Local 1486, Brotherhood of Painters, Etc.

LOCAL 1486, BROTHERHOOD OF PAINTERS, ETC. 803 Local, -'14.86, Brotherhood of Painters , Decorators and Paper- hangers of'-America, AFL-CIO and Joseph Acierno and Stratford-at-Babylon, Inc. and Master Painters Association of Nassau-Suffolk Counties, Inc., Parties to the Contract. Case No. 2-CB-2559. August 8, 1961 DECISION AND ORDER On December 1, 1960, Trial Examiner Eugene F. Frey issued his. Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The, rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and the briefs, and the entire record in the case,' and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations, except as herein modified.2 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 Respondent Local 1486, Brother- hood of Painters, Decorators and Paperhangers of America, AFL- CIO, its officers, representatives, agents, successors, and assigns, shall : • 1. Cease and desist from : 1 As the record and exceptions and briefs adequately present the issues and the posi- tions of the parties , the Respondent ' s request for oral argument is denied 2In his exceptions and brief, the General Counsel urges certain modifications of the Trial Examiner's recommended remedy. We find merit in these exceptions , and we shall therefore modify our Order herein accordingly. In accordance with the Supreme Court's decisions in Local 60, United Brotherhood of Carpenters and Joiners of Ame,,ca, AFL- CIO, at al. v. NLRB. (Mechanical Handling Systems ), 364 US . 651, and Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N L.R B. (Los Angeles -Seattle Motor Express ), 365 U S. 667 , we do not adopt the Trial Examiner's recommendation that Respondent be ordered not to maintain or operate an exclusive hiring hall except under the standards specified in the Mountain Pacific case, or his recommended Brown-Olds refund remedy . Nor do we rely on the doctrines rejected by the Supreme Court in the cited cases as a basis for the unfair labor practices found herein. 132 NLRB No. 57. 614913-62-vol. 132-52 '804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Entering into, maintaining, performing, enforcing, or other- wise giving any effect to any provisions of any existing agreement with Master Painters Association of Nassau-Suffolk Counties, Inc., .or any of its members, or with Stratford-at-Babylon, Inc., or any other employer operating within its territorial jurisdiction over whom the Board would assert jurisdiction, or any other oral or written ar- rangements, practices, or understandings with any of said employers, -which condition the hire of applicants for employment, and/or the retention of employees in employment by employers, upon member- ship in, or application for membership in, the Respondent, or provide for employer contribution to funds maintained by Respondent whose benefits are not expressly and actually made available to all em- ployees on a nondiscriminatory basis, without regard to membership or nonmembership in Respondent, except as authorized by the proviso to Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) Requiring employees and applicants for employment to pay initiation fees, dues, assessments, working fees, permit fees, or other moneys to Respondent in order to obtain or retain employment, ex- cept as authorized in the proviso to Section 8 (a) (3) of the Act, as modified aforesaid. (c) Causing or attempting to cause said Master Painters Associa- tion of Nassau Suffolk Counties, Inc., or any of its members, Stratford- at-Babylon, Inc., or any other employer operating within its territorial jurisdiction over whom the Board would assert jurisdiction, to dis- criminate against employees or applicants for employment, in viola- tion of Section 8 (a) (3) of the Act. (d) Refusing to refer applicants for employment to jobs because .of their exercise of rights guaranteed by Section 7 of the Act, or in any other manner restraining or coercing employees of, and applicants for employment to, Tri-County Painting Company, or any other mem- ber of said Association, Stratford-at-Babylon, Inc., and any other employer operating within its territorial jurisdiction over whom the Board would assert jurisdiction, in the exercise of their right to engage in, or refrain from engaging in, any or all of the activities guaranteed by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion in conformity with Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make whole Joseph Acierno for any loss of earnings which he may have suffered by reason of his discriminatory layoffs, in the man- ner set forth in the section of the Intermediate Report entitled "The Remedy" ; and also make him whole for any loss of earnings which he LOCAL 1486 , BROTHERHOOD OF PAINTERS, ETC. 805 may have suffered by reason of Respondent's discriminatory, refusal to refer him for, employment, beginning:6 months. before the filing of the original unfair labor practice charges herein.' (b) Notify the Association aforesaid and all, its members,- Stratford-at-Babylon, Inc., and all other employers doing business within the territorial jurisdiction of Respondent over whom the Board would assert jurisdiction, and Joseph Acierno, in writing, that it has no objection to Acierno's employment by any of said employers. (c) Make whole employee nonmembers of Respondent for any finan- cial loss suffered by reason of Respondent's-failure to provide them with coverage and benefits equivalent to those given employee mem- bers under the insurance and welfare, and vacation funds, in the manner set forth in Northeast Coastal Inc., 124 NLRB 441, 442, 443. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records, reports, list's, and other documents necessary to analyze and compute the amounts of money due under the terms of this Order. (e) Post at its offices ,,and meeting: halls, including all places, where notices to members, prospective members, and applicants for employ- ment are customarily posted, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed,by Respondent's representative, be posted immediately upon receipt thereof and maintained by Respondent for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Mail to the Regional Director for the Second Region signed copies of the notice attached hereto marked "Appendix," for posting by the Association aforesaid and all its members, Stratford-at- Babylon, Inc., and all other non-Association employers doing business within the territorial jurisdiction of Respondent over whom the Board would assert jurisdiction, at the offices of said employers, and. project sites where said employers are presently engaged in business within the territorial jurisdiction of Respondent, in places where notices to employees of said employers are customarily posted, if said Associa- tion and said employers are willing so to do. Copies of said notice, to be furnished by said Regional Director, shall, after being duly signed by Respondent's representative, be forthwith returned to the Regional Director for such posting. (g) Notify the Regional Director for the Second Region, in writ- 8 See Local 138, International Union of Operating Engineers, AFL-CIO (Nassau and Suffolk Contractors' Association, Inc ), 123 NLRB 1393, 1407, 1408. ' In the event that this Order is enforced by a decree of a United Stairs 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." 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the amended complaint be dismissed insofar as it alleges that Respondent restrained and coerced Rocco Milano by refusing to refer him to employment, or caused employers unlawfully to discriminate against him, in violation of Section 8(b) (2) and (1) (A) of theAct. APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 1486, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA , AFL-CIO, AND TO ALL EMPLOYEES OF AND APPLICANTS FOR EMPLOYMENT WITH TRI-COUNTY PAINTING COMPANY, STRATFORD-AT-BABYLON, INC., AND ALL MEM- BERS OF MASTER PAINTERS ASSOCIATION OF NASSAU-SUFFOLK COUNTIES, INC. 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, as amended, we hereby notify you that : WE WILL NOT enter into, maintain, perform, enforce, or other- wise give effect to any provisions of our existing agreement with Master Painters Association of Nassau-Suffolk Counties, Inc., or any of its members, or with Stratford-at-Babylon, Inc., or any other employer operating within our territorial jurisdiction over whom the Board would assert jurisdiction, or any other oral or written arrangements, practices, or understandings with any of said employers, which condition the hire of applicants for employ- ment, and/or the retention of employees in employment by em- ployers, upon membership in, or application for membership in, our labor organization, or provide for employer contribution to funds, maintained by our labor organization, whose benefits are not expressly and actually made available to all employees on a nondiscriminatory basis, without regard to membership in or nonmembership in our labor organization, except as authorized by the proviso to Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT require employees and applicants for employment to pay to our labor organization any initiation fees, dues, assess- ments, working fees, permit fees, or any other moneys in order to obtain or retain employment, except as authorized by the proviso to Section 8(a) (3) of the Act, as modified aforesaid. WE WILL NOT cause or attempt to cause the above-named Asso- ciation or any of its members, or Stratford-at-Babylon, Inc., 'or any other employer operating within our territorial jurisdiction over whom the Board would assert jurisdiction, to discriminate LOCAL 1486, BROTHERHOOD OF PAINTERS, ETC. 807 against employees or applicants for employment, in violation of Section 8 (a) (3) of the Act. WE WILL NOT refuse to refer applicants for employment to jobs because of their exercise of rights guaranteed by Section 7 of the Act, or in any other manner restrain or coerce employees of, or applicants for employment to, Tri-County Painting Company, or any other member of the Association above named, Stratford-at- Babylon, Inc., or any other employer operating within our juris- diction over whom the Board would assert jurisdiction, in the exercise of their right to engage in, or refrain from engaging in, any or all of the activities guaranteed by Section 7 of the Act, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization in conformity with Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL make Joseph Acierno whole for any loss of earnings which he may have suffered by reason of our discrimination against him. WE WILL notify the above-named Association and its members, Stratford-at-Babylon, Inc., and all other employers doing busi- ness within the territorial jurisdiction of our labor organization over whom the Board would assert jurisdiction, that we have no objection to the employment of Joseph Acierno by any of said employers, and will send Joseph Acierno a signed copy of said notice. WE WILL make whole employee nonmembers of our union for any financial loss suffered by reason of our failure to provide them with coverage and benefits equivalent to those given employee members under our insurance and welfare, and vacation funds. LOCAL 1486, BROTHERHOOD OF PAINTERS, DEC- ORATORS AND PAPERHANGERS OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, .and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This case was heard , with all parties except one represented by counsel or pro se,' before Trial Examiner Frey in New York, New York, on March 7 through 10, 1960, on a complaint issued by the General Counsel of the Board on September 30, 1959, 1 Stratford-at-Babylon, Inc., did not appear , although the record shows copies of the original charge, complaint , notice of hearing, and orders rescheduling the hearing were duly served on it in accordance with the requirements of the statute. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as amended at the hearing, and an answer filed by Local 1486, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO (herein called Re- spondent, Local 1486, or the Union, as distinguished from the International Brother- hood or other locals thereof), denying the jurisdiction of the Board over the dispute and the commission of any unfair labor practices. The issues litigated were whether or not: (1) The Board has jurisdiction in this case. (2) The Union, by executing, maintaining in effect, and enforcing during 1958, 1959, and thereafter, certain collective-bargaining agreements , and particularly certain provisions thereof described below, with Master Painters Association of Nassau-Suffolk Counties, Inc. (herein called the Association), with Stratford-at- Babylon, Inc. (herein called Stratford), and other employers, restrained and co- erced employees of members of the Association and other employers in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act, as amended, 61 Stat. 136, et seq. (herein called the Act) in violation of Section 8(b)(1)(A) of the Act. (3) The Union since November 1958 has maintained and enforced an arrange- ment, practice, or understanding with Stratford, members of the Association, and other employers, requiring their employees to pay a working fee to the Union as a condition of employment in Suffolk County, requiring said employers to hire em- ployees for work in said county exclusively through, and upon referral, clearance, and approval of, the Union, and has made referrals thereunder only on considera- tions of membership in the Union and of nonexercise of activities protected and rights guaranteed by the Act, and has required such employees to pay fees, dues, and assessments to the Union in accordance with the agreements mentioned above, all in violation of Section 8(b) (1) (A) of the Act. (4) In the operation of said discriminatory referral system the Union refused to refer Joseph Acierno and Rocco Milano to Association members, Stratford, and other employers, and required or directed Stratford and Association members to discharge or lay off Acierno, because they exercised rights guaranteed by Section 7 of the Act, in violation of Section 8(b)(1)(A) and 8(b)(2) of the Act. At the close of General Counsel's case-in-chief, Respondent's motion to dismiss the complaint on the merits was denied, but ruling was reserved on its motion to dismiss for lack of jurisdiction. Ruling was reserved on similar motions at the close of the whole case, and these motions are disposed of by the findings and con- clusions set forth below. General Counsel and Respondent waived oral arguments but filed written briefs with the Trial Examiner which have been carefully considered. Upon the entire record in the case 2 and from my observation of the witnesses on the stand, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE ASSOCIATION AND STRATFORD The Association is a New York corporation composed of employers located in Nassau and Suffolk Counties , in the State of New York, who are in the business of painting, decorating, paperhanging, and related work. Among other things, the Association negotiates , executes, and administers collective-bargaining agreements on behalf of its member employers with labor organizations, including the Union, representing employees of-its respective members. During the calendar year 1959 , Long Island Painting Corporation, a member of the Association engaged in the business of painting contractor at Roosevelt, New York, had a gross income in excess of $500 ,000, and rendered painting and related services to Ohio Power Company in the State of Ohio of a value of approximately $50,000, and rendered similar service valued at approximately $ 110,000 to Beacon 'Construction Corporation in the State of Massachusetts. At all times mentioned in this report, Stratford was a New York corporation with its principal office and place of business located in Babylon, New York, where it was engaged in the business of constructing and selling houses and other struc- tures. During the year preceding June 1959, Richard Lumber Corporation, a con- cern with its principal place of business located in Maspeth, New York, sold and delivered to Stratford at its construction project in Babylon , New York, lumber 2 On May 11, 1960, General Counsel moved on notice to all parties to correct the tran- script in certain respects . No opposition to said motion having been filed with the Trial Examiner, the transcript of record herein is hereby corrected as set forth in said motion, the original of which is entered in the record as General Counsel 's Exhibit No. 34. LOCAL, 1486 , BROTHERHOOD OF PAINTERS, ETC. 809' valued between $55,000 and $70,000, all of "which was . shipped to Richard Lumber Corporation from points outside the ,State of New York.3 On' the above facts I find that Stratford and the Association and its members each are, and have been at all times material herein , engaged in commerce within the- meaning of Section 2(6) and (7) of the Act .4 II. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Agreement between the Union, Association, and Stratford From September 15, 1956, to March 31, 1959, the Union and the Association and' its member employers have maintained and enforced a collective-bargaining agree- ment (herein called the 1958 Association Agreement) governing terms and condi- tions of employment in Suffolk County, New York, of employees of Association, members. After reciting that the parties "intend to make and establish the terms and conditions under which the members of the UNION, who shall be herein re- ferred to as 'JOURNEYMEN,' shall work, and by which the EMPLOYER shall hire," section 3 of the Agreement provided as follows: The EMPLOYER agrees to employ only members of LOCAL UNION 1486, in good standing, in all branches of the INDUSTRY; and LOCAL UNION 1486, on its part, shall furnish in so far as possible, all the JOURNEYMEN which the EMPLOYER may require whenever LOCAL UNION 1486 is un- able due to a shortage of JOURNEYMEN PAINTERS within its jurisdiction, to furnish qualified JOURNEYMEN PAINTERS and such shortage shall con- tinue for a period of more than seventy-six (76) hours, then, and in that event, the EMPLOYER may employ'any member of the BROTHERHOOD in good standing, and provided he remains in good standing. In the event JOURNEYMEN PAINTERS in good standing in a LOCAL other than LO- CAL UNION 1486 are so employed, nothing herein contained shall be deemed to create an obligation on the part of the EMPLOYER to discharge any such JOURNEYMEN PAINTERS in good standing available for such employment for the particular job. Neither party shall utilize the service of any commer- cial employment agency. The members of LOCAL UNION 1486 shall not work for any EMPLOYER not in contractual relation with LOCAL UNION 1486 or any other LOCAL UNION or DISTRICT COUNCIL affiliated with the BROTHERHOOD. JOURNEYMEN may, however, work for City, County, State or Federal Government agencies at the prevailing rate of wages and hours. Nothing herein shall require any member of the BROTHER- HOOD to work in violation of Section 246 of the Constitution of the Brother- hood. The EMPLOYER recognizes the right of the UNION members to re- fuse to work with non-union painters and any such refusal to work, whether concerted or otherwise, shall not constitute a breach of this AGREEMENT. This provision was not changed by amendments to the Agreement in October 1958, discussed hereafter. The 1958 Agreement also provided in section 29B that "LOCAL UNION 1486 reserves the constitutional right not to work with NON-UNION PAINTERS." It is therefore clear, and Respondent admits, that up to March 31, 1959, the contract required union membership of all journeymen painters as a con- dition of their employment, without allowing them a 30-day grace period following commencement of employment or the effective date of the Agreement, as provided in Section 8(a) (3) of the Act. Respondent admitted at the hearing that ' said Agreement also contains provisions (1) which required employees to be members of the Union, as a condition of being promoted to the position of chargeman or foreman, and (2) which required each employer to make weekly payments into the Union's insurance and welfare, and vacation funds, amounting to a fixed percentage of the employer's gross weekly payroll "on all employees who are members of the (Union) doing work within the jurisdiction of this Agreement," notwithstanding that the benefits of said funds are restricted to members of the Union in good stand- ing, and that said Agreement failed to provide similar benefits for employees not 8 These findings are based on allegations in the complaint not denied by Respondent, and credited and uncontradicted testimony of William Gruskoff and Paul Herman. 4 American Linen Supply Co., 128 NLRB 639; Local 176, United Brotherhood of Carpenters, etc. (Dimeo Construction Company ), 122 , NLRB 980,; .Williams Brothers Asphalt Paving Company, 126 NLRB 388. [810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of the Union in good standing .5 In its brief, Respondent admits these funds are not available to nonunion painters, as presently written, and that it is making a study to amend the trust agreements to remedy the "omission or over- .sight." Any steps taken in this direction are for consideration at the compliance stage of the case. I have noted, as Respondent points out, that in the October 1958 amendments to the Agreement, the parties deleted section 4, which had clearly created an unlawful closed-shop situation on every job within the jurisdiction of the Union,6 and sub- stituted therefor the following provisions: 3A. (1) Selection of applicants for referral to jobs shall be on a non- discriminatory basis and shall not be based on, or in any way affected by, union membership, by-laws, rules, regulations, constitutional provisions, or any other aspect or obligation of union membership, policies, or requirements. 3B. (2) The employer retains the right to reject any job applicant referred by the union. 3C. (3) All employers to post in places where notices to employees and ap- plicants for employment are customarily posted, all provisions relating to the hiring arrangement. The new provisions were also repeated in the present Agreement between the As- sociation and Union dated June 15, 1959, which also eliminated the significant sec- tion 3 of the 1958 Agreement quoted above. These changes were an attempt to legalize the exclusive hiring hall arrangement contained in the Agreement by adding in haec verba the safeguards propounded in the Mountain Pacific case? In the 1958 amendments, the parties also eliminated other provisions which had imple- mented the closed shop and strengthened union control over the hiring and referral of employees to jobs, such as the requirement that chargemen or foremen must be union members in good standing, that the Union has the right to assign one of its members (whether an employee or not) as job steward on any job,, that apprentices must be union members and carry union working cards, that on jobs employing 10 or more journeymen, 1 journeyman from the Union who is 55 years of age or more must be employed, and that if the employer seriously violates the wage provisions of the Agreement, the Union may direct the owner of the construction project to complete the work only with journeymen designated by the Union .8 On or about June 15, 1959, Respondent and the Association executed a new ,collective-bargaining agreement covering terms and conditions of employment in Suffolk County of employees and members of the Association, and in or about May 1959 executed similar agreements with Stratford and other independent employers, all of which purported to contain and enforce provisions similar in effect to those 'The 1958 Agreement, as amended, provides that the employers are bound by the trust agreements setting up the insurance, welfare, and vacation funds , and the rules and regulations adopted thereunder, as though the same were fully set forth in the bargain- ing -agreement The rules and regulations issued by the trustees of said funds and in ,effect during 1959 and at the time of the hearing provide that the group insurance plans paid for out of the insurance and welfare fund are available to members of the Union in good standing for 6 months, who have worked for a contributing employer or if self- employed have worked for at least 80 days in such 6-month period, and remind union members that compliance with these requirements is necessary to keep the insurance in 'force as to them. ' Section 4 provided : SECTION 4A. The CHARGEMAN, STEWARD or first man on any job shall require all JOURNEYMEN PAINTERS to produce their LOCAL'S registration or work cards before permitting them to work. B. All out-of-town EMPLOYERS when operating in this jurisdiction, shall em- ploy JOURNEYMEN of this LOCAL UNION to the extent of at least 75% as per the GENERAL CONSTITUTION. C. On any job which is organized by the BROTHERHOOD and wherein the EMPLOYER obtains a contract thereon as a result, the job shall be manned 100% by members of LOCAL UNION 1486, if available, 50% of whom shall be designated by LOCAL UNION 1486. This provision incorporated into the contract the requirements of article I, sec. 8, article III, sec. 13a, and article V, sec. 3, of the Union's bylaws, which were binding on all chargemen, stewards, and other union members 7 Mountain Pacific Chapter of the Associated General Contractors, Inc, et at, 119 -NLRB 883, 897. 8 See sections 13, 16, 17A, 18A, 19, 27M, and 28B, as changed by 1958 amendment. LOCAL 1486, BROTHERHOOD OF PAINTERS, ETC. 811 in'the 1958 Association Agreement , as amended. The Association Agreement runs until March 31, 1961 , and the independent agreements expired March 31, 1960. Regarding operations under all of these agreements , some employer witnesses (Julius Schatz, Jack Italiano, and Valentine Gombert ) testified in general terms that they use the union hall as a convenient source for procurement of qualified workmen, that they feel free to hire nonunion workmen applying for work at their jobs, and that they have never been told by agents of Respondent whom to hire, or to remove workmen from their jobs. However, other credible evidence in the record convinces me that notwithstand- ing the 1958 and 1959 changes in contract terms, the parties continued to operate under the same closed shop and exclusive referral arrangement as before. Andrew Gulickson, business agent of the Union who regularly visits all painting jobs in Suffolk County as part of his duties, testified that he has never found any of "the provisions relating to the hiring arrangement " of the 1959 Agreement posted on employer premises, as required by section 3C thereof, and Respondent offers no proof that the similar provision in the 1958 Agreement was ever complied with. Gulickson also admitted that during 1959 and up to the time of the hearing, his, procedures in referral of men to jobs has been about the same as formerly, and that after he learns the type of work to be done on a new job, he tries to assign men who are qualified for that type of work . While this indicates a nondiscriminatory basis for referrals , Gulickson also testified that during 1958 and 1959 under the Union's practice, all chargemen, or foremen, have been journeymen painters and were required to be members of the Union or another local of the Brotherhood. The business agents of the Union , all chargemen, and job stewards have been re- quired to abide by and enforce the Union's bylaws and the Brotherhood constitution on all painting jobs of Association members and independent employers within the geographical jurisdiction of the Union, which is principally Suffolk County. The job steward must check the dues book of every new man on the job to make sure his union dues are paid, and must list his name on a report he submits weekly to the union office, which shows the name and local union affiliation of each employee,, whether the quarterly working cards of the journeymen are paid up, and the names of "permit" men. If the painter is from another local, such as Local 798 in Nassau County, the steward finds out if his dues to that local are paid , and tells him to register with Local 1486, where he is required to pay an assessment equal to the. dues paid by members of that Union, for which he gets a registration card which enables him to work on any jobs in the jurisdiction of Local 1486, as well as a "per- mit" card for which he pays $3 and which is renewable monthly upon a similar monthly payment. The registration card is issued in accordance with article III, section 5, of the Union's bylaws. The Union's right to assign the job steward on every job, and that official's duty to "examine the dues books and cards of the jour- neymen on the job and enforcing union conditions" have been recognized in the- Association agreements from 1956 to date,9 which have governed all Association members in Nassau and Suffolk Counties in their hiring procedures when working in either county. Other provisions in these agreements have also required members located in either county to register any job or operation in Suffolk County with the Union at least 48 hours before its commencement ,10 and at the time of registration the Union usually ascertains how many workers the contractor will bring in from- outside Suffolk County, and how many additional men he will require . In this con- nection, Gulickson testified that every "out-of-town" contractor must comply with the bylaws of Local 1486 while working in Suffolk County; and the record shows that the same procedure is followed when an Association member works in Nassau County over which Local 798 has jurisdiction . In addition , it should be noted that all the agreements to date have recognized the right of the Union 's business agent to veto overtime work, contract maintenance work, work on Labor Day, and to visit all jobs "to check the credentials of the journeymen working thereon ," and the right of the Union "not to work with non-union painters." It is clear that these above practices and requirements had the effect of reinstating the deleted discriminatory portions of sections 4, 13, 16, and 17A of the original 1956 Agreement and, of course, implemented other existing provisions noted above, which insured the main- tenance of a closed shop and "union conditions" on every Suffolk County job. Tri-County Painting Company and Jack Italiano, Inc., Nassau County members of the Association, have followed the procedures outlined above during 1959 and to date on Suffolk County jobs. Both register their jobs with the Union before starting, and have always used members of Local 1486, and never nonunion painters, on their jobs . When such members report to a job, they show their dues book and' 9 Sections 17A and B In 1958 amendments , and sections 16A and B in 1959 Agreement. 10 Section 23 in 1958 amendments , and section 22 In 1959 Agreement. 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other union credentials first to the foreman or shop steward (but in all events to the latter), before starting work. These employers often bring men from Local 798 to the job who are not registered with Local 1486, but leave that problem to the foreman and job steward, who make sure that the Local 798 members register with Local 1486 before starting work or as soon as possible thereafter." On occasion when Jack Italiano, Inc., has brought Local 798 men into Suffolk County, Gulickson has even requested him to put painters from Local 1486 who have been out of work on the job instead of retaining men still employed or just laid off elsewhere. During a general painters' strike in Suffolk County in April 1959, which affected an Italiano job, that employer brought in Local 798 members, but Gulickson insisted that they get off the job for a day so that they could get a clearance card from their local, and then register with and get a permit card from the Union, before they went back to the job. This employer understood this was part of the normal "strike procedure" and in accord with the Brotherhood constitution.12 Jack Italiano, president of Italiano, Inc., testified that the Union never told him who or when to hire men in Suffolk County or ordered him to remove men from a job except "only on condition if a man has to get a permit. That's the only thing-just to report to his office to get a permit, and go back to work." 13 In June 1959, Hoes Decorating Company, a Nassau County member of the Asso- ciation, had a painting job at a school in Rocky Point, Suffolk County. On June 18, 1959, Garrett Hoonard, a Hoes foreman and member of Local 798, was sent to take over the job. When he arrived, the job steward asked if he was registered for it. Hoonard said he was not. The steward said he could work that day, "but make sure you are registered before you come in tomorrow." Hoonard registered at the' Local 1486 office early the next morning, and received from Business Agent Cleon McNeil a registration card showing his name, home local union number, name of the contractor and location of the job, as well as a "monthly assessment" card, signed by McNeil, showing that the Union "has permitted Brother G. Hoonard of Local Union 798 to work in above territory for month of June 1959 upon payment of $3 assess- ment." 14 Hoonard returned to the job, told the steward he was registered, and went to work. While on the job, painters coming to work on it reported first to Hoonard, and he referred them to the steward. While Hoonard had authority to hire men an the job, he did not exercise it. In July 1959, Hoes began a job in East Farmingdale, Suffolk County. Before it started, Hoonard and Robert Lesser, another member of Local 798, went to the Union to register for the job. Gulickson accepted and registered Hoonard, but said he could not register Lesser because the Union had about 25 members out of work.15 Gulickson asked Hoonard if he could use another man on the job. Hoonard replied that, if he could not put Lesser on, he needed another painter. Gulickson pointed to Albert Zigmand who was sitting in the office, and told him to take "this man, he is a new member." At Hoonard's request, however, Gulickson said Lesser could work that 1 day, since he had traveled some distance to register for the job. Hoonard, Lesser, and Zigmand worked on the job that day, and the next day Hoonard trans- ferred Lesser to a Nassau County job. A few days later, one Ritell reported at the Suffolk job, displayed a working permit signed by Gulickson, and told Hoonard he had been sent by Gulickson to act as shop steward. Hoonard told him he could not put him to work, as he was shutting the job down temporarily the following day. Before he left, Ritell told Hoonard that when he started it up again, he should let 11 Gulickson, admitted that if a job steward allowed a Local 798 man to work in Suffolk County without a paid-up dues book from his own local , and a registration card and working permit from Local 1486, the Local 798 man as well as the steward and foreman -could be brought up before the Union on charges of violating its bylaws and the Brother- hood constitution. - 12 Sections 235 to 252 of the constitution detail the "Clearance card laws" which re- quire members of one local to obtain clearance cards when they work or move into the jurisdiction of another local, and deposit such cards with the new local within 48 hours after arrival in the new jurisdiction (and in all events within 30 days after issuance, If the member does not immediately seek work) and thereafter pay the dues and assess- ments required by the new local, and follow its rules in securing work. 18 These findings are based on uncontradicted and credited testimony of Julius Schatz, and Jack Italiano, and admissions of Gulickson , and the Brotherhood constitution. 14 Hoonard had been a member of Local 1486 for a year or so before he joined Local 798. 15 He also insisted that Hoes should register the job at the union office, so that Gulickson ,could examine its insurance and compensation policies , but withdrew this requirement when Hoonard reminded him that Hoes was already a bonded member of the Association ; Gulickson replied that he had -thought Hoes was an employer from New York City. LOCAL 1486, BROTHERHOOD OF PAINTERS, ETC. 813 Ritell know about it. Hoonard promised to do so. • Hoonard shut down the job and took Zigmand with him to another one in Nassau County. About a week later, Hoonard called Gulickson to advise him the East Farmingdale job would be revived, and told Gulickson to send out a shop steward; Ritell came to the job about 2 days later and acted in that capacity. A week or so later, Hoonard asked Ritell to find another good painter, saying he would need more men, but would also like to use some of Hoes' own employees, as Hoes was "getting slow" elsewhere. Ritell told him, "You have to hire some of our men first." Hoonard then procured five more painters from Local 1486, after which he put some Hoes employees, including Lesser, on the job. In September, Hoonard had to lay off employees. When he told Ritell about it, the latter reminded him, "Don't forget to send your men, too." Hoonard understood Ritell to refer to the "3 for 1" rule which required every out-of-town contractor to put three men from Local 1486 on a job, to every one of his own.16 On all other Suffolk County jobs, Hoonard has always used painters with permits from Local 1486, never a nonunion man, and he usually procured such workmen through the job steward.17 These facts clearly illustrate the Union's exclusive control of the hiring by Association members, and their acquiescence therein, and • maintenance of closed-shop conditions in Suffolk County by enforcement of (1) bylaw and constitutional requirements of clearance, registration, and procurement of working permits from the Union as a condition of employment, as well as (2) the discrimi- natory provisions of the original 1956 Agreement. The Union imposed the same discriminatory requirements upon nonunion painters who sought employment through the union office. Gulickson testified, and I find that: When a man makes application for membership in the Union, he must pay the required initiation fee (or a large part of it if he does not have the entire amount), for which he gets a receipt which also operates as a permit to work. This document is often a slip of paper or Gulickson's business card, on which Gulickson signs his name, and writes the name of the employer or address of the job to which he is send- ing the applicant; at times Gulickson also asks the employer on the receipt to "do what you can for" the applicant; at other times, he may write down that the man can work until a stated date, i.e., the date on which the man is to be initiated into the Union. The paper sometimes specifically gives permission for the applicant to work on the named job, but in all instances serves to advise the steward on the job that the Union "does not object to his working" on it. Article I, section 11 of the Union's bylaws provided that the initiation fee for journeymen is $200, payable at time of initiation; however, the Union's practice, as indicated by Gulickson's testimony and other facts considered below, was to insist upon a payment of $100 on account at the time of application for membership, if the applicant desired to go to work at once. Gulickson also admitted that if the applicant was short of funds, he would grant him a week or so of grace in which to pay the balance of the fee, while still allowing him to go to work. This procedure was followed in the instances set forth below. In June and July 1959, Peter Micelli, Inc., an Association member, was operating several painting jobs in Suffolk County. About June 1, Rudy Starich and William Corrigan, nonunion painters, sought work at the Union's office and at the same time applied for membership. Gulickson told them they would each have to pay a $100 deposit on the initiation fee to get working permits. When they indicated they did not have the money, but would like to get work at once, he gave each a business card signed by him and told them to take it to George Masick, foreman on a Micelli job in Ronkonkomo, saying he was sending them-'out on' condition that they paid the $100 in 2 weeks, and that they "would be permit men after that." He also said they must pay a balance of $25 in 30 days,18 and would be initiated into the Union at a meeting in July. They presented the cards at the job to Masick, who asked them if 1sThe "3-for-1," or "75-25," rule, as set forth in section 135(a) of the Brotherhood constitution, and article II, section 6 of the Union's bylaws, provides in substance that when a contractor does painting work outside his hometown, not less than 75 percent of his work force shall come from the district council or local union, as the case may be, existing in the locality of the job This provision was also set forth in the original 1956 Agreement aforesaid, as section 4B which read : "All out-of-town employers when operating in this jurisdiction, shall employ journeymen of this Local Union to the extent of at least 75% as per the General Constitution." Section 4B was deleted by the 1958 amendments. 17 The findings as to the Hoes jobs are based on uncontradicted and credited testimony of Hoonard . and admissions of Gulickson. is Article I, section 11, of the Union 's bylaws fixed the initiation fee at $200, but apparently Gulickson was accepting a lesser amount as the fee at this time , as appears from testimony of William Barrow and Albert Zigmand noted below. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they were in the Union. They replied they were "permit" men, and he put them to, work. However, on Friday of that week, Masick ordered them to go back to the Union and get "permits" from Gulickson, as they only had business cards of Gulick- son, and he wanted a "permit" to "cover" him if anyone asked if they were "permit" men. Early Monday morning, they got permit cards from Gulickson, which indicated that they could work up to July 9, and that $25 was payable by that date. After they gave the permits to Masick, he allowed them to continue work. Starich worked on that job 7 or 8 days and was then transferred to another Micelli job on a junior high school in Sayville, Long Island; Corrigan was transferred there later. One day the two men were talking on the new job about payment of the initiation fee at a union meeting in July. John Muller, foreman on the job and president of Local 1486, over- heard them, and told them there was no meeting on July 9, as it was Sunday,19 and that if they did not pay the balance of the initiation fee at the previous June meeting, (which would be June 25, according to the union bylaws), they would not work after that date. Both men were initiated at a later union meeting, at which time they re- ceived union dues books from Financial Secretary Herman Feltman, who told them they must keep the books up to date by paying dues quarterly in advance, saying that if they did not, they would not be allowed to work after the first of each quarter. In explaining this, he also pointed out the same requirement in article 145(c) of the Brotherhood constitution and article III, section 13 of the Union's bylaws, which also, provided for a monetary penalty on a member for failure to keep his dues current, and a fine on all members who worked with a member delinquent in dues. The steward on this job filed the usual weekly reports at the union office described above. While Starich admitted that he voluntarily agreed to the above financial requirements when he applied for membership in the Union, it is clear from the facts that the union officials, the Micelli foremen, and job stewards enforced on the Micelli jobs the re- quirement of immediate union membership in good standing, or the equivalent thereof in the case of applicants for membership, as a condition of employment, without any grace period except the discretionary extension of time of less than 30 days for full payment of the initiation fee allowed by the business agent20 In the latter part of May 1959, Albert Zigmand, a nonunion painter, applied for work at a painting project of George Clark, an Association member, in Center City, Long Island, in response to a newspaper advertisement. He applied with two other men to the superintendent on the job, who asked them if they were painters and where they had worked. Zigmand gave him this information about himself, and also said he was nonunion. The superintendent told Zigmand it was a "union job" and that he would have to see the union business agent and become a union member before he could work there. Zigmand replied that he had been in the Union before, and would join again. He also asked, "Since when does the Union advertise for men?" and the, superintendent replied that "they don't advertise," but that he needed men and "they can't supply the men," that he did not care whom he was hiring, but would hire men. The three applicants and another man (unidentified) went to the union office and asked Gulickson for a work permit. He told them the Clark job was a "union job" and they could not work there unless they were unionmen, that he would give them permits to work, and that they had 30 days in which to pay $100 initiation fee and become a member, but that if they could not pay it at the first initiation meeting, they "would be out." Zigmand said he wished to join the Union, but pleaded lack of funds Gulickson replied, "We'll fix it some way so that you don't lose out, so that you will get in in July," and that they would be notified when to come to a union meeting to pay their initiation fees and be initiated. He then gave Zigmand a slip of paper reading: GEORGE CLARK, Employer, Center City Homes, Deer Park This will certify that Fred Hubner, Angelo Licitra, and Albert Zigmand are, permitted to work as painters on above job. A. GULICKSON, B.A. The three men named in the slip returned to the Clark job, where the superintendent asked to see "what you got from the business agent," and when Zigmand showed him the slip, he told him to take it to the job steward, Joseph Cuccaro, saying, "I can't put you on until the steward OK's you." Zigmand showed the slip to Cuccaro, saying Gulickson had sent them out and that he had 30 days "before he became a member." 11 Starich was not sure of the exact date of the meeting ; July 9 was a Thursday However, the exact date is not material. 20 The above facts are based on credited and uncontradicted testimony of Starich, and admissions of Feltman and Gulickson. LOCAL 1486, BROTHERHOOD OF PAINTERS, ETC. 815 The steward replied, "Okay," and the three went to work. At the end of 30 days, Cuccaro told Zigmand, "Don't forget now, $100 or else." However, Zigmand worked on the job from about May 23 until sometime in July; he paid his intitiation fee and was sworn into the Union at a July meeting. Several other men, not identified, also worked on the job during this period, but never became union members, however, when Zigmand was initiated into the Union, they were absent from the job, and when Steward Cuccaro asked them after the meeting if they had joined the Union, they told him they had been ill at the time, and they remained on the job beyond that date 21 While it appears that the three applicants in fact worked more than 30 days without becoming full-fledged members of the Union, the salient facts are that they were required by an Association member to apply to the Union, and by both that member and the Union (acting through the union foreman and job steward) to produce work- ing permits from the Union, before they were allowed to work, and those permits were given only after they took steps immediately to become union members. That they managed to continue to work for longer than 30 days without initiation into the Union was not due to a nondiscriminatory policy of the Union, but in Zigmand's case only to the leniency of its agents about payment of the initiation fee; the others managed to stay on only through a plea of illness to explain their lack of initiation. The Clark job was another instance where an Association member relinquished to the Union the exclusive control of staffing its project by its agent's requirement of a working permit from the Union; and the Union's maintenance of a closed shop there- on by coercive means is shown by the steward's vigilance in reminding Zigmand while working about the necessity of payment of the union fee as a condition of working, and inquiries of other applicants about their initiation into the Unon; his apparent gullibility in accepting their reasons for lack of initiation into the Union does not' disprove the existence of the closed shop or exclusive referral procedure. During its enforcement of the 1958 and 1959 Association agreements, the Union extended their terms and provisions to non-Association or independent employers by procuring from them written "Letters of Compliance" under which the signing em- ployer agreed ,to employ only painters and decorators "doing work under the jurisdic- tion of" the Union, submit complete lists of all painting jobs to the Union, pay the rates of wages and contributions to the Union's insurance and welfare and vacation funds provided in the Association agreements, and "conform to all working rules and conditions as set up in the Working Trade Agreement as signed with a painting contractor affiliated with the Brotherhood." The latter agreement is not in evidence, but I find from stipulations of Respondent and admissions of Gulickson that the Union procured this agreement from all independent contractors, so that all hours, rates, and working conditions of independent employers would conform to those set up in the Association agreements, and for this purpose, when the Independent Agree- ments were signed by such employers during 1959, they also agreed to sign or con- form to the 1959 Association Agreement. The record shows that, in dealing with independent employers under these agreements, the Union continued to enforce the same closed-shop and exclusive hiring hall procedures as with Association members. In ».September 1959, William Barrow, a nonunion painter, applied for membership in the Union and, a few days after he paid $100 advance on the initiation fee, received a work permit from Gulickson who told him he had been approved and sent him to a painting job About 30 days later, Barrow with others was initiated into the Union, at which time he paid the balance of $25 fee to Financial Secretary Feltman who took back his work permit and gave him the usual union duesbook and quarterly working card, with the usual admonition about keeping the duesbook and card current as a condition of getting work. On or about September 30, 1959, J. I. Haas Company, an independent "out-of- town" employer,22 started a painting job at a Republic Aviation Company facility in Farmingdale, Long Island. The foreman on the job was Fred Krause, a member of Local 814 of the Brotherhood. When the job started Krause, on instructions from the employer, registered it with the Union and asked for four men, explaining that it was a "steel job " Gulickson referred Barrow and three other union members to the job. They worked until October 23, when the job was temporarily closed down. Barrow's work as a steel painter was satisfactory. When laying the four off, Krause got their telephone numbers, saying he would call them when it resumed. When the second phase of the job, involving plastering, began in November, Krause asked the Union only for a steward, who was sent out and worked with Krause for about 5 weeks. After that Krause enlarged his work force, procuring men from the n These findings are based on uncontradicted and credited testimony of Zigmand 2' The Union has no contract with J. I. Haas, but claims "jurisdiction over the work" It does in Suffolk County. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union. On the day Krause called for men, Barrow was in the union office and overheard an office employee getting the details about the job over the telephone, from which he gathered it was starting up again. He and a few other men then visited the job and asked Krause for work. Krause refused to take them on, saying he was "too busy" and having a "tough time with Andy, I got to hire men from the Union," and that he could not use Barrow. The next day Barrow complained to Gulickson about this, and Gulickson told him Krause had to get workmen from the union hall, as there were other men out of work besides Barrow, and Gulickson had to place men where he thought they were qualified.23 Krause testified that he refused to hire Barrow the second time because he did not think him qualified for the type of paint- ing then being done. This testimony, together with Barrow's version of what Gulickson told him about placing men according to their qualifications, and Gulick- son's own testimony that when a contractor registers a job, the Union finds out the type of work involved and he tries to send men who are qualified for that type of work, affords some indication that Barrow may not have been sent back to the job in November for lack of qualifications. However, Krause also admitted that during both phases of the job, he secured his workmen either through the job steward or by direct call to the Union. It is clear from all the facts that throughout the job the employer, although not under contract with the Union, adhered to the job registra- tion and union referral procedures found above, in accordance with which it refused to hire Barrow the second time, in part because he did not come on referral from the Union, even though it had employed him before and promised to recall him. The salient fact is that the employer allowed the Union to choose the men to staff and restaff the job, and did not exercise its own right to hire men, with the result that only union members chosen by Gulickson were employed. Between Christmas 1959 and January 1, 1960, Barrow went to work for H. K. Ferguson Company on a Bomarc missile base job in Westhampton Beach, Long Island. All painters on the job, including Barrow, were referred to it by the Union.24 John Muller and Howard Tuthill, the foremen, were members of the Union, and Muller was its president. One day just before January 1, 1960, Tuthill told the employees their quarterly working cards had to be paid up by Monday morning, January 4, and would be checked by him that day, and if a book was not paid up the man would not work. On the 4th, Job Steward William Reddin asked Barrow if his book was paid up. Barrow said it was not, because he did not have the money. Reddin gave him $50 and told him to be sure to pay his dues that night. Barrow asked, "If I don't pay the dues, there is no work?" and Reddin answered, "That's right." Here again, the Union, through the foremen and job steward, enforced the closed shop by making sure that all employees were members in good standing as a condition of continued employment, without regard to the statutory grace period of 30 days 25 Upon all of the above facts and circumstances, I conclude and find that Respondent has violated the Act: 1. By maintaining in effect and enforcing from November 11, 1958, onward pro- visions of the 1958 Agreement which in effect required membership in Respondent, as a condition of employment, without allowing employees a grace period of 30 days following the commencement of their employment, and also required that employees must be members of the Union as a condition of promotion to the position of chargeman or foreman. These provisions amounted to unlawful union-security clauses, and the Union's enforcement thereof created unlawful closed-shop condi- tions of employment on all jobs, in violation of Section 8(b)(2) and (1)(A) of the Act 26 2. By requiring employers since November 11, 1958, under the 1958 and 1959 Association Agreements, and Independent Agreements, to make weekly payments into the Union's insurance, vacation, and welfare funds, in a fixed percentage of gross weekly payrolls, although the benefits of said funds are restricted to members of the Union in good standing, and said agreements do not provide similar benefits for employees not members of the Union in good standing. As these benefits are 23 These findings are based on credited testimony of Barrow, and admissions of Krause, who was a witness for Respondent 24 This employer had no contract with the Union. but as a general contractor it had trade agreements with international unions representing all the building trades and crafts, including the Brotherhood. According to Guliclison, it had agreed orally with the Union, when It began the job, to abide by the Union's agreements with independent employers. 25 These findings are based on credited testimony of Barrow. " Local 25, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Argo Steel Construction Company ), 122 NLRB 1077, 1082. LOCAL 1486, BROTHERHOOD OF PAINTERS, ETC. 817 not available to all employees on a nondiscriminatory basis without regard to union. membership, the provisions of said agreements providing for maintenance of the funds and adopting the trust agreements under which they are set up, and the rules and regulations promulgated thereunder, amounted to unlawful discrimination against employees who might not have, or might lose, membership in good standing in the Union, and thereby tended to encourage membership in the Union, in violation of Section olo)(1)(A) of the Act, and the Union's enforcement of the agreements in that respect since November 11, 1958, has caused employers so to discriminate, in violation of Section 8(b) (2) of the Act. Carty Healing Corporation, 117 NLRB 1417, 1418; Progressive Kitchen Equipment Co., Inc., 123 NLRB 992, 1001. 3. By requiring employers since November 11, 1958, under the 1958 and 1959 Association Agreements, and Independent Agreements, to hire only members of Respondent in good standing for work in all branches of the industry, and whenever such members were not immediately available, requiring employers to employ journeymen who were members of other locals of the Brotherhood in good standing, only after such journeymen registered with and paid Respondent a working fee, and were approved and referred by Respondent. These practices coerced and re- strained employees of employers in the exercise of their guaranteed rights, in viola- tion of Section 8(b)(1)(A) of the Act, and caused employers to discriminate against them in violation of Section 8(a)(3) of the Act, thereby violating Section 8(b)(2) of the Act. Local 363, International Brotherhood of Boilermakers, etc. (Anchor Welding & Manufacturing Company, et al.), 123 NLRB 1877.27 The violations inherent in the Association Agreements were not purged by later inclusion of the safeguards required by the Board in the Mountain Pacific case, supra, because Respondent has failed to put into effect the nondiscriminatory standards or criteria for referral required thereby, or caused the employers to post such provisions relating to the functioning of the referral system. Hence, Respondent's liabilities growing out of its maintenance and enforcement of the illegal hiring and referral system have not terminated . Local 363, International Brotherhood of Boilermakers, etc., supra, footnote 6, and McCormick Construction Company, 126 NLRB 1246. 4. Notwithstanding the 1958 amendments to the 1956 Association and other agree- ments, and their continuation in the 1959 and contemporary independent agreements, maintaining in effect, and enforcing from November 11, 1958, onward an arrange- ment, practice, or understanding with Association members, Stratford, and other independent employers which required that at least 75 percent of the employees of out-of-town contractors be members of Respondent in good standing, that members of other locals in the Brotherhood, or nonmembers of Respondent, must pay Re- spondent a working tax, fee, or assessment of $3 per month and secure working permits from Respondent, while employed at jobs within the jurisdiction of Respond- ent, that all members of Respondent, while working on such jobs, remain in good standing by paying dues regularly 3 months in advance, and that other union mem- bers must not work with any members who have failed to keep their working cards so paid up, and that payment of such dues , working taxes, fees, or assessments shall be a condition of initial and continued employment within Suffolk County and the jurisdiction of Respondent, without allowing employees a grace period of 30 days following the commencement of their employment, and notwithstanding the absence of any valid agreement requiring such membership as a condition of employ- ment, and that all employers hire such employees as they may need in Suffolk County exclusively through, and upon referral, clearance, and approval by, Respondent, and causing employers to enforce such requirements, all in violation of rights of employ- ees guaranteed by Section 7 of the Act, thereby violating Section 8(b) (1) (A) and (2) of the Act. See cases cited above, Booth and Flinn Company, 120 NLRB 545, 548-551, and Charles S. Wood and Co., 121 NLRB 543. The safeguards required by the Mountain Pacific case, supra, must be carried out even where the hiring agree- ment is not in writing, and the failure to observe those safeguards, as here, violates the Act. 'Central Rigging and Contracting Corporation, 129 NLRB 342. 5. In the operation of its referral system under the circumstances found above, by referring, and refraining from referring, employees to jobs on the basis of membership or nonmembership in Respondent, thereby coercing and restraining them in exercise of rights guaranteed by Section 7 of the Act, in violation of Section 8(b)(1)(A) of the Act. - 21 Insofar as the Association Agreements recognized the right of Respondent 's members to refuse to work with nonunion painters, such provisions In themselves required em- ployers to employ only union workmen and created closed-shop contracts which violated Section 8 ( b) (2). Selby-Battersby & Company, 125 NLRB 1179. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alleged Discrimination Against Joseph Acierno and Rocco Milano In the first week in June 1958, there was a contested election of officers in the Union. A slate composed of Harvey Pryce for business agent, Rocco Milano for president, Joseph Acierno for recording secretary, Michael DeSantis, Sal Gangi, and James Owens, ran against a slate of incumbents, including Business Agent Gulickson, Herman Feltman, the financial secretary, Cecil Towers, the recording secretary, and Herman Brink, the treasurer, with a new man, John Muller, running for president. After an active campaign, the Gulickson slate won. The officers elected held office for a year; the business agent was elected for 3 years. The issue as to Acierno and ,Milano is whether the Union between June 1, 1958, and June 15, 1959, unlawfully refused to refer them to jobs with Stratford, Associa- tion members, and other employers, and caused the discharge of Acierno by Stratford, an independent employer, and Tri-County Painting Company, an Association mem- ber, because of their active opposition to Gulickson and his slate in the election. Stratford signed a letter of compliance with the Union on April 2, 1959,28 which in effect conformed working conditions and hiring procedures on Stratford jobs in Suffolk County to those of Association members, which I have found unlawful in certain respects noted above. Joseph Acierno Joseph Acierno has been a member of the Union since 1954. Prior to the election .of 1958, he regularly obtained employment in Suffolk County on referrals by Gulick- son from the union office in the manner described above. except during slack seasons in the winter or early spring. During May 1958, he was working for Jack iItaliano, Inc., an Association member, which job ended a few days before the election. He visited the union office the day after the job ended, registered as unemployed, and waited for a referral, but received none. He reported at the office several times a week thereafter with the same result; on several occasions he asked Gulickson if there was work for him, and Gulickson usually replied. "Not at the present time." As a result, Acierno sought employment in New York City and obtained a job lasting several weeks through a friend at the Yonkers Raceway (in Westchester County). When that job ended, he again sought employment through the Union in January and February 1959, but Gulickson told him continually, "Nothing for you." Acierno returned to New York and secured fairly continuous employment through an employment agency and New York City District Council No. 9 of the Brother- hood up to May 1, 1959. Between jobs, he occasionally sought employment at the union office, and received the same negative answer from Gulickson On a visit on May 1, 1959, he received the same answer from Gulickson, but learned from another union member that painters were needed at a Stratford residential development, American Village, at Babylon, in Suffolk County; the member who told him had refused a referral to it because he did not do "development" work. Acierno visited the project and asked Roland Forest, the foreman, who was a member of the Union, if he needed more men. Forest told him he had hired some, but might need more the following week and suggested Acierno come back on Monday, May 4. Acierno did so and again asked both Forest and Max Schatz, the employer's superintendent, for a job. Schatz told Forest to put Acierno to work Before starting work, Acierno signed the usual weekly report of the job steward, Raymond Smith, who was a member and trustee of the Union. While Acierno did not present any referral card or work permit from the Union to Forest, the foreman had called the union office that morning for men, and assumed that Acierno had been referred by the Union. Likewise, Smith did not ask for Acierno's dues card or working permit when he reported, for Smith knew most of the painters who reported that day, having met them at union meetings or the union office, and he assumed Acierno had also been sent out by the Union, for he had seen him registering at the union office and assumed he had his registration card. On the afternoon of May 5, the steward told Acierno that Gulickson had visited the job, noted Acierno's name on the steward's report, and asked how he got on the job, and after Smith told Gulickson how Acierno was hired, Gulickson told Smith to get Acierno "the hell off the job," that Gulickson did not want him on that job. 11 When the 1958 Association Agreement expired on March 31, 1959 , without agreement between the parties , the Union called a countywide strike in April, which shut down the painting work of Tri-County Painting Company , an Association member, on the Stratford project In order to get it finished , Stratford sinned the letter of compliance mentioned above, agreeing to higher pay rates, and thereafter acted as the direct employer of the -painters , procuring them all from the union office, until the strike was settled LOCAL 1486 , BROTHERHOOD OF PAINTERS, ETC. 819 Acierno told Smith he got the job himself , had a right to work, and intended to do so as long as the employer wanted him to work . On the 5th or 6th, the steward told Forest that Acierno had no registration card and had not been sent out by the union office, which upset Forest "for the simple reason that there was a strike going on, it had to be shown on the registration card that he had been up at the office to register for strike duty." 29 While working on the 6th, Forest asked Acierno whom he had not known personally before, "How come you are on Andy 's 'ST' 330 list?" Acierno replied that he had run for union office and had been defeated , and had been unable since to get any work through the Union . About 3 p.m. that day Forest gave Acierno his pay envelope and said he and Max Schatz were sorry he had to be laid off, that Acierno looked like a "nice guy," and that after the exist- ing strike was settled, he would give Acierno work at another Stratford job, called Imperial Gardens, in Nassau County. On one occasion during the strike, Gulickson offered William J. E. Smith, a mem- ber and elected warden of the Union, referral to the Stratford job, but Smith turned it down. Smith's brother, Raymond, was ,the shop steward on the job. Acierno filed his charge herein on May 7 , 1959 . It was served on the Union on May 14, and on Stratford on May 12, 1959 . On May 8, Acierno sought work at the union office and was told by Gulickson , "No work for you." On May 14 Acierno visited the Stratford job about 11 a.m . to talk to an employee there about a per- sonal matter. While he was en route, Max Schatz had sent him a telegram request- ing him to report for work , and when Acierno got to the job , Schatz asked him if he had received the telegram . Acierno said no, that he had left home early that day. Schatz then said he had telegraphed him to report for work, and now told him to go to work. Acierno worked the remainder of the day. When he started, Steward Smith welcomed him back to the job, and told him he (Smith ) had had an argu- ment with Gulickson about who was to blame for having Acierno fired from the job, with Smith denying it was his fault. Smith asked Acierno if his card was paid up, and when Acierno said it was not, Smith warned him to pay up because "accord- ing to the by-laws I am not allowed to let you work during a strike without your dues paid up and a registration card ." He also told Acierno that if he did not pay up, "they will bring you up on charges and fine you because you know that's what they want to do, they want to get you up on charges ." Acierno borrowed money from Smith, paid up his dues that night, and went back to work the next day. Shortly after May 14, Julius Schatz, president of Tri-County Painting Company, the employer,31 asked his brother Max to recommend a painter at Stratford for transfer to a job at Glen Cove , in Nassau County. Max and Steward Smith sug- gested Acierno ; Max said Acierno was the best of the new men, and Max and Steward Smith also pointed out that he lived in Brooklyn , which was nearer to Glen Cove than Babylon . Schatz sent Acierno to that job . The first day Acierno was required to work outside in the rain most of the day, and protested. The next day the job steward, a Local 798 member, asked how he came to work on that job, and said that the business agent of Local 798 was coming to the job shortly.. Acierno complained to the foreman about getting a chest cold from working in the rain the day before, and the foreman called him a "bastard and a loud mouth." . After an argument, Acierno said that if he felt that way about it, he would go back to the job at Babylon . He returned to American Village , explained to Julius Schatz and Smith how he had been treated at Glen Cove, and Schatz put him back to work at Babylon. That evening Smith reported to Gulickson the names of all men on the job, including Acierno. He worked there until May 29 , when Forest laid him off. The work was tapering off at the time , but another painter who had been hired after Acierno was kept at work, and two more painters from a Nassau County job were 19 Section 129 of the Brotherhood constitution recognizes "the right of journeymen to take work temporarily during strikes or lockouts , or when unemployed , under such reason- able restrictions as the local union or district council may determine . . . .. Article 111, section 7 of the Union's bylaws forbade members to work on a job when a strike had been called by the Union . Forest's testimony also indicates that the registration card was used to inform other crafts that the job was not on strike so that they would work on the job It is apparent from this that on the Stratford job the Union had relaxed the prohibition of its bylaws, but was still operating under the constitutional provision to maintain strict control over hiring and working conditions on the project. 11 "ST" stands for a four-letter scatological word. 81 Tri-County Painting Company had resumed as painting subcontractor on the job after settlement of the strike , with Max Schatz as its superintendent. 614913-762-vol. 13 2- 5 3 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' taken on.32 It is clear from all the above facts that the Union was enforcing an unlawful closed-shop condition and operating an unlawful exclusive referral system on the Stratford job, similar to its conduct on other jobs in Suffolk County found above, and in light of this unlawful conduct, Acierno's inability after the election to procure work through the Union, and his discharge from the Stratford job on May 6, 1959, under the circumstances found above, contrasted with the regular- referrals he received before it, and the Union's referral of an officer of the Union to the same job during the strike, present a prima facie case of discriminatory re- fusal by the Union to refer him to jobs, and of effective action by the Union through its agents 33 which caused Stratford to discharge him from one job obtained without referral from the Union, all because he exercised the right to run for election against incumbent union officers, which was a right guaranteed to him by Section 7 of the Act, in violation of Section 8(b)(1)(A) and 8(b)(2) of the Act.34 Respondent offers several defenses. It argues that Acierno's difficulties in getting referrals through the Union after the election but before November 7, 1958, a period more than 6 months before the filing of the charge herein, cannot be considered or made the basis of any findings. While the circumstances of that period cannot form the basis of any order or remedy herein, the fact that the discrimination began right after the election and continued into the critical period after November 7, 1958, is a pertinent background circumstance which shows the source and continuing motiva- tion for the unlawful conduct which occurred within the 6-month period.35 Respondent also pleads a confession and avoidance, in effect, in that Gulickson does not specifically deny that Acierno failed to get referrals, but avers that he did not visit the union office when work was available, and often "disappeared" for periods of time, and that when he did visit the office, he came late, after all available jobs had been assigned to other members. I do not credit this testimony, for Gulickson does not deny credible testimony of Acierno, Forest, Herman Feltman, and the two Smiths which clearly shows that at the time Acierno sought referral on May 1, 1959, jobs were available at the Stratford project and Gulickson sent other union members to take them, and that throughout the 1958-59 period Forest, the two Smiths, and other union members had regular employment in Suffolk County on referrals by or with approval of the Union. Furthermore, Gulickson does not explain why he never tried to contact Acierno by telephone, as he did others, to refer him to jobs, although Acierno was apparently registered continually on the unemployed list at the office after the election . In these circumstances, it is inconceivable to me that Gulickson could not have contacted Acierno by telephone or otherwise, as he did others, if he had desired to give him referrals on a nondis- criminatory basis. The Union's repeated refusal to refer Acierno to jobs obviously compelled him to procure work elsewhere through his own efforts, and the fact that he found employment in this fashion on the Stratford job and elsewhere up to June 15, 1959, does not negate or excuse the Union's unlawful conduct, but merely high- lights the effectiveness of its discrimination against him . The circumstances that, after the Union had caused his discriminatory discharge from the Stratford job, and he had filed his charge herein, Acierno was suddenly called back to work by Stratford without apparent action or hindrance by the Union, and that after he left that job Acierno received other referrals through the Union , are not explained by the Union, hence the obvious inference is that the Union determined for reasons of its own to reverse its prior discriminatory attitude toward Acierno after he filed the charge, a circumstance which again by contrast highlights the prior discrimina- 88 These findings are based on credited testimony of Acierno , as corroborated in part by that of Forest, Julius Schatz , Raymond Smith, William J. E Smith, Milano , and Owens. Other testimony of Forest , Schatz, and the two Smiths in conflict therewith is not credited 83 As business agent, Gulickson is clearly an agent of the Union , and I find on all of the above facts, particularly the duties imposed on chargemen and stewards by the agreements and the union bylaws and Brotherhood constitution , and their obligation to enforce the latter on all jobs, and their actual enforcement of such provisions on the Stratford and other jobs as found above, that Forest and Steward Smith were also agents of the Union See Local Union No 450 , International Union of Operating Engi- neers, AFL-CIO (Tellepsen Construction Company ), 122 NLRB 564 , 566, enfd. 281 F 2d 313 (CA. 5) ; Booth and Flinn Company, supra, and P R. Mallory & Co., Inc, 111 NLRB 38 84 Local 138, International Union of Operating Engineers , AFL-CIO ( Nassau and Suffolk County Contractors' Association, etc ), 123 NLRB 1393 86 Local 222 , International Ladies' Garment Workers' Union , AFL-CIO ( Valley Knitting Mills, Inc ), 126 NLRB 441 ; Chauffeurs, Teamsters and Helpers Local Union No. 175, etc (McJunkin Corporation), 128 NLRB 522. LOCAL 1486, BROTHERHOOD OF PAINTERS, ETC. 821 tion, and in addition shows that the Union's unlawful closed-shop and exclusive referral practices have continued with the acquiescence of the employers. Foreman Forest testified that Acierno was laid off for lack of work on order of Superintendent Max Schatz, and that others were laid off shortly after, as the job was finishing up. I do not credit this defense for several reasons. Forest admitted that at the layoff he told Acierno that Tri-County would rehire him in Nassau County "after the strike was settled." In the light of the concern of Forest and the steward about Aciemo's lack of the registration card which was needed during the strike, and Smith's admissions about Gulickson's order to get rid of him, this testi- mony clearly shows that it was the lack of that document, not economic reasons, that motivated the layoff. In addition, Forest was vague as to the dates or extent of layoff of other painters, and he did not produce his personal "time book" in which he records such data on his jobs. Nor did Respondent produce Superin- tendent Max Schatz or any Tri-County records to support Forest's testimony, al- though the record shows that Max Schatz was not only a member of the Brother- hood, but available in the New York City area at the time of the hearing, and Julius Schatz produced Tri-County employment records for later periods. Further- more, although testimony of Julius Schatz indicates that in May and June his firm had plenty of work in prospect at American Village and would need, and actually hired, more painters, it is significant that Acierno was not promised recall to his job, but was offered future work at a project of Tri-County in Nassau County, which was outside the jurisdiction of the Union; the inference is clear that Forest and Schatz were satisfied to keep Acierno at work, but not within the jurisdiction of the Union because of his lack of proper credentials from it. General Counsel contends that similar experiences of Rocco Milano, James Owens, and Harvey Pryce himself, all members of the Pryce slate, support a find- ing of discrimination against Acierno. Milano was a member of the Union from 1946 to the date of the hearing. From 1946 through 1956, he had always received painting work through referrals by Guhckson. In 1956 he was referred to two jobs in Suffolk County which lasted more than 3 months. While on the second job, he was charged with violation of union work rules, tried before the Union, and fined a substantial sum of money. While still on that job, he later testified against Gulickson in proceedings conducted be- fore the joint trade board created by the Association agreements to hear and de- termine grievances of either party for alleged violations of the agreements. There- after, and until June 1958, he registered with the Union as unemployed, but was never referred to jobs by Gulickson, although other union members were in the usual course. After the election, he kept his name on the unemployed list at the union office, and visited it frequently seeking work, but was never referred to any job until September or October, when he applied directly to Gulickson and was sent to work for a contractor named Salerno. This job lasted 3 weeks. Thereafter he received no referrals until early May 1959 when he told Gulickson the Good Sa- maritan Hospital job was starting in Suffolk County, and Gulickson told him to go to it. However, Gulickson sent him without a work permit, and while Milano reported daily for 2 weeks at that job, he was never hired, although he had worked for the same foreman at another project. Later in May, Business Agent McNeil referred him to a church job in Bay Shore, Long Island, but he was not hired, although other members of Local 1486' obtained work there. On June 8, 1959, McNeil sent him to work for another contractor, and later in that month referred him to a job which lasted until December. Milano's inability to secure referrals, other than sporadically, after his "first opposition to Gulickson" in 1957, and his participation in the 1958 election, contrasted with his ability to get work through the Union after service of the charge herein, affords some support for a finding of discriminatory refusal to refer Milano for employment in the period stated in the complaint, especially considering that in this period the Union had an illegal ar- rangement with the Association and independent employers which created a closed- shop condition on all jobs and gave the Union the exclusive right to staff them with union members from the start, and that Acierno in like manner and in the same period had been discriminatorily refused work by Gulickson who had even caused his discharge from a job he secured by his own efforts. Other testimony of Milano himself weakens his case: While he secured painting work from 1946 through 1956 only through the Union, he apparently sought and received only three referrals at most in that time, two of them in 1956, because dur- ing most of that period he was self-employed as a manufacturer of neon signs. At times he refused referrals offered by the Union because of the pressure of sign work. After 1957, when not busy making signs, he got referrals from the Union in the usual course up to the 1958 election. He admitted that from 1957 to the date he testified, these referrals kept him busy about 6 months of the year, and he 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did sign work "on the side." Although he received no referrals and did no sign work in the fall and winter of 1958, he admitted painting work was then available only "at times," and he did not even visit the union office seeking work in December of that year. In this connection, James Owens admitted that during 1957 and in the summer of 1958 there were few housing operations going on in Long Island (which includes all of Nassau and Suffolk counties). In January and February 1959 Milano worked for Walter Anderson upon referral from the Union, left that job for a week or so in March to go to Florida, then resumed work for that contractor on March 11 and worked through until April 27, 1959. While on these jobs, of course, he had no occasion to visit the union office for work. Milano also admitted that the reason he failed to get work in the Good Samaritan Hospital job in May 1959 was because the foreman, who was well known to him, said he was not hiring any more men. There is no proof that this was a false reason, or that it was concocted by Gulickson; hence it overcomes the inference from Milano's other testimony, noted above, that his inability to get work there was due to Gulickson. Milano also admitted that when he applied on the ensuing church job, where he also delivered some papers from Gulickson to the job steward, he was met with the foreman's explanation that he had already put some of his own men from Nassau County on the job, but that he would call Milano on the telephone. The fact that he never did, although other Local 1486 members were working there, without more raises no more than a suspicion that the Union might have had something to do with the lack of a call. In the absence of proof showing when the other Local 1486 men were put on, or that Gulickson had any contact with the foreman which di- rectly related to Milano's application for work, this suspicion does not become proof. I must also consider Milano's admission that in this whole period, he owned real estate from which he secured some income, as well as occasional income from his sign business, which raises the inference that he was not as dependent on, or desirous of, painting work as his earlier testimony would indicate. James Owens testified that: He was a member of the Union for 3 years prior to November 1958, in which period he secured work by referrals from the Union. When nominated on the Pryce slate, Owens was working for Jack Italiano, Inc., to which he had been referred by a telephone call from Gulickson the night before the job started. He had received all prior referrals, except the first one, in like manner. The Italiano job ended about a week before the election. Shortly after that event, Owens registered in the union office, and thereafter visited it several times a week for 2 weeks, waiting for a referral, but never received one, either at the office or by telephone call from Gulickson. In June he secured work through a friend on a painting job at Yonkers Raceway, outside the jurisdiction of the Union. When that ended, he registered for work again at the union office, but received no referrals up to October 1958, although during this time Gulickson often referred other mem- bers to jobs, while Owens was waiting in the office. This occurred two or three times a week. As a result, when he became obligated to pay up his duesbook on October 1, 1958, Owens took a withdrawal card from the Union, telling Financial Secretary Feltman he was doing it because he did not get enough work, and that there was no prospect of employment, and that he would try to sell real estate or mutual funds, and also do some roofing work. As the withdrawal card is good for 1 year, and can only be extended upon payment of $1 to the Union, Owens called Gulickson at the office about the middle of October 1959 and asked for work. Gulickson said there was none available at the time, but he would put Owens' name on the unemployed list again. Owens did not renew his withdrawal card or reinstate his membership in the Union, but has since worked as a roofer. While Owens' experience was similar to that of Milano and Acierno, I cannot con- sider it as substantial proof that either he or they were in fact discriminated against after November 7, 1958. Owens' difficulties in getting work end with his withdrawal from the Union on October 1, 1958, hence I can only consider them as background evidence which tend to show the character of the Union's attitude and conduct to- ward Acierno and Milano within the 6-month period. In this respect, the inference of discrimination against Owens is weakened by other admissions which indicate that he was not fully dependent on the Union for a living. He admitted that: Before joining the Union in 1955, he had been self-employed, doing roofing, sid- ing, painting, and heating work, but mostly roofing. While he was a member of the Union, he continued to do roofing work in the winter months when there was no painting work available. He also tried to sell real estate and securities. At one point he tried to sell securities to the union welfare fund, of which Gulickson was a trustee. Gulickson was aware of all these outside activities. Feltman testi- fied credibly that, when Owens took his withdrawal card, they had a long talk about Owens' plans, during which Owens told Feltman he was "really a roofer" and would go back to that work, as a business recession existed in that area, and that LOCAL 1486, BROTHERHOOD OF PAINTERS, ETC. 823 Feltman tried'to persuade Owens to defer his withdrawal from the Union by indicat- ing that things might get better in the painting trade. Gulickson's advice to Owens on his single visit to the union office in October 1959, that there was no work at that time, cannot support an inference of continuing discrimination, in the light of the facts that he offered to put Owens' name on the unemployed list again, which offer Owens did not accept, and that Feltman the year before had tried to persuade him to stay in the Union, as he thought more jobs would be available. Considered in toto, I conclude that the testimony as to Owens' experiences would not support a finding that the Union discriminated against him in the period after November 7, 1958, because he ran on a slate opposing Gulickson, and in this respect his testimony does not support Acierno's or Milano's case. Nor does Pryce's testimony afford substantial support to their cases. He testified without contradiction that: At election time in 1958, he was working as foreman on a Tri-County Painting Company job in Nassau County. On hearing that the employer was starting a job in Suffolk County, he asked Max Schatz for a transfer to it. Schatz replied, "Gosh, no. You know that Andy called up the office and asked us to get rid of you. I guess you are going to have to stay here for awhile." Pryce said he figured he was "stuck there," and Schatz replied, "I guess you are." However, the employer transferred Pryce in September 1959 to the Stratford job in Suffolk County where he worked until January or February 1959, when he left the employ of Tri-County. Pryce's testimony about Gulickson's remarks, as related to him by Schatz, is hearsay twice removed, for it involves statements of- Gulickson made to the employer's "office," not Max Schatz, hence, Max must have heard it from the "office," and then told it to Pryce. Julius Schatz, president of the em- ployer, denied flatly that Gulickson ever asked him to remove Pryce from any job Further, neither of the Schatz brothers can be considered agents of the Union in the usual sense, so as to make Max's statements admissions against interest, even if the remarks had been made to either directly 36 In addition, the fact that Pryce was eventually transferred to the Stratford job and remained there until he left the employ of Tri-County, without apparent objection from the Union, also negates a finding of union discrimination against him.37 Leaving aside the insubstantial testimony as to Owens' and Pryce's experiences, all the facts and circumstances relating to Milano, standing alone, in my opinion do not constitute substantial proof of personal discrimination against him for the reasons advanced by General Counsel. Considered in the light of the discrimination against Acierno found above, I must conclude that the facts as to Milano still raise no more than a strong suspicion that there was similar discrimination against him. I there- fore grant Respondent's motion to dismiss the complaint insofar as it alleges such discrimination, and shall recommend that the complaint be dismissed to that extent. As Respondent has not sustained the burden of rebutting the prima facie case of discrimination again Acierno on and before May 6, 1959, as outlined above, I conclude and find that the Union, during a period of 6 months prior to May 7, 1959, and while operating the unlawful exclusive hiring and referral system found above, refused to refer Acierno, a member of the Union in good standing, to Association members and to Stratford, an independent employer, for employment, and on May 6, 1959, caused Stratford to lay him off, because of his exercise of rights guaranteed to him by Section 7 of the Act, and that the Union thereby violated Section 8 (b) (1) (A) and 8(b)(2) of theAot.3s Respondent claims the employer laid off Acierno on May 29 for cause. In sup- port of this, Julius Schatz testified for Respondent that he ordered the layoff when work slackened, because a. few days before Acierno stood on a ladder arguing with another painter instead of painting, and also did "sloppy work." Regarding the ladder incident, I find from credible testimony of Schatz and Forest that: A day or so before the layoff Acierno, while painting on a ladder, argued with a painter on an adjacent ladder about whether he was entitled to extra pay under union rules for working on a ladder. While arguing, he gestured with his paint brush but did no painting. Schatz observed the incident and told Forest he "could not have this on the job," and immediately ordered Forest to lay off Acierno, which was done on May 29. Regarding sloppy work, Forest testified that once, while Acierno was painting For the same reason, I must ignore testimony of Pryce about similar remarks attributed by Max Schatz to Gulickson in 1957, and related to Pryce at the time 87I make no finding on testimony of Pryce as to suggestions of Ray Smith , a union member, to him in January 1959 , on the Stratford job, that Pryce "make up with Andy," for Smith was not a job steward at the time, and his statements are not binding on Respondent. Is See case cited in footnote 34 above, and Booth and Flinn Company, supra. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contrasting colors on a building, the superintendent told Forest to check Acierno's work because he was 'splattering one color over another . Forest also said he con- sidered Acierno a "slop artist," "not the best painter in the world." I do not credit these defenses for several reasons . Other testimony of Forest and Steward Ray Smith indicates that when Acierno raised the question of extra pay, he asked Smith for his opinion, and the latter settled the argument by citing the union bylaws to show him that his claim was unfounded . Forest agreed with Smith, saying that Acierno was not "all the way up on the ladder ," and told Acierno to go back to work. Both men say they told Acierno they "wanted no trouble or arguments on 'the job." Acierno grumbled about their decision, and later asked the steward whether he was "for" or "against" him, but returned to work . I am satisfied that Acierno's complaint was not an unusual one, and that he was not in fact malingering or causing any disturbance. Forest admitted that he was making a complaint to the steward about an aspect of his working conditions , that he allowed the men to talk to the steward during working hours, and that, although Forest considered it "wrong" for Acierno to talk about a complaint that "never existed," his real complaint about the incident was that the union steward left the job to procure a copy of the bylaws ,to show Acierno that he was wrong; Forest felt that the steward should have known the answer without resort to the bylaws. It is significant that neither he nor the employer criticized the steward for this. Furthermore, the existing agreements between the employers and the Union , and the union bylaws, recognized as one of the steward's duties, to enforce "union conditions and proper working conditions" on the job, and also that journeymen were entitled to extra pay for working 20 feet or more above the ground, and from these provisions and testimony of Ray Smith and Forest I am satisfied that there was some basis for Acierno 's claim and that the steward was the proper person to consider it in the first instance . The fact that Acierno was wrong in his contention does not affect his right to voice the grievance and have it settled. Hence, I do not think this incident, or the fact that Acierno may not have worked during the on -the-spot settlement of, his grievance , was the real or motivating cause of his layoff. This conclusion is also supported by Forest's ad- mission that, before the order for the layoff, he had already made up his mind to terminate Acierno, for he told Schatz at the time of the order that he had already "called in" Acierno's time. The basis of his prior determination appears in his admission that he had not observed Acierno's work prior to his return from the 1-day stint on the Glen Cove job, but that after Acierno returned he told Forest he had filed a charge with the Board against the Union because of the discrimination against him, and thereafter Forest made efforts to observe him and found him to be an "instigator," telling men while working of some charges he had "against some- one." Forest said, "I can't have that on my jobs," but he does not state that he ordered Acierno to stop talking about it and get to work . Forest also admits that, after Acierno told him about going to the Board , he may have talked to the steward about it and "probably used a lot of curse words," which indicates that he was irri- tated about Acierno's resort to the Board . Steward Smith admitted that Acierno told him about filing the charge shortly after he returned from Glen Cove , and that Smith also heard it discussed at a union meeting about the same time . In addition, Schatz testified that when Acierno, reported to him what had occurred at Glen Cove, Schatz criticized him for talking `off the job," but did not argue with him further about it, although he did not "like his attitude," and kept him at work because he needed men on the Stratford job. Schatz also admitted that the next day he verified from painters at the Glen Cove job that Acierno left it because of his complaint about working in the rain, and also because he feared that he would be thrown off the job by the Local 798 business agent , since he was from Suffolk County. Schatz further admitted that Forest complained to him about Acierno "spouting union politics," to which he replied that it was no concern of his, and Forest did not then urge that Acierno be laid off. It is clear from this testimony that the employer and Forest, the union foreman, were well aware of Acierno's resentment of his claimed treatment by the Union since the election, and his resort to the Board, and Forest was irritated by these actions and his discussions with other union members about it. Furthermore, the record shows that Forest was also casting about at the hearing for any reason, other than Acierno's treatment by the Union , which might serve to justify his layoff. Thus, on cross-examination, he testified that, in addition to the ladder incident, Acierno was laid off because once Forest came upon a group of four or ,five painters, including Acierno, standing in the basement of a building on the project, talking and engaging in a vulgar display of their private parts , and that Acierno "has his big mouth open." He also says he noticed Acierno standing smoking and looking around, and once urinating on a fence near some occupied residences, and that he could not tolerate that-on the job . However, I am satisfied that these reasons are LOCAL 1486, BROTHERHOOD OF PAINTERS, ETC. 825 more pretexts. On the basement incident, Forest admitted Steward Smith was in the group engaging in the personal display, and all of the group were talking, and Forest merely broke up the discussion, does not know what they were talking about, and he does not say he disciplined Smith or any others in the group. Smith's testi- mony indicates the incident was a sort of vulgar horseplay. Forest finally admits it was not a reason for Acierno's layoff. Regarding the other conduct specified, Forest does not state when, or how many times, it occurred, or that he cautioned or disciplined Acierno at the time. Nor is his testimony regarding the sloppy work im- pressive, because it is general and vague in nature, and as to the single incident of splattering paint, there is no substantial proof that Forest cautioned, reprimanded, or otherwise disciplined Acierno for it. To the contrary, it appears that the employer was satisfied with his work as late as May 26 or 27, for Schatz, Forest, and Ray Smith admit that on one of those days when the employer suddenly needed 14 or more painters for overtime work on a swimming pool, Acierno was in the group called back by Forest and Smith to work overtime. Although Acierno admitted that on May 29 the work seemed to be tapering off, I do not credit the claim that slack work occasioned his layoff. Although the em- ployer's records indicate that 3 other men were laid off the same day as Acierno, it also appears that 2 new men had been hired in that week, 1 of whom had been laid off May 27, that in the week ending May 28 30 the same number of men (11) were working as in the previous week, and that the employer added more men to his staff in later weeks, working 13 in the week ending June 4, 12 in the week ending June 11, and 11 in the week ending June 18; at least 4 of those hired in this period were new employees. Schatz admitted that on May 29 he was still working under a contract to paint a total of 300 houses, and it looked as though he would be working on "many more houses." His records show that the job did not begin to taper off until June 18, and ended early in July when Stratford ran out of funds and became involved in bankruptcy proceedings. It should also be noted that Forest testified (contrary to Schatz in this respect) that the real reason for the layoff had nothing to do with lack of work. I do not credit Schatz' claim that he rehired only the men "that were capable" and his inference that he did not recall Acierno for that reason, in view of my rejection of the defense of lack of qualifications. Considering the lack of merit in the variety of causes offered by the Union for Acierno's final layoff, I am satisfied from a consideration of all the pertinent facts that Forest caused his layoff, not for any of those reasons, but because Acierno had availed himself of the Board's processes against the Union and had discussed that action and his grievances against Respondent with other union members, and that such layoff was an illegal discrimination by the employer in violation of Section 8(a)(3) of the Act. Regarding the Union's participation in the second layoff, Schatz, Forest, and Stew- ard Ray Smith deny that anyone from the Union ordered or caused them to lay off or discharge Acierno. On that subject William J. E. Smith, brother of Ray Smith and an elected warden of the Union, testified that on an unspecified date in June 1959, in discussing the Stratford job with Ray, the latter told him that about 7 a.m. one morning Gulickson had telephoned him and ordered him to get rid of Acierno on the job, and that "we got rid of him, I did what I was told to do." Although Ray Smith specifically denied any such conversation with William, I do not credit his de- nial or those of Forest and Schatz 40 but consider that, since both brothers were elected officials of the Union at the time of their talk, it is more likely than not that Ray would disclose to his brother, as a fellow union member and officer, any orders received from Gulickson relating to the unionmen on the job. Hence I credit William's testimony as a probative admission by one union official to another of an order given by Business Agent Gulickson regarding Acierno's continued employment, especially since the result of that order, his termination, is consistent with Respond- ent's existing animus toward him and discriminatory causation of his prior discharge found above. In addition, the record shows that Gulickson was kept advised by the steward at all times of the names of the union members on that job, and Gulickson himself admitted he talked to the steward at least one night about "the men on the The workweek ends on Thursday. 40 There are numerous contradictions and inconsistencies in the testimony of these three witnesses which detract from their general credibility . In addition, the fact that throughout this period and at the time he testified, Ray Smith was an elected trustee of the Union, and operating as such with the other officers on the Gulickeon slate, who were reelected in 1959, clearly indicates his partiality. Hence, I do not consider the testimony of any of these witnesses credible except to the extent of their admissions noted above. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job that were being laid off." 41 I conclude and find on all the pertinent evidence that Respondent, acting through its agents, Forest and Smith, caused the employer to discriminatorily discharge Acierno on May 29, 1959, and thereby violated Section 8(b)(2) and 8(b) (1) (A) of the Act.42 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent 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 tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices in violation of the Act, I shall recommend that it be ordered to cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent's contract with Association members and other employers during 1959 and up to the present time were unlawful closed-shop and exclusive hiring hall agreements which did not meet the Mountain Pacific standards in their actual maintenance and operation. I shall, therefore, recommend that Re- spondent cease and desist from maintaining, performing, or giving any effect to the provisions of such contracts to the extent that they create unlawful closed-shop and exclusive hiring hall conditions in the particulars found above. As I have found that, notwithstanding the incorporation of the Mountain Pacific standards in such contracts, Respondent still operated and enforced the unlawful conditions and arrangements aforesaid in dealings with all employers operating within its territorial jurisdiction, I shall also recommend that Respondent cease and desist from such conduct. By its maintenance and enforcement of unlawful hiring practices which in effect created closed-shop conditions in the industry in Suffolk County, Respondent has both in fact and inevitably coerced employees and applicants for employment to pay union initiation fees and dues, assessments, working fees, and permit fees as a condition of obtaining and retaining employment within Respondent's jurisdiction. As found above, Respondent's 1956 Agreement with the Association was in terms clearly illegal in this respect, and its illegality was not expunged by the pro forma insertion in 1958 of the Mountain Pacific safeguards, which were ignored in practice by Respondent's enforcement of the same discriminatory hiring practices thereafter as before. Hence, in order adequately to remedy the unfair labor practices found, to effectuate the policies of the Act, and encourage compliance with the Act in the future, I shall recommend that Respondent be required to refund to employees and former em- ployees of members of the Association, including Tri-County Painting Company, and Stratford, all initiation fees, dues, assessments, working fees, permit fees, and all other moneys paid by them as the price of their initial or continued employment. Respondent's liability for such reimbursement should include the period beginning 6 months prior to the date of filing of the charge herein, and shall extend to all such moneys thereafter collected 43 I have further found that Respondent caused Stratford and Tri-County Painting Company unlawfully to terminate Joseph Acierno because of his lack of referral by Respondent which was denied him by Respondent because he exercised his statutory rights. I shall recommend that Respondent notify these employers and the Associa- tion, and all other employers doing business within the territorial jurisdiction of Respondent and over whom the Board would assert jurisdiction, in writing, sending a copy thereof to Acierno, that it has no objection to their future employment of Acierno. I shall also recommend that Respondent make Acierno whole for any loss of pay suffered by him as a result of the discrimination against him caused by Re- spondent, by payment to him of a sum of money equal to the amount he would normally have earned as wages from May 6, 1959, onward, absent any discrimination. For these reasons, and also considering Gulickson's admissions and my findings re- garding his administration of the referral system, and self-contradictory testimony on other points, I do not credit his denials of any discussions with Stratford or Tri -County officials regarding Acierno's employment. 42 See cases cited in footnotes 33 and 34, above. a2 Dimeo Construction Company, 122 NLRB 980, 981; Argo Steel Construction Com- pany, 122 NLRB 1077, 1084; United Association of Journeymen & Apprentices of Plumb- ing & Pipefttting Industry of the United States and Canada, Local 231, AFL-CIO (J. S. ,grown-E. F. Olds Plumbing & Heating Corporation ), 115 NLRB 594, 597-602. EXCAVATING & BUILDING MATERIAL, ETC., LOCAL 379 827 The customary formula set forth in F. W. Woolworth Company, 90 NLRB 289, should be followed in computing the amount of backpay due. I shall also recom- mend that Respondent preserve and make available to the Board or its agents, upon request, all records, reports, lists, and other documents and information necessary for analysis and computation of the amount of backpay and refunds due under the terms hereof. On the basis of the foregoing findings of fact, and on the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Association and its members, including Tri-County Painting Company, and Stratford, are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining, enforcing, and giving effect to provisions of existing agreements with the above-named Association and its members, and Stratford and other non- Association employers, as well as oral arrangements , practices, and understandings with said employers, which unlawfully condition the hire of applicants for employ- ment, and the retention of employees in employment by employers, upon member- ship in, registration with, or referral, clearance, or approval by, Respondent Union, and otherwise discriminate against employees in violation of Section 8(a)(3) of the Act, and by requiring employees and applicants for employment to pay initiation fees, dues, assessments , working fees, permit fees, and other moneys to Respondent Union in order to obtain or retain employment , Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 4. By causing Tri-County Painting Company and other members of the Association aforesaid, and Stratford and other non-Association employers, to discriminate against employees and applicants for employment in regard to hire and tenure of employ- ment and terms and conditions of employment in violation of Section 8(a)(3) of the Act, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 5. By the above conduct, and by refusing to refer applicants for employment to jobs and otherwise coercing and restraining employees and applicants for employ- ment in the exercise of rights guaranteed to them by Section 7 of the Act, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent Union has not violated the Act by discrimination against Rocco Milano as alleged in the amended complaint. [Recommendations omitted from publication.] Excavating and Building Material Chauffeurs and Helpers Local Union No. 379, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ; its secre- tary treasurer, Charles A. Burns, and its business agent, John J. Garvey and Consalvo Trucking, Inc. Case No. 1-CC-245. August 10, 1961 DECISION AND ORDER On September 15, 1960, Trial Examiner A. Bruce Hunt issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Union and its Secretary-Treasurer Burns had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, 132 NLRB No. 64.