Reinforced Steel Workers

REINFORCED STEEL WORKERS 903 Reinforced Steel Workers Local 426, International Association of Bridge, Structural , and Ornamental Iron Workers, AFL-CIO, and Regis O'Brien , its Business Agent [K. G. Marks, Inc.] and Raymond Smith. Case 7-CB-1279. May 23,1967 ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On September 6, 1966, Trial Examiner Rosanna A. Blake issued her Decision in the above- entitled proceeding, finding that the Respondents had engaged in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action to remedy such unfair labor practices. On the same date, the case was transferred to the National Labor Relations Board. I Thereafter, the Respondent Union.requested an extension of the time for filing exceptions and brief originally set for September 29, 1966. The Respondent Union's request was granted and the date for filing exceptions was extended to October 20, 1966. Subsequently, at the request of Respondent O'Brien, the date was further extended from October 20, 1966, to November 8, 1966. On November 9, 1966, the Board received from Respondent O'Brien a "motion for rehearing" and a "motion for extension of time in which to file exceptions and brief pending ruling on motion for rehearing." Counsel for the General Counsel filed a brief on November 10, 1966, in opposition to Respondent O'Brien's motions. The Board's Executive Secretary, on November 10, 1966, by telegram informed Respondent O'Brien that the Board would not rule on his motion for rehearing until it had considered the entire matter in light of any exceptions and briefs which may be filed. An extension was granted to November 21, 1966, to file exceptions and briefs. Respondent O'Brien on November 17, by telegram, insisted that the Board proceed to act on Respondent O'Brien's motion for rehearing prior to filing exceptions and briefs as required by the Board in its telegram of November 10, 1966. The Board, through its Executive Secretary in a telegram dated November 18, 1966, reiterated that the Board would not rule on Respondent O'Brien's motion for rehearing until it had considered the entire matter in the light of any exceptions and briefs which may be filed. Time for filing exceptions and briefs was again extended to November 23, 1966, and Respondent O'Brien was informed no further extension would be granted. Respondent O'Brien, by telegram dated November 24, 1966, protested the Board's action of November 18, 1966, and stated that Respondent O'Brien's exceptions and briefs would be filed on or before December 7, 1966. The Board, through its Executive Secretary, by telegram dated November 30, 1966, notified Respondent O'Brien that the time for filing exceptions and briefs in this case expired November 23, 1966. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. Respondent O'Brien's motion for a rehearing2 suggests questions of procedure, fact, law, and policy which might have been properly cognizable by the Board if appropriately raised in exceptions which conformed to the requirements of Section 102.46 of the Board Rules and Regulations. As reflected above, however, during the period while this motion was pending before the Board, Respondent O'Brien made numerous requests for extensions of time in which to file exceptions. It is consequently clear that Respondent O'Brien intended that this document be considered by the Board only as a motion for rehearing, as denominated, and that it not be considered as exceptions to the Trial Examiner's Decision. In all the circumstances, we shall consider this document in accord with Respondent O'Brien's intent. No exceptions having therefore been filed by any of the parties herein and Respondent O'Brien having failed to present to the Board any extraordinary circumstances to excuse him from the necessity of complying with the Board's regulations, we shall abide by Section 102.48(a) of the Rules and Regulations. Section 102.48(a) provides "In the I The text of pertinent parts of the Board Rules and Regulations, Series 8, as amended, including Sections 102.46 and 102 48, was attached as a matter of course to the Order transferring the case to the Board, served on the parties Subsequent to the transfer of this matter to the Board, the Charging Party requested withdrawal of his charges herein The General Counsel filed a brief in opposition thereto, and a reply to this opposition was filed by Respondent Union We note that in her decision the Trial Examiner found that Respondents, jointly, engaged in unfair labor practices in violation of the Act which were not only violative of the rights of the Charging Party but also as to rights of other individuals This proceeding is a public procedure looking to public ends, and not a private one seeking only to enforce the private rights of the Charging Party Further, neither the Charging Party in making his request for withdrawal nor Respondents present adequate basis for granting the request In all the circumstances, the Charging Party's request for withdrawal of his charges is hereby denied 2 The motion for rehearing is opposed by the General Counsel Under all the circumstances, including the absence of any showing that Respondent O'Brien is prepared to present relevant evidence which is newly discovered or was previously unavailable to him or that a reopened hearing is otherwise warranted, we deny the motion for rehearing in its entirety Spector Freight System, Inc, 141 NLRB 1110, Julian Aluminum Foundry Company, 120 NLRB 1319 The request for oral argument is denied as the present record adequately presents the issues and position of the parties 164 NLRB No. 113 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD event no timely or proper exceptions are filed as herein provided , the findings , conclusions, and recommendations of the trial examiner as contained in his decision shall, pursuant to section 10(c) of the act, automatically become the decision and order of the Board and become its findings , conclusions, and order, and all objections and exceptions thereto shall be deemed waived for all purposes."3 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, and Section 102.48 of the National Labor Relations Board Rules and Regulations , Series 8, as amended , the National Labor Relations Board hereby adopts the findings and conclusions of the Trial Examiner as contained in her Decision , and orders that Respondents, Reinforced Steel Workers Local 426 , International Association of Bridge , Structural and Ornamental Iron Workers , AFL-CIO, its officers , agents, and representatives , and Regis - O'Brien , its business agent, shall take the action set forth in the Trial Examiner's Recommended Order.4 to file briefs. A brief was filed by counsel for the General Counsel and counsel for the Respondents also filed a brief. Having considered the entire record, the demeanor of the witnesses while testifying, and the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY K. G. Marks, Inc., herein called Marks or the Company, is a Michigan corporation which has its main office and place of business in Port Huron, Michigan. It is engaged in the construction business and it was stipulated that during the year ending December 31, 1964, a representative period, Marks purchased and caused to be transported and delivered to its Port Huron, Michigan, place of business construction materials, equipment, and other goods and materials valued in excess of $100,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its Port Huron place of business directly from points located outside the State of Michigan. It is accordingly found that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3 We are of the opinion that the several extensions granted Respondent O'Brien by the Board 's Executive Secretary to file exceptions and briefs , as required by the Board Rules and Regulations, were not restrictive of any rights of this Respondent under the Act, and no showing was made by Respondent O'Brien of the existence of any extraordinary circumstances warranting further extensions N.L.R.B v Pat Izzi Trucking Co , 343 F.2d 753 (C A 1), enfg 149 NLRB 1097 , Kiekhaefer Corporation v N L.R B , 273 F 2d 314 (C A 7), cert denied 362 U.S 950, N.L.R.B v MooneyAtrcraft , Inc., 310 F 2d 565 (C A 5), Kovach v NLRB , 229F2d138 , 143,144 (CA 2),enfg. 110NLRB1307 4 The Board does not ordinarily hold those acting as employer or union agents personally liable for backpay , and Member Brown does not read paragraph 2(a) of the Order as intending to impose such personal liability on Respondent O'Brien in this matter See Hoisting and Portable Engineers , Local 4 , International Union of Operating Engineers , AFL-CIO (Corey Steeplejacks , Inc), 141 NLRB 1231, 1232 , Marble Polishers, Machine Operators and Helpers, Local No 121 , AFL-CIO (Miami Marble & Tile Company), 132 NLRB 844 , 845 Members Jenkins and Zagoria note, however, that even if the various motions filed by Respondent O'Brien had been considered as exceptions, such motions took no exception to the remedy recommended by the Trial Examiner, which clearly makes both Respondents, Local426 and Regis O'Brien , jointly liable for remedying the violations of the Act . They further note that the Board has in the absence of exceptions held a union agent personally liable for backpay See Edward C. Partin, Business Agent, General Truck Drivers, Chauffers , Warehousemen & Helpers of America, Local No 5, Teamsters (Ryder Truck Lines , Inc), 148 NLRB 819 TRIAL EXAMINER'S DECISION ROSANNA A. BLAKE, Trial Examiner: Upon a charge filed on December 1, 1964, by Raymond E. Smith, an individual, the General Counsel, acting through the Regional Director for Region 7, issued a complaint on November 5, 1965, in which it was alleged that the Respondents had engaged in conduct which violated Section 8(b)(1)(A) of the Act. In their answer Respondents denied having committed any unfair labor practice. Upon due notice, a hearing was held on May 5, 1966, in Detroit, Michigan. All parties were represented by counsel and were afforded full opportunity to present evidence, to examine and cross-examine witnesses, to argue orally, and II. THE LABOR ORGANIZATION INVOLVED It is admitted and I find that Reinforced Steel Workers Local 426, International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. It is admitted that Regis O'Brien is the business agent for Local 426. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In June 1965, the Board filed a petition for adjudication in civil contempt and for the other civil relief in the United States Court of Appeals for the Sixth Circuit, sub nom. National Labor Relations Board v. Reinforced Steel Workers, Local 426, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, including Regis O'Brien, its Business Agent; Reinforcing Steel Service Corp., Case 16,222. The petition was based on a decree entered by the court on October 27, 1964, against the Union and its officers, including O'Brien, enforcing an order of the Board issued on August 20, 1964. The court's decree directed the Union and O'Brien to cease and desist from, inter alia: (a) Maintaining in effect and/or enforcing any agreement, arrangement, understanding, or practice whereby employees who are not members of the Union are required to secure a permit from the Union as a condition of obtaining or retaining employment with a number of named employers, including K. G. Marks, Inc. (b) Causing or attempting to cause a number of named employers, including K. G. Marks, Inc., or any other employer, to discriminate against employees. (c) Causing or attempting to cause K. G. Marks, Inc., inter alia, or any other employer, to lay-off employees who are not members of the Union before employees who are members. The petition also alleged that the Union's officers, including Business Agent Regis O'Brien, knew the terms REINFORCED STEEL WORKERS 905 of the decree, that they nonetheless sought to maintain and enforce an arrangement, understanding, or practice whereby nonmembers of the Union are required to obtain permits from the Union as a condition of obtaining or retaining employment; had caused or attempted to cause strikes, work stoppages, or slowdowns because employees did not have permits from the Union; and had caused or attempted to cause employees to stop working with or to refuse to work with employees without such permits. More particularly, the petition alleged that on or about November 27, 1964, the Union, by its business agent, Regis O'Brien, caused K. G. Marks, Inc., then engaged in construction work at Saginaw, Michigan, to discharge or demote employees or withhold work from employees because they did not have work permits issued by the Union. The petition also alleged that on or about November 27, 1964, the Union, by its business agent, O'Brien, attempted to cause Marks to designate employee Raymond E. Smith as the first man to be laid off in the event of a reduction in force because he was working without a dobie or work permit issued by the Union. On or about August 11, 1965, a stipulation was signed by a Board representative and by Regis O'Brien, personally and as a representative of the Union, which stated that the Union and O'Brien admitted each and every allegation of the civil contempt petition and that they caused an employer (other than K. G. Marks, Inc.) to violate Section 8(a)(3) of the Act by discharging an employee (other than Raymond Smith) because he did not have a work permit issued by the Union. The stipulation also provided that the court was empowered to enter an order adjudging the Union and Regis O'Brien in civil contempt of the court's October 27, 1964, decree. The court was also empowered to require the Union and O'Brien to purge themselves of contempt by, inter alia, notifying, in writing, a number of employers, including K. G. Marks, Inc., that: the employees of said employers are not required to secure working permits or dobies issued by or any clearance from Local 426 as a condition of obtaining or retaining employment. An adjudication of civil contempt was entered by the court on September 8, 1965, and criminal contempt proceedings are currently in progress. As will be seen, the above proceedings were based in part upon the events with which the present proceeding is concerned. B. The Credibility Determinations Made Herein Much of the testimony of the witnesses called by counsel for the General Counsel is undenied. However, in some cases, the facts found depend on whether I credit the testimony of Raymond Smith, K. G. Marks, the president of K. G. Marks, Inc., and Nelson Krick, the Company's job superintendent on a Marks' project, all of whom were i A "dobie" is a card given a member of the International which permits him to work within the jurisdiction of a local of which he is not a member. The member pays $2 for every 15 days he works up to 90 days when he is automatically transferred into the local within whose area he is working A "permit" is issued to nonunion members or to members who are "behind in their dues" and called as witnesses by counsel for the General Counsel, or the testimony of Regis O'Brien, the chief witness for Respondents . In addition to the fact that much of Smith's testimony is undisputed , he impressed me as a particularly honest and straightforward witness and I am convinced and find that he was telling the truth about the events in dispute. Marks and Krick also impressed me as truthful witnesses and their testimony is supported by various events about which there is no dispute. Accordingly, I have credited the testimony of each of the three men and the findings of fact set forth below are based primarily on their testimony. O'Brien , on the other hand , was a belligerent witness whose demeanor convinced me that his purpose was to conceal rather than to reveal the true facts . Furthermore, portions of his testimony are inconsistent with many of the undisputed facts and there are conflicts between his testimony and statements in his prehearing affidavit. Having considered O'Brien 's demeanor and the record as a whole, I am convinced that he was an unreliable witness and do not credit his testimony concerning disputed facts. C. The Events Occurring More Than 6 Months Prior to the Filing of the Charge Raymond Smith became a member of the International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO, in 1941 and was still a member at the time of the hearing. He became a member of Local 426, which has its office in Detroit , in 1954 by transferring his Union "book" from Local 10 in Kansas City, Missouri. He remained a member of Local 426 until 1958 when he was offered a job in Kansas City and transferred his "book" back to Local 10. Sometime thereafter , Smith obtained a job in Dallas and transferred his "book" to the local in that area. When he was offered a job in Michigan in 1959, he again transferred into Local 426. Smith continued to be a member of Local 426 until May 1963 when he got a job in Los Angeles and transferred his membership to the appropriate local. Smith returned to Port Huron on May 17, 1964. A few days later , he was offered a job as a journeyman resteel worker by Leonard Martinek , vice president of Collins and Catlin, a construction company. Smith told Martinek that he was not a member of Local 426 but of an out-of-state local and would have to "contact" Regis O'Brien, the business agent of Local 426 and get a "dobie" or arrange to transfer into Local 426 before he could work for Collins and Catlin. i In late May, Smith called O 'Brien in Detroit and told O'Brien that he had been offered a job in Port Huron and asked if he could mail his "book" and money for a dobie or whether he would have to bring his "book " in personally. O'Brien told Smith that he would have to appear in person before the executive board and that O'Brien could do nothing for Smith until Smith had appeared before the allows them to work for a specified period Smith testified that "It is always customary in a union when you go into another local ... to notify the business agent and where you are working . . since I would be considered an out of state union man, I was obligated to contact [O'Brien] and pay for the privilege of working, either on a dobie or permit " k 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD board. Smith reported to Collins and Catlin that he could not go to work on June 1, as the latter wished him to do, because the executive board did not meet until about June 7.2 Smith appeared before the Union's executive board in Detroit on or about June 7. He was asked why he was there and what he wanted. He replied that he wanted to go to work and wanted a "dobie" or to transfer into Local 426 so he could work. The board members said that this was not the board's problem but a problem for O'Brien. In the presence of the executive board, O'Brien called Smith a "liar ... with a few, cuss words thrown in" and charged that Smith was "soliciting work" in Port Huron which, O'Brien said, Smith had no right to do. In Smith's words, "I tried to tell [O'Brien] the job was offered to me, although I felt like I had a right to solicit this job . . . . " (Cf. the statement in Respondents' brief that the Examiner may take "official notice" that solicitation of work is not forbidden by the area agreements or the union constitution or bylaws and is most common in the industry.) Smith asked O'Brien for a dobie but O'Brien refused to give him one. O'Brien also said that he would not allow Smith to work for any Port Huron contractor but told Smith that if he would be at the Union's Detroit office, a distance of about 70 miles from Smith's home, every morning at 8 a.m., O' Brien could probably find work for Smith "around Detroit."3 No member of the executive board was called by Respondents to deny Smith's testimony concerning what was said during his appearance before it on or about June 7, 1964. Smith reported to Collins and Catlin what had happened and was told, "we are sorry, we can't hire you without the permit. "4 Thereafter, Smith obtained a job as a mechanic; i.e., a job at other than his "trade" and over which Respondents do not claim jurisdiction . He continued to work for the same employer until the fall of 1964 when he was hired by K. G. Marks, Inc. D. Smith's Employment by Marks and his Efforts to Obtain a Permit From Respondents In early September 1964, the general superintendent of K. G. Marks, Inc., a Port Huron construction company, asked Smith if he would like to work for that Company again as a foreman and suggested that Smith talk to K. G. Marks, the president of the company.s Smith talked to K. G. Marks a day or two later and Marks told Smith that the Company would soon start building a reservoir at Saginaw, Michigan, and said that he would like Smith to act as foreman of the employees who would do the "resteel" work. Smith testified that he agreed to accept the job "with the understanding I would have to get clearance through Regis O'Brien"; i.e., obtain a dobie from or transfer into Local 426. About September 5, Smith called O' Brien 's office and spoke to Victor Vojick, the assistant business agent of Local 426. Smith explained that he was going to work for Marks on the Saginaw reservoir and wanted to know about getting a permit. Vojick told Smith "to have K. G. Marks call for [Smith] and ask for [him] to be sent out and for [Smith] to be in the hall and they would send [him] out." It was arranged for Marks to call about September 8. Vojick was not a witness and Smith's testimony in this respect is also undisputed. On the day set, Smith was at the union hall and sat in a position from which he could be seen. However, he was not sent out to the Marks' job or to any other job. He asked O'Brien if Marks had called for him, O'Brien answered in the affirmative but told Smith that he was "absolutely" not going to allow Smith to work for any contractor in Port Huron. O'Brien repeated his suggestion that if Smith wanted to come to Detroit every morning and take his chances with the "rest of the men," he would probably be sent out on a job.6 Smith asked for a "dobie" or permit to work for Marks but O'Brien refused, again saying "he would not let" Smith work for any contractor in Port Huron. K. G. Marks, Inc., did not have a contract with Local 426 or with the International and was not a party to any exclusive hiring arrangement with Local 426 or the International. The iron or resteel work on the Saginaw project was done by Marks directly and not by a subcontractor. Nelson Krick was the job superintendent of the project with authority to hire and fire employees. Smith was admittedly hired by Marks as a foreman and the undisputed testimony establishes that Smith's authority was such that he was a supervisor within the meaning of Section 2(11) of the Act during the first month or 6 weeks he worked for Marks on the Saginaw project. The undisputed evidence also establishes that an experienced ironworker may be hired as a journeyman "today," i.e., on one job, and "tomorrow," i.e., on another job, as a foreman. Whether a man is hired as a foreman or a rank-and-file employee depends on the number of foremen needed by the contractor and the latter's opinion of the applicant's experience and skill, such as his ability to read blue prints. E. Smith's Efforts to Obtain the Assistance of the International Shortly after the events set forth in the section immediately above, Smith called the International in St. Louis and spoke to J. R. Downes, the general secretary. He explained the situation and Downes told Smith to put t Evidence of events which occurred more than 6 months prior to the filing of the charge was admitted without objection Such evidence, of course, may be received to "shed light" upon events which occurred within the 6 months limitation period Local Lodge No 1424, Machinists (Bryan Mfg Co) v N L R.B , 362 U S 411, 417 Actually, Smith's failure to be hired by Collins and Catlin on or about June 8, set forth infra, occurred less than 6 months before the filing of the charge However, the complaint does not allege that Respondents violated the Act by their conduct in June and the evidence concerning the events at that time was introduced only as background Y Local 426 has "jurisdiction" over 34 counties including the county in which Port Huron is located. " Smith testified that if Collins and Catlin had a contract with Local 426, he was not aware of it but that, to his knowledge, the Company always employs Local "426 men " s Smith had worked for Marks as a foreman several years before He testified, without denial, that the foremen on such jobs "must be" union members "at all times " Both Smith and Marks denied that there was any "profit-sharing" arrangement between Smith and the Company in connection with the Saginaw project I credit their testimony 6 Smith testified without denial that there was more resteel work in the Port Huron area than qualified employees to do it and asked, "Why should I drive [to Detroit] when they can't get men within five minutes drive of my house" REINFORCED STEEL WORKERS 907 "everything" in writing and send it to the International which would "take action on it and give [him] some help." Downes was not called as a witness and Smith's testimony in this respect is also undisputed. A few days later, Guy Morrison, another representative of the International, called Smith and arranged a meeting with Smith at a Detroit hotel. At the meeting, Morrison had a copy of Smith's letter and said that Smith "should be entitled to transfer back" into Local 426 and that the International "would intervene on [his] behalf." Morrison first told Smith to see O'Brien and that he would talk to O'Brien and tell the latter to take Smith into the Local. However, Morrison changed his mind and told Smith to stay away from O'Brien saying that the International "would handle it." Smith reminded Morrison that because Marks was hiring him as a foreman, he would have to hire journeymen ironworkers and commented that if O'Brien refused to give him a dobie or a permit, O'Brien might be "reluctant" to furnish Smith with men. Smith asked what he should do in that case. Morrison told Smith to have Marks "go through the regular channels to get men from the union." Morrison said that if O'Brien ignored the requests, Smith "had permission from the International to work laborers, or anybody to do the job, to man the job .... [He] must man the job and ... had permission to do so." Morrison was not a witness and Smith's testimony in this respect is also undenied.7 F. The Efforts to Htre Resteel Men for the Marks' Job Smith reported his conversation with Morrison to Marks and was hired by Marks in late September 1964. He did "miscellaneous" work until about the middle of October when he reported to the Saginaw jobsite. The first week or two, he worked alone but he knew that he would need men before long and started calling reinforced steelworkers who lived in the area. These men were journeymen ironworkers who belonged to Local 426 and several members of Local 426 came by and asked for and were offered jobs. However, they said that "they would have to contact O'Brien" and let him know they were going to work in Saginaw . They came back shortly thereafter and told Smith that they could not work for him." William Bond , a member of Local 426 who was called as a witness by the Respondents , testified that he and another member of Local 426 went by the project and that Smith asked them to work because he needed men badly. Smith explained to Bond and the other men that "he had a problem with Mr. O'Brien," that the job had to be manned and he had to use "laborers "; i.e., men who were not members of the Union . Bond said that he did not "think" he intended to go to work on the Marks' job, that he told Smith that he and the other members of the Local "weren't going to work, we were going on vacation," and added that that was the way he "put it." Bond further testified that the reason he refused Smith's offer of a job was, "there were laborers there, and then his dispute with Mr. O'Brien. I didn 't want to get involved in anything, is about what it boils down to."9 Bond explained that he went to the project to "check to see who was on the job, see what the job looked like ." He added that he was "just checking to see if it was properly manned and to see who the company was and see who was on the job which is customary." In late October, i.e., not long after Smith arrived on the Saginaw jobsite, O'Brien came to the project , asked Smith what he was doing there , and told Smith "to get off the job until he got it straightened out." O' Brien also said that no one could work until the "thing was straightened out." Smith reported his conversation with O'Brien to Marks' general superintendent who called O'Brien . Smith, in turn, called Morrison, the International representative he had talked to earlier, and reported what had happened. It is undisputed that Morrison told Smith to "get back on the job and stay there and man it anyway [he ] could if Regis O'Brien would not let the regular iron workers work for" Smith. Morrison also told Smith to have no "contact" with O'Brien because the International would take care of the "matter." Job Superintendent Nelson Krick testified that he asked Smith to try to hire "rod busters and resteel men" and during the "first week or so" "we would go out in the evenings" and during the daytime, Smith would go out and look for men. Krick further testified , without objection, that "some of [the men] would say they would come out to work, and then they would call the hall and check in with the hall and then they would tell Mr . Smith afterwards they couldn't do it because they were instructed not to." In short, Smith was unable to hire "any union men." Krick was also present when Smith called the union "hall" in Detroit and, during the same call, Krick talked to O'Brien . Krick asked O'Brien to send some resteel workers to the job but all he "got was a lot of swearing and cussing and a flat no we wouldn 't get them unless we got rid of Raymond Smith." Krick called O 'Brien on another occasion and asked for resteel men and O ' Brien again told Krick that there would be no men until Marks "got rid of Raymond Smith ," that he would send men when Marks "got rid" of Smith . As set forth infra, the Company had no trouble obtaining men after the strike and the demotion of Smith. As a result of Marks' inability to hire any member of Local 426, Marks began using "laborers" to do the resteel work. These men were members of the Laborers' union but were not members of Local 426 and did not have the ' In their brief, Respondents ignore Smith's efforts to transfer have the "promise" of a job about 3 weeks later and agreed that into Local 426 or to obtain a "dobie" and state only that Smith the man with him was also unemployed Bond added that he and "had not reinstated his membership in [Local 426] since his the other man began working on December 9, but he admitted return from California in 1963 11 that he did not know, when he went to the Marks' jobsite, the date " O'Brien testified that "several people from the Saginaw area" on which he would be going to work reported to him that Smith was working as a foreman " Later, Bond asserted that he did not go to the project to apply for a job although he was not employed at the time He claimed to 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD training and skill of journeymen ironworkers.10 However, they learned rapidly and by late November Smith was well satisfied with the quality of their work. According to Smith, the laborers "eventually ... showed an interest in joining the iron workers" union. G. Respondents' Demands and the Picket Line at the Project On the "evening" of November 24, O'Brien went to the Company's field office at the Saginaw project and told Job Superintendent Krick that he was going to put a picket line on the project the next day unless Raymond Smith was off the job. Also present during the conversation were William Allore, the Carpenters' business agent, a Mr. Stockford of the Roofers' union, and Francis Hovey of the Laborers' union. One of the three asked why O'Brien would not send men to the job and O'Brien replied that there was one man on the job he wanted off "first" and identified the man as Raymond Smith. O'Brien asked Hovey to have his laborers stop doing resteel work and Hovey refused. O'Brien gave as his reason for wanting Smith taken off the job the fact that Smith's book was "out in California."" At 7:30 a.m. on November 25, which was the day before Thanksgiving, there was a picket line at the project and some if not all of the pickets were members of Local 426. None of the employees on the project would work and K. G. Marks called the International in St. Louis, reported the facts, asserted that the Company had "gone through all of the necessary steps to procure people from the hall," that no men had reported, and that the project was at a complete standstill because the other "trades" refused to work because of the picket line. The following telegram, dated St. Louis, 2:04 p.m., November 25, was received by Marks that afternoon: Following wire sent Regis O'Brien, Business Agent of our Local#426, Detroit, Michigan, quote Information received at this office reflects that you have placed an unauthorized picket line on the K. G. Marks, Inc., Saginaw Water reservoir project, Saginaw, Michigan. You are instructed herewith to immediately remove any pickets on this project and request from this office assistance in connection with your efforts to adjust any existing controversy between K. G. Marks, Inc. and your Local Union. This is for your information and in reply to your telegram of this date. J. R. Downes , General Sec'y., Intl. Assn . of Bridge , Structural and Ornamental Iron Workers in Marks testified without dispute that when no men were obtained from Local 426, the International was "contacted" and said if the "hall" cannot provide employees to use whatever men were available which he understood to mean carpenters, laborers, or anybody that "we could fill in with " As set forth supra, International Representative Morrison had given Smith permission to hire anyone he could if O'Brien ignored his requests for employees In their brief, Respondents make it appear that no effort was made to hire journeymen ironworkers but that, from the In the meantime, Marks talked to O'Brien and, in Marks' words, O'Brien "insisted" that the Company get rid of Smith but Marks "absolutely refused" to do so. Marks testified that the basis for O'Brien's position apparently was that Smith was a subcontractor. Marks replied that Smith was not a subcontractor and offered to show O'Brien his books but O'Brien said, "to hell with records. They don't mean anything." O'Brien also "cussed" Smith and, it appears, also made accusations or suggestions about Smith personally. O'Brien admitted at the hearing that he told Marks that "as long as Mr. Smith was on that job as foreman, I could not supply him with members" of Local 426. The next day was Thanksgiving and no one was required to work. However, the picket line reappeared on Friday, November 27. O'Brien was on the picket line and Marks and O'Brien had another meeting, this one fairly early in the morning. O'Brien told Marks that his Company would get no men and that the picket line would remain "unless [O'Brien] could man the job with a foreman appointed by [O'Brien]." Marks argued that Smith should continue as foreman but as he put it: even though the strike was unauthorized,. . . we had a job going and we had to meet certain deadlines and we were already behind because of various things, the weather, and I had to go along with the stipulation that [the Union] would appoint their superintendent but we would be able to keep Mr. Smith on the job. O'Brien told Marks that if he were permitted to appoint the foreman, the Company could have all of the resteel workers it needed and, in Marks' words, "we were never short on resteel workers after this point." O'Brien also sought an agreement that Smith would be the first man to be laid off but Marks would not agree to this proposal. After the Marks-O'Brien conversation, the picket line was removed and Marks testified without denial that "The guys left the picket line and went to work on the job." This meant that the laborers who had been doing the resteel work for about a month either returned to their former jobs or were laid off. Marks reported to Smith that the "best " he could do, other than to be faced with a long strike , even though the International said that the strike was illegal , was to reduce Smith to journeyman and replace him as foreman . Smith's replacement was Louis Crawford, a member of Local 426. first, Marks and Smith were determined to use laborers to do the resteel work. i i Another business agent, Joe Piquette, may also have been present However, Respondents did not call either Allore, Stockford, Hovey, or Piquette as a witness as they surely would have done if the testimony of any of them would have supported O'Brien's version of the meeting O'Brien admitted that he asked the business agents of the other unions to take their men off the job and that they refused to do so REINFORCED STEEL WORKERS 909 Smith's demotion meant a reduction in pay of about 50 cents an hour and the loss of certain benefits such as living expenses and free gasoline.12 O'Brien testified that the only reason for the picket line was "because the carpenters and laborers were doing what [he] regarded as iron workers' work . . . ." He also admitted that he was not seeking to cause the men doing the resteel work to join Local 426. Thereafter, the resteel work was done by Union "book" men, one "permit" man, and Smith. Smith quit on March 20, 1965, and, at the time of the hearing, was working as a bridge inspector. is Both Marks and O'Brien testified that during one of their conversations Marks suggested that O'Brien send him a contract, that he would look it over and sign it. However, O'Brien did not send Marks a copy of a contract, his asserted reason being that a new contract with other companies had just been negotiated and had not yet been printed. H. Analysis and Conclusions 1. Respondents' restraint and coercion of employees When Collins and Catlin wanted to hire Smith as a rank- and-file employee on or about June 1, 1964, Respondents refused either to admit him into membership in Local 426 or to give him a dobie or a permit to work. As a result, Smith was not hired and thereafter got a job as a mechanic. A few months later, K. G. Marks, Inc., offered Smith a Job as foreman but Respondents again refused to issue Smith a dobie or to transfer his membership into Local 426. However, Smith was hired by Marks but when the Company tried to hire members of Local 426 as rank- and-file employees, it was unable to do so either because of direct instructions from Respondents or because members, like Bond, were aware of the dispute between Smith and Respondents and did not want to run the risk of reprisals for accepting jobs which would be supervised by Smith. During the same period, Respondents refused to refer men to the Marks' job despite a number of direct requests. When the Company was unable to hire members of Local 426 to do the resteel work, it assigned members of the Laborers' union to work under Smith and they in fact did the resteel work for about a month. Then, on November 24, O'Brien told Job Superintendent Krick that there would be a picket line "unless Raymond Smith was [taken off] the job" and the project was in fact picketed on November 25 and on November 27, the next workday. After meeting with O'Brien, Marks agreed to and did demote Smith, and replaced him with a foreman who was a member of Local 426. In addition, Marks transferred or laid off the laborers who had been doing the resteel work and replaced them with members of-Local 426 or holders of permits or dobies issued by Respondents, the one exception being Smith. Respondents also sought, but without success, to obtain a promise from Marks that Smith would be the first man laid off when the amount of resteel work decreased. It is clear that the members of Local 426 were aware of O'Brien's attitude toward Smith and that the trouble Smith and Marks were having with Respondents stemmed from the fact that Smith was not a member of Local 426 and had not been issued a dobie or a permit by Respondents. The members of Local 426 also knew that, as a result of Respondents' conduct, Smith was replaced as foreman with a member of Local 426 and that the rank- and-file laborers were replaced with members of Local 426. Of course, the laborers themselves knew that they were replaced only because they were not members of Local 426 and did not have dobies or permits issued by Respondents. It is admitted that Marks and the Union were not parties to a collective-bargaining contract and Respondents do not deny that, absent a contract containing a valid union- security clause and/or a valid exclusive hiring hall arrangement, Marks had the statutory right to hire anyone he wanted to do the resteel work. Likewise, Respondents do not deny that a union and/or its agents violate the Act by forcing an employer to hire only union members either by direct agreement or via an exclusive hiring arrangement under which only members are referred or are given preference in referrals. And in their brief, Respondents concede that it is "known" from "innumerable past cases" that O'Brien "favors members over nonmembers and wields his authority accordingly." By their conduct, Respondents attempted to cause and largely succeeded in causing Marks to replace members of the Laborers with members of Local 426 or men holding dobies or permits issued by Respondents. O'Brien testified, when asked at the hearing why he put up the picket line, that the only reason was that "they were using laborers to place our reinforcing." (Cf. the contention in Respondents' brief that the purpose of the picket line was to cause Marks to sign a contract with Local 426.) Such conduct clearly restrained and coerced employees in the exercise of their right to become or remain or to refrain from becoming or remaining members of 12 O'Brien's testimony makes it clear that K G Marks, Inc , as well as Smith , was in his "bad books" because, according to O'Brien, Marks had used carpenters and laborers in the past to do resteel work As for Smith, O'Brien charged that in 1958, or earlier, Smith had worked during a strike He admitted, however, that he did not see Smith working but claimed that a report to this effect was made and that the Union started an investigation in 1956 or 1958 which was not completed because of a change in officers O'Brien also charged that Smith was "subcontracting" before he went to California and that he refused to work on jobs the Union referred him to because he wanted to work in Port Huron O'Brien 's testimony that he had no conversations with Smith between 1962 and the fall of 1964, i e , after Smith was working as a foreman for Marks, is not credited (Cf O'Brien's statement on cross-examination that the first time he saw Smith in 1964 was "either in the spring or summertime ") I also discredit O'Brien's testimony that he received no requests for resteel men on the Saginaw job before the strike (O'Brien's prehearing affidavit states that he received calls for men before the strike. O'Brien also referred at the hearing to the "trouble we had with K G Marks As far as supplying the people that were doing the work under Raymond Smith" and admitted that he told Marks that "as long as Mr Smith was on that job as foreman, I could not supply him with Union members.") Also discredited is O'Brien's testimony that he did not ask that Smith be taken off the Marks' project and his unlikely claim that Marks promised to continue to pay Smith the foreman's rate after his demotion to journeyman 13 Although Respondents argue that Smith did not want to work , at least as a journeyman resteel worker, he was willing to accept a job as such with Collins and Catlin in May-June 1964 and in fact worked for Marks as a journeyman between November 27, 1964, and March 20, 1965, i e , during the winter months when outside work is particularly disagreeable. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 426. Of course, the illegal effect of Respondents' conduct was not limited to the laborers who lost their jobs and other nonmembers of Local 426 but was, if anything, greater in the case of the members of Local 426 who were given proof that nonmembers of Local 426 can and do lose their jobs which are then given to employees who are members of Local 426 or who are acceptable to Regis O'Brien. It is self-evident that having seen this display of power over jobs, even with an employer who did not have a contract with Local 426, any member of Local 426 who was considering dropping out of the Union would hesitate to do so lest he find it difficult or impossible to obtain or retain jobs in the future. It follows, therefore, and I find that Respondents violated Section 8(b)(1)(A) of the Act by causing or attempting to cause Marks to transfer or layoff rank-and-file employees who were not members of Local 426 and to replace them with members of Local 426 or holders of permits or dobies issued by Respondent.14 However, it was recognized throughout the proceeding that the major issue in the case is whether Respondents' efforts to obtain the discharge of Smith, a supervisor, and their success in getting him demoted from supervisor to journeyman violated Section 8(b)(1)(A) of the Act; i.e., coerced and restrained employees in the exercise of their statutory rights. Although, generally speaking, supervisors do not come within the Act's protection, Respondents recognize in their brief that "There is an exception to the rule-if the coercive activity occurs under such circumstances as might deter employees from the exercise of Section 7 rights, then even though the coercive activity was directed solely against nonemployees, a violation of the Act is said to have resulted." (Emphasis supplied.) The congressional purpose in confining the Act's protection to employees and leaving employers free to discharge supervisors who belong to the same union as the rank-and-file employees was to assure employers of the undivided loyalty of their representatives. t' But to leave a union free, in the absence of a valid contract so providing, to demand that a supervisor be penalized because he is not a union member would either create or tend to create the very situation which Congress sought to avoid; i.e., that the loyalty of foremen would be divided at the very least or even that they would give their primary allegiance to the union rather than to their employer. And the possibility of this result is even greater in industries such as the one here in which a man may work as an employee much or most of the time and as a foreman only occasionally. This would be so because a man who is a foreman only part of the time could not fail to be aware that his job chances as a rank-and-file employee would be reduced if his actions, while a foreman, antagonized the union or its agents. It is probable that few employees are aware of the legislative history which discloses that Congress wanted to guarantee employers the undivided loyalty of their foremen but employees recognize that supervisors are management representatives and that , as such , it is their duty to represent management's interest, leaving it up to the bargaining representative to represent the employees' interests. In short, employees understand why management has the right to insist that its representatives do not "sit on both sides" of the labor- management table. Under these circumstances, rank-and-file employees would also understand that the fact that an employer discharges a foreman for activity on behalf of the employees' union does not mean that he will discharge rank-and-file employees for the same conduct. On the other hand, employees do not expect their employer to prefer that his supervisors belong to or be active on behalf of the employee union. Even in industries, such as the one here, in which foremen are customarily members of the same union as the employees, the latter surely do not believe that management regards foremen who are not union members as automatically undesirable from its point of view. 16 In any event, in the instant case, K. G. Marks made it abundantly clear that he wanted Smith as foreman of the resteel work and that, as far as he was concerned, Smith's lack of membership in Local 426 was immaterial. Although Marks did not object to Smith's efforts to become a member of Local 426 or to obtain a dobie from Respondents, he resented and resisted Respondents' demands that he discharge Smith because the latter was unable to join Local 426 or obtain a dobie. However, because Marks had to get the reservoir built and could not afford a long strike, he agreed to and did demote Smith and replaced him with a foreman selected by Respondents. The employees, both those who were and those who were not members of Local 426, were thus given ample evidence that Respondents' power was such that they could cause a reluctant employer to demote even a supervisor. If the Union was both willing and able to force Marks, who had no contract with Local 426, to hire only members as supervisors, the employees could have little doubt that the Union could and probably would make sure that union membership or a union dobie or permit was a 14 Although paragraphs 11 through 14 of the complaint describe the conduct discussed above, along with Respondents' efforts to obtain the discharge, demotion, and layoff of Smith, paragraph 15 of the complaint does not allege that Respondents violated Section 8(b)(1)(A) of the Act by causing or attempting to cause Marks to replace the laborers with members of Local 426. However, the complaint requested that Respondents be ordered to cease and desist from the acts set forth in "paragraphs 10 through 14, above ...." and in his brief, counsel for the General Counsel contended that Respondents violated the Act by causing Marks to replace the laborers with members of Local 426 or with men holding dobies or permits issued by Respondents. Respondents' demands with respects to the laborers, as well as Smith, were fully litigated and were, of course, motivated by the same fact; i.e., that they, like Smith, were not members of local 426. Finally, both demands were made at the same time and Respondents' picket line was designed to and did accomplish both results; i.e., the removal of Smith and the laborers. Under these circumstances , I do not regard myself as foreclosed from finding a violation based on the removal of the laborers. Sec Granada Mills , Inc., 143 NLRB 957, 958, fn . 1; Monroe Feed Store, 112 NLRB 1336 ; Eagle-Picher Mining & Smelting Co. v. N.L.R.B., 119 F .2d 903 ,910 (C. A. 8); Rocky Mountain Natural Gas Company, Inc. v. N.L.R.B., 326 F.2d 949, 951, fn . 3 (C.A. 10). Cf. N.L.R.B. v. Piqua Munising Wood Products Co., 109 F.2d 552, 557 (C. A. 6); Frito Company v. N.L.R .B., 330 F.2d 458 (C.A. 9). 15 See Vol. 1. Leg. Hist. of I.MRA, p. 304, ff. Is The custom in certain industries for foremen to retain their union membership may be due in part to the fact that the same man may be a foreman on one job and a rank-and-file employee on the next job . A requirement that such men must resign from the union during any period when they are foremen could be very expensive ; i.e., they would have to pay initiation fees repeatedly. Breaks in their union membership might also affect adversely their eligibility for union pensions or other similar benefits. REINFORCED STEEL WORKERS 911 condition precedent to obtaining and retaining a job as a rank-and-file employee. Furthermore, it is abundantly clear that Respondents first sought to force Marks to get rid of Smith by refusing to allow members of Local 426 to work on the project under Smith and it was only when this tactic failed that Respondents made their direct demands which they enforced by means of a picket line which closed down the entire project. In other words, Respondents' campaign against Smith included direct pressure upon employees; i.e., those members of Local 426 who were prohibited from working for Smith and who clearly were unwilling to work under Smith lest Respondents deprive them, in turn, of jobs on other projects either by seeing to it that they were not hired by union foremen or by refusing to refer them to jobs when employers asked for men. Thus, when viewed as a whole, Respondents' conduct put employees on notice that Local 426 and Regis O'Brien were determined to remove from the job every man, be he a supervisor or a rank-and-file employee, who was not a member of Local 426 or did not have a dobie or a permit issued by Respondents. To state it another way, Respondents' demands with respect to Smith and with respect to the laborers were so interrelated that the employees would be unable to distinguish between them and would view them as a single act the purpose of which was to reserve all resteel jobs for union members or for men who had the approval of the Union and/or Business Agent O'Brien. Indeed, Respondents' conduct made it clear to members of Local 426 that if they wanted to be hired as foremen, they had to be members of Local 426 or acceptable to Business Agent O'Brien while employees and that Local 426 and Regis O'Brien reward rank-and-file employees who are "good" union members by having them appointed foremen. In sum, the effect of Respondents' conduct which was directed at Smith was to cause members of Local 426 to abide by union policies; i.e., policies which bar members from working under supervisors who are not members or do not have dobies or permits and which bar them from working on jobs on which nonmembers or men without dobies or permits are working as rank-and-file employees. Needless to say, coercion and restraint can result from observing that nonmembers lose their jobs, not only as employees but as supervisors, and that members are rewarded by being given both supervisory and rank-and-file jobs formerly held by nonmembers. In fact, it is impossible to limit the effect of Respondents' conduct on Smith himself to those periods when he was working as a supervisor. As a matter of fact, Respondents' conduct probably meant that, in the future, Marks and other employers would be reluctant to hire Smith as a supervisor lest they would be unable to obtain qualified workmen and would be shut down by a picket line. Under these circumstances, it is probable that Smith, at best, can work at his trade only as a rank-and-file employee and the reasonable tendency of Respondents' conduct would be to restrain and coerce Smith, when he was not a supervisor, in the exercise of his statutory right to work, without being a member, for any employer who is not a party to a contract containing a valid union-security clause or a valid hiring hall agreement." Indeed, Respondents' attempt to secure an agreement that, after his demotion to journeyman, Smith would be the first man to be laid off, would restrain and coerce Smith during the period when he was employed by Marks as a nonsupervisor. Having considered Respondents' entire course of conduct and having considered the context in which Respondents' demands with respect to Smith occurred; i.e., at the same time that they demanded the removal of rank-and-file nonmembers, I find that their attempt to have Smith discharged and their success in getting him demoted constituted restraint and coercion of employees in the exercise of their statutory rights and, therefore, violated Section 8(b)(1)(A) of the Act. In my opinion, "It was inevitable" that members of Local 426 as well as nonmembers would regard Respondents' demands with respect to Smith and his resulting demotion as "symbolic" of what could and probably would happen to them if they were not members of Local 426, or sought to work without a permit, or worked for a foreman who was not a member, or worked on a job along with nonmembers of Local 426. A. O. Smith Corporation, Granite City Plant, 132 NLRB 339, 393. If Respondents were "powerful enough" to force a reluctant employer, such as Marks, to demote a foreman who "dared to stand up to [them], what chance would a plain rank-and-file employee have in a contest with [them] ?" The "clear message" to rank-and-file employees was that their present and future job opportunities, both as rank- and-file employees and as foremen, depended on Respondents' pleasure and "The threat to their job security" if they antagonized Respondents, as demonstrated by their power to cause Marks to demote a foreman he wanted to keep, "was as plain" as if Respondents had told the employees that they would be similarly punished if they sought to work contrary to Respondents' wishes."See also N.L.R.B. v. International Woodworkers of America, AFL-CIO [W. T. Smith Lumber Co.], 243 F.2d 745, 748 (C.A. 5) in which the union's conduct was directed at supervisors and independent contractors. In Oil City Brass Works, 147 NLRB 627, 629, 630, which involved the discharge of a foreman because he gave testimony adverse to the Company, the Board held that the discharge interfered with the employees' " As a practical matter, Respondents' refusal to admit Smith as a member of Local 426 or to give him a dobie means that he is barred from working at his trade either as a journeyman, as in the case of Collins and Catlin, or as a supervisor, as in the case of Marks Respondents' conduct also made it clear that their attitude toward Smith was the same without regard to whether the job he was offered was a supervisory or a rank-and-file job IS Although the court refused to enforce the Board's order in the above case, it did so on the facts, i e , because it disagreed with the Board's finding that the union was responsible for the foreman's demotion As for the contention that the Board had no jurisdiction because a foreman was involved, the court said, "We agree with the Board that if [the supervisor's] demotion was an unfair labor practice and if `the employees should regard [his] demotion as symbolic of what would happen to them if they were to exercise their statutory rights,' the Board had jurisdiction " A 0 Smith Corporation, Granite City Plant v N L R B, 343 F 2d 103, 111-112 (CA 7) 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizational rights because "in such situations, the employees would reasonable believe a similar fate would befall them" if they testified adversely to the employer.' 9 I am also convinced that, in the instant case, the employees would also regard the designation as foreman of member Louis Crawford as a replacement for Smith as "symbolic" of the benefits which the Union and Business Agent O'Brien can and do obtain for rank-and-file employees who are members of Local 426, thereby further encouraging employees to become and remain members of the Union, to abide by its rules and to do nothing which might antagonize Business Agent O'Brien. It is well established that the test of restraint and coercion is the effect on employees of the conduct involved (N.L.R.B. v. Ford Brothers, 170 F.2d 735, 738 (C.A. 6)) and that the effect of similar conduct may be different because the parties involved are different or because of the context in which it occurred. It is the Board's duty to consider the congressional purpose in enacting the various provisions of the Act and to prevent and remedy restraint and coercion of employees by both employers and unions. I do not believe that the Board's duty is any the less because the restraint and coercion resulted from conduct directed at a supervisor or because a supervisor may benefit as a result . And, as pointed out previously, a finding of a violation here does not conflict with but instead effectuates the congressional policy of guaranteeing employers the undivided loyalty of their supervisors and to hold otherwise would create the very result Congress sought to prevent. It was Respondents who chose to enforce their demands that only members or holders of a dobie or a permit be hired, either as a supervisor or as rank-and-file employees, and they sought to achieve that result by conduct which was directed not only at Supervisor Smith but which involved equally a refusal to allow members to work under Smith, a refusal to allow members to work with rank-and- file nonmembers, and finally a demand that both Supervisor Smith and the rank-and-file employees be replaced with members. I believe that the employees would view Respondents' conduct as a whole and, in my opinion, the Board may properly view their conduct with respect to Smith as so interrelated with their other conduct that it is impossible to disentangle the effect on the employees of the various parts thereof. 2. Respondents' efforts to cause employers to follow the practice of hiring or retaining only those nonmembers of Local 426 who have permits or dobies The Board's earlier Order, the decree of the court of appeals enforcing the Order, the stipulation subsequently entered into by Local 426 and Business Agent O'Brien personally, the adjudication in civil contempt, all set forth supra, and the facts found herein make it clear that Respondents seek to cause employers to follow a practice of hiring or retaining only members of Local 426 or those nonmembers who have been issued a dobie or a permit by Respondents, and the facts set forth above also establish that Respondents seek to impose such a practice upon employers who are not parties to collective-bargaining contracts containing a valid union-security clause or a valid hiring hall arrangement. The replacement of nonmembers on the Marks' project with "book" members primarily also discloses that members of Local 426 may be hired or retained without such dobies or permits. However, because of the prior proceedings, no order will be issued based upon Respondents' conduct in this respect. Of course, this does not mean that Respondents' insistence that nonmembers can be hired or retained only if they have been issued a dobie or a permit has not been considered insofar as it sheds light on or explains their actions with respect to both Smith and the rank-and-file employees doing the resteel work before Respondents made their demands and established the picket line.2o CONCLUSIONS OF LAW I. K. G. Marks, Inc., is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Reinforced Steel Workers Local 426, International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act and its business agent, Regis O'Brien , is its officer or agent. 3. Respondents coerced and restrained employees in violation of Section 8(b)(1)(A) of the Act by causing or attempting to cause K. G. Marks, Inc., to discharge or to demote Smith and to agree that , following his demotion, Smith would be the first rank-and-file employee to be laid off and by causing or attempting to cause K. G. Marks, Inc., to replace rank-and-file employees who were not members of Local 426 with members of Local 426 and/or holders of a permit or dobie issued by Local 426 and its officers or agents , particularly Business Agent Regis O'Brien. 4. Respondents violated Section 8(b)(1)(A) of the Act by seeking to maintain a practice under which employers are required to hire or retain as rank -and-file employees only members of Local 426 or holders of a permit or dobie issued by Respondents even though the employers are not parties to a contract which contains a valid union -security clause or a valid exclusive hiring hall agreement. THE REMEDY As indicated previously, the unfair labor practices found above were, in part, the basis for an adjudication in civil contempt which provided that Respondents could purge themselves of their contempt by taking certain action which included notifying employers, including K. G. Marks, Inc., that they would cease and desist from engaging in certain conduct and by posting notices to that '" Although the court enforced the Board's order in the above case, it did so on the limited ground that the Board must and has the power to protect its witnesses. Oil City Brass Works v N L R B , 357 F 2d 466, 470 (C A 5) Being a case against an employer, the court had no reason to consider the distinction, pointed out above, between union and employer action directed at supervisors Its opinion does not indicate whether or not its decision in the Woodworkers' case, cited above, was brought to its attention. "' Although the petition for adjudication in civil contempt refers to the demotion or discharge of the laborers, the relief requested therein did not include a provision that Respondents make the laborers whole for any losses they may have suffered by reason of Respondents' unfair labor practices Under these circumstances I do not believe that findings and an order based thereon duplicate or conflict with the contempt proceedings REINFORCED STEEL WORKERS 913 effect. Under these circumstances, I do not believe that a second order, which is merely a duplication of what has already been done, is either necessary or proper. However, I believe that a second order is necessary to remedy fully Respondents' illegal conduct which was directed at Smith and the laborers who were taken off the resteel work as a result of Respondents' demands and the picket line. It is clear that Smith will be unable to find employment at work under the jurisdiction of Local 426, either as a supervisor or a journeyman, unless he can give employers assurance that Local 426, its agents and officers, particularly Business Agent O' Brien , will not picket their jobsites because Smith is employed there and will not engage in any other conduct which will prevent or delay getting the work done such as by refusing to refer employees, on request, by refusing members of Local 426 permission to work on the job under or with Smith, and by causing members to refuse employment under or with Smith because they fear that Respondents will deny them employment by refusing to refer them, or by causing foremen who are members to refuse to hire them, or by taking some other action which will reduce their job opportunities. Therefore, the order will direct Respondents to deliver to the Board a signed statement addressed to Smith which is designed to reduce the reluctance of employers doing resteel work to hire Smith either as a supervisor or as a journeyman.21 I believe that in order to expunge the effect of Respondents' illegal conduct, it is also necessary for Respondents to make Smith and the laborers whole for any losses they may have suffered as a result of Respondents' demands and picket line. The order will so provide and any backpay found due Smith and the laborers will be computed on the basis of the formulas set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. The record indicates that the resteel work on the Saginaw project has long since been completed; if not, it is understood that Respondents are not liable for any backpay to either Smith or the laborers after the date on which such work was (or is) completed. As noted supra, Respondents first sought to enforce their illegal condition for obtaining or retaining employment by refusing to refer men to the project when requested to do so, by causing by direct or indirect means members of Local 426 to refuse to work under Supervisor Smith or on a project on which rank-and-file employees were working who were not members of Local 426 or who did not have a dobie or a permit issued by Respondents. In my opinion, the illegal effect of Respondents' conduct will remain unexpunged unless members of Local 426 and holders of a dobie or a permit are notified that Respondents will not interfere, directly or indirectly, with their job opportunities because they work under or with Raymond Smith. Accordingly, the order will direct Respondents, upon being furnished by the Regional Office with a sufficient number of copies of the notice, to sign and return to the Regional Office a copy to be mailed to each member or holder of a dobie or permit on the date of which this decision and order issues. The order will also direct 21 Of course, a valid contract is no defense in the case of Smith because of Respondents' refusal either to admit him to membership in Local 426 or to give him a dobie or a permit Respondents to furnish the Regional Office a stamped envelope addressed to each such member and dobie or permit holder. The mailing requirement is based on the large area over which Respondents have jurisdiction (34 counties) and the probability that members of Local 426, at least, will not see a copy or copies of the notice posted at Respondents' Detroit office. Respondents will also be directed to sign and return to the Regional Office, upon being furnished by the Regional Office with a sufficient number of copies of the notice, a sufficient number of copies to enable the Regional Office to send a copy of the notice to each laborer who ceased doing resteel work as the result of Respondents' demands and picket line. In this case, Respondents will be required to provide the Regional Office with a stamped envelope addressed to each such laborer for whom the Regional Office is able to furnish, within 60 days, an address. In order to expunge the effect of Respondents' conduct, the notice, which is the only document ordinarily seen by employees, must inform them of their statutory rights and that Respondents, in the absence of a valid contract making membership a condition of employment, are not permitted to prevent nonmembers from being hired to do resteel work and are not permitted to reserve, either by direct or indirect means, jobs for members. The testimony of union member Bond suggests that he would have accepted a job under Smith had he not feared that if he did so, Respondents would reduce his job opportunities by direct or indirect action. It is thus evident that Respondents' ability to enforce illegal conditions of employment depends in part upon their control over the job prospects of members of Local 426 and men who are issued a dobie or a permit by that Union and its officers and agents. Because Respondents seek to force employers to hire only members or holders of a permit or dobie, Respondents will be directed to cease and desist from engaging in any conduct which restrains and coerces employees in the exercise of their statutory rights which include the right, in the absence of a valid contract, to work without being a member of Local 426 and without obtaining a dobie or a permit. RECOMMENDED ORDER Based upon the entire record in the case and the foregoing findings of fact and conclusions of law, it is recommended that Respondents, Reinforced Steel Workers Local426, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, its officers, agents, successors, and assigns, and Regis O'Brien, business agent of Local 426, shall: 1. Cease and desist from: (a) Restraining and coercing employees, including members of Local 426 and men who have been issued a dobie or permit by that Union or its agents, including Business Agent Regis O'Brien, by causing or attempting to cause, by any means, K. G. Marks, Inc., or any other employer, to refuse to hire, to discharge, demote, or otherwise limit the employment of Raymond E. Smith as a supervisor or as a journeyman because he is not a member of Local 426 and does not have a dobie or a permit issued by Respondents or their agents; the means prohibited include, but are not limited to, direct demands, picketing, refusing to refer men on request, refusing to permit members and dobie and permit holders to work under or 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Smith, and causing members and holders of a dobie or a permit to refuse to accept such employment because they fear that if they do so, Local 426, its agents and officers, particularly Business Agent Regis O'Brien, will reduce their own job opportunities by direct or indirect action such as by refusing to refer them to jobs and by causing foremen who are members of Local 426 to refuse to hire them. (b) Restraining and coercing employees by causing or by attempting to cause K. G. Marks, Inc., or any other employer, to refuse to hire, to transfer, to lay off, or to discharge rank-and-file employees because they are not members of Local 426 or have not been issued a dobie or a permit by Local 426 or by its officers and agents, particularly Business Agent O' Brien , unless such action is permitted by a valid collective-bargaining contract. (c) Engaging in any other conduct which restrains and coerces employees in the exercise of the rights guaranteed them by the Act, including the right to work without being a member of Local 426 or without a •dobie or a permit unless such a requirement is provided for in a valid collective-bargaining contract. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make Raymond E. Smith, who was demoted from his position as supervisor, and the laborers who were replaced on the Marks' Saginaw reservoir project whole for any losses they may have suffered because of Respondents' unfair labor practices; any backpay found due is to be computed in the manner set forth in the section of this Decision entitled "The Remedy." (b) Furnish the Regional Director for Region 7 of the National Labor Relations Board with a signed statement addressed to Raymond E. Smith which states that they do not object to his employment as a supervisor of resteel work or as a journeyman doing such work because he is not a member of Local 426 and has not been issued a dobie or permit, that they will not cause or attempt to cause employers to refuse to hire him, to discharge him, or to demote him, or otherwise limit his job opportunities by engaging in any conduct including, but not limited to, the making of demands on his employers, by picketing the job on which Smith is working, by refusing to refer men, on request, by causing or attempting to cause members of Local 426 or holders of a dobie or a permit to refuse to work under or with Smith, either by issuing instructions or by causing such men to refuse to work under or with Smith because they fear that, if they do so, Respondents will reduce their job opportunities either by direct or indirect means, including, but not limited to, refusing to refer them or by causing foremen who are members of Local 426 to refuse to hire them. (c) Sign and return to the Regional Director for Region 7, upon being furnished by the Regional Office with a sufficient number of copies, a copy of the attached notice marked "Appendix," to enable the Regional Office to mail a copy to each man who, on the date on which this Decision and Order issues, is a member of Local 426 or holds a dobie or permit issued by Local 426 or its officers or agents, particularly Business Agent O'Brien; furnish the Director of Region 7 a stamped envelope correctly addressed to each member and holder of a dobie or a permit on the date provided above. (d) Sign and return to the Regional Director for Region 7, upon being furnished by the Regional Office with a sufficient number of copies, a copy of the notice to be mailed to each laborer on the Marks' Saginaw reservoir project who was transferred, demoted, laid off, or discharged as a result of Respondents' demands and picket line; furnish the Regional Director a stamped envelope addressed to each such laborer whose address is furnished to Respondents by the Regional Office within 60 days of the date on which this Decision and Order issues. (e) Make available to the Board or its agents, upon request, any and all records necessary to enable it or them to determine whether Respondents have signed sufficient copies of the notice and have furnished a sufficient number of stamped, correctly addressed envelopes to enable the Regional Office to mail a copy of the notice to the persons named in section 2(c) of this Order. (f) Post at their Detroit, Michigan, office and at any other place where notices to members are customarily posted, copies of the attached notice marked "Appendix."22 Copies of said notice, to be furnished by the Regional Director for Region 7, after being duly signed by a representative of Local 426 and by Regis O'Brien personally, shall be posted by them immediately and maintained by them for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that such notices are not altered, defaced, or covered by any other material. (g) Notify said Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps they have taken to comply herewith.23 22 In the event that this Recommended Order is adopted by the Board, the words "a Decision 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 " za In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE Pursuant to an 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 engage in any conduct the purpose of which is to cause K. G. Marks, Inc., or any other employer doing work which falls within our jurisdiction, to refuse to hire, to discharge, to demote, to lay off, or to otherwise limit the job opportunities of Raymond E. Smith, either as a supervisor or a journeyman, because he is NOT a member of Reinforced Steel Workers Local 426, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or has not been issued a dobie or a permit. WE WILL NOT engage in any conduct the purpose of which is to cause or to attempt to cause K. G. Marks, Inc., or any other employer, to remove employees doing resteel work because they are not members of Local 426 or do not have a dobie or a permit and to REINFORCED STEEL WORKERS replace them with members of Local 426 or dobie or permit holders unless such action is permitted by a valid collective-bargaining contract. WE WILL NOT refuse to refer men to K. G. Marks, Inc., or to any other employer, upon request, or picket a K. G. Marks, Inc., project or the project of any other employer because Raymond Smith is employed on the job either as a supervisor of resteel work or as a journeyman resteel worker. WE WILL NOT deny members of Local 426 or holders of a dobie or a permit permission to work on any project because Raymond Smith is working there either as a supervisor of resteel work or a journeyman resteel worker. WE WILL NOT deny, by direct or indirect means, including, but not limited to, refusing to refer them or causing foremen to refuse to hire, members of Local 426 or holders of a dobie or a permit job opportunities because they do resteel work under or with Raymond Smith. WE WILL pay Raymond Smith and the laborers doing resteel work on the K. G. Marks, Inc., Saginaw reservoir project for any losses they may have suffered because of our demands and picket line on or about November 25-27,1964. WE WILL furnish Raymond E. Smith with a signed statement which will notify him and prospective employers that we do not object to his employment as a supervisor of resteel work or as a journeyman doing such work because he is not a member of Local 426 and has not been issued a dobie or a permit, that we will not cause or attempt to cause employers to refuse to hire him, to discharge him, to demote him, to lay him off, or in any other manner to interfere with his job opportunities by engaging in any conduct including, but not limited to, the making of demands on his employer, by picketing the job on which he is working, by refusing to refer men, on request, to his employer, by causing or attempting to cause members of Local 426 or holders of a dobie or a permit to refuse to do resteel work under or with Smith, either by issuing instructions or by causing members and holders of a permit or dobie to refuse to work under or with Smith because they fear that, if they do so, we will reduce their job opportunities either by direct or indirect means, including, but not limited to, refusing to refer them on by causing foremen to refuse to hire them. ALL EMPLOYEES, including members of Local 426 and each holder of a permit or dobie issued by us, are free to work on any project on which the resteel 915 supervisor or supervisors and/or the employees doing such work are not members and/or do not have a dobie or a permit unless such a requirement or requirements are contained in a valid collective- bargaining contract. WE WILL NOT cause or attempt to cause K. G. Marks, Inc., or any other employer, by making demands, or by setting up a picket line, or by engaging in any other conduct, to appoint as a supervisor of resteel work a rank-and-file employee who is a member of Local 426 or holds a dobie or a permit unless such a requirement is included in a valid collective-bargaining contract. ALL EMPLOYEES are free to do resteel work, either as a supervisor or a journeyman, although they are not members of Local 426 or do not have a dobie or a permit unless membership, or a dobie or a permit, is required by a valid collective-bargaining contract. WE WILL NOT engage in any other conduct which restrains and coerces employees in the exercise of the rights guaranteed them by the Act, including the right to work without being a member of Local 426 or without a dobie or a permit unless such a requirement is provided for in a valid collective-bargaining contract. REINFORCED STEEL WORKERS LOCAL 426, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO (Labor Organization) Dated By (Representative) (Title) REGIS O'BRIEN, BUSINESS AGENT OF LOCAL 426 By Dated (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. If persons have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 226-3244. 298-668 0-69-59