R-M Framers, Inc.

36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD R-M Framers, Inc. and Ralph P. Bresee and David H. Bresee United Brotherhood of Carpenters and Joiners of America, Local Union No. 1797, AFL-CIO and Ralph P. Bresee and David ' H. Bresee. Cas- es 19-CA-6082 and 19-CB-1943 November 7, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On June 26, 1973, Administrative Law Judge Maurice M: Miller issued the attached Decision in this proceeding. Thereafter, the Respondent Union filed exceptions and a supporting brief designated as an argument, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended; the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent Employer, R-M Framers, Inc., Olympia, Washington, its officers, agents, successors, and assigns, and the Respondent Union, United Brotherhood of Carpenters and Joiners of America, Local Union No. 1797, AFL-CI- O, Renton, Washington, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE MAURICE M. MILLER, Administrative Law Judge: Upon successive charges duly filed and served, the General Counsel of the National Labor Relations Board issued a consolidated complaint and notice of hearing against R-M Framers, Inc., and United Brotherhood of Carpenters and Joiners of America, Local Union No. 1797, AFL-CIO, designated as Respondent Company and Respondent Union herein, respectively, under Section 10(b) of the National Labor Relations Act, as amended. Ralph P. Bresee and David H. Bresee, individuals, had filed their first charge, against Respondent Company, on October 6, 1972. Their second charge, directed against Respondent Union, was initially filed October 16, 1972. Subsequently, amended charges with respect to both Respondents were filed December 4, 1972. General Counsel's consolidated complaint and notice of hearing issued December 18, 1972; copies thereof were, subse- quently, duly served. Within General Counsel's consolidated complaint, Res- pondent Company and Respondent Union have been charged with unfair labor practices affecting commerce under Section 8(a)(3) and (1), Section 8(b)(2) and (1)(A), and Section 2(6) and (7) of the statute. 61 Stat. 136, 73 Stat. 519. Within their respective answers, duly filed, certain factual matters set forth within General Counsel's consoli- dated complaint have been conceded; however,' Respon- dents have severally denied their commission of unfair labor practices. Pursuant to notice, a hearing with respect to the issues was held at Seattle, Washington, on April 17 and 18,,1973, before me. The General Counsel and Respondent Union were represented by counsel. Ralph and David Bresee, designated complainants herein, noted their appearance, pro se, for the record; Harold Rood, R-M Framers' secretary-treasurer, noted his appearance in Respondent Company's behalf. Each party was, thereafter, afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. During the hearing's first day, shortly following a luncheon recess, Respondent Company's representative reported that he had just received information regarding a serious development, not related to this case, which might vitally affect ,his firm's business future; he declared, further, that he considered himself constrained to leave the hearing forthwith for the purpose of dealing with his Company's reported problem. Mr. Rood did not, however, request a continuance. He was told by me that the hearing would continue regardless of his absence; that he was, of course, free to return later; that, should he return before the hearing concluded, I would, with the concurrence of General Counsel's representative and Respondent Union's counsel, summarize the testimonial and documentary record developed during his absence; and that he would be permitted to recall, for cross-examination and further testimony, witnesses who had testified while he was not present, with respect to matters which might bear upon Respondent Company's defense herein. Respondent Com- pany's representative did return shortly following the commencement of the next day's hearing session. He was provided, during a recess, with a verbal summary of testimony received during his absence, and was permitted to examine certain documents which had been proffered for the record. He declared, thereafter, that he did not wish any witness recalled for cross-examination or further testimony. Following the conclusion of General Counsel's presenta- tion, Respondent Union proffered several witnesses in defense. Mr. Rood, though fully advised regarding his right to present a further, separate defense in Respondent Company's behalf, made no formal presentation. Before the hearing closed, Mr. Rood was further advised that, should his subsequent review of the transcript persuade 207 NLRB No. 37 R-M FRAMERS, INC. 37 him to move for a record reopening for the purpose of making a supplementary defensive presentation, his mo- tion for such a record reopening would be considered. No such motion has been proffered. Since the hearing's close, however, briefs have been received from General Counsel's representative and Respondent Union's counsel; these briefs have been duly considered. FINDINGS OF FACT Upon the entire testimonial record, documentary eviden- ce, received, and my, observation of the witnesses, I make the following findings of fact: 1. JURISDICTION Respondent Company is a Washington corporation engaged in the construction of apartments, office build- ings, and commercial establishments primarily in the State of Washington. When this case was heard, Respondent Company had a contract with TRICO Investment, Inc., for the construction of some multiunit residential buildings in Bellevue, Washington, with a "$90,000 plus" contract price. Respondent Company had- commenced performance thereunder in September 1972; such performance had continued for the balance of the year, and was still in progress. As of the date when this case convened, Respondent Company's contract had, however, been "substantially" performed to a degree exceeding $50,000 in value. When requested to state General Counsel's basis for jurisdiction herein, his representative declared that: TRICO purchases various types of appliances that are used in apartments and buildings from outside the State of Washington. [They] are shipped into the State of Washington. TRICO picks them up from the warehouse here and installs them in various buildings that are under construction[.] TRICO purchases in excess of $50,000 worth of the appliances from outside the State of Washington. Respondent Company's secretary-treasurer stipulated the correctness of this statement. Respondent Union's counsel, then, declared his client's readiness to accept General Counsel's statement, plus his (General Counsel's) repre- sentation, "I take it" that TRICO, doing business in the Greater Seattle area, made purchases "in calendar '72' of appliances manufactured outside the State of Washington which exceeded $50,000 in gross dollar value. With matters in this posture, Respondent Union present- ly contends that Board jurisdiction should not be exercised herein since the record does not show, and General Counsel -failed to prove, that Respondent Company performed $50,000 worth of contract services for TRICO Investment, Inc., during calendar year 1972, the preceding or following years, or any other definable base year. This contention, must be rejected. Building and Construction Trades Council of San Bernardino and Riverside Counties, et al., (BB&G Developers), 139 NLRB 1370, 1372. Within the case cited, this Board noted that: As is now well established, "the Board's jurisdictional criteria' expressed in terms of annual dollar volume of business do not literally require evidentiary data respecting any certain 12-month period of operations, but may be satisfied, for example, by projecting or estimating commerce data for an appropriate annual period." So far as appears from this record, TRICO's conceded out- of-state purchases, despite the supposition voiced by Respondent Union's counsel, were not necessarily con- fined to calendar year 1972; assuming arguendo that they were, I would, nevertheless, find a determination warrant- ed, upon this record, that TRICO's performance during that calendar year, with its out-of-state purchases included, may be considered representative with respect to the scope of its yearly operations. On a projected basis then TRICO's out-of-state direct inflow figure ("in excess of $50,000 worth of appliances") would be the same for a 12-month period embracing the Bellevue project's construction work. Since, within that partially completed and partially projected period, the Respondent Company's contract services for TRICO will concededly have exceeded $50,000 in value, this Board's applicable jurisdictional standard will have been satisfied. See Building and Construction Trades Council, supra; Stemons Mailing Service, 122 NLRB 81, 85. I find that Respondent Company was, throughout the period with which this case is concerned , and remains, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business operations which affect commerce within the meaning of Section 2(6) and (7) of the statute. Further, with due regard for presently applicable jurisdictional standards, I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory objectives. II. RESPONDENT UNION General Counsel contends, both Respondents presently concede, and I find that United Brotherhood of Carpenters and Joiners of America, Local Union No. 1797; AFL-CIO, designated as Respondent Union within this Decision, is, and at all times material herein has been , a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits, certain of Respondent Compa- ny's employees to membership. III. THE UNFAIR LABOR PRACTICES A. Issues Throughout the period with which this case is concerned, and continuously to date, Respondent Company and Respondent Union have been parties to a so-called "compliance agreement" whereby Respondent Company has consented to be bound by collective-bargaining contracts negotiated between the Associated General Contractors of America and various labor organizations functioning as constituent bodies of the United Brother- hood of Carpenters and Joiners of America. The collective- bargaining agreement thus designated throughout the period with which this case is concerned contained a union-security clause. When Ralph and David Bresee, the complainants herein, were "hired" for carpenter's work, so General Counsel contends, by Respondent Company's representative, they were engaged and retained subject to these union-security provisions. (Respondent Company's 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative, within his formal answer duly filed, concedes General Counsel's consolidated complaint allega- tion in this connection. Respondent Union, however, rejects the allegation, contending rather that Ralph and David Bresee were really independent contractors.) General Counsel charges, then, that the complainants were thereafter laid off temporarily on three designated occasions because they were not Respondent Union's members, or had not "straightened out" their union status; that Respondent Union's representatives finally demanded their discharge because of their purported failure to comply with the relevant contractual union-security requirements previously noted, notwithstanding their tender of those periodic dues and initiation fees which the designated contractual union-security provisions required; and that Respondent Company did thereupon terminate the complainants, pursuant to Respondent Union's de- mand, although Respondent Company's representative knew that both complainants had tendered the periodic dues and initiation fees contractually required. These charging allegations, 'set forth within General Counsel's consolidated complaint, have been categorically denied. B. Facts 1. Background a. Respondent Company's contractual relationship with Respondent Union Within his consolidated complaint, General Counsel presently claims, both Respondent Company and Respon- dent Union concede, and I find that "on or about" July 15, 1968, the Respondents signed a compliance agreement wherein Respondent Company agreed to be bound by collective-bargaining contracts previously executed and to be executed between Associated General Contractors of America, (AGC), and Carpenters, Piledrivers, and Mill- wrights of the United Brotherhood of Carpenters and Joiners of America. The most recent collective-bargaining agreement executed between AGC and these designated Carpenters union craft bodies bears a July 26, 1971, effective date; that contract, together with the compliance agreement previously described, was, so Respondents herein concede, fully effective throughout the period with which this case is concerned. Section B-14.4 through B-14.6 of the designated collective-bargaining contract contain the following provisions: B-14.4 The employees shall become and remain members of the Union as a condition,of employment from and after the ninth day following the dates of their employment, or the effective date of this Agree- ment whichever is later. B-14.5 It is further agreed that all Union workmen employed by the employer shall maintain their mem- bership in good standing in the Union. B-14.6 Failure of any employee to pay or tender normal initiation fees or dues as required by this agreement shall, upon request of the Union in writing, result in the termination of such employee. No question is raised herein regarding the validity of these contractual union-security provisions. I find that they bound Respondent Company and Respondent Union, mutually, at all times material. b. Respondent Company hires the Bresee brothers On Wednesday, September 20, 1972, Harold Rood, Respondent Company's secretary-treasurer, engaged Ralph and David Bresee to construct and erect building frames on Respondent Company's Bellevue, Washington, apartment house construction site. A consensus was reached that they would receive "piecework" compensa- tion; no definitive agreement was reached , however, regarding their compensation rate. During their prehire conversation, so Ralph Bresee credibly testified, Rood asked both men how they "stood" with Respondent Union herein. They detailed some "trouble" which they had experienced previously while working in Tacoma; Respondent Company's secretary- treasurer commented, however, that "there should be no trouble" connected with his project. He declared that he got along well with Respondent Union ; that all his carpenters were "with the union"; and that he could probably get them "by" though they were not union men. The Bresees declared that they had previously consulted this Board's Seattle Regional Office because of their Tacoma difficulties; that they knew their "rights" with respect to Respondent Union's presumed membership requirements; and that, when requested, they proposed to tender Respondent Union their initiation fees and dues, solely. Rood declared that he was then having some difficulty getting lumber; that there would be some delay; but that they could start doing layout and framing work when his lumber reached the project. The following week on Tuesday, September 26, the Bresee brothers reported. A consensus was reached that they would receive piecework compensation, 15 cents per square foot; pursuant thereto, they began work. c. Preliminary contacts with Respondent Union's representatives On Wednesday, September 27, the Bresee brothers, while at work, were visited briefly by two union representatives. Later they saw these representatives speaking with Respon- dent , Company's secretary-treasurer. During that conversa- tion, one union representative, so Ralph Bresee testified, pointed them out. Shortly thereafter they were visited by Respondent Company's secretary-treasurer. He comment- ed, "You are really in trouble . . . . One of you has to go." David Bresee declared that he shouldn't be the one to go, for reasons which will be noted below . Ralph Bresee declared, however, that when requested he proposed to "offer" his initiation fee and dues , and that "there shouldn't be any trouble" with Respondent Union herein. While a witness, Respondent Union's business represent- ative, Wayne Regnier, proffered testimony which provides a relevant context connected with this conversation. He conceded a routine visit to Respondent Company's jobsite, checking union cards . He had, so he recalled, spoken with Ralph Bresee, who produced no card. Directly thereafter, so Regnier testified, David Bresee had reported that during R-M FRAMERS, INC. 39 January or February 1971 Respondent Union's Colorado Springs, Colorado, sister local had levied a $300 fine against him . According to Regnier, David Bresee had asked whether he could continue working without being required to pay the fine; Respondent Union's business representative, concededly, had declared that he would, check the matter. Subsequently, when he encountered Respondent Company's secretary-treasurer, Regnier had commented, "You have a fine job and everything, except that you have two who don't carry cards at the present." Rood, thereupon, suggested that both Bresees should "get straight" with Respondent Union; upon this note, their first September 27 jobsite conversation terminated. Later that day, however, the Bresee brothers had a further conversation with Respondent Company's secretary -treasurer. According to Ralph Bresee, whose testimony in this respect stands without contradiction, Rood_ de- clared: ... that he was not going to be able to be at work on Friday and he was going to be gone and that the union was going to be coming out there and we weren't supposed to, go to work because he wanted to be there to talk to the union when they did come. Respondent Company's secretary-treasurer said that he would have "his crew" do required framing work that day. Pursuant to this direction, the Bresee brothers, though they performed some work on Thursday, September 28, thereafter did not report to Respondent Company's Bellevue project on Friday, September 29. When they returned on Monday, October 2, they were told that Respondent Company's next scheduled building "units" were not ready for work. Subsequently, however, they were given work, both on Tuesday, October 3, and the following day. Sometime on Wednesday, October 4, however, there was a further jobsite conversation. In relevant part, Ralph Bresee's credible testimony with respect thereto, which stands without contradiction, reads as follows: Mr. Rood told is that the Carpenters Union helped to get the Laborers Union off his back, that the Laborers Union was putting pressure on him to hire a laborer and that the Carpenters Union somehow convinced the Laborers Union not to pressure [him] into hiring them. Respondent Company's secretary-treasurer declared fur- ther that a union representative would be visiting the project; the Bresee brothers were once more advised to "get straight" with that organization. To this, David Bresee replied, so I find, that Business Representative Res! ier was checking his situation. Ralph Bresee repeated his Prior statement that he proposed to proffer his "initiation dues" when Respondent Union's representatives came. He declared further that they would do what the law required, and that there should be no difficulty. 2. Respondent Union's membership requirements are defined On Thursday, October 5, Respondent Union's business representative revisited the Bellevue jobsite; Rood was asked whether the Bresee brothers were still working. Respondent Company's secretary-treasurer responded affirmatively. Regnier, with Rood for Company, thereupon approached the brothers; they were then at lunch, Ralph Bresee's testimony regarding their conversation, which I credit, reads as follows: I right away told him that I wanted to pay my initiation and dues, I had a [blank] check in my wallet, I took my wallet out and took the check out and told him that I have been to, the National Labor Relations Board and that I have been told that I was required to do this by law and that 1 wanted to do it. He told me that I would have to sign an application before he could take any money ... . The business representative then procured a copy of Respondent Union's membership application form from his car. The form, inter alia, contained the "pledge" or formal "obligation" which Respondent Union's parent body, the United Brotherhood of Carpenters and Joiners of America, required applicants for membership to sign. With respect thereto, Ralph Bresee's credible testimony continued as follows: [He] told me that the oath was on it and I told him that when I was in the N.L.R.B. I was told that I didn't have to sign anything, that I didn't want to sign anything, but especially anything with the oath on it. I told him I objected to the oath . . . [He] gave me the application with the oath on it and I read through it practically phrase by phrase and told him what I objected to .... I told him that in the oath the members agreed to go by the majority decision and that the Carpenters Union pays for abortions and I especially didn't want to have any part [of ] that ... . Regnier, however, insisted that Bresee would have to sign the _ proffered membership application form, thereby subscribing to Respondent Union's pledge, before his money could be taken. Meanwhile, Respondent Compa- ny's secretary-treasurer, so I find, was encouraging Ralph Bresee to "go along" with Regnier's position. He declared that he saw nothing wrong, with signing the application form; described how well he worked with Respondent Union's representative; and told Bresee that he "could not fight city hall." At this point, so the record shows, Ralph Bresee queried Regnier, while Rood was still present, with respect to whether Respondent Union 's business represent- ative proposed to get him removed from Respondent Company's project. Bresee's testimony with regard to Regnier's reply and subsequent developments, which I credit, reads as follows: [He] said that the union had the big jobs all tied up and I asked him if he was going to get me fired off the job and he said that-Mr. Rood was there-he said that, "We have an agreement with Mr. Rood and we expect him to keep it." Harold [Rood ] walked away and Wayne [Regnier] started to leave the area of the car and I asked him once again if he was going to get me run off the job and he said, "You will probably find that Harold doesn't have any more work for you." [When Ralph Bresee; once more, repeated his query] He said, "You will be out with the "shack builders" referring to my brother and I [;I he meant that we wouldn't be on any big jobs around Seattle, that we 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be where the union didn't bother to encourage membership. The record, considered in totality, warrants a- determina- tion, consistent with Ralph Bresee's testimony, that Respondent Company's secretary-treasurer, though pres- ent during the first part of this conversation, had left the vicinity shortly before Regnier's comment that Ralph Bresee would "probably" find Respondent Company had no more work for him; further, I conclude and find that Rood, likewise, did not hear the business representative's final "shack builder" comment. While a witness, Business Representative Regnier re- called his response with respect to Ralph Bresee's query, proffered while Respondent Company's secretary-treasurer was present, somewhat differently. Accordingly to Regni- er's recollection, Bresee was told, "that Mr. Rood and R-M Framers were a union contractor." When queried directly by Respondent Union's counsel, the business representa- tive flatly denied saying anything further; when cross- examined, however, Regnier conceded that he had said Respondent Company's representative "should" live up to his contract. With due regard for the total conversational context within which this conceded remark was made, however, I cannot credit Regnier's limited witness-chair recollection. Ralph Bresee's testimony in direct examina- tion regarding the business representative's complete comment previously noted rings true; the Bresee brothers, with Rood present, were told, so I find, that Respondent Company would be "expected" to comply with its contractual union-security commitments. Sometime during this October 5 conversation, David Bresee queried Respondent Union's business representa- tive, so I find, with -respect to whether he had "heard anything" regarding the possible remission of his [Bresee's] Colorado fine. Regnier replied that no word had been received, yet, from the Carpenters Union Colorado District Council; he declared his willingness, however, to "put [David Bresee] on a permit" for which he would be required to pay $8 monthly, pending some communication from the Colorado District Council regarding the fine's possible downward revision or settlement. David Bresee replied, so his credible testimony shows, that he planned to visit, Respondent Union's hall the following morning to pay his work permit fee. According to Regnier's recollec- tion, this conversational exchange had taken place before Rood's departure, previously noted. Following his further conversation with Ralph Bresee, previously noted, Respondent Union's business representa- tive, so I find, left the Bellevue project. So far as appears, Ralph and David Bresee resumed their work. 3. October 6 developments On Friday, October 6, the Bresee brothers did not work. They did, however, speak with Respondent Company's secretary-treasurer. Rood asked "how things [had] turned out" with Regnier the previous day. Inter alit, both Bresee brothers thereupon recapitulated their previously detailed program for satisfying Respondent Union's financial requirements.- Rood renewed his request that they "straighten out" their difficulties. Finally, Respondent Company's secretary-treasurer declared that if he did not "hear from the union" before Monday, October 9, there would be work for both Bresee brothers that day. Shortly thereafter, Ralph and David Bresee visited Respondent Union's hall. There, they spoke with, Earl Bohanan, Respondent Union's financial secretary. Ralph Bresee declared that he wanted to pay his "initiation and dues" while simultaneously removing a blank check from his wallet; Respondent Union's total "initiation fee amount" had, so I find, been previously quoted. (My factual determinations herein, regarding the conversation which followed, derive from a synthesis of the 'testimony which both Bresee brothers and Respondent Union's financial secretary proffered. Bohanan's testimonial recol- lections-save in one respect--substantially' matched Ralph and David Bresee's recitals. Respondent Union's financial secretary did testify, despite Ralph Bresee's proffered testimonial recollection, that "no money was offered" by Ralph Bresee, and that neither brother displayed any money or checks during their visit. With due regard for the record, considered in totality, I find Ralph Bresee's contrary recital previously noted more reliable.) Bohanan declared that he (Ralph Bresee) would have to sign a membership application. When Bresee refused, mentioning the Carpenters Union oath printed thereon, Bohanan declared that he could-not take Bresee's money without a signed application, since such applications were required by Respondent Union's` constitution and bylaws. The financial secretary declared further that, should he send Ralph Bresee's application with no signature to the Carpenters Union general office, he felt certain it would be returned. Despite Bresee's protest that this Board's Regional Office had told him signed applications for membership were not required by law, Bohanan main- tained his position. Concurrently, David Bresee reported Regnier's comment during their previous day's conversation that he could pay $8 for a monthly work permit. Bohanan, declaring that Regnier had not yet communicated with him, and that he did not know what commitments Respondent Union's business representative had made, stated that he could not take "any money" from David Bresee before his $300 fine was paid. Ralph Bresee's detailed testimony regarding this conversational exchange-which Respondent Union's financial secretary did not, within my view, persuasively controvert-credibly summarizes the situation. It reads as follows: Mr. Bohanan told my brother [David Bresee] that he had a $300 fine against him, that he, Mr. Bohanan, had to collect that . . . before he could take any money from him. That meant initiation-or dues. My brother asked him, "Indeed, you mean you wouldn't take any money from me unless I pay the fine?" He told Mr. Bohanan that he had been to the N.L.R.B. and that he was told that wasn't according to the law, that he can pay initiation dues if the Union will take it. My brother told Mr. Bohanan that he wouldn't pay the $300 fine. They had already discussed the $8 that Wayne [Regnier] had said that he could pay. Mr. Bohanan had already said that he had not heard anything about the $8 and that he wasn't going to take $8 because my brother had a $300 fine. Mr. Bohanan said that Wayne R-M FRAMERS, INC. 41 would be in later that day, that he expected him--in that afternoon and that he would check about the $8, but Mr. Bohanan also said that if he didn't hear from higher ups about that, he wouldn't take the $8 because it would be against the rules, against the law. With matters in this posture, the Bresee brothers left Respondent Union's hall. However, Financial Secretary Bohanan's testimony warrants determinations, which I make, that, when Regnier came in shortly thereafter, they discussed David Bresee's situation. Regnier mentioned his prior discussion with David Bresee regarding a permit fee, but concluded that "under the circumstances" he was not sure whether a work permit should be granted. According to Bohanan, Regnier's doubts, with respect to this matter, were not resolved. 4. October 9 developments When Ralph and David Bresee reached Respondent Company's project on Monday, October 9, they found a building foundation newly poured. The project foreman suggested that they proceed to construct frames for the building's outside walls. When the brothers commented, however, that the foundation- concrete was still "pretty wet," the foreman suggested they check with Respondent Company's secretary-treasurer; sometime later, when the building's concrete "got a little bit drier," they did so. Ralph Bresee's 'testimony with respect to their conversa- tion, which stands without contradiction, reads as follows: Mr. Rood said that he was going to have his crew frame those and that he would have us frame the next one, and there will be work for us on Wednesday. He told us to get straight with the union . . . he told us we had to get along with them. He emphasized that he had a lot of work for us if we got straight with the union. Considered in totality, the record warrants a determina- tion, which I make, that Ralph and David Bresee did not work that day. Sometime later Business Representative Regnier visited the project; he did not see the Bresee brothers. During a general conversation with Respondent Company's secretary-treasurer, so Regnier testified, the latter reported that he was putting in more footings (building foundations), but that none of them were ready. While a witness, Regnier was asked by Respondent's counsel whether, during this conversation, there had been a specific discussion of the Bresee brothers, their union membership status, or their continued employment. The business representative replied: There was nothing about continued employment. I believe we may have talked about if and when they got it straightened out, yes, but I didn't have to answer him on that, that they had not, but continued employment, no. This testimony, with its somewhat elliptical tenor, requires construction. Substantially, Regnier'.s proffered recollec- tion, within my view, signifies: that Rood, solicited a clarifying statement regarding the situation which would prevail "if and when" the Bresee brothers and Respondent Union reached some accommodation; that Regnier did not consider a direct response required with respect to such a speculative possibility; that he merely reported Ralph and David Bresee had not "straightened out" their relationship with Respondent Union herein; and that he did not then suggest Respondent Union's wishes "one way or the other" with respect to their continued employment. I find Regnier's testimony, so construed, credible. 5. The termination of the Bresee brothers Meanwhile, on Friday, October 6, Ralph and David Bresee had filed their first unfair labor practice charge herein, directed against Respondent Company solely. The Board's Regional Office had mailed a copy thereof on Tuesday, October 10, by registered mail; the following day, October 11, that charge copy was received at Respondent Company's Olympia, Washington, place of business. When the Bresee brothers reached Respondent Compa- ny's Bellevue project on Wednesday, October 11, they spoke with Rood; Ralph Bresee's testimony regarding their conversation, proffered for the record without challenge or contradiction, reads as follows: Mr. Rood told us that the union had just been out ... Mr. Rood told us he was told not to work us until he heard from the union. He told us to get straight with the union and we told him, we went over the whole thing and told him we did everything we could. Mr. Rood said that he had not heard from anybody else yet. The Bresee brothers promptly telephoned Respondent Union's financial secretary. Ralph Bresee reported their termination; Bohanan was asked whether there was "any way" they could work while their difficulties were being resolved. Respondent Union's financial secretary declared that he could not take their money, and that there was nothing he could do. When questioned further by David Bresee particularly, Respondent Union's financial secretary stated that he (David Bresee) would not be, given a monthly work permit; further, he declared that ,Bresee would not be permitted to work without paying his $300 Colorado fine. Shortly thereafter, the Bresee brothers visited Respon- dent Union's hall, where they spoke with Bohanan personally. Ralph Bresee reiterated his desire to tender "initiation dues" producing a blank check from his wallet for that purpose. Bohanan replied that he could not take any money; he reiterated his position that Bresee would have to sign a membership application. David Bresee queried Bohanan then regarding Regnier's promised "$8 deal" which had seemingly been withdrawn. Bohanan reiterated his position that Bresee would have to pay his $300 fine first. With matters in this posture, ,the Bresee brothers left. 6. Subsequent developments Following his October 1I conversation with the Bresee brothers, Rood telephoned Financial Secretary Bohanan; he reported that the Bresee brothers had been laid off or terminated, and requested Bohanan, so I find, to advise Business Representative Regnier that they were no longer on Respondent Company's Bellevue project. On October 13, Rood dispatched a letter to the Board's Regional Office, responding to the Bresee brothers' initial charge herein. In relevant part, Respondent Company's secretary-treasurer reported that: 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On -October 12th there was` work available and we would have hired them [Ralph and David Bresee] but our agreement with the International Brotherhood of Carpenters' states that we may not hire anyone not belonging to this union. Ralph and David Bresee refused to do this. The Bresee brothers have performed no work on Respon- dent Company's Bellevue project since the date indicated. On October 16, their initial charge with respect to Respondent Union herein was filed. C. Discussion and Conclusions 1. The Bresee brothers' employee status Respondent Union contends, herein, that Ralph and David Bresee should be considered "independent contrac- tors" rather than craftsmen in Respondent Company's hire. Proceeding from that premise, Respondent Union's counsel suggests that the Bresee brothers should not be considered entitled to statutory protection. The present record, considered in totality, persuades me, however, that Respondent Union's suggestion merits Board rejection. Within my view, it lacks persuasive record support. When distinguishing between "employees" and "inde- pendent contractors" for statutory purposes, this Board must concededly apply general agency principles. N.L.RB. v. United Insurance Company of 'America, 390 U.S. 254 (1968). And the common-law agency test rests primarily upon the amount of supervision that a putative employer has the right to exercise over individuals, particularly regarding the details of their work. See Associated Inde- pendent Owner-Operators, Inc. v. N.L.RB., 407 F.2d 1383, 1385 (C.A. 9, 1970), vacating and remanding 168 NLRB 863, in this connection; therein, the court notes that: All incidents of the given relationship must be assessed to determine whether "the person for whom the work is done has the right to control and direct the work, not only as to the result accomplished by the work, but also as to the details and means by which that result is accomplished." Consistently therewith, this Board has routinely held the so-called "right to control" test decisive when determining whether particular persons should be considered independ- ent contractors specifically excluded from statutory protec- tion. The record herein, with particular reference to Respon- dent Company's right to control and direct the work which Ralph and David Bresee did, can hardly be considered comprehensive. I am satisfied, however, that reliable, probative, and substantial testimony with respect thereto has been presented, sufficient to sustain a Board determi- nation that Ralph and David Bresee should be considered "employees" statutorily protected. I note, first, that they had no contract, written or verbal, with Respondent Company wherein their complete per- formance commitment was defined; no total contract price, for their services, was fixed. (The consensus reached with respect to their so-called "piecework" compensation dictates no conclusion that they were contractors; through- out our business enterprise system, piece-rate compensa- tion for conceded employees is common.) In that connec- tion, I note further that Respondent Company's secretary- treasurer, not the Bresee brothers, measured the amount of work which they had completed for the purpose of determining their compensation. Though Ralph and David Bresee furnished their own handtools, they worked on materials which Respondent Company furnished. Their services were performed when and where Respondent Company's management represent- atives directed. Ralph Bresee testified credibly that Secretary-Treasurer Rood, personally, gave them their first assignment. During their few short days on Respondent Company's Bellevue project, they were supervised directly by Secretary-Treasurer Rood and Respondent Company's foreman. Ralph Bresee testified, credibly and without contradic- tion, that when they began work Respondent Company's foreman provided them with plans which they would be required to follow, and detailed certain problems and difficulties which they would be required to consider and surmount in connection therewith. On one occasion, at least, David Bresee questioned him regarding a construc- tion problem. Further, Respondent Company's foreman, so the record shows, worked nearby and checked the progress of their work with them, during their first week some seven times to the end that mistakes might be avoided. The Bresees were craftsmen; presumably, Respondent Company's supervisors considered them sufficiently well qualified to perform their work consistently with conven- tional standards of craft competence. The fact, therefore, that their work may not have been closely supervised or continuously reviewed provides no legitimate basis for a determination that Respondent Company's management representatives had relinquished their "right of control" with respect thereto. I note, in this connection, that, when the Bresee brothers were not on the job, Respondent Company's hourly paid carpenters, whose "employee" status has not been questioned, did framing work. Further, the present record warrants a determination, which I make, that, when the Bresee brothers were paid on Respondent Company's regular payday, they received separate checks from which deductions for social security, Federal withholding taxes, and medical aid had been taken. Such compensation arrangements are considered normally consistent with employee status. Both Ralph and David Bresee testified, without chal- lenge or persuasive contradiction, that within the Greater Seattle Area framing work, roofing work, and siding construction done in connection with a substantial number of construction projects has, for some years, been compen- sated largely on apiece-rate basis. Respondent Union has concededly questioned the desirability of piece-rate com- pensation; it has sought, both by contract and by rule, to persuade union members that such compensation arrange- ments should be eschewed. Clearly, therefore, Respondent Union cannot be said to consider piece-rate compensation, per se, sufficient to warrant a determination that craftsmen so compensated should be considered contractors. These several considerations, within my view, warrant a determination, which I make, that Ralph and David Bresee were, throughout the period with' which this case is R-M FRAMERS, INC. 43 concerned, statutory "employees," privileged to exercise rights statutorily guaranteed and consequentially entitled to statutory protection. Compare Sheet Metal Workers Union Local 283, Sheet Metal Workers International Association, AFL-CIO (Tad's Service), 172 NLRB 652, 658; Local No. 2265, United Brotherhood of Carpenters and Joiners of America; AFL-CIO, (Carpet Center, Inc.), 170 NLRB 633, 634-635; M.P. Building Corporation, et al. d/b/a Kent _ Construction Company, 165 NLRB 829, 836-837, in this connection. 2. Respondent Union's request for the Bresee brothers' termination The collective-bargaining contract by which Respondent Company and Respondent Union were, mutually, bound throughout the period with which this case is concerned provides that workers covered thereby shall, become and remain union members, as a condition of their employ- ment, from and after the ninth day following their dates of hire. The propriety of this contractual union-security provision has not been challenged herein. When Respondent Union's business representative spoke with Ralph and David Bresee, during his October 5 visit to Respondent Company's Bellevue project, the ninth calen- dar day following their September 26 hire date was in progress; ipso facto, their contractually defined obligation to become and remain union members hadmatured. Both Ralph and David Bresee were presumably cognizant of their situation; the record, within my view, reflects their sustained efforts ' to reach some accommodation with Respondent Union's representatives, whereby that organi- zation's contractually defined "membership" requirement could be considered satisfied. Difficulties developed, however, when Business Repre- sentative Regnier and Financial Secretary Bohanan discov- ered: (1) That Ralph Bresee proposed to tender merely whatever monetary sums Respondent Union might then require for payments on his initiation fee and dues, without signing a standard membership application form; and (2) that David Bresee was proposing a similar tender or, alternatively, proposing to pay a monthly permit fee, without concurrently paying a prior Union-levied $300 fine. Replying, Respondent Union's representatives, con- tended, substantially, that, consistently with their organiza- tion's constitutional and bylaw requirements, such tenders could not be taken since , "membership" could not be granted thereon. The Bresee brothers, contrariwise, con- tended that, with due regard for relevant National Labor Relations Act provisions and,decisional pronouncements bottomed thereon, their proposed monetary tenders should have been considered sufficient. With matters in this posture, this Board's disposition of General- Counsers contention, that Respondent Union herein, through its course, of conduct detailed within this Decision, violated Section 8(b)(1)(A) and (2) of the statute, will require the preliminary determination of two factual questions. First: Did Respondent Union's business repre- sentative "cause or attempt to cause" Respondent Compa- ny's secretary-treasurer to, terminate Ralph and David Bresee, or to withhold further work from them, for statutorily proscribed reasons? Second: Assuming, for the -sake of argument, that Respondent Union's representatives did "cause" their loss of work, were Ralph and David Bresee employees with respect to whom union membership was being denied "on some ground other than [their] failure to -tender the periodic dues and the initiation fees uniformly required" from persons seeking to become or remain members? To these questions, consideration must now turn. a. Did Respondent Union cause the Bresee brothers' terminations? Respondent Union's counsel, within his brief , contends vigorously that General Counsel has not herein 'demon- strated a direct causal link between Business Representa- tive Regnier's statements or conduct and Respondent Company's subsequent decision to terminate Ralph and David Bresee and/or deny them further work. More particularly, General Counsel has not, so he contends, shown by substantial, convincing evidence that Respon- dent Union's representative "actually demanded" both terminations herein challenged. - These contentions, within` my view, must be rejected. When Business Representative Regnier, replying to Ralph Bresee's question, declared, "We have an agreement with Mr. Rood and we expect him to keep it," the Respondent Company's secretary-treasurer was essentially being told that, should the Bresee brothers ultimately fail to satisfy Respondent Union's conventional "membership" require- ments, their Bellevue project employment should be terminated. My factual determination that Regnier made the statement quoted does not, contrary to Respondent Union's posthearing contention, derive from hearsay testimony. Ralph Bresee, who heard it directly, proffered his recollection for the record ; Regnier, while a witness, testified with regard to their conversation in terms "which, so I have found, provide support for a determination that Bresee's testimonial proffer merits credence. Compare Edward Kraemer & Sons, Inc., 203 NLRB No. 110,' in this connection., - - True, Regnier's directive may have been couched in somewhat Aesopian language ; concededly he made no direct discharge demand. Clearly, however, the business representative's comment was calculated to convey a message; and Secretary-Treasurer Rood's testimony herein fully warrants_a determination, which, Imake, that he "got the message" which Regnier sought toconvey. When questioned by Respondent Union's counsel, Rood could recall no specific request, in haec verbs, that Respondent Company should refrain from hiring the Bresee brothers, or send them home, until they got "straightened out" with respect to their membership status; he declared, however, that, "the implication is always don't hire nonunion help; it is just understood.'. Further, Rood testified that, because of his union agreement , "if there is a nonunion man on the job, there is always a problem for me, it is like a thorn in my side." Clearly, Rood considered himself contractually obligated to withhold further work from the Bresee brothers, when finally, apprised that they were not satisfying Respondent Union's membership requirements. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The nature of Rood's conceded "impression" or "under- standing" regarding the thrust of Business Representative Regnier's communication stands clearly revealed when his final October 11 conduct is considered. Directly following his decision to withhold' further work from the Bresee brothers, Respondent Company's secretary-treasurer, so I have found, telephoned Respondent Union's hall, told Bohanan that Ralph and David Bresee had been terminat- ed, and requested Respondent Union's financial secretary to give Regnier that message. Upon this record, I am fully satisfied, despite Respon- dent Union's contrary contention, that Rood's decision was not "independently" or "unilaterally" reached. Fur- ther, I am satisfied that General Counsel has sufficiently shown a direct "causal" link between Business Representa- tive Regnier's October 5 conversational declaration, previously noted, and Secretary Treasurer Rood's subse- quent termination decision. Within my view, that link, despite Respondent Union's contrary contention, strongly presented within its brief, cannot legitimately be consid- ered derived from mere inference or speculation. This Board has consistently held, with judicial concur- rence, that a labor organization need not make a specific demand upon some concerned employer to terminate a worker for illegal reasons before Section 8(b)(1)(A) and (2) violations may be found. See Local Union No. 742, United Brotherhood of Carpenters and Joiners of America (J. L. Simmons Company,, Inc.), 157 NLRB 451, 453-454, enfd. 377 F.2d 929 (C.A.D.C., 1967); Local Union No. 592, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Brunswick Corporation), 135 NLRB 999, 1000-02; Brotherhood ofPainters, Decorators and Paperhang- ers of America, AFL-CIO Local Union No. 193 (South- eastern Plate Glass Company), 129 NLRB 412, 413. Compare Local Union No. 230, Sheetmetal ' Workers International Association, AFL-CIO (Twin City Roofing), 165 NLRB 151, 152-154, 154-155, 156, in this connection. I find these precedents germane; further, upon this record, I find their principle dispositive. b. Were the Bresee brothers terminated for reasons other than their failure to tender initiation fees and dues? The record herein warrants determinations, which I have made, that both Ralph and David Bresee were throughout the period with which this case is concerned prepared to pay whatever sums Respondent Union might momentarily require, calculated to satisfy their initiation fee and dues obligations. Ralph Bresee, so I have found, declared his readiness to make such required payments, whatever they might be, on two occasions-specifically, during Business Representa- tive Regnier's October 5 visit to Respondent Company's Bellevue jobsite, and during Bresee's October 6 visit to Respondent Union's hall. ' On both occasions, so Bresee's credible testimony shows, he produced blank checks which he was prepared to complete and sign. Though he proffered no specifically named sum, his verbal declarations, taken in' conjunction with his gestures, did, within my view, constitute a tender sufficient to satisfy statutory requirements. Should this Board consider his conduct less than sufficient to consti- tute a formal tender, I would find, nevertheless, that they constituted valid offers, looking toward formal tenders. Such tenders were, however, clearly forestalled when Respondent Union's representatives categorically rejected the concurrent condition pursuant to which Bresee's repetitive proffers were made. These proffers were refused solely because of Ralph Bresee's concurrent declaration that he would not sign Respondent Union's membership application form, since it contained a formal "pledge" with respect to which he could not, conscientiously, subscribe. Respondent Union's representatives clearly considered signed application forms a standard prerequisite for persons seeking contractually required "membership" therein. And David Bresee, so the record shows, had likewise discussed, with Respondent Union's representatives wheth- er he could "keep a job" within Respondent Union's jurisdiction by paying merely his initiation fee and dues, without being required concurrently to. pay his $300 Colorado fine. When he first raised the question, Financial Secretary Bohanan had responded negatively; Regnier, during his initial September 27 jobsite conversation with David Bresee, merely had promised that he would see what could be done. In this connection, the present record contains David Bresee's testimony-not previously mentioned within this Decision-that, shortly following his September20 visit to Respondent Company's Bellevue project, he had tele- phoned Financial Secretary Bohanan at Respondent Union's hall. Bresee's credible recollections regarding their conversation-which Bohanan's limited rebuttal testimony did not, within my view, persuasively controvert-read as follows: I told him my name, unnecessarily reminded him that I am the chap that his union was getting off jobs because of a $300 fine that was levied against me in Colorado, and I told him that I had a job in his jurisdiction and wanted to know if there is any way short of paying that $300 fine that I would be allowed to, work on this job .... He told me that Carpenters Unions' rules forced him to collect the $300 fine before he could accept new initiation and dues from me ... I think he asked if I had gone to the District Council to see about getting the fine lowered. And he assured me that there was no way that I could work in his jurisdiction without paying my $300 fine. [Emphasis supplied.] Subsequently, during Business , Representative Regnier's September Z7 visit to Respondent Company's jobsite, previously noted, David Bresee mentioned his $300 fine; reported that Financial Secretary Bohanan had been asked, during their prior telephone conversation, whether he (David Bresee) would be able to keep a job within Respondent Union's jurisdiction without paying the fine; and 'declared that he had "tried" paying his dues and initiation fee, but that Bohanan had said he ' couldn't. Further, Bresee told Respondent Union's business repre- sentative, so I find , that this Board's Regional Office personnel had told him Respondent Union could collect the $300 fine through civil court proceedings, but that his employment could not be conditioned on the fine's R-M FRAMERS, INC. 45 payment; he declared that NLRB personnel had told him he was required merely to tender initiation fees and dues. (Regnier's testimony regarding his September 27 conversa- tion with David Bresee, previously noted, compasses no comparably detailed recital with respect thereto. However, his recollection of their talk, so far as it goes, was not inconsistent with David Bresee's testimony. Bresee's recital, within my view, merits credence.) When confronted with David Bresee's plea, Business Representative Regnier did not, so I find, reiterate Bohanan's reported dictum. Neither, however, did he propound a contrary view; David Bresee was merely told, so I have found, that Respondent Union's business representative "would see what he could do" thereafter. When Regnier next met with the Bresee brothers, David was told that Respondent Union would possibly take a monthly $8 permit fee, pending his resort to certain internal union procedures directed toward the reduction or remission of his fine. Thereby, any further discussion with respect to David Bresee's possible payment of Respondent Union's current initiation fee and dues was, necessarily, cut short; whether he could do so, without being required to pay his fine concurrently, became a secondary question. Bresee's first tentative proffer in that respect-which Financial Secretary Bohanan had previously refused to consider-was never, so the record shows, specifically reiterated. Upon this record, I conclude and find that David Bresee, like his brother, had declared his willingness to tender Respondent Union's required initiation fee and dues, but that Financial Secretary Bohanan's threshhold refusal to consider their receipt, without a concurrent remittance covering his $300 fine had forestalled any formal tender. Both Ralph and David Bresee, so I find, had taken the course which they considered themselves legally required to take; their proposals with respect to paying initiation fees and dues had, however, been rebuffed. Since the law will not require the performance of futile acts, the Bresee brothers cannot be faulted, within my view, for their subsequent failure to proceed with formal tenders precisely computed. See International Brotherhood of Pulp, Sulphite and Paper Mill Workers, Local No. 350, AFL-CIO (St. Regis Paper Company), , 187 NLRB 824, 826; United Brotherhood of Carpenters andJoiners of America, Millmen's Local 824 (Brunswick-Balke-Callendar Company), 115 NLRB 518, 520, footnote 2, in this connection. Under Section 8(b)(2), labor organizations commit a statutorily defined unfair labor practice when they cause, or attempt to cause, concerned employers to discriminate against employees: ... with respect to whom membership in such organization has been denied or terminated on some ground other than his', failure to tender the periodic dues and the initiation fees uniformly required as a condi- tion of acquiring or retaining membership. [Emphasis supplied.] Upon this record, there can be no doubt that Respondent Union's representatives denied Ralph and David Bresee membership status on separate grounds "other" than their purported failure to tender periodic dues and initiation fees uniformly required; I so find. More particularly, with respect to Ralph Bresee, both Business Representative Regnier and Respondent Union's financial secretary, so I have found, effectively barred formal proffers of payment because he would not sign a membership application form. While the relevant collec- tive-bargaining contract, with respect to which both Respondent Union and Respondent Company were privy, did condition employment on a worker's becoming and remaining a union member, the statute and well-settled decisional doctrine teach us that compliance , with such a contractual provision requires nothing-more than the tender of periodic dues and initiation fees uniformly required. Union Starch and Refining Company, 87 NLRB 779, enfd. 186 F.2d 1008 (C.A. 7, 1951). This case stands for the general proposition that, while contracts which require membership as a condition of employment are lawful under Section 8(a)(3)'s proviso, and while unions may have other requirements for membership together with the payment of dues and initiation fees, they cannot lawfully compel a worker's discharge, pursuant to such contractual union-security provisions, because of his failure or refusal to comply with these supplementary requirements. Consistently, this Board has specifically held with judicial concurrence that, where a union rejects a proffer to pay initiation fees and dues because the worker concerned will not sign a membership application and thereafter demands his discharge, that demand will be considered unlawful, within the meaning of Section 8(b)(2) of the statute, so long as the worker concerned has tendered the required dues and initiation fees. See Local Union No. 749, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO (California Blowpipe & Steel Co., Inc.), 192 NLRB 502, enfd. 466 F.2d 343 (C.A.D.C., 1972); Zoe Chemical Co., Inc., 160 NLRB 1001, 1022-23, 1031, in this connection. This Board's Union Starch rule has indeed been sanc- tioned within a variety of factual contexts by virtually every circuit court of appeals; the Supreme Court has mentioned it approvingly. See N.L.R.B.v. General Motors Corporation, 373 U.S. 734, 742, 743 (1963). Therein, the Court stated, quite unambiguously, that: It is permissible to condition employment upon membership, but membership, insofar as it has signifi- cance to employment rights, may in turn be condi- tioned only upon payment of fees and dues. "Member- ship" as a condition of employment is whittled down to its financial core . . . . If an employee in a union shop unit refuses to respect any union-imposed obligations other than the duty to pay dues and fees, and membership in the union is therefore denied or terminated, the condition of "membership" for § 8(a)(3) purposes is nevertheless satisfied and the employee may not be discharged for nonmembership even though he is not a formal member. Within his brief, Respondent's counsel suggests that neither Bresee brother tendered his union fees in good faith; Ralph Bresee particularly, so counsel suggests, never really objected to signing Respondent Union's membership application form for reasons of conscience or philosophy. Rather, counsel contends, Ralph and David Bresee were 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD simply trying to avoid the normal contractual responsibili- ties which regular employees have been required to satisfy; they wanted the privilege of working without being required to observe a congery of contractually sanctioned union conditions. We are not, however, concerned herein with the Bresee brothers' good or bad faith;' when a worker's statutorily validated right to be protected from discharge for nonmembership within a union is challenged, his particular motive for eschewing particular "member- ship" requirements which the union may have set cannot be considered relevant. A worker's decision to shun voluntary full membership, while seeking to satisfy a union's compulsory membership requirement by the payment of initiation fees and dues merely, may be seen as rational, regardless of his stated reasons, when the Supreme Court's decision in N.L.R.B. v. Allis-Chalmers Manufacturing Co., 388 U.S. 175 (1967), is considered. When a worker signs a membership applica- tion blank wherein he agrees to be bound by union rules, he is subjecting himself to possible subsequent discipline and fines which could not be imposed on those who merely pay the initiation fee and dues which the statute permits a union to charge in coninection^ with its effectuation of contractual union-security provisions. The statute does not require workers to sign commitments which impose on them obligations other than the duty to pay initiation fees and dues. Whether or not Ralph Bresee's purported scruples with respect to subscribing a Carpenter's Union pledge might arguably be considered sham, therefore, his legal right to limit his relationship with Respondent Union, by whittling that relationship down to its financial core, cannot be gainsaid. Accordingly, I find that Respondent Union's representatives, when they caused Ralph Bresee's termina- tion for the reason herein found, violated Section 8(b)(2) and (1)(A) of the statute. With respect to David Bresee, the present record clearly dictates a similar conclusion. His failure to acquire that degree of putative "membership" status within Respondent Union, which the statute permits labor organizations to require, followed by his consequent separation from Respondent Company's payroll, plainly resulted from his failure to pay a previously levied fine. Respondent Union does not herein contend-nor can it properly be found- that such fines are compassed within the terms "periodic dues" or "initiation fees" found within Section 8(b)(2)'s proscriptive language. Business Representative Regnier and Financial Secretary Bohanan may well have believed, conscientiously, that their parent body's constitution and bylaws mandated their demand for the concurrent pay- ment of=outstanding fines when initiation fee, and dues payments are tendered. If ' so, they were mistaken. Whatever latitude Respondent Union may be permitted, under the statute, with respect to regulating its -internal concerns, that organization's representatives could not lawfully require David Bresee's discharge because of his refusal to pay the fine previously levied against him, or any part of it. See International Longshoremen's and Warehouse- men's Union Local 17, International Longshoremen's and Warehousemen's Union, 172 NLRB 2016, 2017, 2018; Pen and Pencil Workers Union, Local 19593, AFL (Parker Pen Company), 91 NLRB 883, 886-887, in this connection. I conclude and find, accordingly, that Bresee was denied membership with Respondent Union on some ground other than his failure to tender the periodic dues and initiation fees which Respondent Union normally requires as a condition of acquiring or retaining membership therein. 3. Respondent Company's decision to discontinue the employment of the Bresee brothers a. The temporary layoffs On September 29, so the record shows, Respondent Company's secretary-treasurer directed Ralph and David Bresee to, suspend work for the day because he foresaw a possible project visit by Respondent Union' s representa- tive, and did not wish the Bresee brothers discovered. on Respondent Company's Bellevue project while he (Rood) was not, likewise, present. Clearly, Respondent Company's secretary-treasurer was then cognizant that Ralph and David Bresee had not yet reached a satisfactory accommo- dation with Business Representative Regnier regarding their membership fees. When he directed their temporary layoff, therefore, solely to forestall a possible 'union confrontation, which he did not expect to be present to ameliorate, Secretary-Treasurer Rood was discriminating with regard to their employment tenure for statutorily impermissible reasons; I so find. Similar conclusions, however, cannot be considered warranted, within my view, with regard to the Bresee brothers' October 6 and October 9 layoffs. With respect to Friday, October 6, the record shows merely that Secretary-Treasurer Rood was still urging both brothers to "get straight" with Respondent Union. General Counsel has produced no reliable, probative, and substan- tial evidence, however, that Respondent Company had work available for them that day. Thus, despite Rood's declaration that "if he didn't hear from the union before Monday" there would be work for the Bresees then, no determination can be considered warranted that Ralph and David Bresee were denied Friday work because they were not union members, or because they had not gotten "straightened out" with that organization. On October 9, when the Bresees reported for work, they found the concrete foundation of Respondent Company's next projected building newly poured and not completely dry. And, when they queried Rood with respect to whether they should proceed with framing work for the building's outside walls, the latter declared that he would have his regular hourly paid crew frame the building in question, and that he would have the Bresees frame the next one. (Concurrently, so the record shows, he, did remind both brothers once more to "get straight" with Respondent Union herein, declaring that he "had a lot of work" for them if they did so.) With matters in this posture, General Counsel's presentation, within my view, certainly provides some ground for suspicion that Respondent Company's secretary-treasurer did refrain from giving Ralph and David Bresee October 9 work assignments because of their unresolved union membership status. The record, however, cannot be found to demonstrate preponderantly that R -M FRAMERS, INC. 47 Rood's decision to postpone further work for the Bresees derived from statutorily proscribed considerations. It suggests with equal force that strong possibility that their work that day would have suffered a, delayed start, and that Rood's consequent decision to have his hourly rated crew perform whatever, work could be done may have derived, from business considerations. With respect to the Bresee brothers' October 9 layoff, therefore, General Counsel has, within my view, failed to sustain his burden of proof. b. Respondent Company's October 11 decision to withhold further work The testimonial and documentary record herein, capped by Secretary-Treasurer Rood's concession within his October 13 letter to this Board's Regional Office, previous- ly noted, fully warrants a determination, which I make, that Ralph and David Bresee were terminated and/or denied further work on Respondent Company's Bellevue project, on October 11, 1972, and thereafter, because of their refusal to acquire union membership on Respondent Union's terms. Further, that record shows clearly that Respondent Company's secretary-treasurer was fully aware-both Bresee brothers were being denied their contractually mandated union membership for reasons other than their failure to tender initiation fees and dues. Within his brief, General Counsel notes, cogently and correctly, that: Rood had full knowledge of the Bresees' attempted tender of dues and initiation fees from [their] conversa- tion at the car with Regnier on October 5. Rood also knew of Regnier's refusal to take Ralph's money without the signing of an application and the refusal to take David's money without payment of the fine. The record shows, likewise, that Respondent Company's secretary-treasurer was subsequently fully advised, before the Bresee brothers' October 11 departure from Respon- dent Company's project, regarding their prior efforts to do "everything [they] could" towards reaching some accom- modation with Respondent Union's representatives. With matters in this posture, I conclude and find that Secretary-Treasurer Rood, when he decided to terminate and/or withhold further work from Ralph and David Bresee, had "reasonable grounds for believing that [union] membership was denied. .. [them] . . . for reasons other than [their] failure . . . to tender the periodic dues and the initiation fees uniformly required" consistent with Section 8(a)(3)'s second proviso. Accordingly, when the Bresee brothers were terminated and/or denied further work, for reasons previously set forth herein, the Respondent Company discriminated against them in violation of Section 8(a)(3) and (1) of the statute; I so find. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Company and Respondent Union set forth in section III, above, since they occurred in connection with Respondent Company's business opera- tions described in section I, above, had, and continue to have, a close, intimate, and substantial relation to trade, traffic, and commerce among the several States. Absent correction, such, conduct would tend to lead to labor disputes,burdening and obstructing commerce and the free flow of commerce. THE REMEDY Since I have found that Respondents did engage and continue to engage in unfair labor. practices, I shall recommend that they be ordered to cease and desist therefrom, and to take certain affirmative action, including the posting of appropriate notices, designed to effectuate the policies of the Act, as amended. Specifically, I shall recommend that Respondent Com- pany be ordered to offer Ralph and David Bresee immediate and full reinstatement to their former positions or, should those positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges. Further, I shall recommend that Respondent Union be ordered to send a written notice to Respondent Company, with copies to Ralph and David Bresee, stating that it has, no objection to their reinstate- ment and continued employment. Respondent Company and Respondent Union should further be required, jointly and severally, to make Ralph and David Bresee whole for any pay losses which they may have suffered because of the discrimination practiced against them. So far as Respondent Company is con- cerned, separately, Ralph and David Bresee should be paid sums of money equal to that which each normally would have earned on September 29, 1972, when they were temporarily laid off for statutorily proscribed reasons. So far as Respondent Union and Respondent Company are concerned, jointly and severally, Ralph and David Bresee should be paid sums equal to that which each normally would have earned between October 11, 1972, when Respondent Company discriminatorily failed or refused to continue or renew their employment, and the date of Respondent Company's offer of reinstatement, less their respective net earnings during the period designated. Their backpay should be computed by calendar quarters, pursuant to the formula which the Board now uses. F. W. Woolworth, Company, 90 NLRB 289, 291-294. Interest thereon should likewise be paid, computed at 6 percent per year. See Isis Plumbing & Heating Co., 138 NLRB 716, in this,connection. CONCLUSIONS OF LAW In the light of the foregoing findings of fact, and upon the entire record ' in this case, I make the following conclusions of law: 1. Respondent Company, R -M Framers, Inc., ' is an employer within the meaning of Section 2(2) 'of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. Respondent Union, United Brotherhood of Carpen- ters and Joiners of America, Local Union No. 1797, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits employees of Respondent Company to membership. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. When it attempted to cause and did cause Respon- dent Company to suspend, terminate, and/or deny further employment to both-Ralph and David Bresee, because of their purported failure or refusal to seek or acquire union membership status, Respondent Union engaged, and has continued to engage, in unfair labor practices within the meaning of Section 8(b) and (2) of the Act, as amended. 4. When it temporarily laid off Ralph and David Bresee because they were not members of Respondent Union, or had not "straightened out" their status with that organization, and when it thereafter terminated or with- held further employment from both these employees, pursuant to Respondent Union's demand or request bottomed upon their purported failure or refusal to seek or acquire union membership `status, with knowledge that both complainants herein had tendered their contractually required, initiation fees and periodic dues, Respondent Company discriminated against them with regard to their hire and tenure of employment to encourage union membership; thereby Respondent Company engaged in, and continues to engage in, unfair labor practices within the meaning of Section 8(a)(3) of the statute. Likewise, through its course of conduct described herein, Respon- dent Company has interfered with, restrained, and coerced employees with respect to their exercise of rights statutorily guaranteed; thereby, Respondent Company has engaged in, and continues to engage in, unfair labor practices within the meaning of Section 8(a)(1) of the Act, as amended. 5. The unfair labor practices herein found are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act, as amended. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER1 A. Respondent Company, R-M Framers, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) The encouragement of membership in Respondent Union, United Brotherhood of Carpenters and Joiners of America, Local Union No. 1797, AFL-CIO, through the suspension, termination, or denial of further employment for Ralph and David Bresee, or any other employees, or through discrimination against employees, in any other manner, with regard to their hire or tenure of employment or any term or condition of their employment, except to the extent which Section 8(a)(3) of the Act, as amended, permits. (b) Interference with, restraint, or coercion of employees, in any like or related manner, with respect to their exercise of rights which Section 7 of the Act, as amended, guarantees. I 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, 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. 2. Take the following affirmative action, which will effectuate the policies of the Act, as amended: (a) Offer Ralph T. Bresee and David H. Bresee immediate and full reinstatement to their former-positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and, jointly and severally, with Respondent Union herein make these complainants whole for any loss of pay which they may have suffered by reason of the discrimination practiced against them, in the manner set forth within the remedy section of this Decision. (b) Preserve, and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant and necessary to reach a determination with respect to the amounts of backpay due Ralph and David Bresee pursuant to this Order. (c) Post within its Bellevue, Washington, jobsite, and/or within any different jobsite where Respondent Company's personnel may currently be working, copies of the attached notice marked "Appendix A.'12 Copies of the notice, on forms provided by the Regional Director for Region 19, shall be posted immediately upon their receipt, after being duly signed by Respondent Company's representative. When posted, they shall remain posted, for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Company to insure that these notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region' 19, within 20 days from the date of this Order, what steps Respondent Company has taken to comply herewith. B. Respondent Union, United Brotherhood of Carpen- ters and Joiners of America, Local Union No. 1797, AFL-CIO, its officers, representatives, and agents, shall: 1. Cease and desist from: (a) Causing, or attempting to cause R-M Framers, Inc. to discriminate against employees with respect to their hire or tenure of 'employment, by suspending, terminating, or withholding further employment from Ralph and David Bresee; or causing or attempting to cause Respondent Company to discriminate against employees, in any other manner, with regard to their hire or tenure of employment or any term or condition of employment, except to the extent which Section 8(a)(3) of the Act, as amended, permits. (b) Restraining or coercing employees, in any like or related manner, with respect to their exercise of rights which Section 7 of the Act, as amended, guarantees. 2. Take the following affirmative action, which will effectuate the policies of the Act, as amended: (a) Make Ralph T. Bresee, and David H. Bresee whole, jointly and severally, with Respondent Company herein for any losses of pay which they may have suffered by reason 2 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " R -M FRAMERS, INC. 49 of the discrimination practiced against them, in the manner set forth within the remedy section of this Decision. (b) Send a written notice to Respondent Company, with copies dispatched to Ralph and David Bresee likewise, stating that it has no objection to their current employment by Respondent Company, and will not oppose their reinstatement. (c) Post at its business office and meeting hall in Renton, Washington, copies of the attached notice marked "Ap- pendix B."3 Copies of the notice, on forms to be furnished by the Regional Director of Region 19, shall be posted immediately upon their receipt, after being duly signed by Respondent Union's duly authorized representative. When posted, they should remain posted for 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail copies of Respondent Union's notice to the Regional Director for Region 19, after such copies have been signed as required herein, for posting by Respondent Company, should it be willing, within its Bellevue, Washington, jobsite, and/or within any different jobsite where Respondent Company's personnel may currently be rendering services. (e) Notify the Regional Director for Region 19, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. 3 See hi. 2, supra APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing, during which all parties were given an opportunity to present evidence and argument, it has been determined that we violated the law by committing an unfair labor practice . In order to remedy such conduct, we are being required to post this notice. We intend to comply with this requirement, and to abide by -the following commitments: WE WILL NOT encourage membership in United Brotherhood of Carpenters and Joiners of America, Local 1797, AFL-CIO, through the suspension, termi- nation, or denial of further employment for Ralph Bresee and David Bresee, or any other employees, or through discrimination against employees, in any other manner, with regard to their hire or employment tenure, or any term or condition of employment, except to the extent which Section 8(a)(3) of the National Labor Relations Act, as amended, permits. WE WILL NOT interfere with, restrain, or coerce employees, in any like or related manner, with respect to their exercise of right which Section 7 of the National Labor Relations Act guarantees. WE WILL offer Ralph Bresee and David Bresee immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges. WE WILL separately, and jointly with Local 1797 of the Carpenters Union, make Ralph Bresee and David Bresee whole for any loss of pay which they may have suffered by reason of the discrimination practiced against them. R-M FRAMERS, 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Republic Building, 10th Floor, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-442-4532. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing, during which all parties were given an opportunity to present evidence and argument, it has been determined that we violated the law by committing an unfair labor practice. In order to remedy such conduct, we are being required to post this notice. We intend to comply with this requirement, and to abide by the following commitment: WE WILL NOT, cause, or attempt to cause, R-M Framers, Inc., to discriminate against employees with respect to their hire or employment tenure, by suspending, terminating, or withholding further em- ployment from Ralph Bresee and David Bresee, or in any other manner, except to the extent which Section 8(a)(3) of the National Labor Relations Act, as amended, permits. This means that we will not request the discharge of any employee who is covered by a union-shop agreement for any reason other than the failure of such employee to tender the payment of his initiation fee or periodic dues. WE WILL NOT restrain or coerce employees of R-M Framers, Inc., in any like or related manner, with respect to their exercise of rights which Section 7 of the National Labor Relations Act guarantees. WE WILL notify R-M Framers, Inc., in writing that we withdraw our requests for the termination of Ralph Bresee and David Bresee, and we will notify each of said employees in writing that we have withdrawn our request for the termination or suspension of their employment. WE wILL, jointly and severally, with R -M Framers, Inc., make whole Ralph Bresee and David Bresee for 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any pay losses which they may have suffered by reason This is an official notice and must not be defaced by of the discrimination practiced against them. anyone. This notice must remain posted for 60 consecutive days UNITED BROTHERHOOD OF from the date of posting and must not be altered, defaced, CARPENTERS AND JOINERS or covered by any other material. Any questions concern- OF AMERICA, LocAL UNION ing this notice or compliance with its provisions may be No. 1797, AFL-CIO directed to the Board's Office, Republic Building, 10th (Labor Organization) Floor, 1511 Third -Avenue, Seattle, Washington 98101, Telephone 206-442-4532. Dated By (Representative) (Title)