reveal a single comprehensive scheme for complete evasion of the statu- tory ban on all closed shops." It may be noted, parenthetically, it is common knowledge in labor circles that this "single comprehensive scheme" has been main- tained, practically without molestation until recently, throughout the existence of Taft-Hartley, and while it did not thereby become immune to attack, it hardly be- hooves us to feign shock or indignation at this late date. Brotherhood's contract with Refinery was superseded by a new contract on or before August 1958, and this new contract presumably is in conformity with re- quirements of the Act since it is not here under attack. BILLINGS LOCAL 1172 OF UNITED BROTHERHOOD, ETC . 315 2. Council's contract with Montana Contractors, a chapter of the Associated General Contractors of America (AGC) This contract was negotiated by Council on behalf of local unions and district councils in the State of Montana, affiliated with the Brotherhood. The pertinent language of the hiring provisions of this contract, is: The employer shall notify the unions at least forty-eight (48) hours, exclud- ing Sunday and Holidays, of his needs for workmen . The unions will furnish an adequate supply of workmen in the classifications at the rates and under the terms specified herein, when and as requested by the employer. In the event that the unions are unable to furnish such qualified workmen within the speci- fied time, the employer may secure his men from whatever sources are avail- able to him. The General Counsel's contention is that this language sets up an exclusive hiring hall arrangement. It does not in any literal sense provide for exclusive hiring through the union, and there is no evidence establishing that it was construed by the contracting parties as setting up an exclusive hiring arrangement . The employer is required to notify the union within whose jurisdiction he is operating of his employ- ment needs , but in the event the union is unable to, or fails to meet these needs, the employer is free to hire from "whatever sources are available to him" and there is nothing in the contract or in the evidence to establish that employees thus recruited outside the hiring hall were required to obtain clearance through the union before being put to work. Nevertheless, the most reasonable, and in fact the only reason- able construction of the language of the contract is that only in the event the "unions are unable to furnish such qualified workmen within the specified time," is it permis- sible for the employer to "secure his men from whatever sources are available to him." I think this is enough to bring this contract under the Board's decision in Mountain Pacific, 119 NLRB 883, and because the contract does not provide the "safeguards" required by the Board in Mountain Pacific, it is, as the Board views it, violative of Section 8(b)(2) and (1) (A) of the Act. Assuming, arguendo, that there was no actual enforcement of this hiring provision in the contract, nevertheless, the contract itself, because it does not contain the safeguards prescribed by the Board, is, under Board precedent, violative of the said provisions of the Act.' Inasmuch as Brotherhood was also signatory to the contract, it is found that Council and Brotherhood by maintaining the said contract during the 6-month period prior to the filing of charges herein, or some portion thereof, violated Section 8(b) (2) and (1) (A). Turning now to the "memorandum of Agreement" attached to this contract and a part of it, executed by both Council and Brotherhood, we find that clause 6 reads: It is further understood that the policy of the U.B. of C. & J. of A. is that the Carpenters Local Union within whose jurisdiction the work is being performed, and who has members qualified to do piledriving work, that such members would be permitted to work on piledriving. The General Counsel contends that this clause provides for a closed shop but I am unable to agree. All this clause does is to state a policy of Brotherhood; it does not bind the employer to effectuate such a policy. If this is not a reasonable con- struction of the clause, its language is equivocal, and would require evidence of the intent of parties and/or practice under the contract, to support the General Counsel's position. The record contains no such evidence. Council's contract with Montana Contractors was terminated on or about April 30, 1958. 3. Local's contract with Billings Contractors This one may be disposed of somewhat cursorily, inasmuch as it expressly provides for a closed shop in the following clause: The party of the first part hereby agrees to employ only such members of the party of the second part who are in good standing with the party of the second part, or who shall signify their intentions to become members and make appli- cation for membership. Party of the second part agrees to hold employers harmless against any loss which may accrue to them in any manner through the operation of this paragraph. 1 Local 215, United Brotherhood of Carpenters, etc. (Associated Building Contractors of Lafayette, Indiana), 125 NLRB 94. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Attention is also directed to article X , section 1 , of the Local's bylaws and trade rules: When a non-union man comes on the job he may be permitted to work pro- viding he gives a cash guarantee that he will join the Local Union , but if he is unable to furnish at least $10.00, he shall give the Financial Secretary -Treasurer an order for the full amount on the contractor to be collected on the following two pay days, provided that the Local Union may extend the time for good and sufficient reasons. and article XIII, section 9: The Steward shall examine and satisfy himself that every carpenter on the job has the current quarterly working card and Building Trades Card and also require him to write his name and address on the blank furnished by the local Union for that purpose which may be procured from the Business Agent or at the Union Hall. Every member starting on the job must seek the Job Steward at once and comply with the provisions of this section. I agree with the General Counsel that these "internal " laws of Local, and section 16(a) of Council's constitution and bylaws , if and when effectuated are "more restrictive than is permitted by the proviso to Section 8(a)(3)" of the Act, thereby infringing rights of employees under Section 7 of the Act who are employed by con- tractors bound by the Brotherhood's contract with refinery, and that they provide at least some of the "sense and substance " of the jurisdiction claims which Brother- hood's contract required Refinery to recognize. Local having made a settlement agreement with the General Counsel with respect to its contract with Billings Contractors, the findings above are in amplification of findings and conclusions previously made with respect to Brotherhood. B. The charges Council urges in its brief that with respect to Council there is a "fatal variance" between the charge and the complaint in this case. The first charge initiating this proceeding was filed February 17, 1958, by a mill- wright, Anthony Ocepek, employed by Refinery at Laurel, Montana. It alleged that Local caused him to be removed from his job "pursuant to the provisions of an illegal union security contract which contained exclusive hiring and dispatching provisions or arrangements all in violation of the Act." The charge does not specify what "illegal security contract" it refers to, and makes no allegation with respect to either Council or Brotherhood. Were we considering a complaint based on this first charge, obviously there would be a fatal variance with respect to Council, and Brotherhood as well, inasmuch as they could not properly be joined as respondents on the basis of such a charge.2 The consolidated complaint, however, did not issue on the original but on an amended charge, and on an original charge against Brotherhood. The amended charge, filed April 14, 1958, after repeating that the Local caused Ocepek to be removed from his job with Refinery, alleges further: That the above described act against Anthony Ocepek was taken by said Local No. 1172, pursuant to the provisions of an illegal hiring, dispatching, and clearance clause in a collective bargaining agreement between Montana Con- tractors Association Inc. and Montana State Council of Carpenters , acting for and on behalf of said Local Union No. 1172 and other affiliated district councils and local unions, which provisions were incorporated by reference in a national collective bargaining agreement between said company and the United Brother- hood of Carpenters and Joiners of America, AFL-CIO, all in violation of Sec- tion 8(b) (1) (A) and 8 (b) (2) of said Act. The said Local Union No. 1172 is and has been a party to an illegal collective bargaining agreement with the Billings Contractors Council which illegally conditions employment by its members companies on membership in said Local Union No. 1172 in violation of Section 8(b)(1)(A) and (2) of said Act. Also on April 14, Ocepek filed an original charge alleging that Brotherhood: is and has been a party to a national collective bargaining agreement with the Refinery Engineering Company, which illegally requires membership in 2 The General Counsel inferentially concedes that the complaint may not properly run against a party not named in the charge upon which the complaint is based. Thus, he admits that no remedial order may run against any of the local unions represented by Council except Local 1172 because only Local 1172 is named in the charge. BILLINGS LOCAL 1172 OF UNITED BROTHERHOOD, ETC. 317 affiliated local unions of said International Union in local areas where said com- pany is engaged in construction projects as a condition of employment with said company and that said national agreement further requires said company to adhere to similar illegal hiring referral and clearance procedures contained or provided for by collective bargaining agreements and/or other illegal hiring arrangements promulgated or established by them in their respective local areas, all in violation of Section 8(b)(1),(A ) and Section 8(b)(2) of the Act. From the foregoing it is seen that the amended charge specifically and unequivo- cally names Local as violating the Act by being a party to an unlawful contract with Billings Contractors. The original charge filed against Brotherhood on the same date as the amended charge, also specifically and unequivocally charges Brotherhood with violations of the Act because of its contract with Refinery. No such specific and unequivocal allegation appears in the amended charge with respect to council . Council is not actually named in the amended charge as having committed any unlawful acts. The allegation is that Local in causing Ocepek's discharge acted pursuant to unlawful hiring and dispatching provisions in Council's contract and that the said provisions were incorporated in Brotherhood's contract with Refinery "all" in violation of the Act. Paragraph two of the charge in which this allegation is made is no model of clarity, but it may be argued with some per- suasiveness that if it was the intent of the Charging Party to name Council as having engaged in unfair labor practices by maintaining an unlawful contract, this would have been spelled out in the same specific and unequivocal language which charges Local and Brotherhood with violations because of their respective contractual relationships with employers . The concluding phrase of paragraph two obviously was not considered sufficient to hold the Brotherhood and an original charge was filed against it. It hardly suffices to say that Ocepek, being a millwright , could not be expected or required to spell out his charge with the specificity to satisfy a Phila- delphia lawyer, because it is my assumption, and one that I do not expect to have disputed, that 'Ocepek did not himself prepare the text of any of the charges bearing his signature. To say the least, then, the allegation with respect to Council is somewhat am- biguous. From this flows Council's argument in its brief that Council and its contract with Montana Contractors having been named in the charge only in con- nection with the allegedly unlawful action taken by Local with respect to Ocepek, and the case against Local having been settled and no evidence having been received thereon, the charge is extinguished with respect to Council and therefore cannot lawfully ground a complaint naming Council as a Respondent in this proceeding. It is true that Ocepek's alleged discharge was not litigated in this proceeding. Ocepek did not testify; there is no evidence with respect to him; and therefore no basis for a finding that he was discharged or denied employment pursuant to the terms of Council's contract, as alleged in the amended charge, or any other con- tract for that matter. A settlement agreement executed by Local with respect to Ocepek and Local's contract with Billings Contractors and approved by the General Counsel , took Ocepek out of the case. In short, there is no evidence in this case that Local caused Ocepek to be removed from his job "pursuant to the provisions of an illegal agreement between Montana Contractors Association , Inc. and Montana State Council of Carpenters, etc." The real question therefore is whether the General Counsel having "got his foot in the door" by virtue of Ocepek's amended charge, can proceed against Council regardless of the disposition of Ocepek's case and despite the fact that Council is not specifically named in the charge as having committed an unfair labor practice. Whatever doubts I have in the matter, and I have some, are resolved adversely to Council's position largely because of the great latitude granted the General Counsel by the Board and the courts in enlarging the scope of the complaint beyond the allegations appearing in the charge so long as there is a reasonable relationship between such enlargements and additions and the substance of the charge. There is no need to take up space here with quotations from decisions holding that a charge merely initiates a proceeding and that if upon investigation the General Counsel unearths additional matters reasonably related to the charge these may also be incorporated in the complaint. I have little doubt that inasmuch as the amended charge makes mention of Council 's contract as providing the ground for unlawful action taken by Local, the Board will find that the General Counsel, irrespective of the disposition of the case with respect to Ocepek and Local, can properly train his guns on Council's contract and hold Council accountable for it. The second prong of Council 's two-pronged argument on the charges is in sub- stance, as I understand it, that matters appearing in the amended charge and the original charge against Brotherhood have so little relation to Ocepek 's initial charge 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as to be invalid. There is no restriction on the filing of amended charges and while it is assumed that there is a relationship between an amended charge and the charge it amends, obviously the scope of the former may greatly exceed that of the latter. I think what Council really is arguing is that matters appearing in the amended charge and the original charge against Brotherhood are remote from what may reasonably be regarded as Ocepek's interest in filing a charge in the first place, and in reality were authored not by Ocepek but by the General Counsel. It is not questioned that Ocepek signed each of the three charges in question and no one has contended that he was in any way "pressured" into affixing his signature thereto. We may speculate on whether Ocepek, a millwright who had lost his job and doubtless wanted to get it back with some compensation for time lost and some assurance that he would not again be ousted under the same or similar circum- stances, had any idea in filing his initial charge of starting a one-man crusade against all the contractual involvements of the Brotherhood and its affiliated unions in the State of Montana and as far away as Perth Amboy, New Jersey. In fact we may do a little more than speculate in view of the settlement with the Local which apparently gave Ocepek all that he wanted, and he straightway withdrew from the case. Such speculation, however, leads only to a dead end. I think it is well known to the Board, which exercises joint control with the General Counsel over its Regional Offices, that when a person articulates a desire to file a charge alleging an unfair labor practice, the facilities of the Board's offices and personnel are at his disposal in the preparation and appropriate wording of the charge which he wants to file. I think it is also well known that if in their investigation of the charge, the Board's agents conclude that the charge might well be rendered more specific or enlarged upon by the inclusion of additional related matters, this may be and usually is called to the attention of the Charging Party and he is afforded an opportunity to amend his original charge, again with the assistance and advice of Board personnel . Doubtless there are limits to such "services" rendered by Board personnel to persons filing or wishing to file charges, and those limits certainly lie this side of coercion , deception, intimidation, and the like. Nobody claims that anything of that sort occurred here and I am sure that it did not. But just precisely where those limits lie I do not know; possibly this side of persuasion, even though such persuasion be entirely free of any taint of intimidation. The only question of substance raised here is whether Ocepek actually "initiated" the filing of the amended charge and the charge against Brotherhood, both filed some 2 months after the initial charge, or whether in actuality, although Ocepek's signature is affixed thereto, the General Counsel initiated these additional matters in order to launch a full-scaled attack on Brotherhood 's contractual commitments in Montana and elsewhere. Assuming as I did that these enlargements on and ex- tensions to Ocepek's initial charge against Local , resulted from the investigation of the initial charge, and were included in the amended charge and the charge against Brotherhood at the General Counsel 's suggestion, and assuming further that such action was in accord with practice of long standing and well known to the Board, I saw no reason to burden this record with evidence which could do no more than reveal such facts .3 C. The settlement agreements 1. With respect to Local Paragraph XV of the complaint alleges: Local 1172 and Ocepek executed a settlement agreement dated August 26, 1958, and an amended settlement agreement dated April 28, 1959, which were ap- proved by the undersigned Regional Director on September 15, 1958 and April S The extent to which the General Counsel regards the filing of a charge of discrimina- tion as a springboard from which to launch an attack on contracts deemed by him to be violative of the Act, appears in a document dated January 9, 1956, addressed to Regional Directors and Officers-in-Charge but distributed generally among Board personnel, includ- ing Trial Examiners : A resume of advice given in the attached cases is submitted for your information and guidance . You will note that underlying the advice given is the policy to issue complaint, absent settlement, in cases where investigation of a proper charge dis- closes contract provisions on their face illegal under the Act. Such attack will be made despite the absence of specific reference to the contract provision in the charge, and even though (1) you have been unable to obtain an amendment of the charge and (2) the individual discrimination charges of the case lack merit. BILLINGS LOCAL 1172 OF UNITED BROTHERHOOD, ETC . 319 29, 1959, respectively, which operated to settle and remedy any unfair labor practice of Local 1172 in discriminating against Ocepek individually, and in having maintained its collective bargaining agreement with Billings Contractors dated March 14, 1958 until that "Agreement" was terminated on May 21, 1958. The only issue here is whether these settlement agreements were coextensive with the charges filed against Local, or whether, as contended by the General Counsel, they did not operate to extinguish Local's liability with respect to the contract made by Council on behalf of various local unions including Local 1172. Referring back to the amended charge, it is again noted that it alleged (1) that Local caused dis- criminatory action to be taken with respect to Ocepek under Council's contract, and was a party to an unlawful agreement with Billings Contractors. As conceded, the settlement agreement extinguished the charge with respect to discrimination practised against Ocepek individually, and the charge of unlawful agreement with Billings Contractors. Did it also-as urged by Local-extinguish the charge against Local with respect to Council's contract under which it was alleged the discrimina- tion against Ocepek occurred? Again it is noted that the charge does not specifically allege that Local's involve- ment in that contract was independently violative of the Act though it did specifically allege an independent violation because Local was a party to a contract with Billings Contractors. It may be argued therefore that the settlement agreement which admittedly extinguished the charge of discrimination against Ocepek extinguished everything that was specifically charged against Local with respect to Council's contract. However, it will again be assumed-as it has been heretofore with respect to Council-that the charge was sufficient to ground a complaint running against Local as a party to Council's contract independently of any action taken against Ocepek individually, and we look to the language of the settlement agreements to determine if they are in fact coextensive with the charge thus given its broadest construction. The amended settlement agreement executed April 2, 1959, and approved by the Regional Director April 30, 1959, provided for a lump sum payment by Local to Ocepek and the posting of notices by Local containing the usual remedial clauses with respect to Ocepek, and also the following language: WE WILL NOT perform, maintain, or give effect to the provisions of any agreement or practice with Billings Contractor Council, Inc., its member com- panies, or any other employer whose operations affect commerce, which un- lawfully conditions the hire of applicants for employment , or the retention of employees in employment upon clearance or approval by this labor organization, or upon membership therein except as authorized by Section 8(a)(3) of the Act. [Emphasis supplied.] The agreement also contained this clause: The Regional Director's approval of this Amendment Settlement Agreement does not signify National Labor Relations Board approval of the terms and conditions of any agreement or arrangement which the parties thereto may execute, enforce or maintain in futuro. Finally, as concerns us here, the agreement contains this language: Contingent upon compliance with the terms and provisions hereof, no further action shall be taken in the above case on the issues here settled. [Emphasis supplied.] No contention is made that Local has in any way failed in "compliance with the terms and provisions" of this settlement agreement, has engaged in any activity subsequent to the approval of the Agreement which would justify "opening it up" and setting it'aside, or that we are here asked to take action with respect to agree- ments or arrangements enforced or maintained "in futuro" within the meaning of this term as used in the settlement agreement. It is possible that the addition in typewriting to a standard printed form of the words "on the issues here settled," as quoted and italicized above, was meant to reserve to litigation the issue of Local's participation in Council's contract, but there is no evidence on the point. It appears to me that the language of the notice which Local was required to post under the settlement agreement, while it makes no specific mention of Council's contract, is unquestionably broad enough to cover Local' s involvement in that as well as any other bargaining contract to which it was a party, and I can only con- clude that this agreement on its face is coextensive with the charges filed against Local. Accordingly, I shall recommend dismissal of the complaint with respect to Local. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. With respect to Employers Settlement agreements pursuant to charges by Ocepek were executed respectively by The Refinery Engineering Company, Billings Contractors Council, Inc., and Montana Contractors Association, Inc., the three employers who were parties to contracts here alleged to have been unlawfully maintained by the Respondents. These agreements were approved by the Regional Director and presumably were deemed coextensive with the charges since otherwise it is reasonably assumed that these employers would have been joined as respondents under a consolidated com- plaint. The settlement agreements required the posting of notices customary where employers are charged with maintaining contracts containing unlawful union-security clauses. It is only indirectly and with respect to appropriate remedial action that we are interested in these settlement agreements, and there is no need to set them forth in detail, it being sufficient to note that none of them required the application of the Board's Brown-Olds reimbursement remedy, or any part of it. J. S. Brown-E. P. Olds Plumbing & Heating Corporation, 115 NLRB 594. 3. With respect to Brotherhood and Council There was extensive correspondence between a field examiner of the Board and the Respondents herein with respect to settlement agreements which when and if approved by the Regional Director would serve to extinguish the charges then pending against the Respondents. The agreement and amended agreement utlimately made by Local and Ocepek and approved by the Regional Director has already been referred to in some detail. It is needless to explore the settlement agreements pro- posed by the Board's agent with respect to charges against Council and Brotherhood, further than to note that repeated warnings were given that if Council and Brother- hood did not execute the proposed agreements they would run the risk of having the Brown-Olds reimbursement remedy imposed on them as a result of litigation. In short, none of the proposed agreements, with the exception of the one executed by Local, called for a reimbursement remedy, and their proffer by an agent of the Board, stripped to its essentials, was: execute these settlement agreements without the re- quirements of a Brown-Olds reimbursement, or take your chances of having this remedy imposed on you by the Board. I think it is fair to state that the proposed agreements were no more drastic than were those executed by the several Employers involved. Neither Brotherhood nor Council executed the proposed agreements, however, and the agreement executed by Local did not require the application of a Brown-Olds remedy. D. Correspondence re application of Brown-Olds reimbursement remedy By letter dated February 7, 1958, General Counsel Jerome D. Fenton addressed Richard J. Gray, president, Building Construction Trades Department , AFL-CIO, as follows: As you know, the Board , commencing with the Brown-Olds case, 115 NLRB 594, has held that , where illegal hiring arrangements exist, either pursuant to a contract or practice, the appropriate remedy, in addition to the usual remedial provisions, requires the reimbursement of all moneys, including initiation fees, dues, permit fees , assessments, "dobies," and the like, collected pursuant to such arrangements . The purpose of the Board in applying the so-called Brown- Olds reimbursement remedy is to effectuate the policies of the Act by, among other things, prevailing upon employers and unions to correct their illegal hiring arrangements. It would be preferable , of course, if the parties took it upon themselves to correct their illegal hiring arrangements, thereby achieving the same basic purpose sought by the Board but without the necessity of Board action. Such over-all elimination of illegal hiring arrangements , by voluntary action, would not only help effectuate the purposes of the Act, but would clearly be an important step in the general public interest and in the furtherance of the fundamental rights of employees. With this thought in mind , I would like to suggest that during a period of three months , commencing March 1 , 1958, employers and unions , who are party to illegal hiring arrangements , vigorously undertake to correct such arrangements by bringing them into compliance with the provisions of the Labor Management Relations Act of 1947 . If this is done, it may warrant the disposition , without full application of the Brown-Olds reimbursement remedy, of charges based upon illegal hiring arrangements which have been voluntarily conformed to the provisions of the Act during the period prior to BILLINGS LOCAL 1172 OF UNITED BROTHERHOOD, ETC. 321 June 1 , 1958. It will also warrant my recommending to the Board during such period a similar disposition of cases currently pending or brought before the Board with respect to such illegal hiring arrangements. It is understood, however, that apart from the non-application of Brown-Olds reimbursement remedy, all charges and cases relating to or arising out of illegal hiring arrange- ments must be processed in normal fashion although such arrangements may have been corrected during the period prior to June 1, 1958. The Office of the General Counsel will be pleased to cooperate with employers and unions in this matter. By letter dated April 15, 1958, Gray referred to the Board's Mountain Pacific decision (119 NLRB 883), and requested that the General Counsel extend to September 1, 1958, the moratorium on application of Brown-Olds previously an- nounced. The General Counsel by letter dated April 21, 1958, replied: This is in reply to your letter of April 15, 1958, dealing with the matter of illegal union-security and hiring clauses and practices in the Building and Construction Industry. In your letter you request that we extend until Sep- tember 1, 1958, the period during which this Agency will withhold application of the Brown-Olds reimbursement remedy so that employers and unions may complete arrangements to bring hiring practices and clauses into conformity with the provisions of the Labor Management Relations Act, 1947. For the reasons stated in your letter of April 15, 1958, and in view of the actions thus far taken by the interested parties, we are agreeable to an extension to September 1, 1958, in order that you may complete the revision of clauses and practices necessary to conform with the requirements of the Act. Finally, by letter to Gray dated August 19, 1958, the General Counsel stated: On February 7, 1958, this Agency announced that during the period from March 1 to June 1, 1958, it would withhold full application of the Brown-Olds reimbursement remedy where employers and unions voluntarily bring their union-security and hiring arrangements into conformity with the provisions of the Labor-Management Relations Act of 1947, as amended. On April 23, 1958, the period during which this announced policy would apply, was extended to September 1, 1958. This extension was based, in part, on the vigorous under- taking by a large number of unions and employers to comply with the above policy and on the desire to provide the parties with a sufficient opportuntiy to review their agreements in light of the Board's decision in Mountain Pacific Chapter of The Associated General Contractors, Inc., (119 NLRB No. 126-A, released April 1, 1958, which established certain legal requirements for exclusive hiring arrangements,) and to complete their negotiations in an orderly and in- formed manner. In supplementation of the foregoing and, in accord with our announced desire to cooperate with and to assist the parties in whatever way possible in this matter, the Office of the General Counsel recently issued a statement with regard to union hiring halls and referral systems in which comment was made on various questions which had been raised by unions, employers and other interested parties as to the scope and implications of the Board's Mountain Pacific decision. Since the issuance of that statement we have received numerous communi- cations which demonstrate that many employers and unions are still in the process of renegotiating their agreements in an attempt voluntarily to conform such agreements with the Act but, that due to unavoidable delays inherent in such negotiations, and the complex problems involved, appropriate new agree- ments, in many instances, will not be executed by September 1. Under all the circumstances, we have determined that no general extension of the policy of withholding the full application of the Brown-Olds remedy be- yond September 1 is warranted. However, where the parties have initiated steps and have made genuine efforts to correct their union security and hiring arrangements prior to the September 1 deadline, the full application of the remedy may be withheld provided that conformity with the ACT is achieved by November 1, 1958. You may be assured of our continued cooperation with your efforts to conform your union security and hiring arrangements to the requirements of the Act. Admittedly, all of the agreements here attacked as having been unlawfully main- tained within the 6-month period preceding the filing of a charge, were brought 597254-61-vol. 130 22 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into compliance with the Act well before the deadline of September 1, 1958, set in The General Counsel's correspondence with Gray. I believe it is common knowledge that the Respondents are affiliated with Gray's organization. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of the Employers described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor prac- tices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that Brotherhood and Council maintained within the 6-month period preceding the filing of charges contracts containing unlawful hiring hall and union-security provisions, it will be recommended that they cease and desist from such practices and post and publish certain notices designed to effectuate the policies of the Act. Such "remedial" action is required by long-established and court ap- proved Board policy though admittedly the contract provisions complained of have been eliminated. Though the litigation proceeded on the theory that a Brown-Olds remedy would be demanded by the General Counsel, the General Counsel does not now seek the ,application of a disbursement remedy. I am aware that the General Counsel has no authority to bind the Board with respect to remedy at the post-litigation level,4 but that does not mean that the General Counsel's recommendations in the matter are not entitled to consideration and, where circumstances warrant it, weight. Where ,charges have been filed but no complaint issued, the General Counsel in arriving at settlement agreements with parties charged with the commission of unfair labor practices, apparently is free of Board restraint in his determination of what measures are required to effectuate the policies of the Act. The matter of remedy is not there- fore the exclusive province of the Board at all levels, unless we regard informal settlement agreements the province of the Board rather than that of the General Counsel. I would not understand how in the effectuation of a public policy-a matter in which the General Counsel presumably is as much concerned as the Board-we can reasonably ignore the position of the General Counsel where he has incorporated his views on an appropriate remedy in settlement agreements with parties charged with the commission of unfair labor practices based on precisely the same factual situation present here. The General Counsel and the Board are two organs of the same body, and while in terms of litigation one fills the role of prosecutor and the other that of judge, there are wide areas in which the demarcation in their respective roles is not so distinct. The several settlement agreements relating to the same contracts and practices for whose maintenance Brotherhood and Council are here found in violation of the Act, required no application of a Brown-Olds remedy. With respect to these agree- ments the General Counsel's determination that they were all that was required to effectuate the policies of the Act, must prevail. The settlement agreements prof- fered Brotherhood and Council, and urged on them by the Board's Regional Office, required no application of a Brown-Olds remedy. Brotherhood and Council refused to execute the proffered agreements, preferring that the issues with respect to them be litigated, but we are not involved here in an application of criminal law where a plea of guilty may bring a lighter sentence, nor a civil suit between private parties where the rule of mitigation of damages applies. Nor are we dealing here with a case where there were no charges filed except as to the Respondents herein and where, therefore, the processes of this Agency were not set in motion with respect to other parties to the unlawful maintenance of contracts. The several employer-parties to the contracts, and Local, also a party to the maintenance of unlawful union-security provisions, having escaped the application of a Brown-Olds remedy by virtue of informal settlement agreements, and the Board now being bound to recognize and give effect to those agreements, the application of a Brown-Olds remedy against Brotherhood and Council certainly would have the appearances of a penalty imposed on them for resorting to litigation This may well be a layman's eyeview of the situation rather than a lawyer's, and bearing in mind that public policy considerations are paramount in the framing of an appropriate remedy, I do not intend to explore here the fine legal distinctions defining "penalty," "punitive," "equitable estoppel," etc., in cases where public policy is not the paramount consideration. In any event, ' Consolidated Construction Company, Inc., 124 NLRB 1131. BILLINGS LOCAL 1172 OF UNITED BROTHERHOOD, ETC. 323 I find an even more compelling barrier to the imposition of a Brown-Olds remedy in the exchange of correspondence between the General Counsel and Gray. In this correspondence Gray, in his representative capacity for the building trades unions, was explicitly promised a moratorium on the application of a Brown-Olds remedy provided the unions affiliated with his organization brought their contracts into compliance with the Act within a stipulated period. There is nothing in these letters which could be construed as relating only to contracts of the Mountain Pacific variety; they referred to whatever hiring hall or union-security arrangements were then incorporated in contracts between the building trades unions and employers, without limitation. The Board was not signatory jointly with the General Counsel in this exchange of correspondence, but it is noted that while in the letter dated February 7 the General Counsel spoke in terms of "recommending to the Board" the aforementioned moratorium, in subsequent letters dated April 15 and 21, re- spectively, he purported to speak for the Agency. The Board is just as much a part of the Agency as the General Counsel. There can be little doubt that the recipients of these letters would reasonably conclude, in absence of some public or private dis- avowal by the Board, that they had been promised immunity to the application of Brown-Olds by the Agency, if they complied with the requirements contained in the letters. The content of these letters was widely publicized .5 I do not, of course, purport to know just precisely what was the Board's position in the matter at the time the correspondence between Gray and the General Counsel occurred, but I note that in its brief filed with the United States Court of Appeals for the District of Columbia in International Brotherhood of Teamsters, Local 357, etc, (Los Angeles-Seattle Motor Express, Incorporated), 121 NLRB 1629, the Board states at footnote 59: ". . . petitioner makes much of the fact that the Board order in Mountain Pacific, supra, did not include any disbursement remedy. The simple answer is that the Board was going along with the `moratorium' policy at the time and did not utilize the remedy in a Mountain Pacific type of case until the instant case, at the close of the `moratorium' period." 6 Needless to repeat, all the contract provisions here under attack were eliminated or brought into compliance with the Act before the close of the moratorium period. All of these matters, in my opinion, have such a direct and intimate bearing on the shaping of a remedy consistent with sound and fair public policy, that I have deemed it my duty as a Trial Examiner to set them forth in some detail, particularly inasmuch as they explain why I am following the General Counsel's recommenda- tions with respect to remedy. I am aware that the Board has applied a Brown-Olds remedy in cases whose factual situations are substantially identical with the case at bar, but in reading such of these decisions as have come to my notice I am unable to tell whether factors here deemed crucial have been urged or considered. I have, therefore, felt constrained to apply my own judgment in the matter.? Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Refinery Engineering Company; Billings Contractors Council, Inc.; and Montana Contractors Association, Inc., are, each of them, employers within the The Respondents were repeatedly warned by a field examiner of the Board's Regional Office, that if they did not execute the proposed settlement agreements they would risk the application of a Brown-Odds remedy by the Board. Unless he be regarded as an agent of the Board, the field examiner's warnings could not reasonably be construed as stating the Board's official position in the matter of the moratorium. At most they would indi- cate that the General Counsel would press for an application of Brown-Odds contrary to his commitments to Gray. I should think that having brought the contracts in question into compliance with the Act well within the period stipulated by the General Counsel, the Respondents were justified In insisting on a litigation of the issues inasmuch as the warnings ran counter to commitments made directly to them by the General Counsel who purported to speak for the Agency. Of course, the qualifying word "full" as used In the General Counsel's letters may have been meant for an escape hatch. 9 The footnote continues • "In any event, surely abstention from imposition of an appropriate remedy in one case is no basis for an argument that the remedy may not be applied In another case where it is appropriate, and where a fair warning of its imposi- tion has been announced in advance " 7Inasmuch as I recommend no disbursement remedy, I have made no findings on the matter of precisely when each of the unlawful contracts was superseded or terminated further than to find that the illegal hiring hall and union-security provisions were main- tained during at least some portion of the 6-month period preceding the filing of the charge, and all were superseded or terminated prior to September 1, 1958. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Brotherhood, Council, and Local are, respectively, organizations within the meaning of Section 2(5) of the Act. 3. By maintaining agreements with The Refinery Engineering Company and Montana Contractors Association, Inc., containing hiring and other union-security clauses more restrictive than is permissive under the proviso to Section 8(a) (3) of the Act, Brotherhood and Council, respectively, have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 4. By the maintenance of the said agreement , Brotherhood and Council have interfered with, restrained, and coerced employees in the exercise of rights guar- anteed them in Section 7 of the Act and have thereby engaged in unfair labor prac- tices within the meaning of Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Local 511, St. Louis Offset Printing Union, AFL-CIO, and John H. Myers, International Representative, International Printing Pressmen and Assistants Union, AFL-CIO [Mendle Press, Inc.] and Local 5, Amalgamated Lithographers of America. Case No. 14-CB--865. February 16, 1961 DECISION AND ORDER On November 9, 1960, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. 1 Respondents have excepted to the credibility findings of the Trial Examiner. We do not overrule a Trial Examiner's resolutions of credibility except where the clear pre- ponderance of all the relevant evidence convinces us that the Trial Examiner 's resolution was incorrect. No such conclusion is warranted in this case , We therefore adopt the Trial Examiner's credibility findings. Standard Dry Wall Products, Inc, 91 NLRB 544. We find the remarks made by Respondent Myers, as credited by the Trial Examiner, to be coercive without regard to any presumed inability of Respondents to carry out these threats. United Furniture Workers of America, Local 809, CIO, at al. (Smith Cabinet Manufacturing Company, Inc.), 81 NLRB 886 , at footnote 3; and Melvin Rupp, d/b/a Rupp Equipment Company, 112 NLRB 1315. 130 NLRB No. 21.