Penzel Construction Co., Inc.

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Penzel Construction Company, Inc. and H. Clinton Johnson. Carpenters Local 1770, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO and H . Clinton Johnson. Cases 14-CA-5543, and 14-CB-1955 August 27, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND BROWN On May 4, 1970, Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent Penzel Construction Company, Inc. (herein called Penzel) filed a motion to reopen this proceeding for further hearing and, in the alternative, should the motion be denied, exceptions to the Trial Examiner's Decision and supporting brief ' The Gener- al Counsel filed a memorandum in opposition to the motion. 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 connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner to the extent consistent herewith. 1. The Trial Examiner found, and we agree, that Respondent Penzel violated Section 8(a)(1) of the Act by superintendent Naeger's statement to Johnson, the Charging Party herein, on October 8, 1969,' that Johnson would never again work for Penzel because he had reported to the Union that Penzel was using laborers to perform carpentry work. This finding I For the reasons stated in the text, infra, the motion is denied 2 The Respondent Pence) has escepted to certain of the Trial Examiner's credibihts resolutions After a carelul rei ieu of the reLord sic conclude that the Trial Examiners credihilits findings are not contray to a clear preponderance of all the reles,mt ciidence Accordmh we find no basis for disturbine those lindim_s Standard Dri It all Produus Inc 91 N LR B 544 enfd 188 F 2d 362 (C A 3) ' Unless otherwise stated, all dates are in 1969 is based upon Johnson's credited testimony as against that of Naeger The fact that Johnson's report was later found to be without substance by the Union's business representative does not alter the unlawful nature of Naeger's remark, or justify reversing the Trial Examiner's credibility resolution, as urged by our dissenting colleague. 2. The Trial Examiner also found that Penzel violat- ed Section 8(a)(3) and (1) of the Act by refusing, on and after October 8, to reemploy Johnson because he had reported Penzel to the Union. While we agree that Respondent, through Naeger, had decided on October 8 not to hire Johnson because Johnson had reported Penzel to the Union, we find, unlike the Trial Examiner, that for the purpose of computing backpay the unlawful discrimination against Johnson did not begin until October 24, the date on which Johnson's doctor certified Johnson as physically able to return to regular work.' It is irrelevant that Johnson did not thereafter reapply to Penzel for work in view of Naeger's broad statement on October 8 that Johnson would never again work for Penzel. In these circumstances it would have been futile for Johnson to make further job applications to Penzel.' 3. The Trial Examiner found that Respondents Penzel and the Union violated Section 8(a)(3) and (1), and Section 8(b)(2) and (1)(A) of the Act, respec- tively, by "blacklisting" Johnson from employment with Penzel on and after October 23, and that the Union additionally violated Section 8(b)(2) by discrim- inatorily refusing, on and after November 11, to refer Johnson to available jobs with Penzel. The record as a whole, in our opinion, does not support these findings of violations by the Union.' There is no evidence that on October 23, or on any other date, the Union acted in any way to cause or attempt to cause Penzel to refuse to hire Johnson or that Penzel and the Union acted in concert or communicat- ed with each other with respect to denial to Johnson ' The Triaf Examiner's finding that Johnson was advised by his doctor on September 26 that he could return to work is not supported by substantial evidence Although Johnson and Dr Fuller testified that on September 26 they discussed the possibility of Johnson returning to work and that Fuller said he could try doing some work, this does not establish that he was then physically capable of resuming work To the contrary, the preponderance of all the relevant evidence , including Dr Fuller's written medical report and the testimony of Johnson, Dr Fuller, Naeger , and Mr Schlichter (the Workmen 's Compensation claims agent), establishes, and we find , that Johnson was not released from his doctor to return to work until October 24 Moreover, on the basis of Dr Fuller's medical report, Johnson continued to receive temporary total disability payments under Penzel 's Workmen's Compensation insur- ance through October 23 ' American Compress Warehouse Dss'irion of Frost-Whited (onipani Inc. 144NLRB433,439 ' Although the Respondent Union did not file separate exceptions to the Trial Examiner's Sec 8(b)(2) and (1)(A) findings, these findings were placed in issue by the exceptions filed by Respondent Penzel Kramer Brothers Freight Lines, Inc, 130 NLRB 36, in 4 at 40 185 NLRB No. 32 PENZEL CONSTRUCTION, CO 545 of employment with Penzel. Nor does the record establish that the Union unlawfully refused to refer Johnson to available jobs with Penzel on or after November 10.' Johnson testified that on November 10 he asked Thomas, the Union's business representa- tive, why men below him on the out-of-work list were being referred to a Penzel highway project while he was still not working. Thomas replied that he preferred not to send Johnson to Penzel because, according to Johnson, "it would just cause trouble, I would get to work a day or two and probably get fired." Johnson's inquiry as to why men below him on the out-of-work list were being referred, does not establish the truth of that statement, and no evidence was offered that his name was in fact skipped over by Thomas in making referrals.' More significant, however, is Johnson's further testimony that when he again asked Thomas for a referral to Penzel on November 14, Thomas offered to send him there if Johnson really wanted to go. Thomas told Johnson, however, that another contractor would need carpen- ters within a few days and promised to refer him to that job. Johnson left, telling Thomas that he would think it over and did not repeat his request for referral to Penzel. Johnson's testimony in this regard was corroborated by two witnesses who were at the union office at the time and overheard this conversation. This testimony, on which the Trial Examiner relied, on its face contradicts his finding of an unlawful refusal to refer Johnson. Thereafter, on November 21, Thomas referred Johnson to the previously promised job. Based on the foregoing evidence, we are unable to find that the Union caused or attempted to cause Penzel discriminatorily to refuse to hire Johnson or that the Union refused to refer Johnson to jobs with Penzel in violation of Section 8(b)(2) and (1)(A) of the Act or that Penzel and the Union acted in concert in any way to "blacklist" him. Accordingly, we shall dismiss the complaint as to these allegations. 4. Finally, the Trial Examiner found, and we agree for the reasons stated by him, that Respondent Union violated Section 8(b)(1)(A) of the Act by president ' The Trial Examiner's reference to November 11 as the date on which the events occurred is erroneous For, although Johnson first testified that he spoke to Thomas at the Union's office on November 11, he later changed that date to November 10 when , on cross-examination, it was pointed out that the Union office was closed on November 11 for Veteran's Day observances The record fails to disclose whether or not there was an exclusive hiring hall agreement, arrangement , or understanding between Penzel and the Union , absent which the manner of referral by unions has not been regulated by the law or Board decisions thereunder Ohio Valley Carpenters' District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Vencil Pruitt) 131 NLRB 1130, 1137, cf Local 190, Labors' International Union of North America, AFL- CIO (Basic Construction Co 1, 167 NLRB 561, 569-570 Boos' statement to Johnson at the January 2 union meeting that he could bring charges against Johnson for having filed the instant unfair labor practice charges against the Union. 5. As noted, supra, Respondent filed a motion to reopen this proceeding to take newly discovered evidence. In support of its motion, Respondent con- tends that, after the hearing herein closed, it learned for the first time that Johnson is now, and for a long time has been afflicted with blackout spells, "which has probably affected his memory and his mind, and has probably caused some type of mental condition believed to be associated with paronoia." Respondent contends that this condition probably affected Johnson's veracity as a witness and may affect his ability to work. In opposing this motion, the General Counsel argues that the proposed new evidence, if adduced and credited, would not require a different result herein and, therefore, is irrelevant and immaterial to the issue of whether Respondent violated Section 8(a)(3) of the Act. The Respondent's motion is hereby denied, as the proposed evidence could not affect the conclusion that Johnson was denied employment in violation of Section 8(a)(3). To the extent Johnson's physical conditon may be relevant to his ability to perform the duties of a carpenter in Penzel's construction business and thus may affect Respondent's obligation to offer Johnson immediate employment, it may be raised and consid- ered in the compliance stage of this proceeding. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that: A. The Respondent Penzel Construction Company, Inc., Jackson, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Telling employees or applicants for employment that they will not be considered for employment because they report to the Union that Penzel is misallo- cating work between different crafts. (b) Refusing to employ employees or applicants for employment in reprisal for reporting to the Union concerning Penzel's allocation work as between crafts. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which we find will effectuate the policies of the Act- (a) Offer Johnson immediate employment on a project comparable to those being operated on or after October 24, 1969, displacing, if necessary, employees hired after that date. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Make Johnson whole for any loss of earnings suffered by him as a consequence of Penzel's discrimi- natory refusal on and after October 24 to consider him for employment. (c) Post at its office in Jackson, Missouri, and on any bulletin boards maintained by Penzel at its projects copies of the notice attached and marked "Appendix A."9 Copies of said notice, on forms sup- plied by the Board's Regional Office for Region 14 shall, after being duly signed by an authorized repre- sentative of the Company, be posted immediately upon receipt thereof, and maintained thereafter for 60 consecutive days. Reasonable steps shall be taken by Penzel to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 14, in writing within 10 days from receipt of this Decision what steps have been taken to comply with the terms hereof. B. The Respondent Carpenters Local 1770, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Cape Girardeau, Missouri, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Threatening to file union disciplinary charges against Johnson or any other member in reprisal for filing charges under the Act. (b) In any like or related manner restraining or coercing its members in the exercise of rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action which we find will effectuate the policies of the Act: (a) Post at its office in Cape Girardeau and on any bulletin boards maintained by it on union projects copies of the attached notice marked "Appendix B."'° Copies of said notice on forms furnished by the Regional Director for Region 14 shall, after being duly signed by its representative, be posted immediate- ly on receipt thereof, and maintained thereafter for 60 consecutive days. Reasonable steps shall be taken by the Union to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 14, in writing within 10 days from receipt of this Decision what steps have been taken to comply with the terms hereof. ° In the event this 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 " '° In the event this 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 " CHAIRMAN MILLER, dissenting in part: I agree that the Respondent Union violated Section 8(b)(1)(A) by President Boos' threat to bring charges against Johnson for filing the unfair labor practice charge herein against the Union; and that Johnson was not blacklisted for employment by Penzel or unlawfully refused referral to Penzel. I do not agree, however, that Penzel refused to employ Johnson because he reported Penzel to the Union. This finding is based entirely on Johnson's testimony that Superintendent Naeger told him he could forget about ever working for Penzel again because he had "sicked" the Union on Penzel, which Naeger flatly denied. In my view, Johnson's testimony is contrary to a clear preponderance of all the relevant evidence, and I am unwilling to credit it over Naeger's denial." Thus, although Johnson called Union Agent Thomas to the Penzel jobsite, the record establishes that Thomas concluded nothing was amiss at the jobsite. The Union was not, therefore, "sicked" on Penzel. In fact, Naeger testified that he was not even aware of the incident, and there is no evidence that he was. On the contrary, Thomas told Johnson he had spoken only to the labor foreman and had not mentioned Johnson's name while he was there. Although the record indicates that Naeger "had no use" for Johnson, except for this testimony by John- son, there is nothing to indicate that Naeger was motivated by anitunion considerations in his failure to reemploy Johnson. Indeed, the record shows that Naeger was at one time a union business agent, that representatives of various unions with which Penzel deals frequently visit its jobsites, and that Thomas visits them every 2 weeks or so, half the time with complaints. As substantial evidence on the record considered as a whole fails to establish that Naeger made the remark attributed to him by Johnson, I would find that the General Counsel failed to prove that Penzel's failure to employ Johnson was based on union consid- erations, and I would therefore dismiss the complaint entirely as to Respondent Penzel. " In view of my ultimate disposition of the 8 (a)(3) allegation as to Penzel, I find it unnecessary to pass upon Penzel's motion to reopen the record so that it might introduce newly-discovered evidence of a medical condition that would , arguably, have been relevant in an evaluation of Johnson's memory and mental condition for credibility purposes APPENDIX ' A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT tell employees or applicants for employment that they will not be considered PENZEL CONSTRUCTION, CO for employment because they report to the Union Penzel's misallocation of work between different crafts. WE WILL NOT refuse to hire employees or applicants for employment in reprisal for report- ing to the labor organization which represents them that Penzel is improperly allocating work between different crafts. WE WILL NOT in any manner ffiterfere with, restrain, or coerce employees in their exercise of rights under the National Labor Relations Act, as amended. WE WILL offer Clinton Johnson immediate employment on a company project on which carpenters are employed and make him whole for wages lost because of our refusal to consider him for employment since October 24, 1969. PENZEL CONSTRUCTION COMPANY, 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, 1040 Boatmen 's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 314- 622-4167. APPENDIX B NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An agency of the United States Government WE WILL NOT threaten any member with union disciplinary action in reprisal for their filing charges under the National Labor Relations Act, as amended. WE WILL NOT in any like or related manner restrain or coerce our members in the exercise of their rights under the National Labor Relations Act, as amended. CARPENTERS LOCAL11770, AFFILIATED WITH UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO (Labor Organization) Dated By 547 (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, 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 314- 622-4167. TRIAL EXAMINER'S DECISION WILLIAM J. BROWN, Trial Examiner: This consolidated proceeding under Section 10(b) of the National Labor Rela- tions Act, as amended, hereinafter referred to as the Act, came to be heard at Jackson, Missouri, on February 11, 1970. The original charges of unfair labor practices had been filed October 24, 1969,' in Case 14-CA-5343 and on December 16 in Case 14-CB-1955 by the above-indicated Charging Party, hereinafter referred to as Johnson. The consolidated complaint herein was issued December 30 by the General Counsel of the National Labor Relations Board acting through the Board's Regional Director for Region 14. It alleged, in addition to jurisdictional matter, that the above-indicated Respondents, hereinafter referred to as the Company and the Union, engaged in unfair labor practices defined in Section 8(a)(3) and (1) and 8(b)(2) and (1)(A) of the Act. Respondent's answers admit the jurisdictional allegations of the complaint, deny the commis- sion of unfair labor practices. At the hearing the parties appeared and participated, as noted above, with full opportunity to present evidence and argument on the issues. Subsequent to the close of the hearing, briefs were received from the General Counsel, the Company and the Union which have been fully consid- ered. On the entire record herein and on the basis of my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The pleadings and evidence establish and I find that the Company is a corporation organized under the laws of the State of Missouri with its principal office and place of business in Jackson, Missouri; it is engaged in the con- struction of commercial buildings, roads, and highways and is a member of Associated General Contractors and the Southeast Missouri Contractors' Association, which associations engage in collective bargaining on behalf of their members who annually purchase and receive at their II Dates hereinafter , unless otherwise noted, relate to the calendar year 1969 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD places of business in Missouri goods and materials valued in excess of $50,000 and shipped to such places of business in Missouri directly from points outside the State of Mis- souri. I find, as the parties concede, that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The pleadings and evidence also establish the supervisory status of Company President Carl Penzel and Building Superintendent Fred Naeger Ii. THE LABOR ORGANIZATION INVOLVED The pleadings and evidence establish and I find that the Union is a labor organization within the purview of Section 2(5) of the Act and that Business Representative Leonard Thomas and President Raymond Boos are its agents within the meaning of Section 2(13) of the Act. III THE UNFAIR LABOR PRACTICES On May 5, Johnson, who had peddled fire extinguishers for some 15 years and whose only experience at the carpenter trade consisted of building some boat molds, applied for union membership and was immediately dispatched to work' on a Kroger job.' On July 7, Johnson went to the company office and applied to Carl Penzel for work, Penzel referred him to Naeger who sent him to work on several jobs under the supervision of Ed Theile.' On August 15, while working for the Company on a project at Cape Girardeau, Johnson fell and dislocated a shoulder He consulted Dr. Marguerite Fuller, a practicing osteopath who had treated Johnson as a patient since he was 10 years old. Dr. Fuller had Johnson hospitalized for 2 days, August 16 and 17, and on September 26 advised him that he was able to return to work' After his September 26 discussion with Dr. Fuller, Johnson proceeded directly to the Company's IGA job and informed Naeger of his availability for work. Naeger directed him to report for work at that job on the following Monday unless otherwise instructed; later that same day Neager telephoned Johnson at home and informed him that he would not be needed on the IGA job and that there were no immediate alternative prospects for work. Johnson again inquired of Naeger as to work opportunities on September 29 and October 1 and specifical- ly asked about returning to his job on the project where he had been injured, but Naeger replied that it would be unfair to displace his replacement and that work was otherwise scarce. In these talks between Johnson and Naeger, Naeger, according to Johnson, praised his work and prom- ised him a good recommendation to another employer. Naeger, however, testified that various company foremen complained of Johnson's ignorance of the carpenter craft Johnson was formally initiated into the Union about July 11 Although Naeger testified that Johnson , at their first meeting, claimed to have experience at the carpenter trade in the employ of a large contractor, Crites & Silar, I credit Johnson's testimony that his only claim of experience was in the boat mold building above referred to Theile did not testify ' Dr Fuller's Workmen's Compensation Report indicates that Johnson would be able to return to regular work on October 24 but I credit her testimony to the effect that after an X-ray examination on September 26 she told him he could try returning to work and of his relatively frequent rest periods The foremen did not testify and I do not credit Naeger's uncorroborated account in this regard, particularly in view of Naeger's testimony that in the course of their talk about return to work he informed Johnson to report on Monday at the IGA job, unless otherwise instructed over the weekend. On Friday, October 3, Johnson attended a union meeting at the union hall in Cape Girardeau in the course of which a member, Schubert, reported to the meeting on the Company's use of laborers to put up forms on the IGA job in Jackson. Some members present opined that Johnson should bring charges against union members who worked alongside laborers, but Johnson reported to the meeting that the Company, on its IGA job, used carpenters and laborers somewhat interchangeably in an effort to spread available work for the existing work force. On the following Monday, Johnson drove by the IGA job and observed four laborers taking down forms and no carpenters on the job. He telephoned this information to Thomas who said he would be down to look the job over Thomas later checked the work and concluded that the work involved was properly assigned to the laborers. On the morning of October 8, Johnson, by chance, encoun- tered Naeger in front of the_ Sunny Hill Restaurant in Cape Girardeau and sought to talk with him. Naeger, according to Johnson's account which I credit, refused to talk to him and said that he was mad and that Johnson could forget about ever working for the Company again, and that he would personally see to that. When Johnson asked what he had done, Naeger replied that he had "sicked" the union business agent on the company Although Naeger denied any reference to "sicking" the business agent on the Company or any threat against Johnson's employment, I credit Johnson's account of the episode. After the encoun- ter Johnson telephoned Thomas who informed him that on his visit to the IGA job he talked only with the labor foreman and made no mention of Johnson's name. A few hours later Johnson went to the company office and sought to talk with Naeger, but the latter refused. On October 23, through the good offices of Company President Penzel, Johnson, Naeger, and Prezel met at the company office. Johnson attempted to explain his minimal role in the union meeting of October 6, but Naeger said that he had no interest in the union meeting and no use for Johnson Penzel said that there might be work for Johnson on a highway or bridge crew but that there was none at that time. Johnson had no further talks with Naeger or Penzel Instead he applied two or three mornings each week at the union office where he asked Thomas for referral to work and finally on November 11 asked Thomas why men below him on the out-of-work list were being sent to a Company highway project. Thomas replied that a referral to a Company job would only cause trouble since he would probably be fired after a day or two of work. Thomas later explained that it was his own decision, not based on company request, that Johnson not be referred to a Company job On November 14, Thomas offered referral to another contractor, Mac Menenne Construction, and on November 24, Johnson commenced work on that project where he has apparently been employed until the date of the hearing in the present case. PENZEL CONSTRUCTION, CO 549 As noted above, the charge in Case 14-CB-1955 was filed December 16, alleging an unlawful refusal on the part of the Union to refer Johnson to the Company in deference to the Company's unlawful refusal to employ him. By amendment to the complaint at the hearing, it is also alleged that President Boos, an agent of the Union, threatened to file intraunion charges against Johnson because of the filing by him of the charges in Case 14-CB-1955 With respect to the amendment to the complaint relating to the threat by Boos to file intraunion charges, Johnson testified that he and some 40 members attended the January 2, 1970, meeting at which President Boos presided and Business Agent Thomas was in attendance. A member raised a question concerning the unfair labor practice charges against the Union and the complaint was read to the meeting. At the end of the reading, according to Johnson, Boos asked Johnson if he would pay the union costs of defending the case if the complaint were dismissed and Johnson stated that he would not. Boos, according to Johnson, said that he could file charges within the Union for causing dissension. Schubert, a former union president, whose second term as union president was nullified by court order, essentially corroborated Johnson's account Although Schubert appears on the record to have reason to bear hostility toward Boos, I credit his testimony before me, and I find, notwithstanding Boos' and Thomas' denials that on the occasion of the January 2, 1970 meeting Boos threatened Johnson with the statement that he could file intraunion charges against Johnson for causing legal expense to the Union in connection with the defense of the unfair labor practice charges As outlined above, I find that on October 8, Naeger angrily accused Johnson of "sicking" the Union Business Agent on him because of the Company's assignment of carpenter work to laborers and threatened Johnson that he would see to it that he had no further employment with the Company The evidence clearly indicates that subsequent to October 23, Johnson has had no employment with the Company I conclude that this is due both to Naeger's refusal to permit him to work and to the Union's disinclination to refer him to the Company which has had job opportunities which Johnson could have filled during this period. The Company and the Union are shown to have engaged in a blacklisting of Johnson from company employment and I find that their activities in this regard constituted unfair labor practices within the purview of Section 8(a)(3) and (1) and 8(b)(2) of the Act. In addition, Boos' statement at the union meeting of January 2 respecting the filing of union charges against Johnson in reprisal for the latter's filing of charges under the Act constituted restraint and coercion of employees within the scope of Section 8(b)(1)(A) of the Act. iV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE labor practices, occurring in connection with the business operations of the Company set forth in section 1, Above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states and tend to lead to disputes burdening and obstructing such commerce and the free flow thereof. V. THE REMEDY In view of the findings set forth above to the effect that the Company and the Union have engaged in certain unfair labor practices affecting commerce it will be recom- mended that they be required to cease and desist therefrom and, in view of the findings of discriminatory refusal to hire and refer on the parts of the Company and the Union respectively, from any other unfair labor practices. N.L.R.B. v. Entwistle Mfg. Co., 120 F 2d 532 The remedial relief policies outlined in F W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, shall be applicable On the basis of the foregoing findings of fact and upon the entire record in this case, I make the following CONCLUSIONS OF LAW 1 The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 By refusing from and after October 8, to employ Johnson because he had reported to the Union concerning the Company's substitution of laborers for carpenters on a company project, the Company has engaged in unfair labor practices defined in Section 8(a)(3) and (1) of the Act. 4. By advising Johnson on October 8, that he would have no more employment with the Company because he had reported to the Union concerning the company allocation of work as between carpenters and laborers, the Company has engaged in unfair labor practices defined in Section 8(a)(1) of the Act 5 By refusing from and after November 11, to refer Johnson to employment with the Company on the basis of Johnson's conduct in protesting the Company's allocation of work as between carpenters and laborers, the Union has engaged in unfair labor practices defined in section 8(b)(2) of the Act 6. By threatening to file intraunion charges against John- son because the latter filed charges of unfair labor practices under the Act, the Union has engaged in unfair labor practices defined in Section 8(b)(1)(A) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. The activities of the Company and the Union set forth in section III, above, and there found to constitute unfair [Recommended Order omitted from publication.]