Lake County, Indiana, Carpenters

LAKE COUNTY, INDIANA , CARPENTERS Lake Counri, Indiana and Vicinity District Council of the 1 mted Brotherhood of Carpenters and Joiners of America and Richard Matzat and Wilbur Kouw and Tonn and Blank, Inc , Party of Interest Tonn and Blank , Inc and Wilbur Kouw Tonn and Blank , Inc and Lake County, Indiana and Vicinity District Council of the United Brotherhood of Carpenters and Joiners of America Cases 25-CB-861, 25-CB-861-2, 25-CA-3350, and 25-CA-3385 April 29, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND JENKINS On October 13, 1969, Trial Examiner Joseph I Nach- man issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recom- mending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision Thereafter, the Respondents filed exceptions and briefs in support and the General Counsel filed exceptions and a brief in support Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel The Board has reviewed the rulings of the Trial Exam- iner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein i ' The Respondent Union and the Respondent Employer except to the Trial Examiners conclusion that there existed an arrangement or understanding between the Union and the Employer that the latter would employ only those persons who were members of or had been cleared by the Union They contend that the complaint did not allege any illegal arrangement the bill of particulars submitted by the General Counsel did not refer to any illegal arrangement and the opening statement by the General Counsel made it clear that no illegal hiring arrangement was claimed While the complaint and the bill of particulars do not contain specific allegations that there existed an illegal arrangement or understanding between the Union and the Employer such issue was closely related to specific allegations found within the complaint Respondents did not claim surprise and the issue was never specifically removed from the case at the hearing Although the written contract between the Respondent Union and the Respondent Employer was not in issue in view of the agreement between the General Counsel and the Respondents at the hearing not to litigate the written contract containing union security clauses we find that such agreement did not preclude the General Counsel from litigating the issue of the existence of an illegal oral arrangement or understanding Accordingly we find that the Trial Examiners findings are supported by record evidence and that the issue of the existence of an unlawful oral understanding or arrangement between the Respondents was fully litigated by the parties at the hearing We further find that such issue was relevant that there is no evidence of surprise or that the Respondents were ORDER 233 Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that Respondent, Lake County, Indiana and Vicin- ity District Council of the United Brotherhood of Carpen- ters and Joiners of America, La Porte, Indiana, its officers, agents, and representatives, and Respondent Tonn and Blank, Inc , Michigan City, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified I Delete from paragraph A, 1, (c), of the Recommend- ed Order against the Company "like or related," and substitute therefor "other manner" between the words "any" and "interfering " 2 Paragraph A, 2, (a) is modified as follows "(a) Offer to Richard Matzat and Wilbur Kouw imme diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, as provided in the section hereof entitled The Remedy " 3 Insert in paragraph B, 1 of the Recommended Order against the Union a new paragraph "(c) Entering into any agreement or understanding with Tonn and Blank, or any other employer, requiring clearance from or membership in Lake County, Indiana and Vicinity District Council of the United Brotherhood of Carpenters and Joiners of America, as a condition of employment, except to the extent authorized by Sec- tion 8(a)(3) of the Act " 4 Insert in Appendix A between the first and second indented paragraphs a paragraph stating WE WILL NOT enter into any agreement or under- standing with Lake County, Indiana and Vicinity District Council of the United Brotherhood of Car- penters and Joiners of America, or any other labor organization, requiring clearance from or member- ship in a labor prganization as a condition of employ- ment, except to the extent authorized by Section 8(a)(3) of the National Labor Relations Act, as amended 5 The third indented paragraph in Appendix A is modified as follows not properly afforded an opportunity of defense concerning such issue and that such understanding was directly responsible for the discriminato ry termination of Matzat and Kouw Respondent Employer contends that Tews was never in the hearing room and that the Trial Examiner was wrong in finding that Tews w is in the he inng room ind crediting Kouw s testimony bec muse of Tews failure to testify We find it unnecessary to resolve this apparent conflict between the Employer and the Trial Examiner with respect to whether or not Tews was present at the hearing in view of our finding herein that the Trial Examiner did not credit Kouw s testimony on the basis of Tews failure to testify The Trial Examiner credited the testimony of Kouw and noted without attaching any specril signi ficance that Tews though present in the courtroom did not testify We find it unnecessary to rely on the Trial Examiners inference that no other nonunion men were on the jobs 182 NLRB No 39 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to Richard Matzat and Wilbur Kouw immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions , without prejudice to their seniority and other rights and privileges 6 Insert in Appendix B between the first and second indented paragraphs a paragraph stating WE WILL NOT enter into any agreement or under- standing with Tonn and Blank , Inc , or with any other employer , requiring clearance from or mem bership in Lake County, Indiana and Vicinity Dis- trict Council of the United Brotherhood of Carpen ters and Joiners of America , AFL-CIO, as a condi- tion of employment, except to the extent authorized by Section 8(a)(3) of the Act, as amended TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I NACHMAN, Trial Examiner These cases tried before me at Michigan City, Indiana, on June 30, July I and 2, 1969, involve three complaints' consoli- dated for hearing In totality the complaints allege that Lake County, Indiana and Vicinity District Council of the United Brotherhood of Carpenters and Joiners of America (herein the Union) caused at attempted to cause Tonn and Blank, Inc (herein Company), to hire or continue to employ only those persons referred or cleared by the Union, instead of Richard Matzat and Wilbur Kouw (herein Matzat and Kouw), then employed by the Company, and to whom the Union had initially granted but thereafter refused a work permit, and that the Company discharged and refused to reinstate Matzat and Kouw because they lacked a valid permit from the Union The Employer and the Union, respectively, filed answers to the complaints admitting certain allega tions of the complaints, but denying the commission of any unfair labor practice For reasons hereafter stated, I find and conclude that the evidence establishes a violation of Section 8(b)(2) and (1)(A) of the Act by the Union, and of Section 8(a)(3) of the Act by the Company, and I recommend an appropriate remedial order against both Respondents At the tiial the respective parties were represented by counsel, and were afforded full opportunity to intro- duce relevant evidence , to examine and cross -examine witnesses, to argue orally on the record, and to submit briefs Oral argument was waived Briefs submitted by the respective parties have been duly considered ' On April 2 1969 complaint issued in Cases 25-CB-861 and 861-2 based on a charge filed by Richard Matzat on January 22 1969 and amended February 24 1969 as well as a charge filed by Wilbur Kouw on February 12 1969 On April 17 1969 the aforementioned complaint was amended to include Case 25-CA-3350 based on a charge filed on March 5 1969 by Wilbur Kouw against Tonn and Blank Inc On May 13 1969 a complaint issued in Case 25-CB-3385 based on a charge April 11 1969 by Attorney Mamet as counsel for Lake County District Council of Carpenters against Tonn & Blank Inc On May 13 1969 an order issued consolidating the three complaints for hearing Upon the entire record in the case,' including my observation of the demeanor of the witnesses while testifying, I make the following FINDINGS OF FACT3 Background Contract provisions The Company is engaged in and about Michigan City, Indiana, as a general contractor in the building and construction industry, and along with about 600 other contractors, is a party to a collective-bargaining agree ment with the Union which became effective August 1, 1968, and runs through May 31, 1970 The contract contains , inter alia, the following provisions ARTICLE I RECOGNITION Section 1 Bargaining Unit The bargaining unit shall be comprised of all employees engaged in the work described in Section 2 of the Article X hereof Section 2 Recognition The EMPLOYER recog- nizes the UNION as the sole and exclusive collec- tive bargaining representative for the employees now or hereafter employed in the bargaining unit, with respect to wages, hours of work and all other terms and conditions of employment Section 3 Equal Representation The UNION, realizes its duty under the National Labor Relations Act, as amended, and to the extent that it is the exclusive representative, recognizes that it must represent all employees in the bargaining unit equal- ly, without discrimination, irrespective of member- ship or non-membership in the UNION ARTICLE II UNION SECURITY Section 1 Maintenance of Membership All employees who are or become members of the UNION shall maintain their membership in the UNION as a condition of continued employment Section 2 Discharge Members of the Union who fail to maintain their membership in the 2 The General Counsel has filed with me and served on all other parties a motion to correct the transcript of evidence in certain respects set forth in said motion No opposition having been received and deeming the corrections necessary to accurately reflect the proceedings before me the motion s granted and the transcript corrected accordingly 3 No issue of commerce or labor organization is presented The complaints allege and the answers admit facts which establish these jurisdictional allegations I find these facts to be as pleaded LAKE COUNTY, INDIANA, CARPENTERS 235 UNION shall, upon request of the UNION, be discharged ARTICLE VIII NO DISCRIMINATION-EQUAL BENEFITS- EQUAL OBLIGATION Section 1 Membership in Union Not Compulso- ry Joining the UNION is not compulsory Neither party shall exert any pressure on or discriminate against an employee as regards such matters * ARTICLE IX HIRING AND NOTICE Section 1 Responsibility for Hiring The EMPLOYER shall have the sole and exclusive responsibility for hiring and may hire from any source it desires without paying heed to membership in the UNION or referral or clearance therefrom Section 2 No obligation to Refer The UNION shall have no obligation to refer prospective employ- ees to the EMPLOYER but may do so if it desires 4 Company's hiring practices Company Vice President 0 J Blank testified with respect to the hiring practices followed by his Company, particularly with respect to carpenters, and also that, while job superintendents have authority to hire and fire, they are under instructions that such hiring and firing must be without regard to union affiliation Blank's testimony in that regard is uncontroverted Blank tes- tified, as he stated in his prehearing affidavit, that, to keep his crews employed to the fullest extent, men are transferred from one job to another, as the volume of work may require and the skills of the employees may dictate The Company interviews and employs men at its general offices in Michigan City, this being done by its general superintendent His first approach is to recall carpenters who may have been laid off for lack of work 5 If this does not fill his needs, he calls other persons whom he may know who might be available " The contract also provides (art VIII) that (1) as the Union will represent all employees in the unit union and nonunion fairness demands that all employees pay their fair share of the cost of obtaining and enforcing the benefits under the contract and (2) in accordance with such policy nonmembers in the unit will pay to the Union as their bargaining representative an amount equal to that paid by members for the usual initiation fees and dues Although the General Counsel argues that this provision is a form of union security from which he infers some kind of illegality the uncontradicted evidence is that this contract provison was not enforced and that the fees therein referred to were not collected have no relation to and are separate and apart from the permit or service fees hereafter discussed 3 This is to reduce unemployment compensation costs for work If this does not satisfy requirements, the Union is notified that specific numbers of men of desig- nated skills are needed at a particular Iobstte Additional- ly, if needed, advertisements are placed in the local newspapers and applicants from the street are hired at the jobsite if they possess the necessary skills and work is available at the particular job Except for the transfer of men from one job to another, and the recall of men previously employed, the remaining sources of labor are not pursued in any particular order, but in a mariner calculated to best satisfy the Company's needs Blank further testified without contradiction that, when applicants for employment are interviewed, no inquiry is made as to union status or lack thereof, nor is any report made to the Union that a particular applicant was, or was not, hired According to Blank, there is no obligation on the Company to employ carpen ters who are referred by the Union While job superintendents have authority to hire and fire for their job after first clearing with the general superintendent, the j have specific instructions that, when interviewing an applicant for employment, they are not to ask if the applicant is a union member, whether he has cleared with the Union, or whether he has a referral slip Vernon Johnson, the Company's superin- tendent at the Holiday Inn job in LaPorte, Indiana, one of the jobs involved in this proceeding, testified without contradiction that, after checking with the gener- al superintendent as to available men by way of transfer from other jobs, he may hire from any source, and has at times hired persons who came to the job looking for work, as well as men sent by the Union pursuant to his request According to Johnson, when hiring a new man he makes no inquiry with respect to union status, does not request evidence of union clearance, nor does he report to the Union that he has hired or refused to hire any applicant for employment Not- withstanding this uncontroverted testimony with respect to the Company's nondiscriminatory hiring practices, the uncontradicted testimony in this record shows that all carpenters on the two jobs involved in this proceeding were members of the Union except Matzat and Kouw, who were initially permit holders referred to the Compa- ny by the Union Work records of Matzat and Kouw Apparently not knowing each other, Matzat and Kouw as out-of-jurisdiction men solicited the Union for avail able work in the LaPorte area, in late July or early August 1968 Matzat was a member in good standing of Carpenters Local 3220, Winnebago, Illinois, and Kouw a member in good standing of Local 1908, Holland, Michigan, neither Local being affiliated with Respondent Union Notwithstanding Matzat's membership in the Winnebago Local, he in fact has resided for some time at Knox, Starke County, Indiana, within the jurisdiction of the Union, and had sought, but unsuccessfully, to transfer his membership to a local affiliated with Respondent Union Because they construed the constitu- tion and bylaws of the International Union as imposing 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon them the duty to obtain a work permit when working outside the jurisdiction of their home local, Matzat and Kouw separately went to the Union and spoke with Union Business Agent Bolen regarding the availability of work and a permit to work in the Union's jurisdiction Both received a permit from Bolen and were referred by him to jobs of employers other than the Company here involved Each month up to and including the month of December, 1968, the permits were renewed upon payment of the appropriate fee s On October 21, 1968, a number of carpenters, includ- ing Matzat and Kouw whose prior jobs had terminated, were in the union hall seeking work Bolen announced that he had a request for four carpenters on the Holiday Inn job at LaPorte, Indiana, which began in July or August, and on which the Company was the general contractor Matzat and Kouw volunteered for the work and were sent by Bolen to that job ' Each was given a slip, which the General Counsel calls a "referral slip," and the Union calls ' an introductory slip "" Mat- zat and Kouw delivered these slips to Job Superintendent Johnson, who interviewed them at different times, and, apparently satisfied with their qualifications, hired both men to work on that job Although Johnson did not request it, Matzat and Kouw showed Johnson the work permits issued them by the Union for the month of October Matzat worked on the Holiday Inn job until his employee status ceased on January 15,9 under circum- stances hereafter detailed Kouw worked at the Holiday Inn job but a few days and was transferred to other company jobs, until his employee status ended on Janu- ary 15, as hereafter detailed While the termination of employee status of Matzat and Kouw are in some respects identical , there are some significant differences, hence they will be discussed separately Events as to Matzat Matzat worked Thursday and Friday, January 2 and 3 He was off ill Monday through Wednesday (January 6-8), but worked the following Thursday, Friday, and Monday (January 9, 10, and 13) While Matzat was off ill, Gladys (Bolen's secretary) called the jobsite and spoke with Johnson She asked for Matzat but, being informed that he was out ill, asked Johnson to tell Matzat to come to the union hall and get his permit " The initial permit was issued to Matzat on August 5 1968 and the renewals are dated September 4 October 2 November 11 and December 9 In the case of Kouw the record does not indicate the dates his August and September permits were issued but renewals were issued to him October 3 November 1 and December 2 1968 All renewals were issued by Bolen s secretary and show the name of the employer for whom Matzat and Kouw were working when the permit was issued ' Whether Bolen made referrals for the other two jobs the record does not disclose 9 I find it unnecessary to decide which label if either is correct It is sufficient for the purposes of this case that on its face the slip which bears the Union s name recites that it is introducing a named person to a named employer at a specific job and is dated and signed by the business agent 6 This date and all hereafter mentioned are 1969 unless otherwise indicated renewed Toward the end of the workday on January 13, Matzat asked Johnson for permission to leave the job early, saying that he had to go get his work permit renewed at the union hall Johnson agreed and at this point told Matzat of the message left by Gladys that he forgot to tell Matzat about it, adding, "you had better go tend to it "10 That afternoon Matzat went to the union hall and, as he had for the past 4 months, asked Gladys, the office girl, to renew his permit Gladys first made a telephone call, which Matzat did not over- hear, and then told the latter that she had talked to Bolen who said that he should return the following morning to see him, and that she could not renew his permit Early the following morning (January 14), Matzat went to the union hall and waited for Bolen About 9 30 a in , he was informed by Gladys that she did not think Bolen would be in Matzat left the union hall, going to the jobsite, some 10 to 15 minutes away Although Matzat was dressed for work, he did not go to work when he reached the job What he did in the interim does not appear, but it was not until the lunch period that Matzat saw Johnson and informed the latter that he had been unable to get his permit renewed, that he had to see Bolen and would have to go back to the union hall Wednesday for that purpose According to Matzat, and this is not denied or explained by Johnson, the latter then said that he did not want to cause any hard feelings among the men and that Matzat should wait and see Bolen the next day Matzat then left the job Both Matzat and Johnson are in accord that, on the 14th, Johnson did not tell Matzat to work or not to work and that Matzat made no request to be put to work, nor otherwise indicated his desire to work Matzat's explanation for his failure to do so is that he construed Johnson's remark that he would have to wait until Wednesday as meaning that he had to have a permit to work and, since he didn't have it, he could not work However, on the job work records]] for Tuesday, January 14, opposite Matzat's name, Johnson made the entry "No permit, Bolen not in office " No entry was made for hours worked Johnson's only explanation of this entry is that he made it solely for his information and that it does not mean that Matzat was terminated Wednesday morning (January 15), Matzat again went to the union hall and, this time finding Bolen, asked for a renewal permit Bolen refused, saying that he had too many of his local people out of work Matzat 10 The General Counsel argues that this statement by Johnson indi cates and urges that I find that he (Johnson) regarded a valid and current work permit issued by the Union as a condition to the right to work I do not so construe it Rather I find that it was a casual remark to the effect that as several days had passed during which Johnson forgot to tell Matzat of the call from the Union and as the latter wished to get a work permit he should not delay the matter further 11 These are timesheets which the superintendent keeps for all employ ees on job and from which he makes up timecards which he forwards to the office and which become the basis for computing the wages due The time records kept by Johnson remain at the job until its completion and are then destroyed LAKE COUNTY, INDIANA, CARPENTERS tried to argue with Bolen but the latter remained firm, suggesting that Matzat might return in about a month to see if work for him was available 12 Matzat then went to the jobsite and told Johnson that Bolen would not issue him a permit Johnson expressed the view that Bolen could not so refuse but that he would call Company Vice President Blank Johnson told Blank that Bolen had refused to issue Matzat a permit and was not going to let him work because there were too many local men out of work, that Matzat was a good carpenter whom he needed and if possible would like to keep, but that he had no permit 13 Johnson also told Blank that there was another carpenter, working on the Company's Sollair job to whom Bolen had refused a work permit for the same reason that a permit had been refused Matzat 14 Blank told Johnson that he would telephone Bolen, and promptly did so In the conversation between Blank and Bolen, and during which Blank admitted that when he met with some resistance from Bolen he became "a little excited," he told Bolen that Matzat was a good employee who was needed by the Company and that he could not terminate Matzat because he lacked a permit Bolen told Blank that his (Bolen's) responsibility was to his local people who were complaining about outsiders work- ing at their expense and that Blank as a local employer should give preference to local people who support the community and its institutions Bolen urged Blank to terminate Matzat so local people could have the work Blank refused to comply with Bolen's request saying that, while he agreed with Bolen's objective to get the work for local people, he could not terminate Matzat for that reason Blank then requested that Bolen put his request for the termination of Matzat in writing and that he also obtain from Matzat a waiver of any claim Matzat might have for unemployment compensa- tion, but Bolen refused At this point, Blank brought up the name of Kouw as an employee to whom Bolen had also refused a work permit Bolen professed to have no information concerning that situation and the conversation concluded with Bolen stating that he would talk to Superintendent Tews about Kouw 15 12 I do not credit Bolen s testimony that he did not refuse to give Matzat a permit but merely delayed acting on the request until he checked if Matzat was still working on the Holiday Inn job His testimony in that regard is contradicted not only by Matzat but implicitly by Johnson and Blank as hereafter detailed 13 This finding is based on a composite of the uncontradicted and credited testimony of Johnson and Blank and Blank s prehearing affidavit which was received as an admission against interest 19 How Johnson got this information the record does not disclose Kouw was not working on Johnson s job at the time 15 My findings with respect to the telephone conversation between Blank and Bolen is based on the credited testimony of Blank Bolen admitted that he had a conversation with Blank and that the refusal of permits to Matzat and Kouw was discussed According to Bolen he told Blank that the alleged refusal to issue permits was a bunch of malarkey that he would talk to superintendents Johnson and Tews and get the thing straightened out Bolen admits that Blank was speaking louder than his normal tone of voice that he (Bolen) raised the subject that the Company should give preference to local men and that Blank asked him to write a letter and he responded `that would be silly Bolen denied that he made any request to Blank that Matzat or Kouw be terminated Also significant in this regard 237 Immediately after his conversation with Blank, Bolen called Superintendent Johnson and asked him to come to the union hall Nothing was said about the purpose of the proposed meeting, although Johnson assumed that it would relate to the continued employment of Matzat After first obtaining permission from Blank to do so, Johnson left for Bolen's office, reaching there about 11 30 am As Johnson was leaving his office for the conference with Bolen , he told Matzat that he was going to do what he could to get Bolen to issue him a permit, but that until he (Johnson) returned Matzat was not to go to work 16 Bolen told Johnson that there were a lot of local members who were out of work and referred to Johnson's status as a member of an affiliated local, as such it was Johnson's duty to employ local men as much as possible Bolen then stated that he wanted Johnson to tell him (Bolen) to issue Matzat a permit Johnson refused, saying that what he wanted was a letter from Bolen stating why he would not issue Matzat a permit Bolen replied that he "would be the biggest damn fool in the world to do that " About this time Bolen was informed that he was wanted on the phone in another room Going there Bolen had to pass his secretary's workspace and, as he did so, Johnson overheard Bolen tell her, "If Matzat comes in, fix him up with a permit " When Bolen resumed his conversation with Johnson, he asked the latter how much work remained on the Holiday Inn job Johnson replied that it was running out and didn't know how much longer it would last, because the job was cutting back and that people being hired would probably be laid off by the end of January Bolen then asked, "if I give Matzat a permit, will you agree to lay him off the end of January " Johnson refused, saying he did not know what the situation would be at that time After some discussion of matters not relevant here, Johnson left for the jobsite 17 Returning to the job shortly after noon, Johnson went to his office where he found Matzat The evidence bearing on the events which followed not only raises some credibility issues but is in some material respects confusing Johnson credibly testified that he told Matzat that, if the latter would go to the union hall, We would is the fact as Bolen admitted that when the supply of men in the hall exceeds the requests of employers for labor it is his desire to bring about the employment of his members over those from other locals To the extent that Bolen s testimony conflicts with that of Blank I credit the latter 11 Johnson denied that he made such a statement but I credit Matzat because I regard his testimony in that respect to be the more probable under the circumstances 17 My findings with respect to the conversation between Bolen and Johnson are based on the credited testimony of Johnson Bolen admitted that he called Johnson and asked him to come to his office that the matter of a permit for Matzat was discussed that he told Johnson that he owed a duty to the community to give preference in employment to local people and that Johnson asked for a letter a request he dismissed as silly The substance of Bolen s testimony is that he only asked Johnson if Matzat was working at the Holiday Inn job (information which Bolen could just as easily have obtained over the phone) and that when Johnson replied in the affirmative and indicated that the job would probably be over the end of January he asked if Matzat would be laid off at that time To the extent that Bolen s testimony conflicts with that of Johnson I credit the latter 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD get his permit and that, although Bolen sought to extract a promise that he would lay Matzat off at the end of the month, he (Johnson) "refused to go for that."'A Johnson also credibly testified that, when he informed Matzat of the results of his talk with Bolen, the latter replied that under the circumstances he didn't know if he wanted to get the permit or not. Matzat admitted that his response to Johnson's statement was that the latter should "not get into any trouble on my account," and "this looks like it." At this point Matzat did not ask to be put to work, nor did Johnson inform Matzat that the latter could go to work if he wished to do so, and, after arranging to have his check mailed to him, Matzat left the job.'9 About mid-February and again about mid-March, Mat- zat went to the union hall, asked Bolen if work was available, and was told there wasn't. On the first of these occasions Matzat also asked Bolen if he could get a permit. Bolen replied that there was no work and, according to the constitution and bylaws, he could not issue him a permit. Matzat then asked if he found his own job would Bolen issue him a permit. Bolen replied he could not do so. In the same period, Matzat also went to the Holiday Inn job and asked Johnson if he got a permit would there be any work for him. Johnson told Matzat that the motel part of the job was shutting down but the restaurant portion had not yet started; when it did, work might be available. On this occasion Matzat showed Johnson a letter dated January 24, which he had received from Union Attorney Mamet, and asked Johnson if he understood what it meant. Johnson testified that he read the letter but that he "couldn't make much heads or tails out of it either. "20 In about 4 weeks Matzat again saw Johnson at the jobsite and inquired about the availability of work. Johnson replied that at the time the job was full On this occasion Matzat observed some five or " Matzat admitted that, upon his return from the union hall, Johnson told him that "he had talked to Mr Bolen and that Mr Bolen had agreed to issue a permit on his say so if he laid me off at the end of the month [but that he, Johnson] didn't like that idea " Matzat also admitted that he understood the last part of the above-quoted statement to mean that Johnson would not agree to Bolen's request In view of these admissions, I do not credit Matzat's claim that Johnson did not tell him that if he would go to the union hall he would get his permit 11 Although Johnson admitted that he did not tell Matzat to go to work, or not to go to work, he claimed that he told Matzat that, so far as he (Johnson) was concerned, Matzat still had a job Johnson further testified that whether Matzat had a permit meant nothing to him and Matzat could have worked whether he had a permit or not I do not credit Johnson's testimony in that regard because I regarded it as inconsistent with his other deliberately assumed attitude on Tuesday, and on Wednesday before he spoke with Bolen , of not telling Matzat that, so far as he was concerned, Matzat was free to work, permit or no permit 20 The letter reads I note that you have filed charges against [the Union] apparently contending that you have been discriminated against in violation of the National Labor Relations Act There must be some confusion in your mind Clearance by or referral from the Union is not a condition of obtaining or retaining employment You are free to obtain any job you want I am sending a copy of this letter to [the Company] so that in the event there is any confusion in their mind, they will fully understand six carpenters working on the job. Except as indicated, Matzat has had no word from the Company as to the availability of work Events as to Kouw Kouw, who had been transferred to a number of the Company's jobs, during the early part of December 1968, was employed on the Sollair job were he worked until shortly before Christmas, thereafter being trans- ferred to the Peters & Marsh job, where he worked through December 30, 1968. Because bad weather pre- vented work on December 31, and the impending New Year holiday, Kouw went to his home in Holland, Michigan, where he became ill and was unable to return to work until Tuesday, January 14. On that day Kouw reported first to the Peters & Marsh job, where he, had last worked, but, being told there was no work there, went to the Sollair job, arriving about 12:25 p.m. Foreman Kowalski told Kouw to go to work and explained to Kouw the substantial volume of work that remained to be done on that job. It is undisputed that, at the end of the workday, Kouw asked Superintendent Tews and Foreman Kowalski for permission to report late the following morning, explaining that he had to go to the union hall to get his work permit renewed Such permission was granted. From the fact that such permission was granted, and the Company's practice of notifying employees at the end of a day if their service was not required the following day, I infer and find that Tews intended and expected that Kouw would work the next day. The following morning (January 15), Kouw went to the union hall, where he talked with Bolen, tendered his fee, and requested renewal of his work permit. Bolen refused, saying that he had too many of his local men out of work. Kouw argued that he was not asking to be referred to a job, that he had one and simply wanted his permit renewed. Bolen asked where Kouw was working and the latter replied for Tonn & Blank at the Sollair job. Bolen replied that the Sollair job was not working too well and couldn't understand why Kouw would want to renew his permit, but that in any event he could not renew it. Kouw left for the Sollair jobsite and, after arriving there about 8:30 a.m., went to the construction office where he first met with Foreman Kowalski .21 Kouw told Kowalski that Bolen had refused to renew his permit, to which Kowalski replied that Bolen's action was bad for Kouw because it meant that his employment was "at the end of the road." About this point Superin- tendent Tews came in the room and Kouw told him that Bolen would not renew his permit. Tews asked why and Kouw told him that Bolen stated he had too many local men out of work. Tews then told Kouw; "Well, under those conditions don't go to work," and added that, if Bolen came to the job and found Kouw 21 The findings with respect to Kouw, to this point, are based on the credited testimony of Kouw Bolen's denial that he had any conversa- tion with Kouw regarding the renewal of a work permit is not credited LAKE COUNTY, INDIANA , CARPENTERS working when he had refused to renew Kouw's permit, "he is going to get a little nasty"; that he "might even throw up a picket and shut this job down," an event the Company could not afford because the contract had a penalty clause and was already behind schedule. Then, turning to Kowalski, Tews said, "He had better not go to work. You know if Bolen comes out here and finds him he might even try to bump you off the job. "22 Kouw's stay at the construction site was no more than a half hour and from there he went to the Company's main office where he spoke with Paymas- ter Potts and arranged for his check and W-2 form to be sent him promptly.23 On March 10, Company Vice President O. J. Blank wrote Kouw.24 denying that Kouw was terminated because of union considerations, but because of lack of work, as the Sollair job was completed on January 15 and there was no other job on which Kouw could be placed.25 Blank admitted that he wrote this letter in the hope that it would terminate backpay liability, if any existed. The testimony, however, does not support his assertion that Kouw was terminated because work was unavailable for him. In the first place Blank himself testified that, on January 15, concrete was being poured on the Sollair job-a time when carpenters are normally needed to strip forms after the concrete hardens-and for that reason Tews could not leave the job to see Bolen at the latter's office. Secondly, Foreman Kowalski testified that, on January 15, he had work for Kouw that would have lasted about a week.24 And finally, 22 The findings in this paragraph are based on the credited testimony of Kouw Although I observed Tews in the courtroom, he did not testify Kowalski denied that he told Kouw that he was "at the end of the road " He further denied that he or Tews told Kouw not to go to work without a permit or made any comment about anything Bolen might do if Kouw worked without a permit To the extent that Kowalski's testimony conflicts with that of Kouw, I credit the latter It is noted for purposes of clarification that, after his conversation with Blank, Bolen called Tews and asked the latter to come to his office, Tews called Blank and explained that he was pouring concrete that day and could not leave the job Blank telephoned Bolen again and explained the reason for Tew's inability to come to Bolen's office that day For this reason there was no conference between Tews and Bolen regarding the employment of Kouw, as there was between Johnson and Bolen regarding the employment of Matzat 21 Kouw additionally testified that while at the company office he told Paymaster Potts "what the situation was " Although Kouw did not elaborate on this phrase, he admitted that he did not tell Potts of his conversation with Tews According to Kouw, Potts brought Company President John G Blank to him and the latter stated that he could do nothing for Kouw, that if he did not have a permit he could not be put to work Both Potts and Company President Blank denied that any such statement was made to Kouw I find it unnecessary to resolve the conflict in view of my findings with respect to the statements made to Kouw by Tews 24 This was 4 days after the Company received a copy of the 8(a)(3)' and (I) charge Kouw filed against the Company on March 5 Prior to this day the only charge filed by Kouw was the one he filed on February 12, alleging a violation of Sec 8(b)(1)(A) and (2) by the Union 2i The letter also stated that, should work become available for which Kouw was considered qualified, he would be considered for further employment At the time of the trial Kouw had not been called for work 2h Respondents also attempted to show through Kowalski that Kouw was incompetent and had to be kept under almost constant supervision, but I do not credit Kowalski's testimony in that regard I find it 239 the reason Tews gave for not permitting Kouw to work was that he lacked a permit and feared what Bolen might do if he found Kouw on the job, not the lack of work. The reason which Tews assigned takes on added significance in view of Blank's instructions to his supervisors to give terminated employees the true reason for their termination. Although Kouw denied that he told Tews on January 15 that he could not work because he lacked a work permit, he admitted not only that he was aware of and intended to comply with the rules of the International Brotherhood27 which require him to refrain from working outside the jurisdiction of his own local without a permit from the local in whose jurisdiction he proposed to work, but also admitted that, when he left Bolen's office on the morning of January 15, he had made the decision that he would not work on the Sollair job if he couldn't get the required permit, and that his purpose in going to the jobsite that morning was to get Tews to intercede with Bolen and prevail upon him to issue the permit. Kouw further admitted that, when he spoke with Tews on the morning of January 15, he, in effect, told Tews, "I don't have a permit, I can't work." Contentions and concluding findings The initial question to be determined is whether there existed any agreement or understanding between the Company and the Union that only those nonmembers of the Union who possessed valid work permits issued by the latter would be employed by the Company. Absent such agreement or understanding: Neither employer nor union can be held accountable for the unilateral actions of the other. Neither is bound to police the other nor can it be inferred that an unfair labor practice indulged in by one is caused by the undisclosed activity of the other or through the tacit understanding of both. Evidence of such activity or understanding is necessary.28 The record before me is clear that there existed no written agreement imposing upon the Company an obliga- tion to hire or retain in its employment only those who possess clearance from the Union. But that does not end the inquiry. As the Board held in Bricklayers, Masons, and Plasterers' International Local Union No. 18 (Ferguson Tile and Marble Co.), 151 NLRB 160, difficult to believe that, with an oversupply of carpenters in the union hall, and the construction industry experiencing a slowdown because of the tight money market, as Blank testified, the Company would have retained an incompetent for about 3 months Furthermore, the alleged incompetence is somewhat inconsistent with the statement in Blank's letter to Kouw that the Company would consider him for further employment 2' Although these rules are not in evidence, the substance of them is set ,forth in Carpenters Local -40 (Stop & Shop, Inc ), 143 NLRB 142, 145-146. What the rules in fact provide is unimportant here The important question is what Kouw thought they required of him, and the action he took based on that state of mind 24 N L R B v Brotherhood of Painters, Decorators & Paperhangers of America, etc [Spoon Tile Co ], 242 F 2d 477, 480 (C A 10), quoted with approval by the Board in Local 626, United Brotherhood of Carpen- ters, etc. (Food Fair Stores, Inc ), 142 NLRB 1238, 1240 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD even though the written agreement between the parties contains no union-security clause or referral provision, and unlawful "understanding" may,be found if, in the particular case. "the record reveals the existence of an oral agreement or, arrangement which requires 'mem- bership, in, our clearance from [the Union] as a condition of employment." Id. at 163. On the basis of the record, before me I am convinced , and therefore find and con- clude , that the evidence establishes the existence 'of an oral arrangement or understanding between the Union and the Company that the latter would '',retain' in its employment only those carpenters who were members of, or had clearance from, the Union This conclusion is predicated on the following: 1. Despite the extensive evidence ' with , respect to the Company' s right , and its practice of hiring without reference to union considerations , the fact remains that all carpenters on the two jobs here involved were mem- bers of the Union, except Matzat and Kouw, both of whom, when initially employed, had clearance from the Union. 2. When Johnson learned on January 14 that Matzat had been unable to see Bolen and that his permit was not renewed, he did not direct Matzat to work or inform him that so far as the Company was concerned Matzat was free to work regardless of the status'of'his permit. Rather, Johnson made 'the entry on his work records that Matzat had no permit . I find 'it difficult to put credence in Johnson 's explanation that this entry was for information only and had no other significance. 3. When Johnson called Blank on January) 5 to inform the latter that Bolen had denied Matzat a renewal permit, it was not simply for the purpose of obtaining Blank's opinion on an academic question . Rather , Johnson placed emphasis on the fact that Matzat was a good employee whom he needed and wanted to keep, but that Bolen was interfering with his plans ' by denying Matzat a permit. If, as the Company contends, ;the, lack of the permit constituted no impediment to Matzat 's continued employment, it is difficult to understand why Johnson emphasized that the employee he needed and wished' to keep lacked a permit'from the Union. 4. Even more difficult to understand is why Blank telephoned Bolen to protest the latter 's refusal to renew Matzat 's permit , and admittedly became "a little excit- ed" when he met with resistance from Bolen, if the` lack of such permit presented no problem to it in continu- ing Matzat ' s employment. 5. When Johnson left for'Bolen's office, he told Matzat that he was going to do what ' he * could 'to. get the latter's permit renewed ,, but cautioned Matzat not to go to work before he (Johnson) returned. 6. When Johnson met with Bolen, he demanded a letter from the latter explaining why he (Bolen) would not renew Matzat 's permit . It is, to say the least , difficult to understand why Johnson would go to this length if he did not regard the possession of such a permit by Matzat as necessary to the' latter's continued employ- ment. 7. In talking with Matzat both' on January 14 and following his conference with' Bolen on, January 15, Johnson refrained from telling Matzat that, so far as the Company was concerned, he was free to work whether he had the permit or not and permitted Matzat. to leave the job,under,the impression that the Company regarded a valid permit as a condition ' precedent to his right to work. ' 8. At the Sollair job Kouw was told by the foreman that absence of 'the permit meant that his employment with the Company*was' "at the end of the road" and by Superintendent Tews that, under the circumstances, he'(Kouw) should not go to 'work, expressing his fear of possible action by Bolen should he find Kouw on the•job.29 , . Having concluded . that'there existed an arrangement or understanding between the Union and the Company that the latter would ;employ only those persons who were members of or who had valid work permits from the Union, it follows, and I further find and conclude, that, by'•withholdingr work permits from Matzat and Kouw and, by requesting Blank to terminate Matzat and- Kouw,' all because of their lack of membership in the' Union, the Union attempted to cause and caused the Company to discriminate against Matzat and Kouw in regard to their-tenure of employment, or a term or condition thereof , to encourage membership in the Union, in' violation of; Section 8(b) (2) and ,(1) (A) of the Act 3` and that the Company by its adherence to the aforesaid arrangement or, understanding , and failing and refusing to permit Matzat and' Kouw to work without a permit from the' Union , discriminated against them in regard 'to' the' tenure of their employment, or a term or condition thereof;' which encouraged membership in the' Union, and thereby 'violated Section 8(a) (3) and (1)oftheAct31 , Although I may not regard any of the above factors , standing alone ,, of sufficient evidentiary value to sustain the conclusion which I have, reached, their totality, in my opinion , makes - that conclusion inescapable ' 70 Cases like Bricklayers , Masons and Plasterers ' International Union of America, etc (Plaza 'Builders , Incorporated), 134 NLRB 751, and Local 369, International Hod Carriers , Building and Common Laborers Union of America , AFL-CIO (McCloskey Construction Corp ), 147 NLRB 1209, where the Board found that a union's request for preference in employment for persons-who resided in the locale , as distinguished from those having membership in the local, did not violate the Act because it involved only a discrimination not based on union membership In the instant case it is clear and I find that the Union ' s demand it-as based on the fact that Matzat and Kouw lacked membership in the Union As Matzat lived within the territorial jurisdiction of the Union, it is clear that Bolen's reference to "local men" was not limited to those who reside in the locale, but referred to those who held membership in local unions which made up the District Council he represented " Having reached this conclusion, I find it unnecessary to decide whether , as the General Counsel contends, the Union as the collective- bargaining representative of the employees in the unit here involved also violated Section 8(b)(1)(A) of, the Act by its failure to represent fairly and equally all employees in the unit United Brotherhood of Carpenters and Joiners of America,- 'Local 143 (Helm Construction, Inc ), 170 NLRB No 97, cited and relied upon by the General Counsel, does not support his contention Of the three Board Members participat- ing in that case, Chairman McCulloch would find no violation based on the aforementioned theory and Member Zagoria found it unnecessary to consider the question Thus, in Helms, supra, a majority of the Board , did not adopt the Trial Examiner ' s holding on which the General Counsel relies LAKE COUNTY, INDIANA, CARPENTERS I reject as unsupported by the evidence the argument advanced by the Union and the Company that the latter did not prevent Matzat and -Kouw from working and that both voluntarily quit. Turning first to the case of Kouw, the facts show that Superintendent Tews told Kouw not to go to work without a permit , because he feared what action Bolen might take that might adversely affect the progress of the job, and directed Foreman Kowalski to see that Kouw did not work. That Kouw may have decided for reasons of his own that he did not wish to risk discipline by the Union for working without a permit is irrelevant. His decision in that regard was not based on a reasoned conclusion that he no longer wished to work on the job but he was simply bowing to what he regarded as the inevitable in view of the arrangement or understanding between the Company and the Union, an arrangement or under- standing rooted in illegality, which he had every right to protest. So viewed, I must and do find and conclude that Kouw did not quit but was forced off the job by the illegal arrangement between his Employer and his bargaining representative. 32 In the case of Matzat, not only do the same considerations prevail but the notation Johnson made on his time records•on January 14 giving the reason for Matzat's failure to work that day-"No permit, Bolen not in office"-strongly indi- cates that he did not regard Matzat eligible for employ- ment because he lacked a permit from the Union. It is true that on January 15 Johnson told Matzat that if he would go to the union hall he would get his permit, and that he failed to do so. Whether Matzat was unjustified in his construction of what Johnson said is beside the point. The crucial fact is that, before going to Bolen's office, Johnson told Matzat not to work without a permit. This was the discrimination on the part of the Company which the statute prohibits. Matzat was entitled to have his employment continued without regard to a permit from the Union and to protest, as I find he did, the Company's insistence that he have a permit in order to work. In this sense, I find and conclude Matzat did not quit but was prevented from working by the Company. Upon the foregoing findings of fact, and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Company is an employer within the meaning of Section 2(2) of the Act. - 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3: The evidence establishes that -there existed an arrangement or understanding between the Union and the Employer that the latter would employ only those persons who were members of or had been cleared by the Union. - - - 7R As heretofore pointed out, even Blank recognized that Kouw did not quit and claimed that he was not employed by the Company after January 14 because of lack of work, a claim which I have found unsupported by the record 241 4. By denying its employees Matzat and Kouw the right to continue their employment, because they were not members of and did not possess permits from the Union, the Company discriminated against Matzat and Kouw in regard to their hire and tenure of employment, and the terms and conditions thereof, encouraging mem- bership in the Union, and thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(a) (3) and (1) of the Act. 5. 'By denying clearance or work permits to Matzat and Kouw and by requesting the Company to deny employment-to Matzat and Kouw because they were not members of the Union, the latter caused or attempted to cause the Company to discriminate against Matzat and Kouw in violation of Section 8(a) (3) and (1) of the Act and thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(b) (2) and (l) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found. that the Union and the Company were parties to and maintained in effect an arrangement or understanding pursuant to which the latter would hire and retain in its employment only,those persons who are members of or have work permits from the Union, both the Company and the Union will be required to cease maintaining or giving effect to such arrangement or understanding. Having also found' that pursuant to the aforesaid arrangement or understanding the Union denied work permits to Matzat and Kouw, and demanded that the Company discontinue their employment, and that pur- suant to such request the Company terminated the employment of Matzat and Kouw, it-will be recommend- ed that the Union advise the Company, in writing, with copies to Matzat and Kouw, that the Union has no objection to, their employment by the Company, whether they have a work permit from the Union or not .33 It will be further recommended that the Company be required to offer Matzat and Kouw full and uncondi- tional reinstatement to their former or substantially equivalent jobs, without prejudice to their seniority or other rights or privileges, leaving to the compliance stage of this proceeding the question whether, in the normal course of the Company's policy and practice, Matzat and/or Kouw would have continued on the job, and if not, for what period they would have been employed .14 " I do not regard Attorney Mamet's letter to Matzat, quoted supra, fn 20, a copy of which was sent to the Company, as complying with this requirement Not only does the letter fail to state-that a work permit from the Union will not be required as a condition of employment, but Johnson who has the authority to hire on behalf of the Company did not so understand it '" In making this recommendation , I have fully considered the Board's Decision in Rusciano Construction Corporation-Del Balso Construction 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It will additionally be recommended that the Company and the Union, jointly and severally, make whole Matzat and Kouw for any loss of pay they may have suffered, respectively, by reason of the discrimination against them, by paying to each a sum of money equal to the wages he normally would have earned from January 14 in the case of Matzat, and January 15, in the case of Kouw until the Company's offer of reinstatement as above mentioned, or to such prior date as it may be determined they would have been lawfully terminated less net earnings during that period with interest thereon at the rate of 6 percent per annum, all in accordance with the Board's formula set forth in F W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co , 138 NLRB 716, provided, however, that the Union s liability for backpay shall cease to accrue 5 days after it provides the Company with written notice that it has no objection to the employment of Matzat and Kouw, as above stated, but absent such notification the Union shall remain jointly and severally liable with the Company for all backpay that may accrue thereafter until the Company complies with the Board s Order The Gabriel Division of the Maremont Corporation, 153 NLRB 631 631 1, The Company will also be required Corporation 136 Ni RB 1332 dealing with the question of reinstatement but regard the facts of that case as distinguishable from those present here In that c ise the discrimmatee w is employed on a project involving work on the George W ishington Bridge Finding that the employer discriminatorily dischirged the employee and that the Union had caused that discrimin ikon the Trial Ex miner recommended that he be reinstat ed to the George Wshington Bridge project if still in progress and if not to any job of the employer in the area The Board however required the employer to offer iemstatement only in the event the Bridge project is still in progress 136 NI RB at 1331 There is nothing in the reported decision to indicate whether the employer had other projects in the area nor is there any indication that the employer had any practice or custom of transferring employees from one job to another In the instant case Blank testified at length on the Company s established practice of transferring employees among its jobs and panic ularly when one job w-is completed to transfer the entire personnel on that job to one of its many others in the area to the extent that it was feasible to do so giving as one reason therefor his desire to give his crews the fullest employment possible with resultant improve ment in rating experience for unemployment compensation taxes In view of this evidence it would appear that limiting the reinstatement of Matzat and Kouw to the specific job on which they were employed at the time of the discrimination against them would afford only a partril remedy whereas the reinstatement remedy I propose is one tailored to the needs of the situation presented that does not impose an undue or unfair burden upon the [Company ] Royal Plating and Polishing Co Inc 160 NLRB 990 998 and is in accord with the statutory mandate that in fashioning remedies the Board must bear in mind that the remedy should be adapted to the situation that calls for redress with a view toward restoring the situation as nearly as possible to that which would have obtained but for [the unfair labor practice] Royal Plating and Polishing Co Inc 148 NLRB 545 548-549 and the cases there cited While it is possible neither Matzat nor Kouw would have been terminated upon completion of the projects on which they were employed assuming that they have been completed or it some subsequent time such facts are best known to the Company and as above stated do not appear in this record and can best be developed at the compliance stage of this proceeding ' Had the Company continued to resist the Union s demands as Blank did in his conversation with Bolen and succumbed only when all avenues of resistance became closed to it such as was the case in Zoe Cliemual Co Inc 160 NLRB 1001 1002 I would be inclined to recommend that the Union be adjudged primarily responsible for the b ickpay and the Company only secondarily liable therefor as the Board did in Zoe Chemical supra However as the record in to preserve and upon request make available to the Board or its agents, for inspection and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary or useful in computing the amount of backpay due as herein provided RECOMMENDED ORDER Upon the basis of the above findings of fact, conclu- sions of law, and the entire record in the case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that A Tonn and Blank, Inc its officers, agents, succes sors and assigns shall 1 Cease and desist from (a) Encouraging membership in Lake County, Indiana and Vicinity District Council of the United Brotherhood of Carpenters and Joiners of America, or any other labor organization, by requiring of any employee clear ance from, or membership in, a labor organization as a condition of employment, except to the extent that such requirement of clearance or membership is in accordance with the provisions of Section 8(a)(3) of the aforesaid Act (b) Entering into any agreement or understanding with the aforementioned or any other labor organization, requiring clearance from or membership in a labor organi- zation as a condition of employment, except of the extent authorized by Section 8 8(a)(3) of the aforesaid Act (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the aforesaid Act 2 Take the following affirmative action designed and found necessary to effectuate the policies of the Act (a) Offer Richard Matzat and Wilbur Kouw immedi- ate full, and unconditional reinstatement to their former or substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, as provided in the section hereof entitled "The Remedy " (b) Notify Richard Matzat and Wilbur Kouw if pres- ently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act, as amended, after discharge from the Armed Forces (c) Jointly and severally with Lake County, Indiana and Vicinity District Council of the United Brotherhood of Carpenters and Joiners of America make whole Rich- ard Matzat and Wilbur Kouw for any loss of pay they severally suffered by reason of the discrimination against them, in the manner provided in the section hereof entitled "The Remedy ' the instant case shows and as I have found except for Blank s statements to Bolen the Company did not resist the latter s demands but permitted its supervisors to deny employment to Matzat and Kouw because they lacked the required union permit In such cases the Board s usual remedy of joint and several liability must prevail LAKE COUNTY, INDIANA , CARPENTERS (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (e) Post at its principal office in Michigan City, Indian- a, and at its Holiday Inn and Sollair jobsites, if either is still in progress, copies of the attached notices marked "Appendix A" and "Appendix B."31 Copies of said notices, on forms provided by the Regional Director for Region 25, after being duly signed by Respondents' representatives, respectively, shall be posted by it imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (f) Mail to the aforesaid Regional Director sufficient signed copies of the attached notice marked "Appendix A," for posting by Respondent Union. Copies of said notice, on forms provided by said Regional Director shall, after being signed by an authorized representative, be forthwith returned to the aforesaid Regional Director for posting. (g) Notify the aforesaid Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps it has taken to comply herewith.37 B. Respondent Union, Lake County, Indiana and Vicinity District Council of the United Brotherhood of Carpenters and Joiners of America, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from: (a) Causing or attempting to cause Tonn & Blank, Inc., to discharge or in any other manner discriminate against any employee in regard to his hire or tenure of employment, or any term or condition thereof, except to the extent authorized by Section 8(a)(3) of the National Labor Relations Act, as amended. (b) In any other manner restraining or coercing any employee of Tonn & Blank , Inc., in the exercise of rights guaranteed by Section 7 of the aforesaid Act. 2. Take the following affirmative action found neces- sary and designed to effectuate the policies of the afore- said Act: °h In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 37 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the aforesaid Regional Director, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith " 243 (a) Jointly and severally with Tonn & Blank, Inc., make whole Richard Matzat and Wilbur Kouw, respec- tively, for any loss of earnings suffered by reason of the discrimination against them as herein found, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Tonn & Blank, Inc., in writing, that it has no objection to the employment of Richard Matzat or Wilbur Kouw on any project within its territorial jurisdiction, whether they possess a work permit or not, and send a copy of such notification to Richard Matzat and Wilbur Kouw. (c) Post at its business offices and meeting halls copies of the attached notices marked "Appendix A" and "Appendix B."38 Copies of said notices, on forms pro- vided by the Regional Director for Region 25, after being duly signed by Respondents' representatives, respectively, shall be posted by Respondent Union imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the aforesaid Regional Director signed copies of the attached notice marked "Appendix B," for posting by Respondent Company. Copies of said notice, on forms provided by said Regional Director shall, after being signed by an authorized representative of Respondent Union, be forthwith returned to the afore- said Regional Director for posting. (e) Notify the aforesaid Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps it has taken to comply herewith.39 See fn 36, supra In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the aforesaid Regional Director, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith " APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT encourage membership in Lake County, Indiana and Vicinity District Council of the United Brotherhood of Carpenters and Joiners of America, or any other union , by discharging or in any other manner discriminating against any of our employees in regard to their hire or tenure of employment, or any term or condition thereof, except to the extent permitted by Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of rights guaranteed to them by Section 7 of the National Labor Relations Act. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, as directed in the Board's Decision, offer Richard Matzat and Wilbur Kouw reinstate- ment to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges WE WILL jointly and severally with the aforesaid District Council make whole Richard Matzat and Wilbur Kouw for any loss of earnings they may have suffered as a result of the discrimination against them since January 14, 1969 , together with 6 percent interest, as provided in the Board's Deci- sion WE WILL notify Richard Matzat and Wilbur Kouw if presently serving in the Armed Forces of the United States of their right to full reinstate- ment upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces TONN AND BLANK INC (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone 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 Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 614 ISTA Center , 150 West Market Street , Indianapolis, Indiana 46204, Telephone 317-633-8921 APPENDIX B NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Tonn and Blank , Inc , to discharge or in any other manner discriminate against its employees in regard to their hire or tenure of employment , or any term or condition thereof, except to the extent permitted by Section 8(a)(3) of the National Labor Relations Act, as amended WE WILL NOT in any other manner restrain or coerce employees of Tonn and Blank , Inc , in the exercise of rights guaranteed by Section 7 of said Act WE WILL, jointly and severally with Tonn and Blank, Inc , make whole Richard Matzat and Wilbur Kouw for any loss of earnings they may have suffered as a result of the discrimination against them since January 14, 1969, together with 6 percent interest, as provided in the Board's Decision WE HAVE no objection to the employment of Richard Matzat or Wilbur Kouw by Tonn and Blank, Inc on any of its projects within our territorial jurisdiction, whether they have a work permit issued by this Union, or not and we have so notified Tonn and Blank, Inc , as well as Richard Matzat and Wilbur Kouw Dated By LAKE COUNTY, INDIANA AND VICINITY DISTRICT COUNCIL OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone 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 Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204 Telephone 317-633-8921