Plasterers' Union Local No. 77, Etc

PLASTERERS' UNION LOCAL NO. 7 7, ETC. 765 APPENDIX B NOTICE TO ALL MEMBERS OF PILE DRIVERS UNION, LOCAL No. 2382, AND TO ALL EMPLOYEES OF NORTHERN IMPERIAL CONSTRUCTORS Pursuant to the Recommended Order of a Trial Examiner 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 cause or attempt to cause Northern Imperial Constructors to discriminate against Willis Noble, Robert Cullison, Walter Burt, and Roy Cranor, or any other employee, in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees of Northern Imperial Constructors in the exercise of rights guaranteed 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. WE WILL make whole Willis Noble, Robert Cullison, Walter Burt, and Roy Cranor for any loss of pay suffered as a result of the discrimination against them. WE WILL notify Northern Imperial Constructors, in writing, and in the same fashion give notice to Willis Noble, Robert Cullison, Walter Burt, and Roy Cranor that we have no objection to the employment of these four individuals. PILE DRIVERS UNION, LOCAL No. 2382, 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, 327 Logan Building, 500 Union Street, Seattle, Washington, 98101, Telephone No. Mutual 2- 3300, Extension 553, if they have any question concerning this notice or compliance with its provisions. Plasterers' Union Local No. 77 Operative Plasterers' and Cement Masons' International Association (Piper & Greenhall, Inc.) and Dudley R. Rankin . Case No. 19-C13-861. July 23, 1963 DECISION AND ORDER On March 22, 1963, Trial Examiner David F. Doyle issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. 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 [Members Leedom, Fanning, and Brown]. 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 the brief, and the entire record 143 NLRB No. 83. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner insofar as they are consistent herewith. The Trial Examiner found and we agree that the Respondent Union violated Section 8(b) (1) (A) and (2) of the Act by attempting to cause Piper & Greenhall, Inc., an employer, to discharge Dudley R. Rankin. The facts were stipulated by the parties and are fully set forth in the Intermediate Report. Briefly, at the time of the events herein, Rankin, who had been a member of the Operative Plasterers for about 17 years, was a member of Local 190. In March 1962 he secured a job with Piper & Greenhall, Inc., at a construction site within the adjoining geographic area over which Respondent Local 77 asserts jurisdiction, and traveled daily from his residence in Local 190's geographic area to the jobsite. Respondent's contract with Piper & Greenhall contained a union-security clause which was valid in the construction industry under Section 8 (f) of the Act. Under the International constitution of this union, a currently paidup member of one local may satisfy a union membership requirement within the geographic jurisdiction of a sister local in an adjoining area by the payment of only the latter's local dues (i.e., without again paying the International's per capita tax) under section 43 , or by depositing a "traveling card" and transferring his membership under section 44. On the seventh day of Rankin's employment in March 1962 , Respond- ent's secretary, Smith, sought to have Rankin transfer his member- ship to the Respondent , but Rankin refused to do so and, in effect, indicated that he chose to follow section 43 by saying that he would pay the regular dues and fees to Local 77. In fact, Rankin was not currently paid up in his home local and hence did not qualify for the benefits of that provision, but this fact was unknown to the Respond- ent. Despite this lack of knowledge, the Respondent on March 29 wrote a letter to the Employer requesting Rankin's discharge under the union-security clause on the ground that he had failed to conform to sections 43 and 44 of the constitution and was not a member of Local 77. At the same time, on March 29, Rankin mailed to Local 77 a statement of his working days between March 20 (his starting date) and March 30, together with a check covering the Respondent's monthly dues and working assessments, pursuant to the requirement- of section 43 that he "pay working dues or working assessments for the balance" of the month. Admittedly, this was a timely tender under section 43. Upon receipt of this check, Local 77 communicated with Local 190 and learned that Rankin was not fully paid up. For that reason Respondent did not withdraw the letter requesting Rankin"s discharge and returned the check to Rankin. Rankin con- tinued to work on the job. PLASTERERS' UNION LOCAL NO. 77, ETC. 767 From these facts it is clear that the Respondent's request on March 29 was premature. For Rankin was not obligated to become a member of Respondent as he had indicated his intention to conform with section 43 by paying the local dues and fees under that section. But the time for his performance had not yet arrived. Under these circumstances, Respondent's request for discharge before the time for tender of such payments was the equivalent of making such a request prior to the expiration of the statutory grace period. Accordingly, we find that the Respondent attempted to cause Piper & Greenhall to remove Rankin from his job in violation of Section 8(b) (2) and (1) (A) of the Act. However, when Respondent, on March 30, learned that Rankin did not qualify for the preferential treatment under section 43 and there- fore returned Rankin's check and refrained from withdrawing the discharge request, its conduct was permissible under the Act. A labor organization which is a party to it union-security contract is entitled to require some form of adherence to its terms. Here, the Respondent required either membership in itself or qualification for payment of a lesser amount of dues. Since Rankin did not qualify for the latter alternative which he had chosen, and as he was not only not a member of the Respondent Local but had emphatically rejected membership therein, his tender was insufficient and he had failed to comply with the union-security provisions of the contract. Since there is no evi- dence that the Respondent's inaction on March 30 was motivated by any other consideration, we find no violation of the Act with respect to Rankin from and after March 30.1 We find no warrant for concluding, as did the Trial Examiner, that the Respondent was seeking to compel Rankin to pay his back dues to Local 190. No such demand was communicated to Rankin or any- one else at any time. Rather, under the circumstances of this case, the Respondent was applying an internal union rule which is protected by the proviso of Section 8(b) (1) (A). Nor do we conclude that Rankin was misled by the Respondent's failure to inquire as to his paidup status on prior occasions when he had worked within Respond- ent's area. There is no evidence that the Respondent waived or was estopped to require the qualification defined by its constitution, and its 1 As our finding here is based on Rankin's failure to make a full and complete tender of all dues and fees , we need not decide whether, in other circumstances, Rankin would be required to seek membership either by transferring his membership or by joining as a new member, as well as to tender the dues See, NLRB . v. General Motors Corporation, 373 U S 734. Contrary to the Trial Examiner , it has not been held that membership in the contracting local may not be required Pape Broadcasting Company (Radio Station WPALA), 104 NLRB 29 , in which the employee involved sought to retain membership in one local and to secure concurrent new membership in the respondent local , merely held that under those circumstances the contracting local could not compel a transfer of membership to itself. The other cases cited by the Trial Examiner are equally dis- tinguishable , and we are unaware of any decision holding that membership in a sister local is equivalent to membership in a contracting local for purpose of satisfying the membership requirement of a union-security clause 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prior conduct is equally consistent with an assumption on its part that Rankin was entitled, at that time to follow the procedure he had chosen. Rankin, a union member of long standing, was apparently well aware of his rights under the Union's rules and must have been equally aware of his obligations thereunder in order to take advantage of such rights. Under all the circumstances, we conclude that while the Re- spondent's conduct on March 29 was technically violative of the Act, no purpose will be served by requiring it to post a notice to its members or to send notice to Rankin. Accordingly, we shall not adopt that portion of the Trial Examiner's Recommended Order. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following modification : Delete all of paragraph 2 and the Appendix. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The charge in this case was filed by Dudley R. Rankin, an individual, on April 4, 1962, and complaint herein was issued by the Regional Director of the Board (Nineteenth Region ) on July 6, 1962.1 The Respondent filed a timely answer and thereafter this proceeding came on regularly to be heard by Trial Examiner David F. Doyle at Seattle, Washington , on August 21, 1962. At the hearing, the parties were represented by counsel and were afforded a full opportunity to present evidence, to examine and cross-examine witnesses , and to present oral arguments and briefs on the issues. Upon the entire record, and from my observation of the witnesses , I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER ; THE ASSOCIATION The pleadings and stipulations of the parties establish that Piper & Greenhall, Inc.,2 herein called the Company, is a Washington corporation with its principal office at Seattle, Washington, where it is engaged in the business of lathing and plastering throughout the States of Washington and Alaska . During the year prior to the complaint the Company performed services valued in excess of $500,000, of which services valued in excess of $50,000 were performed for customers outside the State of Washington. In the same period the Company purchased goods and materials in excess of $50,000 from firms which, in turn, purchased those goods and materials from out- side the State of Washington. The Company is a member of Contracting Plasterers and Lathers Association of Seattle, herein called the Association, for collective-bargaining purposes . During the past year, the members of the Association have had a dollar volume of sales and work in excess of $500,000 of which a dollar volume in excess of $50,000 was for customers outside the State of Washington . During the same period, the Association has had purchases directly and indirectly from across State lines in excess of $50,000. I In this report Plasterers ' Union Local No. 77 Operative Plasterers' and Cement Masons' International Association is referred to as the Respondent ; Local 190 of the same Inter- national Union is referred to herein as Local 190 or the Everett Local; and the parent organization of both locals as the International ; the National Labor Relations Board, as the Board , the Labor-Management Relations Act, as amended , as the Act ; and the General Counsel of the Board and his representatives at the hearing, as the General Counsel. 2 The complaint misspells the name of this Company as "Piper and Greenhalgh, Inc." 'The error in spelling was corrected by order at the hearing PLASTERERS' UNION LOCAL NO. 77, ETC. 769 It is not disputed, and I find, that at all times pertinent hereto, the Company was and is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATIONS INVOLVED The pleadings and a stipulation of the parties establish that the Respondent and Local 190 are both local unions affiliated with Operative Plasterers' and Cement Masons' International Association and are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Issue It is undisputed that Rankin, the Charging Party herein, was employed by the Company on or about March 20, 1962, and that the Union requested the Company to discharge Rankin on or about March 29, 1962. It is the contention of the General Counsel that, on the stipulated facts hereafter set forth, this request constituted a violation of Section 8(b)(1) (A) and (2) of the Act. It is the contention of the Respondent that, on the same stipulated facts, the re- quest for Rankin's discharge was a lawful exercise of the Respondent's rights under a union-security clause in the current labor agreement between the Respondent and the Company. Motions for Judgment on the Pleadings The complaint of the General Counsel alleged certain facts, which the General Counsel claimed constituted the specified unfair labor practices. The timely answer of the Respondent admitted some of these facts and pleaded the union-security pro- vision of the labor agreement between the Company and the Respondent and specific sections of the International's constitution, by way of an affirmative defense. In this posture of the case, counsel for both the General Counsel and the Respondent filed motions for judgment on the pleadings. At the hearing the Trial Examiner heard the arguments of counsel in regard to their respective motions. After a consideration of these arguments in the light of the issue involved, the Trial Examiner stated that he was reluctant to dispose of the case on the narrow basis of the motions. He pointed out to counsel that they seemed to be in agreement on the facts of the case, which appeared to be not too lengthy, and he urged counsel to agree on a stipulation of fact, which would present the issue, fully clothed with all the pertinent facts to the Board, for a decision on the merits. Counsel indicated they were reluctant to abandon their respective positions on their motions, so after some discussion the Trial Examiner denied both motions for judg- ment on the pleadings, and he noted that both counsel reserved their respective rights to seek review of his ruling before the Board and the courts. Thereafter counsel for the parties exhibited very commendable diligence in drafting a written stipulation of fact which was then read into the record. In the judgment of the Trial Examiner, the pleadings, together with the stipulation of fact, afford a much more complete under- standing of the issue involved in this proceeding than would the pleadings alone. The Stipulation of Fact The stipulation, at certain points, refers to specific documents which were received in evidence as exhibits. For the sake of accuracy in this report, the stipulation will be set forth verbatim. However, when the stipulation refers to an exhibit, the per- tinent paragraphs of the exhibit will be interpolated in the next paragraph, and there- after the exposition of the stipulation resumed. It is hoped that this method of re- lating the stipulation to the pertinent exhibits will afford the reader a progressive understanding of the issue in this proceeding. The stipulation of the parties reads as follows: It is stipulated that the following facts are true and correct and that the ex- hibits which will be referred to below are authentic * * * * The Respondent is a local union affiliated with Operative Plasterers and Cement Masons International Association. Its geographical jurisdiction en- compases the City of Seattle, Washington, King County, Washington. At all times relevant hereto, Respondent was a party to a collective bargaining agree- ment with the Contracting Plasterers and Lathers Association of Seattle. The 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective bargaining agreement , attached as Exhibit A, contains a union shop clause reading as follows: "Union Security Clause: All employees who are members of the Union on the effective date of this agreement shall be required to remain members of the Union as a condition of employment during the term of this agreement. New employees shall be required to become and remain members of the Union as a condition of employment from and after the seventh day following the dates of their employment, or the effective date of this agreement, whichever is later. Days worked by employee shall be considered accumulative." On or about March 20, 1962, the charging party, Dudley Rankin, began work- ing for Piper and Greenhall, Inc., on a construction project at the Edmund Meany School located at Twentieth and Thomas in the City of Seattle. At the time he began working on the Edmund Meany project, and at all times relevant hereto, Dudley Rankin was not a member in good standing in the Respondent. Rankin has belonged to one or another of locals affiliated with the Operative Plasterers and Cement Masons International Association for approximately 17 years. Beginning October 1961, and continuing at all times relevant hereto, Rankin was a member of Plasterers Union Local 190 of Everett, Washington. Local 190 is affiliated with the Operative Plasterers and Cement Masons Interna- tional Association. Plasterers Union Local 190 has geographical jurisdiction in the City of Everett, Washington, and in the County of Snohomish, Washington. Snohomish County adjoins King County. The Respondent does not have a separate constitution or set of bylaws gov- erning its operations . It conducts its affairs directly under the terms of the constitution of the Operative Plasterers and Cement Masons International Asso- ciation. A copy of this constitution, marked Exhibit B, is attached hereto and by this reference is made a part hereto. Plasterers Union Local 190 also operates directly under the provisions of this constitution. Exhibit B, the constitution of the International ; two sections in particular "SEC. 43. Where adjoining Local Unions exist and members of a Local Union obtain work, or are sent to work in the jurisdiction of an adjoining Local Union, said members may go to and from work daily in the jurisdiction of either Local Union without depositing traveling card, providing he is in possesson of a paid-up working card for the current month. He shall retain his membership in his Local Union, but may be required to pay dues to the adjoining Local Union in whose jurisdiction he becomes employed until completion of such employment for him. The payment of such dues shall not include the payment of International per capita tax, but may include the payment of working dues or working assessments . Where the member starts work in the jurisdiction of an adjoining Local Union after the fifteenth (15) day of the month, he shall not be required to pay dues for that month to the adjoining Local Union, but may be required to pay working dues or working assessments for the balance of that month." "SEC. 44. On a member of a Local Union moving from the jurisdiction of one Local Union to that of another for the purpose of transferring his member- ship, going to work or seeking work, his Traveling Card shall serve as evidence of his being a member of the International Association in good standing, until the first regular meeting of the Local Union that is held after he reports to the office of the Local Union or to the Financial Secretary of the Local Union. At the first meeting of the Local Union said member shall present his Traveling Card to the Financial Secretary and his card if still in order shall be honored and his name placed on the roll effective as the first of the month following the month his Traveling Card indicates his per capita tax is paid for. "The Traveling Card shall cease to serve as a means of identification if the member fails to present his Traveling Card for deposit at the first regular meet- ing that is held after he reports to the office of the Local Union or to the Finan- cial Secretary or if thirty (30) days have elapsed from date of issuance of Traveling Card, whichever date comes first." The stipulation continues: The regular initiation fee of the Respondent is $200. Its regular monthly dues are $5.50 per month (which includes $2 per capita to the International Union), plus 30 cents for each day actually worked. PLASTERERS' UNION LOCAL NO. 7 7, ETC. 771 At no time relevant hereto did Dudley Rankin tender to the Respondent an initiation fee and the regular monthly dues described in the preceding paragraph. At no time relevant hereto did Dudley Rankin obtain a travel card from Plasterers Union Local 190 of Everett and deposit it with the Respondent. If a traveling card had been obtained and deposited with the Respondent , Dudley Rankin would have been regarded as being in good standing in the Respondent upon the payment of the regular monthly dues . No initiation fee would have to be paid. On or about March 20, 1962, when Rankin began working on the Edmund Meany job, Fred W. Smith, secretary of the Respondent, observed him on the job and knew he was employed there. There was no conversation between the men on this occasion . On or about March 27 , 1962, Smith again observed Rankin on the job and this time approached Rankin , telling him that if he was going to be working in Seattle, he would have to "put his book in." Rankin replied that he was willing to pay all necessary dues or assessments, but he would not transfer his membership . Smith replied, "We'll see about that." On March 29, 1962, Smith wrote a letter to Piper and Greenhall, Inc., requesting Rankin's discharge for his failure to comply with the Union Security provision of the current agreement. A copy of this letter marked Exhibit C is attached hereto and by this reference is made a part hereof. Exhibit C MARCH 29, 1962. PIPER AND GREENHALL, Plaster Contractors, Att Mr. George Piper. Mr. D R Rankin Soc Sec "537-16-2529 presently employed by Your Firm as a Plasterer on the School Located at 20th and Thomas. Has failed to confirm [sic] to Section 43 Page 59-60 of the O.P.C.M .I.R Constitution and Section 44 page 60-61 of the Same. Mr. Rankin is not a member of Local 77 OP.C.M .I.R. and for that reason in accord with the Union Security Clause in the presently effective Labor Man- agement Agreement between The Firm of Piper and Greenhalgh and Local 77, You are herewith notified that his continued Employment within the Terri- torial Jurisdiction of Local 77 by Your Firm will be regarded as a breach of Contract. Sincerely FRED W. SMITH, Sec. The stipulation continues: On the same day, March 29, 1962, Rankin mailed a check for $6.20 to the Respondent, together with a statement of the days he had worked during the month of March. A copy of the check marked Exhibit D is attached hereto and by this reference is made a part hereof. A copy of the statement marked Exhibit E is attached hereto and by this reference made a part hereof. The check for $6.20 represented March dues (less the International per capita tax) and 30 cents per day for nine days actually worked . By this tender, Rankin attempted to comply with Section 43 of the International constitution. Exhibit D This is a check dated March 29, 1962, in the amount of $6.20 drawn by Dudley R. Rankin to the order of Plasterers Local #77 on the National Bank of Commerce of Seattle, Washington. The check is on a printed form furnished by that bank to customers. In addition to the usual blank spaces which have been filled out as to name of payee, amount, etc., there is handwritten on the check the notation , "DUES & ASS. MARCH." Exhibit E This is an entirely handwritten statement reading as follows: March 20, 1962 .30 March 21, 1962 .30 March 22, 1962 .30 March 23, 1962 .30 March 26, 1962 .30 March 27, 1962 .30 March 28, 1962 .30 717-672-64-vol. 143-50 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 29, 1962 .30 March 30, 1962 .30 PLUS $3.50 DUES MARCH Total $6.20 DUDLEY R. RANKIN. The stipulation continues: This tender insofar as its timeliness and amount was in compliance with Section 43 of the constitution. It is expressly understood that the Respondent does not concede and the General Counsel does not contend that Mr. Rankin was in possession of a paid-up working card for March, 1962. On March 30, 1962, upon receipt of the Rankin check, Smith telephoned the secretary of Plasterers Union Local 190, Mr. Schellenberger, and inquired whether Rankin was in possession of a paid-up working card for the month of March. Schellenberger replied in the negative, indicating that Rankin had not paid his dues for December 1961; January, February, or March 1962. Upon receipt of this information, Smith made no effort to retract the letter to Piper and Greenhall, Inc., requesting Rankin's discharge. The check for $6.20 has been returned to Rankin. Sometime in April 1962, Rankin sent another check to the Respondent, which check represented dues at $3.50, plus 30 cents per day for each day Rankin worked in April. This check has also been returned to Rankin. Rankin did not have a paid-up working card, in Local 190, for the month of March 1962. He had not been suspended or expelled from that Local and was considered by that Local to be in good standing. Generally, Local 190 takes no action to suspend or expel delinquent members until the delinquency has existed for several months and although Rankin was not current for the month of March in the payment of dues, Local 190 did pay, each month, out of its general funds, the International per capita tax which was due because of his membership in Local 190. At no time did Local 190 request Local 77 or Piper and Greenhall, Inc., to secure the discharge of Mr. Rankin. In the spring of 1961, Mr. Rankin had performed some work in the Respond- ent's jurisdiction. At that time he tendered to the Respondent the regular monthly dues (less International per capita tax) and this tender was accepted and no request for discharge was made, even though at that time Rankin did not possess a paid-up working card in Local 190. At the time of the tender, Smith did not check with the Local 190 secretary to ascertain if Rankin had a paid-up working card. Neither party by entering into the foregoing stipulation waives its position with respect to the motions for judgment on the pleadings, nor concedes the materiality or competency of the facts stipulated herein. That is the end of the stipulation. The Letter of October 6, 1960 In addition to the stipulation of fact and related exhibits, the General Counsel offered in evidence a letter dated October 6, 1960, written by Fred W. Smith, secre- tary of Respondent, and sent to Rankin. Counsel for Respondent objected to the receipt in evidence of this document on the grounds of relevancy, claiming that the document was too remote in point of time to the offense alleged in the complaint. The Trial Examiner overruled the objection, and received the document in evidence as background evidence which shed light on the issue raised by the pleadings. This letter reads as follows: Mr. DUDLEY R. RANKIN. DEAR SIR AND BROTHER: I feel I should advise you of the action taken by Local 77 at the regular meeting held Oct. 3, 1960 in reference to oral or other under- standing with adjoining Local Unions governing payment of Local Dues when going to and from work daily. Local 77 voted to terminate all such oral or other agreements and revert to the provisions of the International Constitution. I have been advised orally and have asked for written information of the I.U. position in this immediate case and have been told that you may be re- quired to pay Local Dues $3.50 per month plus 300 per day each day worked from Sept. 1 on. PLASTERERS' UNION LOCAL NO. 7 7, ETC. 773 I am asking you to put your card back in Local 77 (to) prevent any hard feeling continuing . Einor of course is a Superintendent and exempt. ( S) FRED W. SMITH Sec. Plasterers' Union #77 Labor Temple Rm. 317 Seattle 1, Wash. Concluding Finding The statement of fact set forth above is relatively brief, but the resolution of the questions it poses cannot be so briefly resolved . Some short review of basic legal propositions seems in order, before adverting to the instant facts. In 1947 Congress enacted the Labor Management Relations Act which authorized unions and employers to enter into contracts, upon certain conditions, which re- quired that employees become members of the Union on and after the 30th day of employment or the effective date of the agreement whichever was later. This is commonly referred to as the union -shop proviso.3 Thereafter the United States Supreme Court in The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Company ) v. N.L.R.B., 347 U.S. 17, clearly defined the scope and purpose of this proviso in the following language: Lengthy legislative debate preceded the 1947 amendments to the Act which thus limited permissible employer discrimination . This legislative history clearly indicates that Congress intended to prevent utilization of union-security agree- ments for any purpose other than to compel payment of union dues and fees. Thus Congress recognized the validity of the unions ' concern about "free riders" i e, employees who receive the benefits of union representation but are un- willing to contribute their share of financial support to such union , and gave unions the power to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason. [Emphasis supplied.] In Union Starch & Refining Company, 87 NLRB 779, the Board considered the case of employees who made the proper tender of their financial obligation to the union but who refused to participate in the membership initiation ceremony. When the union attempted to have these employees discharged , the Board found that the union had committed an unfair labor practice . At page 74 of that decision, the Board wrote "Throughout the amendment to the Act, Congress evinced a strong concern for protecting the individual employee in a right to refrain from union activity and to keep his job even in a union shop. Congress carefully limited the sphere of permissible union security , and even in that limited sphere accorded the Union no power to effect a discharge of nonmembers except to protect against `free rides'." With these preliminary concepts in mind we may turn to a consideration of the issue here presented. Certain of the undisputed facts have such significance that they merit reiteration : ( 1) It is undisputed that at all times pertinent hereto, Rankin was considered a member in good standing by his home local, Local 190, even though he was delinuqent in the payment of dues for December 1961 and January, February, and March, 1962, and that Local 190 had no part in requesting Rankin's discharge . (2) It is undisputed that the Respondent requested Rankin's discharge because he failed to comply with either section 43 or 44 of the International con- stitution. Section 43 states that a union member may work in the territory of an adjoining local, if he has a paidup working card and pays dues, except per capita, and a fee of 30 cents a day for each day worked to the Local in whose territory the work is to be performed . Section 44 specifies the manner in which a union member may effect a transfer of his membership to another local by depositing his traveling card with the secretary of the local at the place where he seeks to work and the payment of dues. The General Counsel contends that Rankin, under the circumstances here present, was not required under the Act to perform either of these alternatives and that the discharge of Rankin was therefore unlawful. The General Counsel contends that the Union violated the Act because by its con- duct herein it attempted to cause the discharge of Rankin because he failed to pay dues owed not to the Respondent , but to a sister local of the International . The aspect of one local attempting to collect dues or forces the payment of dues owed to a sister local is novel, as far as I can determine . However, there are cases which clearly 3In 1959, by amendment, Congress authorized 7-day union-shop contracts in the con- struction industry. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD define the limits on union action in the collection of past dues. In Murphy's Motor Freight, Inc., 113 NLRB 524, the Board considered the case of an employee who had allowed his membership to lapse in the Union. When he later obtained employment with an employer having a union-security contract with the same union, the union demanded his discharge unless he paid "all back dues." Pursuant to the demand, he was discharged. In this decision the Board said, "We adopt the Trial Examiner's finding that the inclusion by Local 107 in its dues demand of `back dues' for a period antecedent to Yearword's [the employee] employment with the employer, was viola- tive of the Act." The Court of Appeals for the Third Circuit in a per curiam decision enforced the order of the Board. In Spector Freight System, Inc., 123 NLRB 43, the Board considered the case of an employee who was discharged at the request of the union because he was delinquent for a period of 3 months in his dues. During the first of these 3 months the employee had not been employed by the company. The Board held that his discharge condi- tioned to that extent on prehire dues was violative of the Act. In N.L.R.B. v. Spec- tor Freight Systems, Inc., 273 F. 2d 272 (C.A. 8); Matthes, C.J., wrote as follows: The Board's findings that Conrad's termination was founded upon an unlawful demand for prehire dues, as a condition of employment, has ample support in fact and law. Prior decisions have held that payment of dues or other debts accruing prior to the existence of a union-security agreement, or prior to em- ployment, may not be required as a condition to continued employment. Failure to pay "periodic dues" does not go "so far as to make lawful the discharge of an employee for failure to liquidate a debt incurred for union dues before the em- ployment in question began." N.L.R.B. v. International Ass'n of Machinists, 9 Cir. 203 F. 2d 173 (failure to pay preexisting fine); N.L.R.B. v. International Union, United Automobile, Aircraft, etc., 7 Cir., 194 F. 2d 698, and Local 140, etc., 109 NLRB 326 (loss of good standing as grounds for dismissal unlawfully based upon dues accruing before security agreement). Certainly, if a union cannot invoke a union-security clause of a contract to collect "back dues" owed itself, it cannot be allowed to use a union-security provision to collect "back dues" owed to some other union, as a voluntary, unrequested, service to the other union. It also appears to be settled law that Rankin could not be required to put his book in the Respondent as required by section 44 of the constitution. In Pape Broadcast- ing Company (Radio Station WALA), 104 NLRB 29, the Board considered a case in which an employee member of the respondent union transferred his membership to another local union though he continued working for the same employer. The respondent local negotiated a union-security clause with the employer and demanded the employee transfer his membership back to it, in addition to paying his financial obligation. The Board held that the employee need not transfer his membership in order to fulfill his obligation under the union-security clause under the Act. In the light of the authorities cited above, the Union had no right to request the discharge of Rankin on the grounds which were stated to Piper & Greenhall, Inc., in the letter of Smith dated March 29, 1962. There is additional reason which constrains me to find that the request for the discharge of Rankin was unlawful. This feature of the case arises from the conduct of the Respondent toward Rankin over a period of 2 years as disclosed by the un- disputed facts. Evidently Rankin's difficulty with the Respondent began sometime prior to October 6, 1960, for on that date Smith, the secretary of the Respondent, by letter to Rankin informed him that the Respondent at a meeting of its membership on October 3, 1960, had voted to terminate all oral agreements or understandings with adjoining local unions governing payment of dues when going to and from work in the jurisdiction of the Respondent and to revert to the provisions of the Inter- national constitution. This letter also stated, "I have been advised orally and have asked for written information of the I.U. position in this immediate case and have been told that you may be required to pay Local Dues $3.50 per month plus 30 cents per day each day worked from September 1 on." It should be noted that this letter makes no reference to a paidup working card. The stipulation of fact further discloses that in the spring of 1961 Rankin again worked in the jurisdiction of the Respondent. At that time he tendered to the Respondent the regular monthly dues (less International per capita tax) and this tender was accepted. No request for Rankin's discharge was made, even though at that time Rankin did not possess a paidup working card in Local 190. At the time 4 1 understand I U to mean the International. PLASTERERS' UNION LOCAL NO. 77, ETC. 775 of this tender, Smith, the secretary of Respondent, did not check with the secretary of Local 190 to ascertain whether or not Rankin had a paidup working card. This short review brings us to the events of March 1962. On March 20 Rankin began work again in the jurisdiction of the Respondent for Piper & Greenhall, Inc. On his first day on this job Smith , secretary of the Respondent, saw Rankin at work but did not speak to Rankin . On March 27 he again saw Rankin on the job. This time he approached Rankin and told him that if Rankin was going to be working in Seattle, he would have to "put his book in." Rankin replied that he was willing to pay all necessary dues or assessments, but he would not transfer his membership to the Respondent . Smith replied, "We'll see about that." On March 29, 1962, Smith wrote his letter to Piper & Greenhall , Inc., which requested Rankin's discharge for his failure to comply with section 43 or 44 of the International 's constitution, and thus with the union-security provision of the current contract. On the same day, March 29, Rankin mailed his check for $6.20 and a statement of days worked in March to the Respondent . It was stipulated by counsel that this tender, as far as timeliness and the amount of tender, was in compliance with section 43 of the International constitution . It should be noted also that this tender complied with the conditions stated in Smith's letter to Rankin dated Ocober 6, 1960. From a consideration of these facts it would appear that the Respondent did not deal with Rankin in a forthright manner and in fact mislead him. It would appear that any argument between the Respondent and Rankin as to the payment of dues to the Respondent had reached a definitive resolution on October 6, 1960, when Smith wrote Rankin that the International Union's position was that Rankin could be re- quired to pay local dues of $3.50 per month, plus 30 cents per each day worked. In the next year , 1961, Rankin worked in the jurisdiction of the Respondent and ten- dered the dues at the rate which the International had prescribed in the previous year. In neither year was mention made of a "paid -up working card." We now reach the immediate circumstances . Rankin, pursuing his understanding of the situation , on March 29 tendered dues in accordance with Smith 's letter of October 6 , 1960, and as paid in 1961. The stipulated facts demonstrate that the Respondent never communicated to Rankin that, in addition to the tender of dues, he had to have in his possession a paidup working card. This requirement was never communicated to Rankin , although it is the basis for the Respondent 's refusal to accept Rankin's tendered dues, and is the basis for the Respondent's request for his discharge . In considering this situation , I deem it significant that the Respondent requested Rankin's discharge before it knew whether he possessed a paidup working card or not. In International Union of Electrical Workers, Frigidaire Local 801 ( General Mo- tors Corporation, Frigidaire Division), 129 NLRB 1379, the Board considered the case of an employee who had been discharged pursuant to the union 's demands for alleged nonpayment of dues. The employee had made a tender of dues prior to the union's request for his discharge ; the tender was sufficient in amount to cover both the reinstatement fee and the dues owed and was made in good faith . However, the union rejected the tender , since the tender did not specify the allocation of a portion to the reinstatement fee and a portion to the dues . The Board held that before the union could validly reject such a tender, it was under a duty to explain the mechanics of reinstatement to the employee and to give him an opportunity to direct allocation of his tender in a manner required by the union 's rules. Upon review of this case by the U.S Court of Appeals (District of Columbia Circuit ) in I.U.E., Frigidaire Local 801 v. N.L.R.B., 307 F. 2d 679 Circuit Judge Burger writing for the court pointed out that there was no evidence in the record that the employee knew of his obliga- tion to the union until the day before his tender and that by coincidence on the same day the union voted to request the employee's discharge for failure to apply for mem- bership and to pay the required initiation fees. In the course of the decision which held that the union's request for the employee's discharge was unlawful , the opinion states the following: Among the most important of labor standards imposed by the Act as amended is that of fair dealing, which is demanded of unions in their dealings with em- ployees. See N.L.R B. v. International Woodworkers, 264 F. 2d 649, 657, 43 LRRM 2701 (9th Cir. ) cert. denied, 361 U.S. 816 , 44 LRRM 2983 (1959). The requirement of fair dealing between a union and its members is in a sense fiduci- ary in nature and arises out of two factors. One is the degree of dependence of the individual employee on the union organization ; the other , a corollary of the first, is the comprehensive power vested in the union with respect to the indi- vidual. See N.L.R.B. v. International Woodworkers, supra The requirement of fair dealing is not limited to union members ; when an individual becomes an employee of a company having a union security clause in its contract the new 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee is not free to join or refuse to join a union, nor does he have a voice in the selection of his bargaining representative. He takes the existing union and its contract in effect as one of the conditions of his employment. From the be- ginning of his employment, the union which can require his membership or com- mand his discharge is therefore charged with an obligation of fair dealing which includes the duty to inform the employee of his rights and obligations so that the employee may take all necessary steps to protect his job. A union may not treat as adversaries either its members or those potential members whose continued employment is dependent upon union membership. The Union's failure to inform Snyder of what he needed to do to protect his rights made it impossible for him to make a proper tender sooner than he did. The Union is bound by law to represent all employees in the bargaining unit. The Union is the agent for employees and as such "is subject to a duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would have desire to have .. . Restatement (Second), Agency § 381 (1958). The Union's assertion of improper tender, based on Snyder's failure specifically to allocate the $15 to dues and the initiation fee respectively, must be viewed by the Board and the court in the context provided by the statutory concept of fair play. We think a minimum of fair treatment would have included at least some notice to Snyder that his tender was excessive and that he should have indicated the manner in which he wished the money applied. Out-of-hand rejection of the money order, without a word of explanation, amounts to our view to an arbitrary failure on the Union's part to meet its obligations and peculiar responsi- bilities under the Act. As we agree that Snyder made the tender in good faith, the Board was clearly correct in asserting that the Union "was under an obliga- tion to explain the mechanics of reinstatement to Snyder and give him the op- portunity to direct allocation of his tender in the manner required by the Union's rules for reinstatement." See N.L.R.B. v. International Woodworkers, supra, at 657. Applying the rationale of this decision to the instant facts, it is clear that the Respondent had no right to stand mute in regard to the paidup working card, not mention it as a requirement for continued employment to Rankin, and arbitrarily reject Rankin's tender and request his discharge because he did not have one. One final consideration. As stated by the Supreme Court in the Radio Officers case, supra, Congress by the enactment of the proviso to Section 8(a)(3) "recog- nized the validity of the union's concern about `free rider,' i.e., employees who receive the benefits of union representation but are unwilling to contribute their share of financial support to such union, and gave unions the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason." [Emphasis supplied.] From this plain language it is crystal clear that unions may utilize union-security contracts to discharge only those employees who are "free riders," and these are defined as those who receive benefits but are unwilling to contribute to the union's support. The test to be applied in each case is, is the employee a "free rider" as defined by the court. In Pacific Transport Lines v. N.L.R.B., 290 F. 2d 14 (C.A. 9), the court applied this test. Koelsch, Circuit Judge, writing for a unanimous court found that, "At this point the conclusion is inescapable that Brown (the employee) had been and was a resourceful `free rider' and that any other appraisal of him would be either totally lacking in support or fundamentally contrary to the evidence... . In view of Brown's past history of prior evasion, this request appears to be but another in an apparently endless series of `stalls' to avoid his obligation owing under the union-security agreement and imposed by the Taft-Hartley Act." Turning to the instant facts, can it be said that Rankin was a free rider who was receiving benefits from the union but was unwilling to contribute his share to the union's support? The answer seems obvious Rankin had been a member of the International for 17 years, and was considered a member in good standing of Local 190. Furthermore, he had tendered March dues to the Respondent, and told Smith, its secretary, that he would pay all dues and fees required by the Respondent, but that he would not transfer his membership by putting in his book. Applying the test of Pacific Transport Lines, supra, I must conclude that Rankin was not a free rider, and that the Respondent could not lawfully seek his discharge under the union- security provision of the contract. In reaching the conclusions above, I have rejected perforce the contention of the Respondent that Rankin's obligation to the Respondent under the contract required him to join the Respondent as a new member by paying $200 initiation fee and periodic dues or to comply with either section 43 or 44 of the International's consti• PLASTERERS ' UNION LOCAL NO. 77, ETC. 777 tution. As authority for its position Respondent cites International Association of Machinists, Precision Lodge No. 1600, (Adel Precision Products, Division of Gen- eral Metals Corporation), 120 NLRB 1223, which in turn rests upon the Board's decision in Food Machinery and Chemical Corporation, 99 NLRB 1430. From an examination of these cases it appears that they are clearly distinguishable on the facts and the law. Here, there are equitable considerations based squarely on the facts which are not present in either of the cited cases. Also, the question presented in the cited cases is not the question presented here. In Food Machinery, supra, the basic issue, was whether or not a reinstatement fee demanded by the union was "excessive or discriminatory" under Section 8(a) (5) of the Act, which forbids unions to charge "excessive or discriminatory fees" under a union-security contract. In International Association of Machinists, supra, the issue was whether the union could charge a reinstatement fee which was higher than an initiation fee. The Board held that as long as there was no singling out of an individual in the demand for the higher reinstatement fee, and the fee was required uniformly of all employees in a particular class it was not discriminatory, and a discharge of the employee for failure to pay the higher reinstatement fee was not a violation of Section 8(a)(3) by the employer, or of Section 8(b)(2) or 8(b)(1)(A) by the union. These facts and legal issues are quite different from the question here presented, which appears to be controlled by the precedents enumerated heretofore. Upon the undisputed facts, I find that the Respondent attempted to cause Piper & Greenhall, Inc, to discharge Rankin in violation of Section 8 (b) (1) (A) and 8(b) (2) of the Act as alleged in the complaint. Motion To Strike At the close of the hearing, pursuant to request of counsel, the Trial Examiner set a date by which counsel were required to file their briefs. Both counsel for the General Counsel and the Respondent filed their briefs in time, the General Counsel's being received on October 3, and the Respondent's on October 4, 1962. On October 10, 1962, counsel for the Respondent filed with the Trial Examiner a motion to strike, pages 8 through 15 of the General Counsel's brief, "pursuant to 5 U.S C. Section 1004(a) and the fifth amendment to the Federal Constitution." In support of his motion counsel for Respondent directed the Trial Examiner's attention to the statement of the General Counsel 's position relative to his motion for judgment on the pleadings and a second statement of position in the course of the hearing. Respondent claimed that he had no notice of the issues sought to be raised by the General Counsel in page 8 through 15 of his brief and that a con- sideration of such issues or an adjudication thereof would violate the statutory and constitutional provisions mentioned above. As authority for his position counsel cited Stokely-Van Camp, Inc. and Bordo Products Co., d/b/a Stokely-Bordo, 130 NLRB 869, 872-873. On October 15, 1962, the General Counsel filed with the Trial Examiner an answer to the Respondent's motion to strike which was in the nature of a brief memorandum in opposition to the Respondent 's motion. The motion, together with the contentions of counsel, the authorities cited by both, and the entire record have been considered and it is hereby ordered that the Respondent's motion to strike is hereby denied, for the following reasons The General Counsel's brief on the entire case is not limited to the position stated in support of his motion for judgment on the pleadings , as that position was for use in arguing the motion for judgment on the pleadings only, and it did not and could not be premised on facts later developed in the hearing, which were not disclosed in the pleadings. In similar manner, the General Counsel cannot be limited in his brief at the conclusion of all the evidence , to a statement made in the course of the proceeding. The fundamental consideration of fair procedure is that the complaint of the General Counsel must fairly apprise the Respondent with the substance of the violation with which the Respondent is charged . The answer of Respondent in a like manner must fairly state the substance of Respondent 's defense. Thus, the issues are framed with due notice to both counsel and at the hearing such evidence as is deemed admissible upon the issues is received . In the judgment of the Trial Examiner, in the hearing herein , these general procedural requirements were com- plied with very fully, since counsel for the parties stipulated the relevant facts to a very large extent, and the Trial Examiner's rulings on the admissibility of evidence were very few, and were made only after hearing the argument of counsel as to the admissibility of the proffered evidence. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A consideration of the complaint , the answer and the contentions of counsel, and the evidence as set forth in the body of this report demonstrate that the Respondent's motion is without merit. Paragraph VI of the complaint alleges that the Respondent attempted to cause Piper & Greenhall , Inc., to discharge, layoff, or otherwise discriminate against Rankin "because of his failure to observe the internal rules of the Respondent other than the tender of required dues." The letter of Smith to Piper & Greenhall , Inc., dated March 29, 1962, charges that Rankin's employment was in violation of the contract because he had not complied with either section 43 or section 44 of the Interna- tional's constitution . The thrust of the General Counsel 's argument was that Rankin had made a proper tender of dues to the Respondent and that therefore the request for his discharge was unlawful . The thrust of the Respondent's argument was that Rankin's tender was not effective because at the time of the tender Rankin was not in possession of a paidup working card , and that Rankin had not fulfilled his statutory duty to the Respondent. With this basis we may turn to the pages of the General Counsel's brief which Respondent finds objectionable . The second point of the General Counsel's argu- ment is phrased as follows: Dudley R. Rankin timely tendered all amounts of moneys ever requested from him by the Respondent Union. General Counsel's third point is phrased as follows: Under the Board 's interpretation of Section 8(b)(2) of the Act, it is not necessary for an employee to become a member of the Union in order to meet his obligations to that union. From this short summary it is evident that all the arguments in the brief of the General Counsel arose and grew out of the issues as framed by the pleadings and the facts as stipulated by counsel at the hearing. 1V. 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 Company and the Association, described in sec- tion 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1) (A ) and 8 (b)(2) of the amended Act, I will rec- ommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the amended Act. Having found that in violating Section 8 (b)(1)(A) and 8(b)(2) of the Act, the Respondent attempted to cause the discharge of Dudley R. Rankin by Piper & Greenhall, Inc., it will be recommended that the Respondent notify Piper & Green- hall, Inc., in writing, and furnish a copy of said notification to Rankin , that is with- draws its objections to the employment of Rankin and requests that the Company continue Rankin's employment . The record does not disclose that Piper & Green- hall, Inc., deprived Rankin of any employment because of Respondent 's request as aforesaid, so it will not be ordered that the Respondent make Rankin whole for any loss of pay he may have suffered by reason of the Respondent's unlawful conduct. Upon the above findings of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Piper & Greenhall, Inc., is an employer engaged in commerce within the mean- ing of Section 2 (6) and (7) of the Act. 2. The Respondent, Plasterers' Union Local No. 77 Operative Plasterers' and Cement Masons' International Association, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(b)(1 )(A) of the amended Act. 4. By attempting to cause Piper & Greenhall, Inc., an employer, to discriminate against an employee in violation of Section 8(a)(3) of the amended Act, the Re- spondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(b)(2) of the amended Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. PLASTERERS' UNION LOCAL NO. 77, ETC. 779 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, I recom- mend that the Respondent, Plasterers' Union Local No. 77 Operative Plasterers' and Cement Masons' International Association, its officers and agents, shall: 1. Cease and desist from: (a) Attempting to cause Piper & Greenhall, Inc., to discriminate against Dudley R. Rankin, or any other employee, or applicant for employment, in violation of Section 8(a)(3) of the Act, as amended. (b) In any like or related manner restraining or coercing employees in the exer- cise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Notify Piper & Greenhall, Inc., in writing, and furnish a copy to Dudley R. Rankin that Respondent has no objection to the employment of Rankin as a plasterer within its jurisdiction, without regard to his membership or nonmembership in the Respondent, and without prejudice to his seniority, or other rights and privileges; said notification shall contain a request that Piper & Greenhall, Inc., continue to em- ploy Rankin as a plasterer, as aforesaid. (b) Post at the business office of the Respondent, copies of the attached notice marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Di- rector for the Nineteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter, in conspicuous places, in places where notices or communications to its members or employees of the Company are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that such notices are not altered, defaced, or covered by any other material. (c) Furnish to the said Regional Director signed copies of the said notice, in sufficient number, for posting by Piper & Greenhall, Inc., it being willing, at places where it customarily posts notices to its employees. (d) Notify the Regional Director for the Nineteenth Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith .6 It is further recommended that unless on or before 20 days from the date of receipt of this Intermediate Report and Recommended Order the Respondent notifies the said Regional Director, in writing, that it will comply with the above require- ments, the National Labor Relations Board issue an order requiring it to take such action. 5In the event that this Recommended Order Is adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." 61a the event that this Recommended Order is adopted by the Board, this provision shall be modified to read • "Notify the said Regional Directoi, in writing, within 10 days from the date of this Order, what steps have been taken in compliance " APPENDIX NOTICE TO ALL MEMBERS OF PLASTERERS' UNION LOCAL No. 77 OPERATIVE PLASTERERS' AND CEMENT MASONS' INTERNATIONAL ASSOCIATION AND TO ALL EMPLOYEES AND PROSPECTIVE EMPLOYEES OF PIPER & GREENHALL, INC. Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our members and the employees of Piper & Greenhall, Inc., that: WE WILL NOT cause or attempt to cause Piper & Greenhall, Inc., to discrimi- nate against Dudley R. Rankin, or any other employee, or prospective em- ployee, in violation of Section 8 (a) (3) of the Act, as amended. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extent that such right may be affected by a lawful agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as amended. WE WILL notify Piper & Greenhall, Inc., that we withdraw our objections to the employment of Dudley R. Rankin. PLASTERERS' UNION LOCAL No. 77 OPERATIVE PLASTERERS' AND CE- MENT MASONS' INTERNATIONAL ASSOCIATION, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 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, 327 Logan Building, Fifth and Union Streets, Seattle, Washington, 98101, Telephone No. Mutual 2-3300, Extension 553, if they have any question concerning this notice or compliance with its provisions. Chelmsford Food Discounters, Inc.' and Amalgamated Meat Cutters, Butchers, Food Store, Seafood, Allied Workers of N.A., District Union Local 2, AFL-CIO, Petitioner. Case No. I -RC-7317. July V, 1963 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Arnold M. Marrow, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Fanning]. Upon the entire record in this case the Board finds : 1. At the hearing, the petition, which originally named Enter- prise Department Stores, Inc., d/b/a J. M. Fields Discount Stores, and Chelmsford Food Discounters, Inc., as the Employers, was amended at the Petitioner's request to name only Chelmsford Food Discounters, Inc., as the Employer. Only Chelmsford Food Dis- counters, Inc., herein called Chelmsford, appeared at and participated in the hearing. However, the Intervenor contends that F. F. Fields of Chelmsford, Inc., or F. F.-J. M. Fields, herein called Fields, is a joint employer of Chelmsford's employees, and that the requested unit, limited to employees of Chelmsford, is inappropriate. 1 As amended at the hearing. 2 Local 372 , Retail Clerks International Association, AFL-CIO, was allowed to Inter- vene at the hearing for the purpose of contesting the appropriateness of the requested unit of food department employees. 143 NLRB No. 77.