Local 490, Int'l Hod Carriers Building, Etc.

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT ask you if you signed union cards, or why you signed them, nor ask you to revoke the cards, nor supply you with forms to revoke your union cards in order to discourage you from joining or supporting the Seafarers International Union of North America, Atlantic & Gulf District, AFL-CIO, or any other union. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your right to self-organization, to form labor organizations, to join or assist the Seafarers Interna- tional Union of North America, Atlantic & Gulf District, AFL-CIO, or any other labor organization, to bargain collec- tively through representatives of your own choosing, and to en- gage in union or other concerted activities for the purpose of collective bargaining or other mutual aid and protection, or legally to refrain from such activities. All of you are free to become, remain, or refrain from becoming or remaining members of any union, or other labor organization, ex- cept to the extent that this right is affected by a bargaining agree- ment that conforms with Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC., Employer. Dated---------------- By------------------------------- ------ (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Local 490, International Hod Carriers Building and Construc- tion Laborers Union, AFL-CIO, and J. Carl Dicus, Sr., Busi- ness Agent (Dickmann-Pickens-Bond Construction Company) and Arthur Block and James White and Oree Jefferson and Magness S. Ward. Cases Nos. 26-CB-72, 26-CB-73, 26-CB-74, and 26-CB-77 (formerly 32-CB-712, 32-CB-73, 32-CB-74, and 32-CB-77, respectively). February 16, 1961 DECISION AND ORDER On July 24, 1959, Trial Examiner Eugene E. Dixon issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents, Local 490 and its business agent, J. Carl Dicus, Sr., had engaged in and were engaging in unfair labor practices in viola- tion of Section 8(b) (1) (A) and (2) of the Act and recommending that they cease and desist therefrom and take certain affirmative action, 130 NLRB No. 27. LOCAL 490, INT'L HOD CARRIERS BUILDING, ETC. 381 as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Re- port 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 these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, except as noted below.' ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondents, Local 490, International Hod Carriers Build- ing and Construction Laborers Union, AFL-CIO, its officers, repre- sentatives, successors, assigns, and agents, including the Respondent, J. Carl Dicus, Sr., shall: 1. Cease and desist from : (a) Causing or attempting to cause Dickmann to discriminate against Oree Jefferson or any other employee or applicant for em- ployment, in violation of Section 8(a) (3) of the Act. (b) Entering into, maintaining, or otherwise giving effect to any arrangement or practice with Dickmann, or with any other employer, whereby employees or applicants for employment are required to obtain work permits or clearance from Respondents as a condition of employment. (c) In any other manner restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify Dickmann-Pickens-Bond Construction Company and Oree Jefferson, in writing, that they have no objection to Jefferson's employment. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records, reports, out-of-work 1 The Respondent's request for oral argument is hereby denied as the record, including the exceptions and brief, adequately presents the issues and positions of the parties 2 Contrary to the Trial Examiner and in accordance with our usual practices, we shall not impose any liability upon the Respondent, J. Carl Dicus, Sr , business agent of the Union, for backpay or to reimburse any employee for moneys unlawfully exacted. We shall also limit the Union 's liability for moneys unlawfully exacted from employees to the period beginning 6 months before the filing and service of charges herein. Member Jenkins, for the reasons stated by him in his separate concurrence and dissent in Shear's Pharmacy, Inc., 128 NLRB 1417, and his dissent in Southeastern Plate Glass Company, et al, 129 NLRB 412, does not join in the application of the Brown-Olds re- imbursement remedy in this case 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lists, and other documents necessary to analyze the amounts of moneys due under the terms of this Order. (c) Post in the Respondent Union's business offices and meeting halls, copies of the notice attached hereto marked "Appendix." Copies of said notice, to be furnished by the Regional Director for the Twenty-sixth Region, shall, after being duly signed by an authorized representative of the Respondent Union and by the Respondent Dicus, be posted by said Respondents immediately upon receipt hereof, 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 posted. Reasonable steps shall be taken by the Re- spondents to insure that the said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the Twenty-sixth Region signed copies of the notice attached hereto marked "Appendix," for posting at the offices of Dickmann-Pickens-Bond Construction Com- pany and project sites where the said Company is engaged in business within the territorial jurisdiction of the Respondent Union, in places where notices to the Company's employees are customarily posted, the said Company willing. (e) Notify the Regional Director for the Twenty-sixth Region, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith. B. The Respondent, Local 490, International Hod Carriers Build- ing and Construction Laborers Union, AFL-CIO, shall make whole Oree Jefferson for any loss of earnings he may have suffered because of the discrimination against him, in the manner set forth in the sec- tion of the Intermediate Report entitled "The Remedy," and refund to all present and former employees of Dickmann-Pickens-Bond Con- struction Company at its Oak Lawn project at Hot Springs, Arkansas, all moneys unlawfully exacted from them, including initiation fees and dues, as a result of the illegal hiring arrangement with that Com- pany during the period beginning 6 months before the filing and serv- ice of the charges herein. CHAIRMAN LEEDOM and MEMBER FANNING tOOk no part in the con- sideration of the above Decision and Order. APPENDIX NOTICE To ALL EMPLOYEES OF DICKMANN-PICKENS-BOND CONSTRUO- TION COMPANY; AND TO ALL APPLICANTS FOR EMPLOYMENT 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 give notice that : LOCAL 490, INT'L HOD CARRIERS BUILDING, ETC. 383 WE WILL NOT cause or attempt to cause Dickmann-Pickens- Bond Construction Company to discriminate against Oree Jeffer- son, or any other employee or applicant for employment, in viola- tion of Section 8(a) (3) of the Act. WE WILL NOT enter into, maintain, or otherwise give effect to any arrangement and understanding with Dickmann-Pickens- Bond Construction Company, or with any other employer, where- by employees or applicants for employment are required to obtain work cards or clearance from us as a condition of employment. WE WILL NOT in any other manner restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. LOCAL 490 WILL make whole Oree Jefferson for any loss of earnings he may have suffered because of the discrimination against him. LOCAL 490 WILL refund to all present and former employees of Dickmann-Pickens-Bond Construction Company, at its Oak Lawn Park project, Hot Springs, Arkansas, project, all moneys unlawfully exacted from them, including initiation fees and dues, as a result of our unlawful hiring arrangement with that Company. WE WILL notify Dickmann-Pickens-Bond Construction Com- pany and Oree Jefferson, in writing, that we have no objection to Jefferson's employment. (J. CARL Dices, SR., Business Agent) LOCAL 490, INTERNATIONAL HOD CARRIERS BUILD- ING AND CONSTRUCTION LABORERS UNION, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed August 15, 1958, by Arthur Block, in Case No. 32-CB-72, James White in Case No. 32-CB-73, and Oree Jefferson in Case No. 32-CB-74, and on September 23, 1958, by Magness S. Ward in Case No. 32-CB-77, alleging that Local 490, International Hod Carriers Building and Construction Laborers Union, AFL-CIO, and J. Carl Dicus, Sr., business agent, herein called the Respondents, the Union, or Local 490, had engaged in and were engaging in unfair labor practices in violation of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, issued a consolidated complaint dated December 31, 1958,1 against the Union alleging violations of Section 8(b) (1) (A) and (2) of the Act. 2 All dates are in 1958 unless otherwise noted. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint as amended at the hearing alleges that: (1) Respondent from about June 1, 1958, "has maintained and enforced a practice and tacit arrangement" with Dickmann-Pickens-Bond Construction Company, herein called Dickmann, re- quiring referral by Respondents "as a condition of employment at Dickmann's Oak Lawn Park, Hot Springs, Arkansas, Construction project"; (2) Respondents have "maintained and enforced an exclusive referral and hiring hall practice with Dick- mann" at said project which fails to satisfy the requirements of Mountain Pacific Chapter of the Associated General Contractors, Inc., 119 NLRB 883, 897; (3) Re- spondents pursuant to said practice and tacit arrangement "failed and refused to refer employee Oree Jefferson for employment at said project thus causing and attempting to cause Dickmann to deny employment to said Oree Jefferson"; and (4) Respond- ents pursuant to said practice and tacit arrangement and as a condition of employ- ment have "required and collected dues, assessments and other moneys from its members and other employees, cleared and referred for employment" at said project. The answer denies any violation of law. Pursuant to notice, the matter was heard at Hot Springs, Arkansas, from March 10 through 13, 1959. The General Counsel and Respondent were represented by counsel who were afforded full opportunity to participate in the case, to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Respondents presented oral argument at the hearing and the General Counsel filed a brief. Upon the entire record in the case, and from my observations of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS INVOLVED Dickmann-Pickens-Bond Construction Company at all times material herein has been an Oklahoma corporation maintaining its principal office and place of business at Little Rock, Arkansas, where it is engaged in business as a general contractor. During the 12-month period prior to the issuance of the complaint it performed services outside the State of Arkansas valued in excess of $20,000,000. There is no denial and I find that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 490, International Hod Carriers Building and Construction Laborers Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The practice and tacit arrangement Lee Baron, a former secretary-treasurer of the Union who had been ousted from that position on charges of various sorts, testified that a copy of the Union's bylaws effective March 1, 1953 (which were received in evidence on Baron's identification), were still in effect when he left the Union in May 1958. Baron also described the work referral procedure followed by the Union and testified without denial and credibly that the practice was to assign work to those who were in the hall and available when requests for men came in from employers. Oree Jefferson, the one discriminatee named in the complaint (whose membership in the Union continued unbroken from 1951 to the time of the hearing), testified that these bylaws were the last ones he had received from the Union. In conflict with the foregoing, Carl Dicus, the Union's business agent and financial secretary-treasurer, testified that the bylaws in question had been repealed in 1955 and had not been operated under since approximately December 1955.2 He further testified that since that time the Union had been operating under the constitution of the International. From Dicus' cross-examination it was shown that the International had "refused to approve" the amendments to the Local's bylaws. He also testified that he did not have a copy of them and no documentary evidence was offered regarding them. 2 At another place in his testimony he testified that at the meeting in which action on the bylaws was taken "changes, amendments and repeals of certain parts of the by-laws" were "discussed." Elsewhere he testified that "quite a number (of the rules contained in the march 1, 1953, bylaws)" were "changed and repealed, and amended . . Nowhere in the record is there any indication as to specific rules that were changed, repealed, or amended. LOCAL 490, INT'L HOD CARRIERS BUILDING, ETC. 385 Analyzing the various testimony on the matter, particularly in the light of the record as a whole, I have no difficulty in crediting Baron's testimony that the bylaws in question were in effect up to May 1958. Finding as I do that these bylaws were in effect over 2 years after the Union claims some unidentified portion of them had been rescinded or amended, it follows, and I find, that they continued to be in effect at all times material herein. The pertinent provisions of these bylaws are as follows: Rule 10-No members allowed to solicit job at any time. [General Counsel's Exhibit No. 3, p. 8.] Rule 1-When there are six or more laborers working on any job, there shall be a Laborers' Foreman, who shall be eligible for membership in Construction and General Laborers' Local Union No. 490, and be in possession of the current working card and comply with the other requirements of these working rules. [General Counsel's Exhibit No. 3, p. 9.] Rule 2-It shall be the duty of each foreman to work in conjunction with the steward on the job and see that the rules are enforced. [General Counsel's Exhibit No. 3, p. 10.] Rule 3-No foreman shall be predesignated except by consent of the B. A. [General Counsel's Exhibit No. 3, p. 10.] Rule 2-The Steward . shall demand and examine the working cards of every member who comes to the job to work. Should any member who is on the job fail to produce his card or permit, he shall be notified to bring it the follow- ing morning. Failure to do this, the steward shall notify the foreman and said foreman shall not permit said member to go to work until he can produce his card or permit, if he is a member. [General Counsel's Exhibit No. 3, pp. 10, 11.] Thurman Sharp was the labor foreman at Dickmann's Oak Lawn Park project in Hot Springs. Apparently he was a member of a sister local of Respondent Union at Muskogee, Oklahoma. Reporting to the Oak Lawn project on May 8, he presented Respondent's business agent, Dicus, with a clearance card from the Muskogee local and became affiliated with Local 490. Sharp testified that he hired on his own initiative and that he obtained his laborers for the Oak Lawn project by calling the union hall. A woman would answer. He would state the number of men he wanted and in an hour or so they would arrive. When asked if all of the men had identifi- cation or referral cards from the Union his reply was, "I wouldn't say that they all had identification cards, but they did, they probably didn't show them to me." At the peak of the employment on the project he had about 40 men. All of the em- ployees were hired through the Union except one and he was a member of the Union who had previously been referred to job by Local 490 and laid off. Being at the jobsite when there was need for an additional man this man had been rehired. Sharp denied that he had any tacit arrangement with Local 490 or enforced practice requiring referral of employees through the Union. He also testified that it would not make any difference to him "personally" whether those he hired on the project be- longed to the Union or not. When asked if he could not hire through the U S Em- ployment Agency if he wanted to, he replied, "As far as I know I could. Nobody told me no different." As stated in the General Counsel's brief, "In view of Sharp's demonstrated au- thority with respect to the hiring of laborers at Oak Lawn, there can be no doubt that he was Dickmann's agent, and that as such all of his acts relative to hiring bound Dickmann. Considering the fact that Sharp became a member of Respondent the very first day he arrived at Oak Lawn, and that he advised complainant Oree Jeffer- son (as is set forth below) that he (Sharp) would obtain the laborers he needed through Respondent's hiring hall, it is apparent that Sharp accepted Respondent's rule requiring labor foremen to be members of Respondent and its rule prohibiting mem- bers from soliciting jobs." In this light, it is clear and I find that Sharp in addition to his role as Dickmann's agent, was also an agent of Respondent. Cf. International Union of Operating Engineers, Local 150 AFL-CIO (Fluor Company, Ltd.), 122 NLRB 374. As such, of course, and by virtue of his position as foreman, "Sharp was specifically charged with the responsibility of enforcing Respondent's working rules, including the rule prohibiting Respondent's members from soliciting their job, as well as the rule precluding members without work cards from working." In view of the record as a whole, including the Oree Jefferson and James White incidents set forth below and considering Sharp's demonstrated practice of hiring only those laborers referred by Respondent in conjunction with his obligation to enforce Respondent's restrictive hiring rules, it is apparent and I find that from May 8, 1958, Dickmann and Respondents maintained and enforced a tacit arrangement 692254-61-vol 130-26 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requiring referral by Respondents as a condition of employment at Dickmann's Oak Lawn Park construction project. Such an arrangement, abdicating all control of Dickmann's hiring to Respondents without providing the safeguards deemed by the Board to be necessary to the legality of exclusive hiring arrangements, violates Sec- tion 8(b) (1) (A) and (2) of the Act. Mountain Pacific Chapter of the Associated General Contractors, Inc., et al., 119 NLRB 883, 879. Walter Rasmussen d/b/a C. Rasmussen & Sons, 122 NLRB 674. International Union of Operating Engineers, Little Rock Local 382-382A, AFL-CIO (Armco Drainage & Metal Products, Inc.), 123 NLRB 1833. Such an unlawful exclusive hiring arrangement with Dickman also encourages union membership for the purpose of obtaining or retaining employment, thereby inevitably coercing employees hired pursuant to such an arrangement to pay union initiation fees, dues, and other moneys. B. The individual discrimination On May 8 or 9, Oree Jefferson, a member of Local 490 who had worked for Sharp some years before, came to the jobsite and asked Sharp for employment. According to Jefferson's undenied and credited testimony, he told Sharp, "Mr. Sharp, you know I have been your hand once before,3 I was your jack hammer man. Why not give me a job back." Sharp replied, "I will when I get started and needing some men. I will call through the hall." Jefferson replied, "O.K., I will depend on you calling through the hall." Three or four days later Sharp made a request to the Union for four or five men. Later in May, according to Sharp's testimony, he made another request to the Union for 10 or 12 men. According to Jefferson's undenied and credited testimony, on May 29 he was at the union hall looking for a job referral when the telephone rang. He heard Miss Ethel, the bookkeeper who took the call, say, "O.K., Mr. Sharp .. . I will send you four men Monday." When she hung up Jefferson asked her, "Miss Ethel, will you give me a work order to go out there?" She said, "No, Mr. Dicus wants to see you and have a conversation with you." No one else was in the hall at the time. The next day, according to Jefferson's further undenied and credited testimony, he asked Dicus why he would not send him out on any of the jobs. Dicus told him, "I can't give you no work because you have been working unfair" and named R. T. Higgins as the "unfair" employer. Jefferson, after protesting that other union members had worked for Higgins and that this occurred in 1956, terminated the discussion with, "O.K., Thank you, Mr. President," and walked out. Jefferson admitted that after his initial request to Sharp for employment as set forth above, he never went back to the project or made any further request to Dick- mann for employment. While the record shows that Jefferson had two or three jobs of relatively short duration in 1958, the only one he got by referral from the Union was on December 18, when he worked 4 or 5 days. This, of course, was after he had filed charges of unfair labor practices against Respondents. The foregoing evidence clearly reveals that Jefferson's failure to receive employ- ment at Dickmann's Oak Lawn project was caused by Respondents' discriminatory refusal to issue him a referral card. Having been alone in the hall on May 29 when Sharp requested four or five men Jefferson, according to the practice described by Baron, would have been entitled to a referral. Dicus' explanation to him that his having worked for an unfair employer precluded referrals for him stands undenied in the record. In this light whether or not Sharp asked for Jefferson is immaterial. Moreover, in view of the illegal referral practice engaged in by Respondents and fully under- stood by Jefferson as evidenced by his acquiescence in Sharp's comment that he would "call through the hall" there was no obligation on Jefferson to make any further direct attempts to get employment with Dickmann since it is clear that such attempts would be futile. N.L.R.B. v. Local 369, Hod Carriers, etc. (A. C. Fronm- meger Co.), 240 F. 2d 539, 544 (C.A. 3). By this refusal to refer Jefferson to Dickmann's Oak Lawn project on May 29 Respondents caused and attempted to cause Dickmann to discriminate against Jefferson and thus engaged in a further violation of Section 8(b)(2) of the Act. Local 176, United Brotherhood of Car- penters, et al. (Dimeo Construction Company), 122 NLRB 980. Another facet of the evidence, offered by the General Counsel, not as an unfair labor practice in itself but as tending to establish the illegal practice between Re- spondent and Dickmann, involves a wrecking contractor from Little Rock by the name of Burks. This evidence came in over Respondents' vigorous objections on 3 Sharp testified that Jefferson had been "a good man." LOCAL 490, INT'L HOD CARRIERS BUILDING, ETC. 387 the grounds that since Burks was not named in the complaint, what took place between Respondents and Burks was immaterial and irrelevant to the charges in- volving Dickmann. If the evidence had developed differently, Respondents might have been correct in their contention. But, as will be seen, the connection between Burks and Dickmann in this matter is such that I agree with the General Counsel that the incident as found tends to support the allegation in the complaint of the existence of an illegal arrangement or practice between Dickmann and Respondents. As to this matter, the General Counsel's witness, James White, testified as follows: White was a member of Local 490 until 1954 when he moved to Little Rock and joined Local 1282 of the Hod Carriers there. About June 2,4 1958, he went out to the Oak Lawn site and was hired by the Burks House Wrecking Company, a nonunion employer for whom White had worked before. White worked for Burks at Oak Lawn about a month at which point Business Agent Dicus came out to the job and told Burks "he couldn't work (White) out there no kind of way on the job." In a few minutes Burks told White to go outside the gate, that Dicus wouldn't let him work, and that he would have to pay him off which he did. Burks' testimony on direct examination was that White was one of the last men on the job and worked on it until it was completed. Burks also denied that Dicus had told him he "had to get rid of Preacher White or anybody else." Nevertheless, it also appears from Burks' testimony that Dicus had issued Burks work permits for four men on the Dickmann-Pickens-Bond job which Burks described as "the second phase `or' the last four days" of his work on the Oak Lawn site. According to Burks, he had two separate jobs at Oak Lawn, one under a contract with the track itself and this "second phase" or "last four days" with Dickmann which started April 28. Further testimony from Burks revealed the following: There had been picketing presumably by Local 490 "on the job all the time." When Burks had about 4 days work left on the site, Dickmann "moved their dirt contractor in." He was a friend of Burks and being a union contractor did not want to work "with that picket there." So he asked Burks if the latter could do anything to help him. Burks then asked Dicus "how to get rid of the picket line." Dicus asked him how much work he had yet to do. Burks said it would take him about 4 or 5 days to finish. Dicus then asked how many men he needed to finish and Burks replied "about four or five men." Thereupon Dicus issued work permits for four men. Burks then let White go (testifying that he had no further use for White) and finished the job with four men he had brought over from Little Rock. In a statement Burks had given the General Counsel which he confirmed on the stand as being "right" he said: Dicus and I worked out a deal to finish the job. I had only five men working, four from Little Rock and James White from Hot Springs. Dicus issued a permit for four employees from Little Rock; he didn't issue White one. The following day, Dicus came out, about May 14, to see how many were working. He asked me about White. I thought we had an agreement that you were going to finish with four men. I told him I had one more load and was going to use White to load it. White is a good worker. I finished the job and let White go. I paid $2.50 for the work permits for my four men. From this point Burks continued working another 41 days, using the four men from Little Rock for whom Dicus had issued permits. It seems obvious from the foregoing that Burks' testimony about two distinct jobs at Oak Lawn is pure fiction. I have no doubt that the so-called "second phase" was simply a continuation of his contract with the Oak Lawn people. Now, however, it was under the aegis of the Union but restricted to the number of men permitted by the Union. This number was four. When Burks was discovered to be working five men he was compelled to eliminate one. Naturally, he kept his regular em- ployees from Little Rock and let White go. Whether my view of the evidence is correct or whether Burks' testimony is accepted the significance is the same. In my opinion the arrangement of union clearance for Burks, a nonunion contractor, to pave the way for the appearance of one of Dickmann's union subcontractors on the Oak Lawn Park project site tends further to show the alleged illegal arrangement and practice between Dickmann and Respondents. However, absent the White incident I would still find such an arrangement and practice on the other evidence herein. 4 There is about a 2-month difference between the testimony of Cecil W Burks, the head of the Company, and White on this date. But there is no question, and I find, that the circumstances which both testified about involve the same incident. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the operations of the parties to the contract described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow thereof. V. THE REMEDY Having found that Respondents have violated the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act . I shall therefore recommend, among other things, that Respondents make Oree Jefferson whole for any loss of pay suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from June 1, 1958, until he would have been laid off, absent unfair labor practices , less his net earnings during that period . Backpay shall be computed in accordance with the formula in F. W. Woolworth Company, 90 NLRB 289.5 I shall also recommend that Respondents refund to Dickmann 's employees at the Oak Lawn Park project all sums, including initiation fees and dues, exacted from them as a result of Respondents ' unlawful hiring arrangement with Dickmann. United Association of Journeymen & Apprentices, etc., Local 231 (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115 NLRB 594, 599-602 . Local Union No. 85, Sheet Metal Workers International Association , AFL-CIO (R. C. Mahon Construction Company), 122 NLRB 631. I shall also recommend that Respondents cease and desist from maintaining and giving effect to the illegal hiring arrangement found herein. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Dickman-Pickens-Bond Construction Company is engaged in commerce within the meaning of the Act. 2. Local 490, International Hod Carriers Building and Construction Laborers Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By causing and attempting to cause Dickman to refuse to hire Ogee Jefferson because he had not obtained a work referral from Respondents and by maintaining and enforcing a tacit arrangement with Dickmann requiring referrals as a condition of employment, Respondents have engaged in unfair labor practices within the mean- ing of Section 8(b)(1)(A) and (2) of the Act. 4. 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.] 5 Since the record shows that the project has been completed, I shall not recommend re- instatement. However, since Dickmann may have other work in Respondents' jurisdic- tional area, I shall recommend that Respondents notify Dickmann in writing that they have no objections to Jefferson's employment. Armco Drainage v. Meta[ Products, Inc, supra The Mountain States Telephone and Telegraph Company and Local 408, International Brotherhood of Electrical Workers,' Petitioner. Case No. 19-1?-91841. February 16, 1961 SUPPLEMENTAL DECISION AND CLARIFICATION OF UNIT Pursuant to a Board certification on September 29, 1948, Petitioner became the bargaining representative of a unit of all Missoula ex- 'Petitioner's name appears as set forth in the certification. 130 NLRB No. 49.