J. J. Hagerty, Inc.

J. J. HAGERTY, INC. 633 which remains uncontroverted,10 without even attempting to distin- guish or overrule the cases relied upon by the Regional Director, my colleagues have found that a unit confined to the employees of the Cal- houn operation is appropriate. I cannot agree. In agreement with the Regional Director, I find that the unit sought by the Petitioner is inappropriate, and as, in any event, the Regional Director's decision was not "clearly erroneous"-the applicable review standard in this case "-I would dismiss the petition. MEMBER LEEDOM took no part in the consideration of the above De- cision on Review and Direction of Election. 10 The machinery of all of the plants is owned by Bell ; the purchasing of all major materials is done at Dalton, in Bell's name ; all the plants share materials without regard to where they are stored ; the manufacturing operations of all the plants are determined and contiolled by the same committee ; orders may be filled by any of the plants, without regard to where or with whom they are placed ; operations are determined by the com- mittee in such a manner as to equalize employment between the various plants ; Items manufactured at one plant may be shipped to another plant for finishing , are there com- bined with items manufactured in other plants , and may be stored at, or shipped from, any of the warehouses ; both companies use the same trucks ; both companies have the same officers and the same selling agent, all moneys received are payable to Bell which furnishes both companies with sufficient money for expenses ; all invoicing for both com- panies is done at Dalton , engineering for all plants is directed by the same personnel, located at Dalton ; both companies have a common auditor ; the designers of both com- panies work together ; all patterns for both companies are made in Dixie Belle 's pattern- making machine in Calhoun , one machine shop services all plants ; there is some inter- change of equipment , a single research chenust services all plants ; a uniform labor rela- tions policy for all plants is established by a single committee , and is administered by a single person , the personnel director , who is an employee of Belcraft, but who is respon- sible for the labor relations of both companies ; the same company magazine is distributed to, and caries news of , the employees of both companies , all plants have identical train- ing programs ; there are a total of 68 job classifications, of which 48 are common to both companies ; all employees have the same insurance benefits and are covered under a single insurance policy , seniority is transferrable to either company ; the personnel director establishes uniform hiring standards for all plants ; applicants for employment may be interviewed by one company for employment with the other ; a uniform wage scale is in effect at all plants ; there is a constant interchange of employees between the two com- panies; all payrolls and W-2 forms are prepared in, and all paychecks are issued from, the Dalton office ; both companies use common office machinery ; and surveys of operations, including time and motion studies , cover all plants without regard to corporate lines 11 See the Board's Rules and Regulations and Statements of Procedure, Series 8, as amended, Section 102 67(c) J. J. Hagerty, Inc. and Peter Batalias Nassau and Suffolk Contractors' Association , Inc. and Garrett Nagle and Employer-Members of Nassau and Suffolk Con- tractors' Association, Inc., Listed in Appendix A, Parties in Interest J. J. Hagerty, Inc. and Thomas Eichacker John C. Peterson Construction Co. and William Herbert Wilkens Nassau and Suffolk Contractors' Association Inc. and its Em- ployer-Members Listed in Appendix "A"; Welfare Fund of Local 138, International Union of Operating Engineers, AFL- 139 NLRB No. 40. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CIO, and Trustees William C. DeKoning, Girard Douglas, John Gunning, Verner Sofield, John Buchanan, Edwin Regnell, Jr., Paul Roche and Herman Switzer and Robert Christensen and Local 138, International Union of Operating Engineers, AFL- CIO; Building Trades Employers Association of Long Island, Inc., and its Employer-Members Listed in Appendix "B," Parties in Interest Local 138, International Union of Operating Engineers, AFL- CIO and Peter Batalias, Garrett Nagle, Thomas Eichhacker, and William Herbert Wilkens and Nassau and Suffolk Contractors' Association, Inc. and its Employer-Members Listed in Appendix A, and Building Trades Employers Association of Long Island, Inc. and it's Employer-Members Listed do Appendix B, Parties in Interest Loyal 138, International Union of Operating Engineers, AFL- CIO and Robert Christensen and Nassau and Suffolk Contrac- tors' Association, nc., and its En•ployer-Members Listed in Appendix "A"; and Building Trades Employers Association of Long Island, nc., and its Employer-Members Listed i n Appen- dix "B," Parties in Interest Local 138, International Union of Operating Engineers, AFL- CIO; and Welfare Fund of Local 138, International Union of Operating Engineers, AFL-CIO, and Its Trustees William C. DeKoning, Girard Douglas, John Gunning, Verner Sofield, John Buc anan, Edwin Regneil, Jr., Paul Roche and Herman Switzer and Robert Christensen. and Nassau and Suffolk Con- tractors' Assoc'a.1on, Inc., and its Employer-Members Listed in Appendix "A" and Building Trades Employers Association of Long Island, Inc., and its Employer-Members Listed in Appen- dix "B," Parties in Interest. Cases Nos. 2-CA-6301, 2-CA-630., 2-CA-6323, 2-CA-6376, 2-CA-7474, 2-CB-.483, 2-CB-2424, 2-CB-P3440, £-CB-2472, 2-CB-2931, and P2-CB-29448. October 31, 1962 DECISION AND ORDER On November 16, 1961, Trial Examiner Ralph Winkler issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take affirmative action, as set forth in the attached Intermediate Report. He also found that certain Respondents had not engaged in unfair labor practices alleged in the complaint and recommended J. J. HAGERTY, INC. 635 that such allegations be dismissed. Thereafter, the Respondents, the General Counsel, and the Charging Party filed exceptions to the Inter- mediate Report and briefs in support thereof. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations with the additions and modifications noted hereafter. This is the fourth of a series of Board cases 1 involving, inter alia, Local 138 of the International Union of Operating Engineers, here- inafter called the Union, and a group of individuals, largely union members, known as a reform group. The present controversy con- cerns alleged unfair labor practices occurring subsequent to June 1958, and involves allegations of violations of the Act with respect to : contract clauses contained in contracts between the Respondent Union and the Building Trades Employers Association of Long Island, Inc. (BTEA), and other unaffiliated individual employers; the operation of the exclusive hiring and referral system and permit fees charged for its use; the layoff or refusal to refer five individuals 2 for employ- ment; and the operation of a jointly administered welfare fund. 1. With respect to these contracts, we agree with the Trial Examiner that the clause 3 which provides that an employer will, upon notice from the Union, discharge any employee in violation of union rules, is discriminatory. Similarly, we find that the contract clauses giving preferential treatment to union members in regard to physical exami- nations, shifts, and payment of wages are likewise discriminatory; and that, by being party to agreements containing such clauses, the Union has violated Section 8(b) (1) (A) of the Act .4 1Nassau and Suffolk Contractors' Association, Inc, and its members, 118 NLRB 174, enfd by a consent decree issued by the Second Circuit , dated May 12, 1958 ; A. Cestone Company, 118 NLRB 669, enfd 254 F. 2d 958 ( CA. 2); Local 138, International Union of Operating Engineers , AFL-CIO and Thomas If. Eichacker, an Individual (Nassau and Suffolk Contractors' Association, Inc., and its members ), 123 NLRB 1393, enfd. In part, 293 F. 2d 187 (C.A. 2). 2 Peter Batalias, Garrett Nagle, Thomas Eichacker , William Wilkens, and Robert Christensen. s Both the 1959 and 1960 BTEA contracts contained clauses stating : "In case any employee becomes ineligible under the rules of the Union and the employer is notified, then the said employer shall promptly discharge such employee " The contracts also contained union-security clauses Since the Union's contracts with some 200 other unaffiliated employers were identical with the BTEA contracts , our findings apply to all such contracts. 4 Neither the BTEA nor unaffiliated individual employers are named as Respondents herein The Respondent Union has no contract with the other employer association in- volved here, the Nassau and Suffolk Contractors ' Association, Inc. (hereafter Nassau), and admittedly makes no distinction in its handling of job referrals to employers with whom it has contracts and employer -members of Nassau with whom no contract exists. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Like the Trial Examiner, we also find that the Respondent Union operated a discriminatory hiring and referral system. This discrim- ination is evidenced by the preference in referral given to union mem- bers over nonmembers,' the referral seniority given union members in accordance with their longevity in the Union,' and the testimony by Union Secretary Sofield that in practice, individuals who were more than 90 days' delinquent in payment of dues or permit fees lost refer- ral seniority. Even if such individuals were subsequently restored to good standing, their referral seniority began as of the date of their re- instatement in the financial good graces of the Union. Accordingly, we find that the Respondent Union, having exclusive hiring hall agree- ments with BTEA and unaffiliated employers, operated a discrimina- tory hiring and referral system and thereby discriminated against applicants for employment in violation of Section 8(b) (1) (A) and (2) of the Act. The Trial Examiner also found that a $10 monthly permit or service fee charged to nonmembers of the local Union for the privilege of utilizing a discriminatory referral system, was in itself discriminatory. He also concluded that a fee equal to union dues was unlawful absent any evidence that such fee was reasonably related to the cost of op- erating the hiring and referral system. Because the exclusive hiring and referral system was discriminatorily operated, the Respondent could not lawfully exact a fee for its use.' It is for this reason that we 5 While Sofield, the Respondent Union's secretary, at one point testified that as between union men and permit men, he chose the one oldest in seniority, i e , in accordance with the date the individual was initiated in the Union or began payments as a permit man, we credit, as the Trial Examiner obviously did, Sofield's earlier testimony that he re- ferred union members before nonmembers In any event, the referral seniority of both union men and permit men was equated with financial good standing in the Union and was not based on nondiscriminatory standards 6 At page 585 of the record, the Trial Examiner interrogated Union Secretary Sofield as follows : Q. When he [a union or permit man] got in good standing again , he would take seniority as of the date he became a member in good standing? A. That's right. Q. Regardless of how [long] he worked before in the industry 7 A. That's right. That goes for members who take withdrawal cards and come, back They start all over again Suspended members who have been accepted start all over again. They might have been in for 20 years. Q The seniority is dependent on the membership? A. When they are in good standing in the Local. 7Houston Maritime Association, Inc, and Master Stevedore Association of Texas, 136 NLRB 1222 Chairman McCulloch joins in finding the exaction of the permit fees to be unlawful in this case, although he deemed the evidence in Houston Maritime insufficient to support the majority's finding that the "percentage" payments involved there were discriminatory or otherwise unlawful. In the present case, unlike Houston Maritime, the nonmembers who registered at the Union's hiring hall for work were required to pay a flat fee of $10 per month-which was the same amount as the members' monthly dues-even though such nonmembers were assigned to the bottom of the referral list. It is also true here, unlike Houston Maritime, that 20 percent of the $10 monthly fee paid by the nonmember registrants was remitted to the Union's parent International and, therefore, was demon- strably unrelated to the costs incurred by the local Union in operating the hiring and J. J. HAGERTY, INC. 637 find the charging of the permit fee unlawful and we find it unneces- sary to consider or adopt the Trial Examiner's additional reason for holding such fee unlawful .s 2. We also agree with the Examiner that Batalias, Nagle, Eichacker, and Christensen were discriminatorily denied referral by the Re- spondent Union in violation of Section 8(b) (1) (A) and (2), and that this Respondent further violated Section 8(b) (1) (A) by threatening not to refer Nagle, Christensen, and Wilkens .9 Contrary to the Trial Examiner, we do not find that the Union caused Peterson Construc- tion Company to discharge Batalias in December 1958. At the hear- ing, the General Counsel repeatedly asserted that he was not alleging that this discharge was caused by the Union. Accordingly, we do not find any violation by the Union with respect to this incident. How- ever, as did the Trial Examiner, we find that Peterson violated Sec- tion 8(a) (3) and (1) of the Act by removing Batalias from the Green- port job and thereafter failing to rehire him because Batalias was not a member in good standing or had not been referred by the Union. 3. For the reasons stated by the Trial Examiner, we agree that the Respondent Union and its agents, Respondent welfare fund and its trustees, violated Section 8(b) (1) (A) and (2) of the Act by their discriminatory operation of the welfare fund. We similarly find that the Respondent Nassau and its agents, the Respondent welfare fund and its trustees, violated Section 8 (a) (1) , (2), and (3) in this re- gard.10 Our findings as to the welfare fund and its trustees are based on the fact that in the administration of the fund, the trustees were agents of the employer Associations, Nassau and BTEA, and the Union. The General Counsel alleged and the Trial Examiner found that the welfare fund, as a separate entity apart from any agency status, also violated Section 8(a) (1) and (3) and Section 8(b) (1) (A) and (2) of the Act. In view of our findings as to the agency relation- ship, we find it unnecessary to consider whether the fund, as a separate entity, violated the Act. referral system or policing its contracts . See Galveston Maritime Association, Inc., et al., 1$9 NLRB 332, and compare Loral 825, Internattoinal Union of Operating Engineers, AFT CIO (H John Homan Company), 137 NLRB 1043. 8 Like the Trial Examiner, Members Rodgers and Leedom would also find the permit fee discriminatory where the permit fee was equal to union dues absent evidence that such fee was reasonably related to the cost of the hiring and referral system. The burden of proving that such fee is reasonably related to the cost of the hiring and referral system is on the Union where a fee equal to union dues is charged , since union members receive other benefits as the result of membership , including the right to participate and vote in union affairs Moreover, $2 of the monthly permit fee was remitted to the International Union Cf H John Homan Company, supra e We are in agreement with the Trial Examiner that the preponderance of evidence does not support the allegation that Wilkens was discriminatorily refused referral , particularly in view of the fact that during April 1959, when lie was allegedly discriminated against, he received approximately nine job referrals from the Union is With respect to the denial of welfare fund benefits to Christensen , we affirm the Trial Examiner ' s finding that such denial was discriminatory for the reasons enunciated in the Intermediate Report 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Since the issuance of our decision in the original Nassau case, supra, Local 138 of the Operating Engineers has been repeatedly a respondent in this forum. Despite past Board orders and enforce- ment decrees of the Second Circuit Court of Appeals, this Union and its officers, since 1957 and continuing intermittently until the date of the hearing herein, have, inter alia, operated a discriminatory hiring and referral system and have discriminated in job referrals against these same individuals in the reform group. The Board's past remedial orders have apparently proved ineffec- tive, and in view of the repeated and similar nature of the violations, we deem it necessary and proper to invoke special remedial measures to obtain a twofold objective, i.e., to insure that the Respondent Union operates a nondiscriminatory hiring and referral system, and that the individuals herein are not discriminated against in the fu- ture. To achieve this objective, we shall: (1) Direct the Respondent Union, in conjunction with the Re- gional Director of the Board and subject to his supervision and ap- proval, to set up a nondiscriminatory hiring and referral system.ll If agreeable to employers with whom the Union has contracts, the Union may incorporate such system into existing collective-bargaining agreements. (2) Direct the Respondent Union to keep permanent records 12 of its hiring and referral operation, and such other records as the Regional Director deems necessary to fulfill his obligations pursuant to this Order. (3) Direct the Respondent Union to submit to the Regional Di- rector quarterly reports about the employment of Peter Batalias, Thomas Eichacker, Garrett Nagle, Robert Christensen, and William Wilkens, indicating the date and number of job applications made to the Union, the actual number and date of union job referrals, and the length of such employment during the period in question. Such quarterly reports will be due 10 days after the close of the first full calendar quarter, subsequent to this Decision and Order. The obli- gation to submit such quarterly reports will cease after four such quarterly reports have been made. (4) Direct the Respondent Union to make available to the Re- gional Director or his agents upon their request, at all reasonable times during the period beginning with the date of this Decision "For example, under a nondiscriminatory system, records should be maintained indi- cating the date and time of employer requests for workers , and should include the type of qualifications requested . Out-of-work or availability lists should be maintained, indi- cating the date and time an individual requested a referral and the Jobs for which he is qualified . Seniority in referral should be based on nondiscriminatory standards. 12 By "permanent" we mean that such records should be maintained and retained for a minimum period of 3 years. J. J. HAGERTY, INC. 639 and Order and ending 1 year after a hiring and referral system ap- proved by the Regional Director has been put into effect, any records relating in any way to the hiring and referral system. (5) Direct that the Regional Director, at his discretion, conduct spot checks of Respondent Union's hiring and referral system during the above period. (6) Direct the Regional Director if he finds evidence of violations of past court decrees, to initiate requests for civil and criminal con- tempt proceedings against the appropriate parties. We also expressly reserve the right to modify the provisions of this Decision and Order if made necessary by a change in conditions in the future, and to make such supplements hereto as may hereafter become necessary in order to define or clarify their application to a set of circumstances not now apparent. Since we have found that the permit or service fee was discrimi- natory in these circumstances, we shall order the Respondent Union to reimburse all individual nonmembers for fees they were required to pay as a condition of referral and/or employment, beginning with the payments made in June 1958, and continuing to date. As to the individual discriminatees, Batalias, Eichacker, Nagle, and Christensen, the Respondent Union shall make them whole for any loss of pay they suffered as a result of the discrimination against them. As to Batalias, however, Respondent Peterson shall make him whole for any loss of pay he incurred as the result of his discrimina- tory transfer and subsequent layoff in December 1958, until such time as he would have been laid off the Greenport job for nondiscrim- inatory reasons. In 1959, the Respondent Union denied Batalias any job referrals because of his reform group activities and caused Peterson not to reemploy him at Greenport when that job reopened. The Respondent Union and Peterson shall, jointly and severally, with the Respondent Union primarily liable'13 make Batalias whole for any loss of pay suffered for his failure to be reemployed at the Greenport job. For the Union's refusal to refer him thereafter, the Union shall be solely liable. As to Christensen, the Respondent Union and Respondent Nassau shall direct their agents, acting as trustees of the fund, to pay Chris- tensen from the fund, the welfare benefits he was denied because of the discriminatory operation of the referral system. In accordance with the policy recently adopted by the Board '14 We shall include an allowance for interest on all moneys due herein in- cluding those moneys for backpay, permit fees, and welfare fund '-'See N.L.R.B. v. Local 138, International Union of Operating Engineers , AFL-OIO, et al (Nassau & Suffolk Contractors' Assn. ) 293 F. 2d 187, 199 (C.A. 2). 14 Isis Plumbing & Heating Co., 138 NLRB 716; Seafarers International Union of North America, (beat Lakes District, AFL-CIO,138 NLRB 1142. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefits.15 Such interest is to be computed at the rate of 6 percent per annum on the basis of separate calendar quarters with the inter- est to begin running as of the last day of the calendar quarter for moneys exacted or due in that calendar quarter until compliance with the Order is achieved. The General Counsel also contends that the individual discriminatees who were union members should be reimbursed for all dues and fees paid to the Union.16 However, we note that they were long-standing union members who were initially attempting reforms within the Union. We conclude, therefore, that they were not coerced or re- strained into maintaining their union membership. Consequently, we think an order reimbursing them for dues and fees is inappropriate.17 ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. Respondent Union, Local 138, International Union of Op- erating Engineers, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from : (a) Maintaining and enforcing any collective-bargaining agree- ment with the Building Trades Employers Association of Long Is- land, Inc., and its members, or any other employer over whom the Board would assert jurisdiction which provides for the discharge of employees who violate union rules or which grants preferential treat: ment to union members in such matters as physical examinations, pay- ment of wages, and shifts. (b) Maintaining any practice or enforcing any agreement, under- standing, or practice with the Building Trades Employers Associa- tion of Long Island, Inc., and its members, or with any other employer over whom the Board would assert jurisdiction, which un- lawfully gives members of the local Union preference in job referrals 11 For the seasons stated in their dissenting opinion in Isis Plumbing & Heating Co., 138 NLRB 716, Membei s Rodgers and Leedom are convinced that the award of interest for permit fees or welfare fund benefits , like the attachment of interest to backpay , exceeds the Board's remedial authority . While adhering to such view , for purposes of this decision they are acceding to the majority Board policy of granting interest on moneys due. 18 The Geneial Counsel also requested a remedy requiring that the Union no longer be recognized as a bargaining representative until a Board -conducted election be held. In view of other remedial ordered herein, we deem such a remedy unnecessary 17 Members Rodgers and Leedom would require the Respondent Union to reimburse the union members who were found to be disciiminatees for all dues and fees dating flour December 1958, when the Union published in its monthly newspaper , various referral rules including a statement that "financial good standing in the Union . . . shall be re- quired as a condition of dispatch to a job " From that date , they would find that the discriminatees were coerced into retaining their union membership as a condition of referral. J. J. HAGERTY, INC. 641 or conditions referral or referral seniority upon good standing in the Union as either a member of the local Union or as a permit man. (c) Discriminating against Batalias, Eichacker, Nagle, and Christ- ensen with respect to job referrals. (d) Theatening to discriminate against Nagle, Christensen, and Wilkens with respect to job referrals. (e) In any other manner restraining or coercing employees or ap- plicants for employment in the exercise of rights guaranteed in Sec- tion 7 of the Act, except to the extent that the rights of employees may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as amended. 2. Take the following affirmative action which the Board finds neces- sary to effectuate the purposes of the Act : (a) In conjunction with the Regional Director for the Second Region and subject to his approval, set up a nondiscriminatory hiring and referral system. (b) Keep permanent records of its hiring and referral operation and such other records as the Regional Director deems necessary to administer a nondiscriminatory hiring and referral system or to ful- fill his obligations pursuant to this Decision and Order. (c) Upon request of the Regional Director of the Board or his agents, make available for inspection, at all reasonable times, for a period beginning with the date of this Decision and Order to 1 year after a hiring and referral system approved by the Regional Director has been put into effect, any records relating in any way to the hiring and referral system. (d) Submit four quarterly reports to the Regional Director, due 10 days after the close of the calendar quarter subsequent to the is- suance of this Decision and Order, about the employment of Batalias, Eichacker, Nagle, Christensen, and Wilkens. Such reports shall in- clude the date and number of job applications made to the Union, the date and number of actual job referrals by the Union, and the length of such employment during such quarter. (e) Make whole Garrett Nagle, Thomas Eichacker, and Robert Christensen for any loss of pay suffered by them as a result of the discrimination against them. Jointly and severally with Peterson Construction Company, with the Respondent Union primarily liable, make whole Peter Batalias for any loss of pay suffered by him as a result of their discrimination against him. Such backpay will be with interest at the rate of 6 percent per annum, as set forth in "The Remedy" section of this Decision and Order. (f) Reimburse all individual nonmembers for permit or service fees unlawfully exacted from them as a condition of referral or em- 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployment with interest thereon at 6 percent per annum as set forth in "The Remedy" section of this Decision and Order. (g) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all membership, dues, permit, referrals, welfare fund, and all other records necessary to compute the amounts of moneys due under this Order. (h) Notify, in writing, the Building Trades Employers Associa- tion of Long Island, Inc., and each of its members, and Peterson Con- struction Company, and all other employers over whom the Board would assert jurisdiction and with whom it has any agreement or arrangement, that it has no objection to their hiring Peter Batalias, Thomas Eichacker, Garrett Nagle, Robert Christensen, or any other adherent of the reform group. (i) Post at its offices, copies of the attached notice marked "Ap- pendix A." 18 Copies of this notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by William DeKoning, Verner Sofield, and Edward Revere, be posted immediately upon receipt thereof, and be maintained for 1 year, in conspicuous places, and at all other places where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (j) Post at the same places and under the same conditions as set forth in (i) above, as soon as they are forwarded by the Regional Director, copies of attached notice marked "Appendix B." 19 (k) Mail to the Regional Director for the Second Region signed copies of "Appendix A" for posting by Peterson Construction Com- pany, by Nassau and Suffolk Contractors' Association and its mem- bers, and for posting by the Building Trades Employers Association and its members, if they are willing. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by William DeKoning, Verner Sofield, and Edward Revere, be forth- with returned to the Regional Director for such posting. (1) Publish in the "Local 138 News" at 3-month intervals for a period of 1 year subsequent to the issuance of this Decision and Order a copy of Appendix A attached hereto and distribute such editions to all its members and to all nonmembers who on the date of this Decision and Order are paying permit or service fees to the Union. (m) Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 19 In the event that this Order is enforced by a Decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 19 See footnote 18, supra. J. J. HAGERTY, INC. 643 B. Respondent Union, Local 138, International Union of Operating Engineers, AFL-CIO, and its officers, representatives, successors, assigns, and agents, including the welfare fund of Local 138 and its trustees, William C. DeKoning, Girard Douglas, John Gunning, Verner Sofield, John Buchanan, Edwin Regnell, Jr., Paul Roche,, and Herman Switzer, shall: 1. Cease and desist from : (a) Administering the welfare fund so as to condition the payment of benefits to individuals in good financial standing in the Union either as a member of the local or as a permit man. (b) In any like or related manner restraining or coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds necessary to effectuate the purposes of the Act : Jointly, with Respond- ent Nassau and Suffolk Contractors' Association, Inc., direct the wel- fare fund to make whole Robert Christensen for any welfare fund benefits unlawfully denied him, with interest thereon at 6 percent per annum, as set forth in "The Remedy" section of the Decision and Order. C. Respondent Nassau and Suffolk Contractors' Association, Inc., and its employer members and their officers, representatives, succes- sors, assigns, and agents, including the welfare fund of Local 138, International Union of Operating Engineers, AFL-CIO, and its trustees, William DeKoning, Girard Douglas, John Gunning, Verner Sofield, John Buchanan, Edwin Regnell, Jr., Paul Roche, and Herman Switzer, shall : 1. Cease and desist from : (a) Administering the welfare fund so as to condition the payment of benefits to individuals in good financial standing in the Union either as a member of the local Union or as a permit man. (b) Administering the welfare fund as noted in (a) above, and thereby giving financial aid and support to the Respondent Union. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board find& necessary to effectuate the purposes of the Act : (a) Nassau-Suffolk, jointly with the Respondent Union, direct the welfare fund to make whole Robert Christensen for the benefits un- lawfully denied him with interest thereon at 6 percent per annum as set forth in "The Remedy" section of this Decision and Order. (b) Post at their offices and at all their working sites within the territorial jurisdiction of Respondent Union, copies of the attached 672010-63-vol. 139-42 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice marked "Appendix B." Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the respective representatives of Nassau-Suffolk and Peterson Construction Company, be posted immediately upon recipt thereof, and be maintained for at least 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by each Respondent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Post at the same places and under the same conditions as set forth in (b) above, and as soon as they are forwarded by the Regional Director, copies of Respondent Union's attached notice marked "Appendix A." (d) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. D. Respondent John C. Peterson Construction Company, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Encouraging membership in the Respondent Union or in any other labor organization by transferring, discharging, or refusing to hire employees because they were not cleared or approved by Re- spondent Union, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employ- ment, except to the extent permitted by the proviso to Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as amended. 2. Take the following affirmative action which the Board finds necessary to effectuate the purposes of the Act: (a) Make whole Peter Batalias for any loss of pay suffered as a result of his discriminatory transfer from the Greenport job, and jointly and severally with the Respondent Union, with the Respond- ent Union primarily liable, make whole Peter Batalias for his failure to be reemployed at the Greenport job in 1959, together with interest at 6 percent per annum, as set forth in "The Remedy" section of this Decision and Order. (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying all payroll records, social security payment records, timecards, personnel records and reports, J. J. HAGERTY, INC. 645 and all other records necessary to compute the backpay due Batalias. (c) Post at its offices and at all their working sites within the territorial jurisdiction of the Respondent Union, copies of the at- tached notice marked "Appendix B." Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the respective representatives of Nassau and Suffolk and Peterson Construction Company, be posted immedi- ately upon receipt thereof , and be maintained for at least 60 consecu- tive days, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by each Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in (c) above, and as soon as they are forwarded by the Regional Director, copies of Respondent Union's attached notice marked "Ap- pendix A." (e) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges that any Respondent engaged in any unfair labor practices, except as found herein, in violation of the Act, MEMBER BROWN took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE To ALL MEMBERS OF LOCAL 138, INTERNATIONAL UNION Or OPERATING ENGINEERS , AFL-CIO, AND TO ALL EMPLOYEES OF MEMBERS OF BUILDING TRADES EMPLOYERS ASSOCIATION OF LONG ISLAND, INC., AND NASSAU AND SUFFOLK CONTRACTORS' ASSOCIA- TION, INC., AND TO EMPLOYEES OF JOHN C. PETERSON CONSTRUC- TION COMPANY 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 maintain and enforce clauses in any collective- bargaining agreement with the Building Trades Employers Asso- ciation of Long Island, Inc., or any other employer over whom the Board would assert jurisdiction that : Provides for the discharge of employees who violate union rules ; Grants preferential treatment to union members in such matters as physical examinations, payment of wages, and shifts. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT unlawfully give job referrals to union members in preference to permit men or other individuals. WE WILL NOT unlawfully condition referral or referral seniority, upon an individual's being in good financial standing in the Union either as a member of the local Union or as a permit man. WE WILL NOT unlawfully discriminate in job referrals with re- spect to Peter Batalias, Garrett Nagle, Robert Christensen, and Thomas Eichacker. WE WILL NOT threaten to discriminate against any of the above- mentioned individuals or against William Wilkens or any other- member of the "reform" group. WE WILL NOT direct the welfare fund of Local 138, through our- agents acting as trustees of the welfare fund, to condition the pay- ment of benefits upon maintaining good financial standing in the Union either as a member of the local Union or as a permit man. WE WILL NOT in any other manner restrain or coerce employees of, or applicants for, employment with members of the Building Trades Employers Association, or any other employer over whom the Board would assert jurisdiction, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent permitted by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL, in conjunction with the Regional Director of the- Board and his agents, and subject to his approval, set up a non- discriminatory hiring and referral system. WE WILL keep permanent records of our hiring and referral operation and such other records as the Regional Director of the Board deems necessary for the administration of a nondiscrim- inatory hiring and referral system or which he deems necessary to fulfill his obligations pursuant to the Board's order. WE WILL submit four quarterly reports to the Regional Director- of the Board about the employment of the aforementioned dis- criminatees and William Wilkens. WE WILL reimburse all employees or applicants for employment for all permit or service fees paid by them as a condition of refer- ral since June 1958, and continuing to date with interest thereon at 6 percent. WE WILL make whole Peter Batalias, Garrett Nagle, Robert Christensen, and Thomas Eichacker, for any loss of pay suffered as the result of the discrimination against them, with interest thereon at 6 percent. WE WILL, jointly with Nassau and Suffolk Contractors' Asso- ciation, Inc., direct the welfare fund to make whole Robert Chris- J. J. HAGERTY, INC. 647 tensen for the benefits unlawfully denied him, with interest there- on at 6 percent. WE WILL notify Building Trades Employers Association of Long Island, Inc., and its members, and Peterson Construction Company, that we have no objection to the employment of Peter Batalias, Garrett Nagle, Robert Christensen, and Thomas Eichacker, or any other adherent of the reform group. LOCAL 138, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (WILLIAM C . DEI{ONINa, president of Local 138 and trustee of welfare fund of Local 138) Dated- --------------- By------------------------------------- (VERNER SoFIELD, secretary -treasurer of Local 138) Dated---------------- By------------------------------------- (EDWARD REVERE, dispatcher) This notice must remain posted for 1 year from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York City, New York, Telephone Num- ber, Plaza 1-5500, if they have any questions concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL EMPLOYEES OF MEMBERS OF BUILDING TRADES EMPLOYERS ASSOCIATION OF LONG ISLAND, INC., AND NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC., AND TO EMPLOYEES OF JOHN C. PETERSON CONSTRUCTION CO. AND TO ALL MEMBERS OF LOCAL 138, INTERNATIONAL UNION OF OPERATING EXGINEERS , AFL-CIO 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 direct the welfare fund of Local 138, through our agents, acting as trustees of the welfare fund , to condition the payment of benefits upon maintaining good financial standing in the Union either as a member of the Union or as a permit man. WE WILL NOT give financial assistance to Local 138 by discrimi- natorily conditioning welfare fund payments upon good financial standing in the Union as a member of the local Union or as a permit man. Peterson Construction Company WILL NOT discriminatorily dis- ,charge or refuse to employ Peter Batalias or any other individual 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because he has not been referred or granted clearance by Local 138 of the Operating Engineers or because he has engaged in other protected concerted activities. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of their rights guaran- teed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. WE WILL, jointly with Local 138, direct the welfare fund, to make whole Robert Christensen for the welfare fund benefits un- lawfully denied him with interest thereon at 6 percent. Peterson Construction Company WILL make whole Peter Ba- talias for any loss of pay he may have suffered resulting from his discriminatory transfer from the Greenport job with interest thereon at 6 percent. Peterson Construction Company, jointly and severally with Local 138, with Local 138 primarily liable, WILL make whole Peter Batalias for the loss of pay he suffered as a result of the Union's causing Peterson not to reemploy him on the Greenport job with interest thereon at 6 percent. NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) JOHN C. PETERSON CONSTRUCTION CO., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York City, New York, Telephone Number, Plaza 1-5500, if they have any questions concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE This consolidated unfair labor practices proceeding was initiated by charges filed by individuals and involves allegations by the General Counsel and denials by the respective Respondents that Respondent Employers and the welfare fund trustees have violated Section 8(a)(1), (2 ), and (3 ), ,and that Respondent Local Union 138 and its welfare trustees have violated Section 8(b)(1)(A ) and (2 ) of the National Labor Relations Act, as amended , herein called the Act. All parties were rep- J. J. HAGERTY, INC. 649 resented by counsel and participated in the hearing held in New York City before Trial Examiner Ralph Winkler. Upon the entire record in the case and my observation of the demeanor of all witnesses , and upon consideration of briefs submitted, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF EMPLOYER PARTIES Nassau and Suffolk Contractors' Association, Inc., herein called Nassau-Suffolk, is an association of some 30 employers engaged in the building and construction busi- ness in Nassau and Suffolk Counties, New York. One of Nassau-Suffolk's purposes is to negotiate and administer collective-bargaining agreements for its members. Dur- ing the past year, the employer members of Nassau-Suffolk made interstate pur- chases exceeding $500,000, and two such members (Respondents J. J. Hagerty, Inc., and John C. Peterson Construction Co.) made interstate purchases exceeding $50,000. Nassau-Suffolk and its members, including Hagerty and Peterson, are employers engaged in commerce within Section 2(2), (6), and (7) of the Act. Building Trades Association of Long Island, Inc., herein called B.T. Association, is an association of approximately 115 employers engaged in the building and con- struction industry in Long Island, New York; it negotiates and administers collective- bargaining agreements for its members. During the past year, the employer mem- bers of B T. Association made interstate purchases exceeding $500,000, and I find that this Association and its members are employers engaged in commerce within Section 2(2), (6), and (7) of the Act. II. RESPONDENT LABOR ORGANIZATION INVOLVED Local 138 , International Union of Operating Engineers, AFL-CIO, herein called .the Union , is a labor organization within Section 2 ( 5) of the Act. IH. THE UNFAIR LABOR PRACTICES A. Preliminary discussion of issues The parties have referred to several earlier cases involving Respondent Union and Nassau-Suffolk, and a short statement of those cases may be helpful to an under- standing of the instant matter. The first such proceeding was Nassau and Suffolk Contractors' Association, Inc. etc, 118 NLRB 174 (June 18, 1957). There the Board found, among other things, that Nassau-Suffolk violated Section 8(a)(1), (2), and (3) and that the Union violated Section 8(b)(1) and (2) by enforcing closed-shop conditions of employ- ment. Peter Batalias was the Charging Party in the 1957 proceeding, and he and other Charging Parties in the instant case testified against the Respondents in the 1957 case. The Court of Appeals for the Second Circuit entered a consent decree enforcing the Board's order on May .12, 1958. This decree ordered, among other things, that Nassau-Suffolk and its employer members: withdraw all recognition from and otherwise cease recognizing the Union as bargaining representative of their employees until the Union is certified by the Board; cease maintaining any agree- ment, understanding, or practice requiring membership in or clearance by the Union as a condition of employment, or otherwise giving employment preference to union members; and cease in any other manner violating employees' rights guaranteed in the Act. The decree also ordered Respondent Union to cease maintaining with Nassau-Suffolk or any other employer any agreement, understanding, or practice requiring membership in or clearance by the Union as a condition of employment or otherwise giving employment preference to union members; and, in any like or related manner, to cease violating employees' rights under the Act. In the second-mentioned decision I issued on June 1, 1959, the Board found that the Union and Nassau-Suffolk were parties to an unlawful arrangement and practice requiring union membership, union referral, or a union permit as a condition of em- ployment; that the Union was maintaining an exclusive hiring hall on the basis of the same closed-shop provisions involved in the 1957 proceeding; and that such hiring hall was otherwise unlawful in not satisfying the so-called Mountain Pacific requirements 2 The Board also found, inter alia, that the Union unlawfully caused discrimination against members of a so-called reform group within the Union (this 1123 NLRB 1393. 2Mountain Pacific Chapter of the Associated General Contractors, Inc, et at., 119 NLRB 883, 897. C050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD group includes the Charging Parties in the instant and also the first-mentioned case) and also caused discrimination in the administration of the Union's welfare fund. The Board again thus found 8(b)(1)(A) and (2) violations against the Union and issued an order requiring the Union to refrain from the unfair labor practices found, including threats of violence and loss of employment because of the afore- mentioned "Reform" activities and the filing of unfair labor practice charges with the Board, The Second Circuit issued a decision on July 25, 1961,3 (rehearing denied August 17, 1961), holding in effect that the Union did not have a closed-shop contract with Nassau-Suffolk, that the Mountain Pacific aspects of the case were removed by Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Los Angeles-Seattle Motor Express), 365 U.S. 4667; the court also held that the Union was "plainly the prime wrongdoer" and the employers the innocent "victims" in the cases of individual discrimination and that the Union should therefore be primarily liable for the resulting backpay due. The court also sustained findings that the operation of the welfare fund unlawfully discriminated against nonmembers. The unfair labor practices under consideration in the two prior cases took place during the period from 1954 through 1957. The present case deals with alleged violations from June 1958 through the close of the hearing in October 1960. In the context of the earlier proceedings, the present complaint alleges in part: that the Union and Nassau-Suffolk have continued, and that the Union and B.T. Association also are maintaining, exclusive hiring hall arrangements without complying with the Mountain Pacific requirements and that they have otherwise required good union standing as a condition of employment for union members and required nonmembers to pay temporary dues, service fees, and referral and permit fees as a condition of employment; 4 and that the Union unlawfully caused Nassau-Suffolk and B.T. As- sociation to deny employment and other benefits to certain mentioned members of the so-called reform group. The Union and Nassau-Suffolk contend in effect that Nassau-Suffolk has not recognized or dealt with the Union as collective-bargaining representative since entry of the Second Circuit's decree restraining such recognition, and they further deny all unfair labor practices respectively alleged against them. The Union also denies the alleged violations which the complaint attributes to it vis-a-vis B.T. Association. B.T. Association and its employer members are parties to this proceeding, but not as Respondents. 13. The Union's hiring hall and exclusive hiring arrangements The Union, for many years, has been operating a hiring hall which supplies a considerable number of the engineering personnel employed in the construction 'business in Nassau and Suffolk Counties. In addition to whatever contracts or ar- rangements the Union may have with Nassau-Suffolk and its approximately 30 employer members, the Union has exclusive hiring contracts and arrangements with B.T. Association and its approximately 115 employer members and also with ap- proximately 200 independent contractors doing business in Nassau and Suffolk Counties. Postponing discussion of the various contracts and other arrangements under consideration, I shall first set forth some material aspects of the Union's hiring hall operation. While these noted items apply whenever the Union furnishes engineers to employers, whether or not under contract, it should nevertheless be kept in mind that these items become material here only where an exclusive hiring contract or arrangement is in operation. Since November 1958, the Union has required all individuals seeking job re- ferrals from the Union to fill out and submit an out-of-work card to the Union. These cards contain, among other matters, the date, if any, the individual was initiated into the Union. Union Secretary Verner Sofield and Dispatcher Edward Revere 5 under him are in charge of the union hiring hall. Sofield testified that he dispatches men to jobs in the order of their admission date into the Union and that he does not dispatch nonmembers until the roster of all unemployed and otherwise available union members is exhausted. Sofield further testified that he does not dispatch union members to jobs if such members are more than 90 days' S Local 138, International Union of Operating Engineers, AFL-CIO, et al. ( Nassau & Suffolk Contractors' Assn )., 293 F 2d 187 +I shall not further discuss the Mountain Pacific aspects of this case to the extent affected by Local 357, International Brotherhood of Teamsters, Chauffeurs Warehousemen and Helpers of America (Los Anpeies-Seattle Motor Express) v. NLR.B. 365 U S. 667. 8 Sofield is not entitled to belief on disputed matters, and Revere was not produced as -a witness. J. J. HAGERTY, INC. 651 delinquent in union dues payments and that he does not dispatch nonmembers who are delinquent in payment of so-called permit or service fees. Seniority for referral is therefore based on and equated to longevity as a union member and applicants for referral have no standing at all in the hiring hall and hence are not referred unless they maintain good financial standing with the Union, be it as a member or as a nonmember on permit or a service-fee basis. To maintain their financial good standing and their consequent eligibility for referral by the union hall, nonmembers are required to pay a $10 monthly fee to the Union, whether or not they are employed, and this is the same amount paid by members as regular monthly dues to the Union. Of this $10 monthly payment, the Union respectively remits $1.10 and $2 to its parent International for each member and each nonmember, with the balance being retained in the Union's general fund. C. The Union's exclusive hiring contracts with B.T. Association and independents The Union, in November 1958, amended its then existing contracts with the approximately 200 independent contractors and it entered into an identical contract with B.T. Association in April 1959 effective from January 1959 until July 1960. The Union and B.T. Association executed their current agreement in July 1960, and this agreement is effective until 1963. In addition to the usual economic provisions, the 1959 and 1960 agreements con- tain exclusive hiring hall as well as union-shop provisions (30 days in the 1959 contract; 7 days in the 1960 one). Both contracts also provide, inter alia, that "In case any employee becomes ineligible under the rules of the Union and the employer is notified, then said employer shall promptly discharge such employee" (the union constitution provides for member ineligibility for reasons other than nonpayment of membership dues); "that no member of the Union shall be subject to a physical examination in order to be employed"; that a "member of the Union" be paid his accrued wages immediately upon termination of employment; and that "members of the Union" are entitled to a change of shift at stated intervals. D. The alleged exclusive hiring arrangement between the Union and Nassau-Suffolk The General Counsel alleges that the Union and Nassau-Suffolk have by agree- ment or understanding maintained the same exclusive hiring arrangement which prevails between the Union and B.T. Association. Nassau-Suffolk and the Union both deny this allegation and they contend in effect that they have had no relevant collective-bargaining relationship since entry of the court's aforementioned decree restraining such relationship until the Union be certified by the Board. A substantial number of Nassau-Suffolk employer members produced their em- ployment records and testified concerning their hiring practices. Without setting forth the details of such testimony and documentation, and no matter what any single employer's arrangement with the Union might be, I am satisfied and find the record does not preponderantly establish that Nassau-Suffolk and the Union had been maintaining an exclusive hiring hall agreement or arrangement as alleged herein E. Respondent welfare fund As stated above, also named as Respondents here are the welfare fund of Re- spondent Local 138 and its trustees. The General Counsel alleges that Respondent Union and Nassau-Suffolk have respectively violated Section 8(b)(1)(A) and (2) and 8(a)(1), (2), and (3) by operation of this welfare fund as their agent and that the welfare fund and its trustees have themselves engaged in the same violations. Welfare fund was organized in 1950 as a fiduciary in New York State pursuant to a trust indenture agreement executed by officers of Respondent Union and representa- tives of building and construction employers, including Respondent Nassau-Suffolk. The welfare fund has its principal office in the same building in Farmingdale, New York, where the Union's offices are located; and it is engaged there in purchasing, providing, and maintaining life, health, accident, and related insurance policies and benefits for employees whose employers have covering agreements and/or arrange- ments with the Union. The present arrangement with the Union requires, in effect, that employer members B.T Association, Respondent Nassau-Suffolk, and approxi- mately 200 independent employers contribute to the welfare fund a sum of money equal to 5 percent of their weekly payroll for operating engineers. The welfare fund is a self-insurer and receives approximately $1 million annually from the employer contributions; it disburses about one-quarter of a million dollars annually and in- vests the remainder. Welfare fund is administered by eight trustees, four appointed by the Union and four by the employer, and the trust agreement provides that these trustees "shall 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continue to serve at the pleasure of the party by whom he was designated." The four trustees serving under such appointment by the union executive board are William C. DeKoning, Verner Sofield, Girard Douglas, and John Gunning ; all are union officials and members of the union executive board , DeKoning being union president and Sofield the union secretary. Nassau-Suffolk appointed three of its offi- cials (John Buchanan, Edwin Regnell, Jr., and Herman Switzer ) as employer trus- tees and B.T. Association designated the chairman of its board of governors (Paul Roche ) as the fourth employer trustee. In view of the substantial power and control over the tenure of the trustees and also because of the official positions held by the respective trustees in the organiza- tions by whom they were designated , I sustain the General Counsel 's contention that the welfare fund and its trustees are agents of the Union , Nassau-Suffolk, and B.T. Association in the administration of the welfare fund . By reason of its services for the employer participants in the welfare fund, I also find as the General Counsel contends, that welfare fund is itself engaged in commerce within the meaning of the Act. Chain Service Restaurant, Luncheonette & Soda Fountain Employees, Local 11, AFL-CIO, 132 NLRB 960. The last amendment to the agreement and declaration of trust which was executed by Respondent Union and Respondent Nassau-Suffolk in 1956 and is still in effect provides that the purpose of the welfare fund is "to pay or provide ... accident or health insurance for medical and surgical care and hospitalization for members of the Union ... as the trustees may determine subject to such conditions as to length of service in the industry , length of membership in the Union , and length of payment by the employer of employer contributions ...." The current booklet published by the welfare fund states the following eligibility requirements: CONDITIONS OF COVERAGE-ARTICLE 1 , SECTION A , ELIGIBILITY You are covered by Welfare Fund benefits if: (1) you are a member in good standing of Local 138 , 138A, 138B , Interna- tional Union of Operating Engineers, or (2) not being a member of Local 138 , 138A , 138B, your service dues are paid currently, (3) if you have complied with the rules and regulations of the Welfare Fund as defined herein, and (4) if you have worked the minimum number of hours required as defined herein for a contributing employer. SECTION B Good standing means the current monthly dues must be paid or the current monthly service dues must be paid. The record establishes that these rules are currently enforced and in effect. F. Conclusions; hiring and other employment arrangements Having exclusive hiring hall arrangements with B.T. Association and independent employers, Respondent Union has operated such hiring hall so as to prefer union members over nonmembers and also to further prefer members with greater union seniority ; this arrangement also requires , in effect, that where membership is a condition of employment, such membership must satisfy requirements other than payment of dues and initiation fees. Respondent has thereby violated Section 8(b) (1) (A ) and (2 ) of the Act. Compounding this discriminatory treatment of nonmembers as second-rate citizens of the hall, Respondent Union at the same time requires nonmembers to pay monthly service or permit fees in amounts equal to monthly membership dues. While a union may be permitted payment of reasonable fees by those individuals using its referral facilities , it goes without saying that it is a discriminatory condition of employment for a union under exclusive hiring arrangements to require amounts equal to membership dues, absent any showing of a reasonable relationship between such referral fees and the cost of operating the hiring hall. Respondent Union has thereby further violated Section 8(b)(1)(A) and (2 ) in the maintenance of its exclusive hiring hall arrangements with B.T. Association and unaffiliated employers engaged in commerce within the Act. The thrust of the above-mentioned preferences accorded union members and the other mentioned discriminatory conditions carries over to the welfare fund. To be eligible for benefits under the welfare plan, not only must employees satisfy these aforementioned discriminatory conditions , but they also must have worked a prescribed number of hours. The effect of giving referral preference to union members is to give them greater opportunity for satisfying the minimum time quali- J. J. HAGERTY, INC. 653 fication for welfare fund benefits. To the extent, therefore, that all such discrimina- tory conditions prevail in the operation of the welfare fund, the Union also is violating Section 8(b)(1)(A) and (2) of the Act. While not found to have an exclusive hiring arrangement with the Union, Nassau-Suffolk is nevertheless a party to maintaining and operating the welfare fund, and Nassau-Suffolk and its employer members have accordingly violated Section 8(a)(1) and (3) of the Act by such participation in discriminatory practices. I also find as the General Counsel further alleges, that the welfare fund and its named trustees have accordingly been violating Section 8 (a)(1) and (3 ) and Section 8(b)(1)(A) and (2 ) of the Act. It is hornbook law that union qualifications may be made a condition of em- ployment only pursuant to a union-security contract lawful under Section 8(a)(3) of the Act. Absent any claim by either Nassau-Suffolk or the Union (in fact they assert there is no contract at all) that they have such lawful union-security arrange- ment, the operation of the welfare fund is, in any event, discriminatory, inasmuch as its benefits are available only to those individuals who maintain their standing in the Union's hiring hall either as members or nonmembers. Upon all the foregoing, I further find that Nassau-Suffolk and welfare fund and its trustees have contributed support to the Union in violation of Section 8(a) (2) .of the Act. G. Individual cases of alleged discrimination 1. Garrett Nagle Nagle has been employed as an operating engineer in Nassau and Suffolk Counties since 1945, and has been a member of Respondent Union at all times during this period. Nagle became one of the leading proponents of the aforementioned reform group and he has also filed charges against Respondent Union in prior cases.6 Respondent Union consists of Locals 138, 138A, and 138B; 7 138 is comprised of the so-called journeymen engineers, and 138A and 138B consists of apprentices and firemen and oilers. Wage rates are generally higher for 138 jobs than for 138A and B. In 1958, Respondent Union initiated separate seniority lists for 138 and 138A. Nagle was a member of 138A since 1945, and he applied for admission to 138 in 1955; he was finally admitted to 138 in January 1960 after the filing of charges in the present case. Admission to Local 138 requires approval of the union executive board and Local 138 membership. The General Counsel contends that the Union unlawfully refused to refer Nagle from November 28, 1958, until March 5, 1959; that the Union unlawfully referred Nagle only to lower-paying jobs since the latter date; and that Nassau-Suffolk, by operation of the alleged exclusive hiring arrangement, has accordingly discriminated against Nagle. Until the events under consideration here, the Union had referred Nagle to engineer (as distinguished from the lower-paying) jobs, and the Union makes no claim and there is no question concerning Nagle's competency to handle engineer positions. Upon being laid off for economic reasons on or about November 28, 1958, Nagle called the union hiring hall and asked Dispatcher Revere for work Revere said no work was available and that Nagle would not be permitted to retain any job Nagle might get on his own. Revere also said that Nagle was on top of the referral list but that the Union would only refer Nagle to lower-paying jobs under the work classification of Local 138A. Revere and Union Secretary Sofield advised Nagle to similar effect a few days later. On this latter occasion, Union President DeKoning also told Nagle that there was no question as to Nagle's qualifications to handle 138 (as distinguished from 138A or B) jobs, but that the Union would not refer Nagle to such employment. Nagle credibly testified, in part as follows, concerning this conversation with DeKoning: 8 1 [Nagle] said, "you know I can do an engineer's work." He [DeKoning] said, "There is no question of your qualifications, but you are only an A-man." 6 See Local 138, International Union of Operating Engineers, AFL-CIO ( A. Cestone Company). 118 NLRB 669, enfd 254 F. 2d 958 (C A 2), where the Board and court sus- tained earlier charges that the Union caused discrimination against Nagle because of Nagle's reform group activities. 9 See 118 NLRB 174, 207 8 On the basis of my demeanor observations and upon the record as a whole, I find that DeKoning is unworthy of being credited on any disputed matter unless corroborated by a credible witness. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I said, "How do I get into the engineer's class?" "Well," he said to me, "if you stopped all this ... mess you have been causing and all the trouble , running to the Senate , that goddam NLRB, to the radio and television and the papers. What the hell have any of them done for you? I am still here. I am the boss. I'm going to stay here as long as the Inter- national is behind me." I said, "Well, Bill, if I was to join you, what are you going to do for us?" He said, "What do you want me to do?" I said, "The least you could do is put the men back in the union who were suspended." He said, "Yes , I might let them come back in in a year or two." I said, "What the hell are they supposed to do in the meantime?" He said, "If you all sit back and shut up , everything will go all right. You will have no trouble finding work. Otherwise, we'll keep you out of work as long as we want." Q. Are there any other statements you can recall being made by Mr. De- Koning on that occasion? A. The only thing is, when he told me there is nothing we can do, I said, "There is plenty we can do. We can still go to the NLRB and fight our cases there." After this conversation the Union did not refer Nagle to any jobs until March 1959, although Nagle regularly filed out-of-work cards; and the jobs to which Nagle was referred from March 1959 until January 1960 were of the lower-paying 138A, not the higher-paying 138, variety. In the context of the Union's exclusive hiring ball arrangements , set forth above, the record establishes that, on the basis of Nagle's reform group activities , the Union failed and refused to refer Nagle to higher-paid jobs with B .T. Association and un- affiliated employers having exclusive hiring arrangements with the Union. The Union thus violated Section 8(b)(1)(A) and (2 ), and it also violated Section 8(b) (1) (A ) by its threat of such discrimination unless Nagle gave up such activities. This does not mean, of course, that a union may not have reasonable classifications of referral in operating an exclusive hiring hall; it does mean that such classifications may not be based upon or administered in accordance with discriminatory consid- erations including placement on a preferred referral list subject to the approval of the union executive board and the preferred group's (Local 138 ) membership. 2. Robert Christensen The General Counsel alleges that since December 1959 the Union has unlawfully refused to refer Christensen to employer members of Nassau-Suffolk and B.T. Association and that employer members of Nassau-Suffolk thereupon unlawfully denied employment to Christensen . This allegation against the Nassau-Suffolk employers is predicated on the alleged exclusive hiring arrangement . But as such arrangement with Nassau-Suffolk has not been established , as found above, the complaint against Nassau-Suffolk accordingly must fall as it does as to Nagle in this regard . The complaint further alleges that the Union and Nassau-Suffolk also discriminated against Christensen by operation of the welfare fund. Christensen began working as an operating engineer in Nassau and Suffolk Coun- ties in 1952 . He was a permit man and paid weekly permit fees to Respondent Union from 1952 to 1957 ; Respondent Union referred Christensen to regular engineer jobs during this period. Christensen became allied with the aforementioned reform group in July 1957, and in April 1959 Christensen and two other supporters of this group (William Wilkens and Thomas Eichacker ) went to Washington and com- plained to counsel for Respondent Union's International about their failure to obtain referrals from Respondent Union. Christensen was referred to a job later that month , and Sofield told Christensen at the time that Christensen would have to pay a $10 monthly referral fee in order to work. Christensen paid such fees in May and July 1959. Christensen has not paid any referral fees to Respondent Union since July 1959 and he was not referred to any jobs by the Union from July 20. 1959 , until at least September 15, 1960. Christensen filed out-of-work cards in July and September 1959 and on nine occasions during the period from February to August 1960.9 Disnatch Clerk Revere told Christensen in February 1960 that it would do no good to file out-of-work cards until Christensen paid $80 in delinquent permit fees. In June 1960, on an occasion when Christensen was seeking employment at the hiring 0 Christensen obtained some employment on his own during this period. J. J. HAGERTY, INC. 655 hall, Sofield told Christensen that he would get no work until he paid the mentioned fees and on a similar occasion the next month Sofield ordered Christensen out of the hiring hall in obscene language and said that "there is no work for the likes of you." Christensen applied for certain benefits under the welfare fund in February 1960. The welfare fund clerk advised Christensen at the time that Christensen's records "are very vague" in that he was "delinquent $80 in permit fees and referral fees." Dispatcher Revere was present on this occasion and, holding Christensen's out-of- work card, Revere said the card "isn't going to do you any good ... without the $80." The welfare fund requires, for the mentioned benefits, that the beneficiary have worked 600 hours during a prescribed period, which Christensen apparently had not done. It is recalled, however, that permit men were not referred to jobs until the regular union membership list was exhausted.io Again, in the context of the aforementioned exclusive hiring hall arrangements with B.T. Association and nonaffiliated employers, the Union had no right under this Act to require Christensen to pay fees for the privilege of working under the afore- mentioned referral disability of a permit man. The requirement of fees in such cir- cumstances is unlawful and the amount of fees was itself discriminatory, and I find that the Union failed and refused to refer Christensen during the stated period for not complying with such unlawful requirements. As also set forth above, the welfare fund was unlawful in its discrimination against permit men in that, among other things, it worked to the disadvantage of permit men in requiring a certain number of hours to qualify for benefits thereunder. I further find, therefore, that the welfare fund and its trustees, as agents of the Nassau-Suffolk and the Union, violated Section 8(a)(1) and (3) and Section 8(b)(1) (A) and (2) in discriminatorily depriving Christensen of benefits under the welfare fund and that the welfare fund and its trustees accordingly also have engaged in the same violations. 3. Thomas Eichacker The General Counsel contends that Respondent Union unlawfully refused to refer Eichacker and that Nassau-Suffolk, under the alleged agreement, thereupon unlaw- fully refused to hire Eichacker. Here, too, for reasons already mentioned, Nassau- Suffolk's alleged violation falls insofar as it is premised on an exclusive hiring agree- ment with the Union. Eichacker has been employed as an operating engineer for more than 20 years and has been a member of Respondent Union since 1939. Eichacker became actively associated in reform group affairs in 1954. Respondent Union did not refer Eichacker to any jobs from December 10, 1958, until April 27, 1959; the Union re- ferred Eichacker to a 1-day job on April 27, 1959, to a 2-day job on May 20, 1959, to four different jobs between May 22 and July 29, 1959, and to no further jobs be- tween July 29 and October 1959. Although Sofield testified in effect that he did not refer Eichacker in April 1959 because Eichacker did not have out-of-work cards on file, the credible testimony establishes that Eichacker did file such cards during ma- terial periods, and Sofield also otherwise failed to explain why numerous other indi- viduals were employed during such periods even though they had less seniority than Eichacker under the Union's own seniority system. I conclude that Eichacker's reform group activities motivated the Union in refusing and failing to refer Eichacker during material periods. And I accordingly conclude that such conduct violated Section 8(b)(1)(A) and (2) to the extent that it affected 7ichacker's job opportunities with B T. Association and unaffiliated employers with whom the Union had exclusive hiring arrangements. 4. William Wilkens The complaint alleges that Respondent Union has unlawfully refused to refer Wilkens to Nassau-Suffolk and B.T. Association since in or about November 1958 and that Nassau-Suffolk has unlawfully denied employment and B.T. Association also has denied employment to Wilkens pursuant to the aforementioned exclusive hire contract and arrangement. As in Christensen's case, this similar allegation against Nassau-Suffolk is unsupported because of the failure to prove the exclusive hire agreement and/or arrangement. Wilkens became a member of Respondent Union in 1946 and has worked at his trade in Nassau and Suffolk Counties for 14 years. Wilkens is a prominent reform group adherent; he filed charges in prior Board proceedings and has compl-iined to 10 Sofield testified that he did not refer Christensen during material periods because of Zits relative seniority 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Union's International and testified before the McClellan Senate Rackets. Committee concerning the DeKoning administration of Respondent Union. Union Secretary Sofield told Wilkens in December 1958 that Wilkens would have to go through the union hiring hall in order to obtain employment and that he would not be able to retain any job he obtained himself. Later that same month Sofield and Dispatch Clerk Revere in effect also told Wilkens that Wilkens would never again get a job. The Union referred Wilkens to several jobs of short duration in April 1959. The gravamen of the General Counsel's complaint is that the Union did not refer Wilkens on April 21 and 22, 1959, although Wilkens had out-of-work cards on file on both dates. The General Counsel refers in this connection to the Union's so-called, referral book and he contends that this book indicates that at least 14 men were re- ferred to jobs on those dates even though they had less seniority than Wilkens under the Union's own referral system. While not free from doubt, I am unable to find a preponderance of evidence to establish that Respondent Union unlawfully failed or refused to refer Wilkens to employer members of B.T. Association or to other em- ployers under exclusive hire arrangements with the Union. 5. Peter Batalias The General Counsel alleges that Respondent Peterson (member of Nassau- Suffolk) unlawfully laid off Batalias in December 1958, that the Union thereafter refused to refer Batalias for employment to employer members of Nassau-Suffolk or Building Trades, and that such employer members have accordingly failed to re- employ Batalias Batalias has been an operating engineer since 1938; he worked in Nassau and Suffolk Counties as a Respondent Union permit man from 1946, and he became a union member in 1952. Batalias, since 1954, has been a leading spokes- man for the so-called reform group whose activities are described in the two earlier proceedings (118 NLRB 174, 123 NLRB 1393), and he testified against the present DeKoning administration of the Union before various congressional committees, including the McClellan Senate Rackets Committee. Batalias was regularly employed on a permanent basis by Respondent Peterson from 1954 to 1958. In July 1958 Peterson's Superintendent Anthony Constantino and Peterson's Master Mechanic Louis Wilkins 11 assigned Batalias to a project in Greenport, Long Island; this project was a joint venture of Peterson and Respondent Hagerty (also a member of Nassau-Suffolk). Wilkins advised Batalias on Novem- ber 28, 1958, that Constantino had reassigned Batalias to an Idlewild project and Wilkins also informed Batalias that the Union had informed Peterson that Batalias was suspended for nonpayment of dues and was therefore ineligible to continue at Greenport. The next day, November 29, Wilkins informed Batalias that the Union was trying to devise some "gimmick" for removing Batalias from the job and Wilkins also told Batalias that Constantino had directed that Batalias report to Peter- son's yard on December 1. When Batalias reported to Peterson's yard on December 1, Constantino told Batalias that be (Batalias) had been removed from the Greenport job because of his suspension from the Union for nonpayment of dues and Constantino further in- formed Batalias that Constantino would pay off Batalias after permitting Batalias to work a day or two in New Hyde Park. The same day John C. Peterson told Batalias that the Union was putting pressure on Peterson to get rid of the reform group 12 and that after January 1, 1959, Peterson would have to get clearance from Respondent Union before hiring any of the reform group. The Hyde Park project shut down and Batalias was let go on December 8, 1958. The Greenport job also closed down for the winter on or about December 22; it reopened thereafter and continued at least until July 1959. Peterson's payroll records indicate that 4 of Peterson' s engineers were laid off before Batalias' termination on December 8 and that 12 others were let go between December 8 and 19. According to his practice of prepaying union dues, Batalias mailed the Union in July 1958 a check covering his union dues for the 6-month period ending 1958. Batalias never received a canceled check and the Union's records carry the nota- tion that he was suspended from union membership on November 28, 1958. He was not 'advised of such action at the time. This November 28 date, it is recalled, was the same day Batalias was removed from ,the Greenport project. On December 3, 1958, Batalias discussed the matter with Union Secretary Sofield, who is in charge "Wilkins , as master mechanic , was the union-shop steward and also was an employer supervisor who hired engineering personnel. 12 Until at least December 1958, Peterson had a number of the reform groups in its employ J. J. HAGERTY, INC. 657 of the union hiring hall, and Batalias submitted an out-of-work card to Sofield on December 10. Sofield advised Batalias on this latter occasion that Batahas would have to be reinstated by the union executive board before Sofield would refer Batalias to any jobs. Batalias filed another out-of-work card with the Union on or about December 17, 1958, on which occasion Respondent DeKoning refused to discuss Batahas' sus- pension with Batalias. That same day Batalias asked Sofield how Batalias would be reinstated and get work if Sofield would not inform him when he could appear be- fore the union executive committee. Sofield replied, "That's your headache. As far as we are concerned, you are never going to get any work out of this union." Batalias filed out-of-work cards monthly until July 1959, and either Sofield or Revere (dispatch clerk at the hiring hall) told him each time that he would get no work because of his suspension. Batalias also sought employment during this period from Peterson's Superintendent Constantino and Hagerty's Supervisor McGilly and both men told him that union clearance was necessary before they could hire him. The Union referred Batalias to but one job during the period from December 1958 until July 1959; that job lasted only 1 day and the referral was made after Batalias had complained to the McClellan Committee and to the Union's Inter- national. Sofield refused Batalias' offer on that occasion to pay the aforementioned $10 service fee.13 In August 1959, Batalias enlisted in the Army because of his inability to obtain work. On his discharge in April 1960, he filed an out-of-work card, only to be ad- vised by Revere that he had lost all seniority in the hiring hall because of his sus- pension. Batalias continued to file out-of-work cards, and has not received any fur- ther employment through the Union. Sofield testified in effect that he had not referred Batalias during material times here because Batalias had lost his union standing. And when DeKoning was asked why Batalias had not been referred, DeKoning replied, "That's very questionable. I couldn't give you the answer." Mindful of the testimony, much of it varying and inconsistent, concerning Peter- son's purported reasons for removing Batalias from the Greenport job, I am satisfied and find that the Union caused Peterson to remove Batalias because of Batalias' suspension from the Union, there being no lawful union-security contract in effect, and that the Union caused Peterson not to reemploy Batalias at Greenport when that job reopened. I find that Batalias did pay his union dues through December 1958, and that the Respondent Union suspended Batalias because of his reform group activities and not for dues delinquency. The Union deprived Batalias of his standing in the hiring hall and it violated Section 8(b) (1) (A) and (2) by refusing and failing to refer him to B.T. Association and unaffiliated employers having exclusive hiring arrangements with the Union at all material times here. I find that Peterson violated Section 8(a)(1) and (3) respecting Batalias at Greenport and that the Union also has violated Section 8(b)(1)(A) and (2) by causing Peterson not to rehire Batalias because of his reform group activities. IV. THE REMEDY The Board and the Second Circuit Court of Appeals have sustained violations against the Union under the same sections of the Act as are involved in this case, and an outstanding court decree would, I presume, apply to the violations found in this proceeding. Considering the Union's case history before the Board I shall recommend at the outset that the Board retain continuing jurisdiction over this case and I further recommend that the Board consider invoking the court's contempt powers should the Union persist in its unfair labor practices. The record discloses an exclusive hiring hall predicated and administered upon flagrantly unlawful bases and the appropriate relief in this situation is to set aside all hiring hall contracts and arrangements of the Union and to direct the Union for a period of at least 1 year not to enter into or perform any exclusive hiring con- tract or arrangement with B.T. Association or with any other employer engaged in commerce within the Act. I deem a period of 1 year the minimum appropriate pe- riod for dissipating the effects of the Union's longtime and unlawful hiring hall arrangements. As there appears to be no other union in the picture to represent employees covered by the Union's collective-bargaining agreements, I do not desire to prejudice them by also recommending the ordinarily appropriate order of directing the Union, until it be certified by the Board, not to maintain or enter into any other 13 Batallas was finally permitted to appear before the union executive committee in July 1959 Ile advised the committee on that occasion that he did not desire reinstatement. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract or arrangement wherein it is accorded recognition as bargaining representa- tive. However, I shall recommend setting aside all union-security provisions of the Union's contracts and arrangements and that it be directed not to maintain or enter into any such union-security agreement or arrangement for a period of at least 1 year. I shall also recommend that the Union, Nassau-Suffolk, welfare fund, and welfare fund trustees cease administering the welfare fund to grant or withhold benefits upon considerations of membership or financial or other standing in Re- spondent Union or its hiring hall or upon other unlawfully disparate classifications. Nonmembers of the Union have had to maintain their described standing in the union hiring hall as a condition of referral and therefore as a condition of employ- aient with B.T. Association and other employers with whom Respondent Union has exclusive referral agreements. But, as indicated above, this only gave the nonmem- bers a second rate status in the hall and consequent disabilities under the welfare fund. While it would be administratively impossible to restore to all nonmembers he jobs and wages and other benefits they lost as a result of this unlawful hiring hall system, it is possible to ascertain the amounts each has paid as service or permit fees. The requirement of a service or permit fee as a condition of employment under the aforedescribed circumstances is clearly unlawful, and I shall recommend that the Union be required to make whole all employees or applicants by reimbursing the amount of service or permit or any other fees each has paid as a nonmember from the date 6 months before service of the initial charge filed against the Union in this case. It may be claimed that, as Nassau-Suffolk did not have an exclusive hiring arrangement with the Union, nonmembers working or who have worked for Nassau-Suffolk should not be similarly reimbursed. However the Union did not main- -in separate referral lists for Nassau-Suffolk and B.T. Association and the Nassau- Suffolk employees also had to maintain the same fees in order to qualify for welfare fund benefits. I accordingly find that all nonmembers suffered discrimination and that the permit or service fee has been unlawfully exacted of them as a condition of employment, at all times since June 18, 1958, which is 6 months before service of the initial charge herein. I shall also recommend that the Union and Peterson make whole Batalias for discriminatory losses incurred on the Greenport job, with Respondent Union primarily liable,14 and that Respondent Union also make whole Batalias, Christensen, Eichacker, and Nagle for not referring them to B.T. Association and other employers engaged in commerce with whom the Union has exclusive hiring arrangements and/or for otherwise failing to refer Nagle to "138" as distinguished from "138A" jobs. All backpay computations are to be determined in accordance with F. W. Woolworth Company, 90 NLRB 289. I shall also recommend, also with Respondent Union primarily liable, that Respondent Union, Respondent welfare fund, and Respondent Nassau-Suffolk also make whole Christensen by paying him the amount of welfare fund benefits unlawfully denied him. I shall also recommend that Respondent Union be required to publish in Local 138- News the notice herein set forth and also to post and maintain such notice for 1 year. CONCLUSIONS OF LAW 1. Nassau-Suffolk and its employer members, including Peterson and Hagerty, are engaged in commerce within Section 2(6) and (7) of the Act. 2. Building Trades Association and its employer members are engaged in com- merce within Section 2(6) and (7) of the Act. 3. Welfare fund and trustees DeKoning, Sofield, Douglas, Gunning. Buchanan, Regnell, Roche, and Switzer are agents for Nassau-Suffolk, Building Trades Associa- tion, and Respondent Union, and welfare fund is itself engaged in commerce within the meaning of the Act. 4. Respondent Union is a labor organization within Section 2(5) of the Act. 5. Nassau-Suffolk and welfare fund and its trustees have violated Section 8(a) (1), (2), and (3) by administering welfare fund to deny benefits to employees, and specifically to Christensen, on the basis of membership and/or financial standing in Respondent Union. 6. Peterson violated Section 8(a)(1) and (3) of the Act by removing and there- after failing to rehire Batalias at the Greenport job because Batalias was not a mem- ber in good standing in Respondent Union. 7. Respondent Union and welfare fund and its trustees have viol,-tad Section 8(b) (1) (A) and (2) by administering welfare fund to deny benefits to employees, 11 See N L R B. v. Local 138, International Union of Operating Engineers , AFL-CIO, et at (Nassau & SuffolL Contractors' Assn.), 293 F 2d 187, 199 (C.A. 2). INT'L ASSN. OF HEAT AND FROST INSULATORS, ETC. 659 and specifically Christensen, on the basis of membership and/or financial standing in Respondent Union. 8. Respondent Union has violated Section 8(b)(1)(A ) and (2 ) by the following additional conduct: (a) Maintaining with B.T. Association land unaffiliated employers in commerce within the Act, an exclusive hiring hall arrangement which : provides for conditions of union security other than dues and initiation fees, thus exceeding the limits per- mitted by Section 8(a) (3); prefers union members over nonmembers ; prefers union members with greater union seniority ; requires an unlawful amount of service or permit fees from nonmembers ; and which was otherwise administered on the basis of unlawfully disparate classifications. (b) Refusing, on the basis of reform group activities , to refer Nagle to higher- paying jobs with B.T. Association and unaffiliated employers in commerce with whom it has exclusive hiring -arrangements. (c) Refusing; on the basis of union standing, to refer Christensen and Eichacker to jobs with B.T. Association and unaffiliated employers with whom it has exclusive hiring arrangements. (d) Causing Peterson , on the basis of union and/or reform group considerations, to lay off and not recall Batalias on the Greenport job and refusing to refer Batalias to B.T. Association and unaffiliated employers in commerce with whom it has ex- clusivehiring arrangements. 9. Respondent Union further violated Section 8 (:b) (4) (A) by threatening not to refer Nagle, Christensen, and Wilkens to any employer including B.T. Association and unaffiliated employers in commerce with whom it has exclusive hiring arrange- ments, for reasons of union membership and/or reform group activities. 10. The foregoing unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] International Association of Heat and Frost Insulators and As- bestos Workers and Local 125, International Association of Heat and Frost Insulators and Asbestos Workers and Insul- Coustic Corporation . Case No. 10-CC-486. October 31, 1962 DECISION AND ORDER On April 3, 1962, Trial Examiner Stanley Gilbert issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- 'from and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter,. the Respondents filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner, except insofar as they are inconsistent with our Decision herein. 1. The Respondents except to the Trial Examiner's findings on the ground, inter alia, that their sole objective was to obtain adherence 139 NLRB No. 51. 672010-63-vol . 139-43