Essex County District Council of Carpenters Etc.

858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Essex County and Vicinity District Council of Carpenters and Millwrights, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and The Associated Contractors of Essex County, Inc. Case No. 22-CC-174(2). March 27, 1963 DECISION AND ORDER On December 19, 1962, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled, proceeding, find- ing that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. 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 Intermediate Report and the entire record in the case, including the exceptions and briefs, and hereby adopts the Trial Examiner's find- ings, conclusions, and recommendations, as modified herein.' ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that The Essex County and Vicinity District Council of Carpenters and millwrights, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from : (a) Engaging in, or inducing or encouraging employees of any employer-member of the Associated Contractors of Essex County, Inc. (herein called the Association), or any other employer, to engage in a strike, or threatening, coercing, or restraining any such employer, where in either case an object thereof is to force or require the As- sociation or any such employer to enter into an agreement which is prohibited by Section 8(e) of the Act. 1 As we believe that the "nonunion condition" provisions in the contracts with Respond- ent, executed by Association members on and after July 23, 1962 , were the fruits of Re- spondent's unfair labor practices found herein , we shall, in order to remedy fully Respond- ent's violation of the Act, order Respondent to cease and desist from applying or enforc- ing the "nonunion condition" provisions in such contracts Our Order shall not , of course, have application to the contracts with Respondent signed in June 1962 , before the date of the unfair labor practices found. 141 NLRB No. 80. ESSEX COUNTY DISTRICT COUNCIL OF CARPENTERS, ETC. 859 (b) Enforcing, applying, or attempting to enforce or apply, any "nonunion condition" provision in the contracts executed by association-members in consequence of Respondent's unfair labor practices found herein, provided, however, that nothing in this Order shall preclude the voluntary execution of contracts with such provisions. 2. Take the following affirmative action which it is found will effectuate the policies of the Act : (a) Post at the Respondent's business offices and meeting halls, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Twenty-second Region, shall, after being duly signed by the authorized representa- tive of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken to insure that the notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for the Twenty-second Region for posting by the constituent employer-members of the Association, said employers being willing, at all locations where notices to their employees are customarily posted. (c) Notify the Regional Director for the Twenty-second Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2 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." APPENDIX NOTICE TO ALL OUR MEMBERS AND ALL EMPLOYEES OF THE EMPLOYER-MEMBERS OF THE ASSOCIATED CONTRACTORS OF ESSEX COUNTY, INC. Pursuant to a Decision and Order of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT engage, or induce or encourage employees of any employer-member of The Associated Contractors of Essex County, Inc. (herein called the Association), or any other employer, to engage in a strike, nor will we threaten, coerce, or restrain any such employer, where in either case an object thereof is to force or require said employer to enter into any agreement which is prohibited by Section 8(e). 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT enforce, apply, or attempt to enforce or apply, ,any "nonunion condition" provision in the contracts with us executed by Association members in consequence of our threats to strike and of our strike of July 23, 1962. THE ESSEX COUNTY AND VICINITY DISTRICT COUNCIL OF CARPENTERS AND MILLWRIGHTS, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Labor Organization. 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, 614 National Newark Building, 744 Broad Street, Newark 2, New Jersey, Telephone No. Market 4-6151, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint issued by the Regional Director in the present case 1 alleges, that, on and since July 16, 1962, the Respondent labor organization, The Essex County and Vicinity District Council of Carpenters and Millwrights, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, has committed unfair labor practices affecting commerce within the meaning of Sections 8(b) (4) (i) and (ii) (A) and 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136 and 73 Stat. 519 (herein called the Act), by threatening and then causing a strike of the employees of the constituent employer-members of The Associated Contractors of Essex County, Inc. (herein called the Association), with an object of forcing and requiring the As- sociation and its employer-members to enter into a contract or agreement containing a clause prohibited by Section 8(e) of the Act .2 1 The complaint was issued on July 25, 1962, upon the basis of a charge filed by The Associated Contractors of Essex County, Inc., on June 4, 1962. The charge and the com- plaint were served upon the Respondent Union on June 4 and July 25, 1962, respectively 2 The relevant language of Section 8(b) (4) and '8(e) is the following, SEC. 8. (b) It shall be an unfair labor practice for a labor organization or Its agents- s • • • • s • (4) (1) to engage in . . . a strike . . or (ii) to threaten, coerce, or restrain any person engaged in commerce or In an industry affecting commerce, where in either case an object thereof Is: (A) forcing or requiring any employer . . to enter into any agreement which is prohibited by section 8(e) i t 1 a i a • SEC 8. (e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, sell- ing, transporting or otherwise dealing In any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered Into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void: Provided, That nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer In the con- struction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work ... . ESSEX COUNTY DISTRICT COUNCIL OF CARPENTERS, ETC. 861 In its answer, the Respondent generally denies the commission of the unfair labor practices alleged in the complaint. By way of further specific defense, it also asserts in substance that: (1) the clause, which the complaint asserts is prohibited by Sec- tion 8(e) of the Act, is "a valid and legal provision"; (2) on or about June 20, 1962, the Association and the Respondent "entered into a valid and binding contract" containing the clause in question; (3) the Association is "estopped" from any chal- lenge of the legality of the clause since the clause was part of a contract between the Association and the Respondent which expired on May 31, 1962, and, for at least 10 years, the Association had insisted upon its observance for the benefit and ad- vantages which it obtained therefrom; (4) the legality or illegality of the clause is immaterial since the parties agreed that any illegal provision of their contract should be ineffective; and (5) (as set forth in charges filed by the Respondent with the Regional Direction on July 27, 1962) it was the Association which committed unfair labor practices within the meaning of Section 8(a)(5) of the Act by refusing to bargain with the Respondent in good faith and thus created the situation giving rise to the present case, since, on or about June 1, 1962, and during the course of negotia- tions for a contract to succeed the one which expired the preceding day, the Associa- tion, expecting a strike on economic issues, presented to the Respondent for the first time a demand to delete the hitherto undisputed clause from their agreement so that, when the strike occurred, the Association, by filing charges under Section 8(e) and availing itself of the Board's processes against the Respondent, might force their em- ployees back to work. Pursuant to Section 10(1) of the Act, the Regional Director petitioned the United States District Court for the District of New Jersey for a preliminary injunction of the Respondent's continuance of its alleged unfair labor practices pending the Board's final disposition of the case in the present proceeding. On August 16, 1962, United States District Judge Reynier J. Wortendyke, Jr., denied the Regional Director's petition, concluding "as a matter of law" that the Respondent had not committed the unfair labor practices with which it had been charged. (John Cuneo v. The Essex County and Vicinity District Council of Carpenters and Millwrights, United Brother- hood of Carpenters & Joiners of America, AFL-CIO, 50 LRRM 2979). According to Judge Wortendyke's opinion, the proposed contractual provision for which the Respondent struck the Association's members on July 23, 1962, was not such a pro- vision as is forbidden by Section 8(e) of the Act, because (1) its language did not on its face constitute a "hot cargo" clause; and (2) in any event, the first proviso to Section 8(e) excludes from the general prohibition of that section, agreements entered into by unions and employers in the construction industry. In reaching his conclusion in part upon the latter ground, Judge Wortendyke considered and dis- agreed with the Board's recent ruling in the Colson and Stevens case,3 that, notwith- standing the proviso to Section 8(e), a strike by a union to coerce an employer in the construction industry to execute an agreement otherwise falling within the inter- diction of Section 8(e), is an unfair labor practice within the meaning of Section 8(b) (4) (i) and (ii) (A) of the Act. Pursuant to notice, a hearing upon the complaint and answer in the case now before the Board, was held in Newark, New Jersey, on September 10, 11, 12, and 13, 1962, before Trial Examiner William F. Scharnikow. The General Counsel, the Respond- ent, and the Association appeared by counsel and were afforded full opportunity to be heard, to examine, and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the beginning of the hearing, the Respondent moved to supplement its answer by pleading the dismissal by the district court of the Regional Director's petition for a preliminary injunction, as res judicata and dispositive of the issues in the present case. On the General Counsel's objection, I denied this motion on the ground that the defense which the Respondent sought to raise was insufficient in law.4 The Respondent thereupon made motions (1) to consolidate the present proceed- ings with the proceedings based upon a charge filed by it with the Regional Director in Case No 22-CA-2520, in which the Respondent had alleged that the Association had refused to bargain with it and had thereby committed unfair labor practices within the meaning of Section 8(a)(5) of the Act, and (2) in the alternative, to postpone the hearing in the present case until the Respondent had an opportunity to appeal to the General Counsel for a reversal of the Regional Director's refusal to issue a com- plaint in Case No. 22-CA-2520. Upon the General Counsel's objection, I also denied 3 Construction, Production & Maintenance Laborers Union Local 383, AFL-CIO; and United Brotherhood of Carpenters and Joiners of America, Local 1089, API-CIO (Colson and Stevens Construction Co., Inc.), 137 NLRB 1650 4 N L R B. v. Denver Building and Construction Trades Council, et al. (Gould & Preisner), 341 US. 675, 681-683. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these alternative motions of the Respondent, noting however, that, under my ruling, all evidence as to the Respondent's object or objects in the strike of July 23, 1962, would be received, including such evidence as to the Association's conduct as might appear to be relevant to this issue. At the conclusion of the hearing, the parties waived oral argument. Since the close of the hearing, I have received and considered their briefs. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESSES OF THE MEMBERS OF THE ASSOCIATION The Associated Contractors of Essex County, Inc., is an association of employers whose members are engaged in the building and construction industry in Essex County, and elsewhere in the State of New Jersey. For many years, the Association has been authorized by its employer-members to conduct collective-bargaining negotia- tions on their behalf and to enter into collective-bargaining agreements covering their respective employees and has accordingly negotiated collective-bargaining agree- ments with the Respondent. During the year preceding the issuance of the com- plaint, these employer-members, all of whose places of business are located in the State of New Jersey, have performed services of a value in excess of $1,000,000 in States of the United States other than the State of New Jersey. I find, as the Respondent conceded at the hearing, that the members of the Asso- ciation are employers engaged in commerce within the meaning of the Act. H. THE RESPONDENT LABOR ORGANIZATION The Essex County and Vicinity District Council of Carpenters and Millwrights, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The controversial "nonunion condition clause The broad question presented by this case is whether the Respondent committed unfair labor practices within the meaning of the Act, by attempting to coerce the Association, by strike and threat of strike, to enter into an agreement renewing the "nonunion condition" provision of article XVIII of a contract between them which expired on May 31, 1962. The full language of article XVIII, with emphasis supplied to set out the particular language to which the Association objected and upon which the Respondent admittedly insisted, was the following: ARTICLE XVIII-STRIKES, LOCKOUTS AND ARBITRATION SECTION 1. All disputes or complaints of whatsoever character, except juris- dictional dispute covered in Article XVII, if not adjusted by the subordinates involved, shall be referred to a joint committee of the Union and the Association for settlement. The decision of such committee shall be final and binding. If such committee is unable to agree on the subject in dispute, it shall, as soon as possible, be arbitrated by an Arbitrator designated by the New Jersey State Board of Mediation and the decision of the Arbitrator shall be final and binding. Cost of the Arbitrator shall be equally shared by the parties. Either party may request such arbitration without resort to the aforesaid Joint Committee. No cessation of work shall take place for any reason except for non-union condition or failure to make required payments to the Pension Fund and/or Welfare Fund. A non-union condition shall prevail when employees are em- ployed without a collective bargaining agreement on any construction work which is normally performed by employees working under a collective bargaining agreement with a Union affiliated with the Building Trades Department of the AFL-CIO. In such event it shall not be deemed a violation of this Agreement for employees hereunder to individually refuse to work on the job site where such non-union condition exists. To the extent legal, the Union may request employees hereunder to leave such jobs. SEC. 2. Should any Employer violate this Agreement, such violation shall be immediately submitted to the Joint Committee or the Arbitrator above referred to. Said Committee shall meet within 48 hours and proceed forthwith to make a thorough investigation, consider all the facts and evidence presented and there- upon to render a decision. If the Employer is found to have violated this Agree- ment by the Joint Committee or by the Arbitrator, then such Joint Committee ESSEX COUNTY DISTRICT COUNCIL OF CARPENTERS, ETC. 869, or the Arbitrator, as the case may be, shall order an appropriate adjustment and the Association shall, to the extent and in the manner permitted by applicable law, designate the employees for the work covered hereunder, on all jobs of the Employer for one (1) year. Any violation of this section shall render this Agreement void as to the Employer violating same. In defense of its insistence upon this "non-union condition" provision, the Respond- ent relies in part upon the language therein which would permit the Respondent to request a work stoppage only "to the extent legal," and also upon the following additional, general provision as to legality, which appeared in the previous contract as article XIX and which, by agreement of the parties, was again to be incorporated in the new contract: Nothing in this Agreement is intended to be in conflict with any law as same may be effective from time to time. If such conflict be found, then the Law shall prevail and the Agreement shall be deemed amended to the extent neces- sary to conform with the Law. The remainder of this Agreement shall be in full force and effect. B. The early negotiations and the strike from June 4 to June 20 In April 1962 the Association and the Respondent began negotiating the terms of the new master contract which was to supersede their expiring contract on June 1, 1962. At the outset, they exchanged proposals for specific contractual changes, none of which related to article XVIII of the expiring contract. They also agreed that they would bargain on these matters without the appearance of their lawyers in the bargaining session. Chairman John Becker of the Association, however, informed the Respondent's negotiators that the Association "wished the lawyers to draw the agreement up at the end and if there were anything illegal in it, they would straighten it out." In the four or five bargaining meetings held up to and including May 31, the negotiators discussed and settled all but three of the issues raised by their cross- proposals. Still at issue were the Respondent's proposal for an 80 cents general wage increase (as compared with a 50-cent offer made by the Association), and the Respondent's further proposals of a vacation fund and a wage increase for foremen (both of whom the Association had rejected). In this posture of the nego- tiations, the Respondent agreed to extend the existing contract for 1 day, to permit the Association to discuss the negotiations with the contractors who were its members. On the following day (Friday, June 1), the Association's bargaining committee consulted and received instructions from the Association's members, and then met again with the Respondent's bargaining committee. In the meeting with the Respond- ent's committee, the provisions of the expiring contract were read, clause by clause, as the basis for discussion. The Association confirmed its counteroffer of a 50-cent general wage increase and its rejection of the Respondent's requests for a vacation fund and a wage increase for the foremen. In addition, the Association requested a "management rights" clause. Finally, pursuant to the instructions received from its members at the meeting earlier that day, the Association told the Respondent for the first time that it wanted to exclude from their coming contract, the language of the "nonunion condition" provision of article XVIII of their previous contract. But the Respondent insisted that the provision of article XVIII be retained. In voicing the Respondent's objection to the deletion of the "nonunion condition" provision, Business Representative William Purcell told the Association's representa- tives: "By you bringing up this point now, you want us to work alongside of non- union people and people we don't recognize." To which, Secretary Paul Brienza of the Association replied, "That's just the point we are objecting to." And at this point, the bargaining meeting of June 1 broke up, with no agreement on any of the matters still at issue. The Respondent's officials thereupon informed its stewards that no agreement had been reached and that without an agreement, the men should not work. As a result, the Respondent's members who were employed as carpenters by the Association's members did not report to work on Monday, June 4, the next working day. The first of two strikes against the Association's members thus began on June 4, prompted the Association to file the charge in this case on the same day, and lasted until June 20. At the instance of the president of the Respondent's International, with whom the Association's committee conferred in Washington on June 5 about the strike in- cluding its involvement of the "nonunion condition" issue, International Representa- tive Walter Rajoppy held meetings with the Association's and the Respondent's negotiators on June 11 and again on June 19. In neither of these meetings did the 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties consider or discuss the "nonunion condition " issue, although Chairman John Becker of the Association attempted to raise the problem at the beginning of each of the meetings. At the June 11 meeting, at which the Association's but not the Respondent's attorney appeared, Chairman Brodkin of the Association and Business Representative Flaherty objected to taking up this "legal point" in the absence of the Respondent's attorney who was unavailable. Rejoppy then said, "Let's continue the meeting because we are trying to get the men back to work. Let's just [discuss] . the economic issues only ... and see whether we can come to any decision." And when Becker again sought to bring up the "nonunion condition" issue at the June 19 meeting, from which both attorneys had absented themselves at Rajoppy's request, Rajoppy again limited the negotiators to a consideration of the economic issues. Apparently, nothing was settled at the June 11 meeting, but at the June 19 meeting, which began at 2 p in. and lasted until early in the morning of June 20, the negotia- tors agreed upon a 65-cent wage increase , a raise for the foremen, and a vacation fund, in short, upon all the outstanding economic issues Each side, upon being asked by the other, said there was nothing else it "would like to bring up at this time." Chairman Becker, for the Association, remarked, "It looks like we have come to an agreement, let's get out of here. It's too late. Let the lawyers work the rest of it out." While the Association's negotiators waited, the Respondent's Council met separately and ratified the agreements reached by their bargaining committee upon assurance (in accordance with what Chairman Brodkin testified was his belief) that the "nonunion condition" clause would be included in the new contract. The Respondent's bargaining committee returned to the Association's negotiators and Chairman Brodkin, for the Respondent, announced that the proposals had been "ac- cepted by the Council, that the men would return to work tomorrow and the formali- ties of signing the agreement would be worked out by the attorneys." Before the negotiators separated early in the morning on June 20, Paul Brienza, the Association's secretary, telephoned to the newspapers that the strike had ended and that the men were returning to work, and had President Edward Galway come to the telephone to confirm this announcement. According to Galway, at Brienza's request, he confirmed Brienza's statement that "the strike was concluded and that we had reached an agreement." According to Brienza , he merely had Galway con- firm his report to the newspapers that Respondent had accepted 65 cents and would return to work but did not state that all matters in dispute had been settled. As a result of the meeting of June 19 and 20, the Respondent instructed its members to return to work and the first strike which began on June 4 ended on the morning of June 20. C. Further negotiations and the strike of July 23 On June 22, Joseph Dunn, the Respondent's attorney, forwarded to the Association "a short form agreement," stating in his letter to the Association that "It is my understanding that a full-fledged agreement will be devised and agreed upon between the parties to incorporate the short form." The short form thus submitted by the Respondent merely set forth the new economic terms to which the negotiators had agreed, and by otherwise extending the old contract until May 31, 1964, provided that "all other terms and conditions [of the old contract] shall continue in full force and effect . On receipt of this short form of agreement, the Association's committee directed its attorney "to draw up a full contract and not a short form of contract." Pursuant to his instructions, the Association's attorney drafted, and forwarded to the Respondent, a full form of agreement based upon the language of the old contract. In this draft, the new economic provisions were inserted within the framework of the old contract and all of the other old provisions were repeated verbatim except the "nonunion condition" provision which was omitted. The draft provided that the new agreement was to be effective as of June 20, 1962, instead of being retroactive to June 1. It should also be noted that the draft did not contain any "management rights" clause such as had been requested by the Association at the bargaining meeting on June 1. On receipt of the Association's draft, Edward Galway, the Respondent's president, telephoned Secretary Brienza of the Association and objected to postponement of the wage increase until June 20. And, in another telephone call, John Walsack, the Respondent's secretary-treasurer, also protested to Brienza because the Association "had changed the agreement that Joe Dunn sent " Walsack said that the Respondent would not sign the Association's draft but would sendt its own draft of complete agree- ment to Becker, the chairman of the Association's committee. Accordingly, in the second week of July, Attorney Dunn sent Becker the Respond- ent's draft of a complete agreement. Like the Association's draft, the Respondent's draft inserted the new economic provisions in the body of the old contract It ESSEX COUNTY DISTRICT COUNCIL OF CARPENTERS, ETC . 865 differed from the Association's draft only in the following four respects: (1) the effective date of the contract was to be June 2 instead of June 20; (2) the 30-day grace period in the union-security clause of the old contract was to be changed to 7 days. (3) a reference to "assistant foremen" in one of provisions in the old contract was to be changed to "other foremen"; and (4) the "nonunion condition" provision of the old contract was retained. On Monday, July 16, the bargaining committees of the parties met and discussed the differences in their proposed drafts. The Association agreed to the Respondent's requests with respect to the effective date of the contract and the changes in the grace period in the union-security clause and in the reference to "assistant toremen," leav- ing as the only remaining point of difference the inclusion or exclusion of the "non- union condition" provision. The Association insisted that this provision be deleted and the Respondent insisted that it be retained, arguing that if the provision were illegal, it would be ineffective because of the continuing "legality" provision of the contract. During the discussion, the negotiators agreed that the only issue remaining was whether the "nonunion condition" provision should be continued in the new contract, but the Respondent's representatives said that, if the Association insisted upon its deletion, "there would be another strike . . . that the wage agreement would be all off and that the wages would go back to the original demand that [the Respondent] made." And, with this, the meeting ended. On Thursday morning, July 19, Dunn, the Respondent's attorney, arranged a meeting at his office with Secretary Brienza of the Association and President Galway and Secretary Walsack of the Respondent. Dunn told Brienza at this meeting that there would be a strike if the contract was not signed and Brienza pointed out that the Association had refused to accept the "nonunion condition" provision and had not changed its mind. Walsack said that the Association had given the "same clause" to the Central Jersey District Council of the Carpenters. Upon examining the Central Jersey Council's contract (which, incidentally, was not produced nor called for by the parties at the hearing), Brienza (with the approval of the Association's attorney who had been called into the meeting) offered to incorporate certain clauses of the Central Jersey contract although not the "nonunion condition" provision sought by the Respondent. Although Dunn recommended acceptance of Brienza's offer and President Galway of the Respondent said he would recommend acceptance to the Respondent's Council at a meeting that night, Galway also said that the Respondent would "never go along" with the offer but would insist upon retaining the "non- union condition" provision of its old contract. Galway added, "We are going to have a meeting tonight, Thursday night, and if we don't get this contract signed, they will strike Monday morning." On the following morning, Walsack telephoned Brienza and said that the Respond- ent insisted on the "nonunion condition" provision of the old cotract and was going to call a strike on Monday, July 23. On Monday, July 23, the Respondent struck 9 of the Association's contractor- members who were then employing members of the Respondent on 13 different jobs. None of these contractors had any dispute with the Respondent except the lack of a signed contract. During the strike, five of the struck contractors signed separate contracts with the Respondent containing the "nonunion condition" provision before August 16,5 and the remaining four contractors who had been struck signed similar contracts on or after August 16,6 the date the district court denied an injunction against the strike. Upon the signing of these contracts, the employees of six of the struck contractors immediately returned to work.? The work of another one of the 5 The contractors who signed such contracts with the Respondent from July 23 up to August 16 were the following: William L. Blanchard Co. on July 23. Essex Contractors on July 23. Damon Douglas Co. on July 24. Thomas Construction Co. on August 9. Pellecchia Construction Co. on July 26. O The struck employers who signed contracts with the Respondent on and after August 16 were the following: DiGirolamo Construction Co. on August 24. Terence McHugh, Inc. on August 23. Max Drill on August 16. Becker Construction Co. on August 17. The struck employers whose employees returned to work upon the signing of these contracts were: William L. Blanchard Co., Essex Contractors, Damon G. Douglas Co., Pellecchia Construction Co., DiGirolamo Construction Co., and Becker Construction Co 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD struck contractors had in the meantime been completed by a fellow-member of the Association who, although not itself struck, had signed the separate individual contract sought by the Respondent.8 As to the remaining two contractors who had been struck, there is no direct evidence that their employees returned to work upon their signing the separate contracts with the Respondent but, from the general evidence as to the duration of the strike against the other contractors, it may reasonably be presumed that these employees did return to work upon the signing of the individual contracts if work was still available for them.9 By the time the hearing before me ended on September 13, 1962, 4 of the As- sociation's 44 contractor-members were operating under agreements with the Re- spondent's International, and 26 had signed individual, separate contracts with the Respondent containing the "nonunion condition" provision. Thus, in addition to the 9 contractors who had been struck, 17 had signed such contracts. 2 of them during the strike in June,1° 6 of them after the second strike began on July 23 but before the district court's decision on August 16,11 and the remaining 9 after the court's decision on August 16.12 As a result, at the time of the hearing, only 14 of the 44 contractors whom the Respondent represents for bat gaining purposes, were without any contract with the Respondent or its International. D. Conclusions It is clear from the evidence, and I find, that the Respondent threatened to strike, and then on July 23, 1962, did strike the Association's members solely for the purpose of compelling them and the Association to continue, as part of their new contract, the "nonunion condition" provision of the previous contract which had expired on June 1, 1962 The General Counsel and the Association contend that the "nonunion condition" provision sought by the Respondent constituted an "agreement which is prohibited by section 8(e)" of the Act and that, by threatening and then striking the Association and its members with "an object" of "forcing or requiring" the Association and its members "to enter into" such an agreement, the Respondent committed unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (A). In support of this contention, the General Counsel and the Association rely upon the Board's con- s Terence McHugh, Inc, the struck employer, signed its individual contract with the Respondent only on August 23. Its work which had been interrupted by the strike had already been completed by Frank W . Bogert Co., another member of the Association which signed an individual contract with the Respondent on July 23 , the day the strike began. O The only evidence as to the strike against these two particular contractors ( Thomas Construction Co. and Max Drill ) was testimony given in the trial before the district court judge on August 2 and August 6, which, upon stipulation by counsel, I incorporated in the present record. According to this testimony, the employees of these two contractors had not returned to work. But this testimony was given before Thomas Construction Co. and Max Drill had signed their respective separate contracts with the Respondent on August 9 and August 16. 10 The June signatories were Gotelli Contracting Co on June 5, and Jerome Construc- tion Co , on June 18. 11 Those of the employers who were not struck but signed individual contracts from July 23 through August 15 , were the following: Frank W. Bogert Co on July 23. Jung Bros. Inc. on August 9. Leske Co. on August 15. Salmond Construction Co. on July 26. J. M. Straus & Co. on August 10. Vitale Bros. on August 13. 12 The contractors who were not struck but signed separate contracts with the Respond- ent on and after August 16 were the following: Brandstatter Concrete Co. on August 17. Robert A Howie, Jr. and Sons on August 17. Ingrassia Construction Co. on August 23. Walter Kidde Constructors, Inc. on August 19. Lewis Construction Co. on August 17. A. Lowe Co. on August 23. Stevens Construction Co. on August 23. R L Trainer & Co. on August 21. Edward M. Waldron, Incorporated on August 17. ESSEX COUNTY DISTRICT COUNCIL OF CARPENTERS, ETC. 867 junctive construction of Section 8(e) and 8(b) (4) (i) and (ii) (A) of the Act in the Colson and Stevens case,13 namely, that, although the proviso to Section 8(e) permits voluntary agreements in the construction industry which are otherwise gen- erally forbidden by Section 8(e), it does not permit unions to attempt coercion of such agreements, since the Congress intended to make such an attempt an unfair labor practice within the meaning of Section 8(b) (4) (A). In its brief, the Respondent presents a series of arguments attacking the merits of the General Counsel's case.14 In its primary argument, it disputes the General Counsel's construction of the language of the "nonunion condition" provision as an "agreement prohibited by section 8(e)," as well as the validity of the construction given by the Board to Section 8(e) and 8(b) (4) (A) of the Act in the Colson and Stevens case. The Respondent thus relies upon the same grounds which led the district court to refuse a preliminary injunction against the Respondent's strike. Despite my respect for the opinion of the district court judge, I am bound to accept and apply the Board's rule of construction in the Colson and Stevens case that, notwithstanding the proviso to Section 8(e), a union's attempt to force or require an employer in the construction industry to enter into the type of agreement generally prohibited by Section 8(e) is an unfair labor practice within the meaning of Section 8(b)(4)(A). This leaves for consideration, however, the additional branch of the Respondent's main contention and the holding of the district court, that the "nonunion condition" provision sought by the Respondent does not con- stitute "an agreement prohibited by section 8(e)," because (a) the apparent intent of the "nonunion condition" provision is not to require a cessation of the contracting employers' business with nonunion employers, but rather to enforce the existing legitimate provisions of the Respondent's contracts wherein the contracting employers have agreed that, in assigning their employees work traditionally performed by carpenters, they would assign such work only to carpenters represented by the Re- spondent under the contract; and (b) the "nonunion condition" provision is not such a "hot cargo" agreement as is forbidden by Section 8(e) of the Act since the employer does not thereby agree to cease doing business with nonunion or other employers. And here again, for reasons which will be set forth and with no intended disrespect to the district court, I must disagree with the Respondent's arguments in the light of the principles developed by the Board and the courts of appeals in other cases. The provision which the Respondent insisted upon continuing in the new contract, would permit, as one of two exceptions to a no-strike clause, a cessation of work for a "nonunion condition" either by the employees individually or, "to the extent 13 Supra, footnote 3 See also Local Union No 1065, United Brotherhood of Carpenters, etc. (Willamette General Contractors Association), 138 NLRB 901 ; Local 60, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Binning Construction Company, Inc.), 138 NLRB 1282. 14 For the most part, as will be noted, the arguments developed in the Respondent's brief are based upon the material presented earlier in its answer and already summarized above in the section of this report entitled, "Statement of the Case " The brief, however, does not advance any argument of estoppel such as that set forth in the answer In any event, it is clear that such a defense is not available to defeat the rights created by the Act and enforced by the Board in the public interest. See National Licorice Company v N L R B, 309 U. S 350. The Respondent's brief does present one procedural argument, not foreshadowed in its answer, le ., that the "complaint . . must be dismissed because it has no relationship to the charge filed in this matter." In this argument, the Respondent refers to the fact that, although the charge was filed on June 4, 1962, and was obviously based upon the first strike which began on that day and ended on June 20, 1962, the complaint asserts that the Respondent's unfair labor practices consisted of a later strike threat on July 16 and the second strike which began on July 23. The Respondent argues, in substance, that the gravamen of the complaint is unrelated to the earlier incidents set forth in the charge, and that the complaint has therefore no reasonable relationship to the charge and should be dismissed. But the Respondent ignores the continuity of the Respondent's acts which, according to the allegations of the complaint as well as the evidence already summarized, began with the insistence of the Respondent upon the "nonunion condition" provision on June 1, continued through the strike of June 4 to 20, and were eventually climaxed by the Respondent's threat of strike and the second strike of July 23. It seems clear to me that the complaint was reasonably and properly based upon the charge in the case I therefore reject the Respondent's claim that the complaint was improperly issued and should therefore be dismissed. 708-006-64-vol. 141-56 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD legal," by the employees at the request of the Respondent . 15 Defining the basic ,term, "nonunion condition," the provision states that- A non-union condition shall prevail when employees are employed without a collective bargaining agreement on any construction work which is normally performed by employees working under a collective bargaining agreement with a Union affiliated with the Building Trades Department of the AFL-CIO. As the Respondent points out , this definition does embrace possible situations in which a contracting employer might violate the work-jurisdiction provisions of the ,contract by using as its own employees on work traditionally performed by car- penters, workers who are not qualified as members of that craft nor therefore ,eligible for membership in, and representation by, the Respondent. And, if the provision now under consideration were by its language limited to these situations, its reservation to the Respondent of the right to strike would not be prohibited by Section 8 (e) but would be permissible and even protected under the provisions of the Act.'6 But the language of the instant provision is not limited to these situations. On its face, it also extends to situations in which contracting employers engage in con- struction on jobsites with other employers whose employees working at these sites include any building craftsmen not covered by a contract although their crafts are normally covered by contracts with either the Respondent or another appropriate craft "Union affiliated with the Building Trades Department of the AFL-CIO." These are clearly situations in which possible strikes under the "nonunion condition" provision would exert pressure upon the contracting employers to stop their work at the particular jobsites and thus to cease doing business with the noncontracting employers . Unquestionably, such strikes would be secondary boycotts violative of Section 8 (b)(4) of the Act, 17 and an agreement which would permit them is the type of "hot cargo" agreement which Section 8 (e) of the Act was intended to prohibit, even though in its other applications the agreement in question might be perfectly legal.18 The Respondent contends that, even so, the "nonunion condition " provision is not prohibited by Section 8(e) of the Act because under the wording of the provision insisted upon by the Respondent, the employer would not expressly "agree to cease doing business with any other person ." But Section 8(e) specifically prohibits im- plied as well as express agreements by employers to cease doing business with other persons and, as the Board has held with judicial approval, such an implied agreement exists when (as in the "nonunion condition" provision in the present case) an em- ployer assents in advance to a cessation of work by its employees which would tend to force the employer to cease doing business with other employers under circum- stances which the contracting union deems objectionable .19 The amplication is even clearer when, as in the "nonunion condition " provision in the instant case, the employer also assents to the right of the union to request the employees to stop work under such circumstances. Accordingly, upon all the foregoing considerations and contrary to the Respond- ent's main contentions, I find and conclude , as the complaint alleges, that the "non- union condition" provision for which the Respondent struck the Association and its member, would have amounted to an implied agreement by the Association and its members as employers , to cease doing business with other contractors employing building craftsmen not covered by a contract with the Respondent or any union affiliated with the Building Trades Department of the AFL-CIO, and that it would 11 See the full language and context of,the provision which has already been set forth in section A of this report. 16 See Tacoma Printing Pressmen's Union No. 44 (Valley Publishing Company), 131 NLRB 1090, 1093, and cases therein cited. 11 International Brotherhood of Electrical Workers, Local 501, et at (Samuel Langer) v N.L R B , 341 U S. 694 1s District No 9, International Association of Machinists , AFL-CIO, Greater St. Louis Automotive Trimmers, etc v. NL.RB, 315 F 2d 33 (CA.DC.), enfg. 134 NLRB 1354. 19 Amalgamated Lithographers of America and Local 78 (Miami Post Company), 130 -NLRB 908, enfd. sub nom N.L.R.B. v. Employing Lithographers of Greater Miami, Florida, 301 F. 2d 20 (C.A. 5) ; Los Angeles Mailers Union No 0, etc (Hillboro Newspaper Print- ing Company ), 135 NLRB 1132, enfd. 311 F 2d 121 (C A.D C.) ; Amalgamated Lithog- raphers of America and Local No 17 (The Employing Lithographers, etc.), 130 NLRB •985, 989; Mary Feifer d/b/a. American Feed Company, 133 NLRB 214 ; Dan McKinney .Co., 137 NLRB 049. ESSEX COUNTY DISTRICT COUNCIL OF CARPENTERS, ETC. 869 therefore have been an "agreement which is prohibited by Section 8(e)" within the meaning of Section 8(b) (4) (i) and (ii) (A) of the Act. In anticipation of this possible interpretation, the Respondent's second main con- tention is that even if the "nonunion condition" provision were on its face prohibited by Section 8(e), the Respondent's strike to obtain its inclusion in the contract was still perfectly legal and innocent of violation of Section 8(b) (4) (A) because the "legality," grievance, and arbitration provisions upon which the parties had admittedly agreed, would have nullified the illegal features of the " nonunion condition" provision. Acceptance of this argument would permit union compulsion of an agreement containing a provision prohibited by Section 8(e) whenever the agreement also included a "legality" provision, leaving the question of legality for later determina- tion either in the grievance or arbitration processes or in some even later appropriate proceeding under the Act before the Board. It would require an employer, objecting to a provision prohibited by Section 8(e) and faced with a strike, to elect to resist the strike for the illegal provision without protection from Section 8(b)(4)(A) of the Act, or to avoid the strike by accepting the provision in reliance upon its nullification under the "legality," grievance, and arbitration provision of the contract. Obviously, neither of these alternatives would afford the employer satisfactory and reliable support for well-founded objections to a provision prohibited by Section 8(e). Not only would the employer's resistance to the strike for the illegal provision be weakened by the withdrawal of the protection of Section 8(b)(4)(A) of the Act, but the alternative course of accepting the provision and relying upon its nullification under the "legality" provision and the grievance and arbitration procedures would subject him to the uncertainty of whether, under these latter procedures, the employer could overcome a possible contention by the Union that his acceptance of the provision in question had in fact been voluntary and that the provision was therefore justified by, and enforceable, under the proviso of Section 8(e) of the Act. The Respondent cites no authority to support its argument based upon the asserted- ly effective nullification of illegal provisions by "legality" provisions in the same contract. Actually, the same general argument has been repeatedly rejected over the years by the Board and the circuit courts of appeals when it has advanced by unions and employers as a defense to complaints of unfair labor practice based upon their execution and maintenance of fully expressed, self-contained, and clearly illegal ,contractual provisions 20 If anything, the Respondent's argument has even less merit in cases like the present case in which the unfair labor practice alleged by the complaint is not the previous execution and maintenance of an illegal provision agreed upon the parties, but an attempt by a union during the negotiation of a contract to compel the employer to enter into an agreement including a provision which is clearly prohibited by Section 8(e) of the Act and to which the employer has therefore objected, as was its right under Section 8(b) (4) (A) as construed by the Board in the Colson and Stevens case, supra. Thus, in the present case, the Association, by exercising this right and by raising the question of legality in advance, properly avoided both the execution of the illegal provision and any future attempt by the Respondent to apply and enforce it. At the same time, the Association incidentally afforded the Respondent an opportunity either to withdraw the illegal proposal or to submit a modified or limited , legal proposal to which the Association could agree. When 20N.LR.B. v. Gaynor News Company, Inc, 197 F. 2d 719, 723-724 (C.A. 2), affd 347 U.S. 17; N L.R.B v. Gottfried Baking Co., Inc, 210 F. 2d 772, 780 (C.A 2) ; NLRB. v. Eichleay Corporation, et at., 230 F. 2d 64, 65 (C.A. 6) ; NLRB. v E. F. Shuck Construc- tion Co., et at., 243 F. 2d 519, 521-522 (C.A 10) ; N L R.B. v . Broderick Wood Products Co., et at, 261 F. 2d 548, 556-558 (C.A. 10) ; Building Material Teamsters , Local 282, etc. (Crawford Clothes, Inc ), v. N.L R.B., 275 F. 2d 909, 912 (C.A. 2). But see John L Lewis v. Quality Coal Corp ., 270 F. 2d 140, 142-143 ( CA. 7) ; Perry Coal Company et at. v. N.L R B, 284 F. 2d 910 (C.A. 7) As I have noted in the text, the foregoing cases, like the present case, dealt with ex- plicit, self-contained, and clearly illegal provisions set forth in the same contract with a "legality" provision. They, like the present case, are thus distinguishable from cases in which a provision of a contract or proposal is asserted to be illegal because of its general incorporation, by blanket reference, of a body of union rules some of which are illegal Recognizing the significance of this distinction, the courts hold that, in the latter type of case, a "legality" provision in the same contract or proposal will nullify incorporation of those rules which are illegal. N.LR.B. v. News Syndicate Co., Inc, 365 U.S. 695, 699- 700, affg. 279 F. 2d 323 ('C.A. 2), and setting aside 122 NLRB 818; International Typo- graphical Union, AFL-CIO v. N.L.RB., 365 U.S 705, reversing 278 F. 2d 6 (CA. 1) ; Honolulu Star-Bulletin Ltd v N.L.R.B., 274 F. 2d 567, 569-570 (C.A.D C.). 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent nevertheless insisted upon the provision as it was written and struck to obtain it, the question of legality was clearly an issue between the parties in spite of the dubious significance of the "legality" provision, and was ripe for a timely determination by the Board under Section 8(b) (4) (A) of the Act. For the Board to refuse such a present determination (as the Respondent in effect urges) upon the ground that the "legality" provision might later be applied to nullify the "nonunion condition" provision, would deprive the Association of the protection which Section 8(b) (4) (A) was intended to afford, and, as I have already noted, would leave it no satisfactory, reassuring alternative if it still persisted in its rejection of the illegal features of the "nonunion condition" provision. For these reasons, I reject the Respondent's argument that the "legality," grievance and arbitration provisions preclude my present findings that the "nonunion condition" provision amounted to an "agreement prohibited by section 8(e)" and that, by striking the Association's mem- bers to obtain it, the Respondent committed an unfair labor practice within the meaning of Section 8(b)(4) (A) of the Act. There remain for consideration two additional arguments advanced by the Re- spondent in its brief. The first is that the object of its strike was not to coerce the Association's acceptance of the "nonunion condition" provision, but to compel the Association to execute a written contract including the "nonunion condition" provi- sion to which it asserts the Association had orally agreed on June 20 but thereafter repudiated. The short answer to this argument is that the evidence which I have summarized shows no oral agreement between the parties on the "nonunion condition" provision. In the negotiations on June 11, 20, and 21, the matter had been specifically eliminated from the discussions at the request of International Representative Rajoppy, and the scope of the oral agreement actually reached by the parties on June 21, which persuaded the Respondent to lift the first strike, was limited solely to the economic issues The inclusion or exclusion of the "nonunion condition" provision thus re- mained an unresolved issue and, when the parties later disposed of still further de- mands made by the Respondent m the course of their attempts to agree upon a draft of contract for execution in July, it was the only issue. It is clear, and I find, that the object of the Respondent's strike on July 23 was not the execution of the terms of a contract orally agreed upon, but for the inclusion in the contract of the "non- union condition" provision upon which there had been no prior oral agreement. The Respondent's final argument is that actual coercion of the Association's 26 members who signed separate contracts containing the "nonunion condition" provi- sion is essential to a finding of the violation of Section 8(b) (4) (i) and (ii) (A) alleged by the complaint, and that since there was no such evidence, the complaint must be dismissed. But actual coercion is not an essential element of the unfair labor practices forbidden by Section 8(b) (4) (i) and (ii) (A) of the Act. All that need be shown, and has been shown in the present case, is that the Union engaged in a strike or otherwise threatened the employer, with "an object" of forcing or requiring him to enter into an agreement prohibited by Section 8(e). Accordingly, I reject the Respondent's argument. In sum, upon the foregoing considerations, I find no merit in any of the arguments advanced by the Respondent and, upon the evidence and in accordance with the allegations of the complaint and the contentions of the General Counsel and the Association, I find and conclude that the "nonunion condition" provision sought by the Respondent constituted an "agreement which is prohibited by section 8(e)" of the Act and that, by threatening and then striking the Association and its members on July 23, 1962, with "an object" of "forcing or requiring" the Association and its members "to enter into" such an agreement, the Respondent committed unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in con- nection with the operations of the members of the Association, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It has been found that the Respondent committed unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (A) of the Act by threatening to strike, and then actually striking, the Association and its members, with an object of forcing and requiring the Association and its members to enter into an agreement (the "non- union condition" provision) which is prohibited by Section 8(e) of the Act. I shall ESSEX COUNTY DISTRICT COUNCIL OF CARPENTERS, ETC. 871 therefore recommend that the Respondent cease and desist from such unfair labor practices and take certain affirmative action which is necessary to effectuate the policies of the Act. A question has arisen as to the appropriate order affecting the separate contracts containing the "nonunion condition" provision, which individual members of the Association executed with the Respondent . The General Counsel and the Associa- tion contend that the "nonunion condition" provision should in effect be expunged by an absolute prohibition of its enforcement by the Respondent. The Respondent con- tends in its brief that, assuming a finding that it committed the unfair labor practices alleged by the complaint , ". . . the order should provide that the [individual con- tracting] member [of the Association] be permitted to reaffirm the entire agreement as executed or request reopening of the entire agreement for further collective bargaining." For the following reasons, it appears to me that the situation requires an intermediate recommendation which would not disturb the individual contracts except to permit an election by each of the contracting members of the Association as to whether the "nonunion condition " provision should be included or excluded from their respective , individual contracts. The unfair labor practices which I have found were committed by the Respond- ent, consisted of its threat of strike and its actual strike on July 23, 1962, to compel the Association and its members to enter into a contract including the "nonunion con- dition" provision. From the evidence, it appears that the Respondent thereby con- tinued its pressure on the Association and its members which it began with its earlier strike from June 4 to June 20 , 1962. It was in this coercive atmosphere that 26 of the Association's 44 members, notwithstanding their long representation by the As- sociation as their bargaining representative in negotiations with the Respondent, en- tered into their separate contracts with the Respondent containing the "nonunion condition" provision upon which the Respondent insisted. (See footnotes 5, 6, 10, 11, and 12 and related text, supra.) My conclusion that the Respondent committed the unfair labor practices alleged in the complaint is not based-nor need it be based-upon any finding that the Respondent's conduct actually coerced the execution of the individual contracts. Nor, upon the state of the present record, would I make any such unequivocal find ing. For, as I have already pointed out, effective coercion is not an essential ele- ment of an unfair labor practice within the meaning of Section 8 (b) (4) (A) of the Act and, for this reason, I sustained the objection of the General Counsel and the Association and rejected an offer by the Respondent to show that the Association's members who signed the individual contracts were not actually coerced. It therefore does not appear to me upon the present record that inclusion of the "nonunion condition" provisions in the individual contracts was clearly the result of the Re- spondent's coercion . Accordingly, I do not make the unqualified recommendation that the "nonunion condition " provisions be set aside, which the General Counsel and the Association have requested. But it is clear from the record that these individual contracts were executed in such an atmosphere of coercion (for which the Respondent was certainly responsible) that the individual members of the Association who abandoned their long-standing representation by the Association under the stress of the strikes and the threats there- of, should now be given the opportunity of affirming or rejecting the "nonunion condition" provision, free from the influence of such pressures . In my opinion, such a free election must be permitted if the policies of the Act are to be served. More- over, in making my limited recommendation , I have considered and rejected the Respondent's request that the contracting Association members be required to elect either to affirm or reject their separate contracts in their entirety. The terms of these contracts other than the "nonunion condition " provision are not involved. Specifically, I shall recommend that, in order to dissipate the effects of the unfair labor practices and to effectuate the policies of the Act, the Respondent shall refrain from enforcing, applying, or attempting to enforce or apply any "nonunion condi- tion" provision such as that set forth in the Intermediate Report or any other agree- ment prohibited by Section 8(e) of the Act , which, expressly or by incorporating reference , constitutes all or part of any agreement or contract entered into by the Respondent on or after June 4, 1962, and before the date of Respondent 's receipt of this Intermediate Report, with any employer who was at any time during this period a member of the Association, unless and until ( 1) the Respondent has notified such employer in writing that the employer may elect to withdraw from or affirm the "nonunion condition" provision or other agreement prohibited by Section 8(e) without disturbing the other provisions of their agreement , and (2 ) the employer has by written reply notified the Respondent of the employer's election to affirm the provision in question. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The constituent members of The Associated Contractors of Essex County, Inc. (herein called the Association ), are employers engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Respondent, The Essex County and Vicinity District Council of Carpenters and Millwrights, United Brotherhood of Carpenters and Joiners of America , AFL-CIO,. is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Respondent committed unfair labor practices within the meaning of Sec- tion 8(b) (4) (i ) and (ii) (A) of the Act by threatening and then causing a strike of the employees of the constituent employer -members of the Association on July 23, 1962, with an object of forcing and requiring the Association and its employer members to enter into an agreement prohibited by Section 8(e) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Harry Paul Tiner, d/b/a Seago Construction Company and John L. McClellan International Association of Bridge , Structural and Ornamental Ironworkers, Local 433, AFL-CIO and John L. McClellan. Cases Nos. 20-CA-2233 and 20-CB-913. March 27, 1963 DECISION AND ORDER On August 23, 1962, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Employer and Respondent Union had not engaged in the unfair labor practices alleged in the complaint as amended and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, General Counsel and Respondent Employer filed exceptions to the Inter- mediate Report and the former filed a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Rodgers and Leedom]. 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 this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner except as modified herein. 1. We adopt the Trial Examiner's finding that Respondent Em- ployer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction 141 NLRB No. 79.