Kelly & Picerne, Inc.

594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the morning of September 9 was unlawfully discriminatory, merely because the re- grouping had placed them farther down on the hiring list. F. The issue of the initiation fee In July 1960, Local 982 raised its initiation fee from $25 to $125. General Counsel urges that this increase was "excessive" and in violation of Section 8(b)(5) of the Act.3 There is no dispute as to the fact of the increases. The Trial Examiner is unable to agree with General Counsel's claim that the new fee is "excessive or discrimina- tory under all the circumstances." Evidence fully establishes that at the time Local 928 undertook to implement the contract just reached, to set up and operate a hiring hall, a considerable increase in its expenses was reasonably to be anticipated. It was then a small local-some 50 or 60 members. Despite the increase its membership appears to have about doubled-and there is not the slightest evidence that any applicant was prevented from joining because of the increase in the initiation fee. It is undisputed, also, that ILA initiation fees for general cargo locals in the east coast area range from $50 to $300, and at gulf coast ports from $200 to $500. In short, the Trial Examiner does not believe General Counsel has presented sufficient evidence to sustain this allegation of the complaint. RECOMMENDATION Having found that the preponderance of evidence fails to sustain the allegations of the complaint as to unlawful acts on the part of any of the Respondents, the Trial Examiner will recommend that the complaint be dismissed in its entirety. n This section makes it an unfair labor practice for a labor organization "to require of employees covered by an agreement authorized under subsection la) (3) the payment, as a condition precedent to becoming a member of such organization, of a fee in an amount which the Board finds excessive or discriminatory under all the circumstances. . . . Kelly & Picerne, Inc. and Providence, Pawtucket and Central Falls Carpenters' District Council a/w United Brotherhood of Carpenters and Joiners of America. Case No. 1-CA-3169. June .13, 1962 SUPPLEMENTAL DECISION AND ORDER On May 15, 1961, the Board issued its Decision and Order in the above-entitled case in which it found, inter alia, that the Respondent, Kelly & Picerne, Inc., violated Section 8(a) (3) of the Act by subcon- tracting its rough carpentry work and discharging its carpenters because of their union membership and activities.'- To remedy this violation, the Board ordered the Respondent to resume its rough car- pentry operations and to offer reinstatement to these carpenters without prejudice to their seniority or other rights, and to make them whole for any loss of pay suffered as a result of the discrimination practiced against them. Thereafter, the Board petitioned the Court of Appeals for the First Circuit for enforcement of its Order and, on February 14, 1962, the court rendered its decision in this matter. In its opinion, the court 1131 NLRB 548. 137 NLRB No. 77. KELLY & PICERNE, INC. 595 expressed concern that the above-mentioned aspect of our remedial order might be susceptible of an interpretation that (1) Respondent may not, at any future time, lawfully decide in the exercise of a sincere and genuine business judgment to change its method of operations by subcontracting its rough carpentry work, and (2) Respondent must resume its rough carpentry operations beyond the extent necessary to provide work for the discriminatees who accept Respondent's offer of reinstatement. Accordingly, the court remanded this proceeding with instructions that the Board clarify the intended breadth of this aspect of the remedial order. Paragraph II(b) of the Order requires that Respondent- Resume its rough carpentry operations and offer to the employees named in the Appendix reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy." This paragraph was in no way intended to enjoin or prohibit Re- spondent, after the resumption of its rough carpentry operations and the reinstatement of the discriminatees, and after the fulfillment of its statutory obligation to bargain with the Union, from thereafter sub- contracting this work for economic or other business reasons, provided that the subcontract is otherwise lawfully motivated 2 Nor was it intended to require Respondent to offer reinstatement, or award back- pay, to any employee other than those specifically named in the Ap- pendix to the Intermediate Report, or to resume the carpentry work beyond the extent necessary to accommodate the reinstatement of em- ployees who accept Respondent's offer of reemployment. Accordingly, in conformity with the court's remand, paragraph II(b) of the Board's Order in this case is hereby amended as follows: Resume its rough carpentry operations and offer to those em- ployees named in the Appendix reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy"; however, nothing herein shall be construed as enjoining or prohibiting Respondent, after resumption of its rough carpentry operations and the re- instatement of the discriminatees, and after fulfillment of its statutory obligation to bargain with the above-named labor organi- zation, from thereafter subcontracting this work for any lawfully 2 See N L.R.B v. Crompton-Highland Mills, Inc, 337 U S . 217, 224-225; Town d Country Manufacturing Company, Inc., et at., 136 NLRB 1022. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD motivated reason, and nothing herein shall be deemed to require Respondent to resume those operations beyond the extent neces- sary to accommodate the reinstatement of the aforementioned employees who accepf Respondent's offer of reinstatement. MEMBER RODGERS and BROWN took no part in the consideration of the above Supplemental Decision and Order. Plumbers Local Union No. 519, United Association of Journey- men and Apprentices of the Plumbing and Pipefitting Indus- try of the United States and Canada, AFL-CIO and Babcock Company. Case No. M-CC-160. June 14, 1962 DECISION AND ORDER On November 17, 1961, Trial Examiner Wellington A. Gillis is- sued 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 there- from and take certain affirmative action, as set forth in the Inter- mediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, only to the extent consistent with the Decision herein. 1. We agree with the Trial Examiner that Respondent's Sunday picketing of the Babcock and Pawliger homes at Fairway Park and P.B.I. Homes, respectively, at a time when only salesmen and pros- pective buyers were present, was secondary activity in furtherance of the Respondent's attempt to secure recognition by Robertson, the non- union plumbing contractor whose services were used in the construc- tion of the homes, was for the purpose of coercing Babcock and Pawliger to cease doing business with Robertson and, hence, was violative of Section 8(b) (4) (ii) (B). We also agree with the Trial Examiner that the Respondent's action in passing out handbills to the public at these locations constituted "publicity, other than picketing" which is protected under the second proviso to Section 8(b) (4), and therefore was not violative of Section 8(b) (4) (i) or (ii) (B).1 'As no exceptions were filed to the Trial Examiner's finding with respect to Respond- ent's handbilling at these locations , Member Rodgers finds it unnecessary to pass upon this holding and adopts it pro foran¢. 137 NLRB No. 46.