Pattern Makers Assn.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pattern Makers' Association of Detroit and Vicinity, Pattern Makers' League of North America, AFL- CIO and Michigan Pattern Manufacturers Associ- ation. Case 7-CB-3623 November 14, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On June 6, 1977, Administrative Law Judge Norman Zankel issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and the General Counsel filed limited cross-exceptions and a supporting 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 as modified herein. For the reasons set forth below we agree with the Administrative Law Judge that Respondent Union's practice of giving former business managers, former assistant business managers, and current members of its executive committee referral preference by placing their names at the top of the out-of-work list constitutes a violation of Section 8(b)(1)(A) and (2) of the Act. This practice unlawfully encourages union membership by conferring special benefits on certain members because of their status in the Union and discriminates against employees who in the exercise of their Section 7 rights desire to refrain from union activity. As recognized in Dairylea Cooperative, Inc., 219 NLRB 656 (1975), it is well established that steward superseniority limited to layoff and recall is presumptively valid though it can be viewed as connecting the conferral of a special benefit to status in a labor organization. The lawfulness of such limited special consideration is firmly grounded in the determination that its discriminatory impact is incidental to the legitimate statutory purpose of furthering the effective adminis- tration of collective-bargaining agreements by assur- I We find merit in Respondent's contention that the testimony of John Surina and Charles Nagy on the subject of employer discrimination against union officials was relevant to these proceedings and should have been admitted in evidence. We also find, however, that Respondent was not prejudiced by the failure to admit this testimony. In rendering his Decision the Administrative Law Judge gave adequate consideration to Respondent's record evidence and evidence submitted by offer of proof both with regard to its asserted justification for changing from a "rule-of-live" to a "rule-of- one" referral procedure and with regard to its asserted justification for awarding preferential referrals to former business managers, former 233 NLRB No. 77 ing the continued presence of stewards on the job. Such a practice directly inures to the benefit of all unit employees. The situation presented by the instant case differs in several significant respects. The benefit conferred by the Union in this case goes substantially beyond mere job retention; it grants an actual preference for initial hiring which in turn encompasses eligibility for all benefits under the collective-bargaining agree- ment.2 In addition, it does not appear that the preferential referral practice as applied to current members of the executive committee actually bears any direct rela- tion to furthering the effective administration of the collective-bargaining agreement on the job. The purpose of such referrals is to provide executive committee members with continuous employment and, as such individuals are entitled to be referred to the first available job opening in their classification, there is nothing to suggest that their employment at a particular job location is in any way related to the representational needs of the employees at that location. In fact, we note that it is the shop captain and not the members of the executive committee who handles grievances at the first stage of the grievance procedure. We also note that the collective-bargain- ing agreement provides that the "shop captain shall be employed when any other employees are working provided he is capable of doing the available work." It thus appears that the stewards' on-the-job presence is reasonably assured. On the other hand, the role of the executive committee in processing grievances is not directly facilitated by the stewards' presence on the job, for its function appears to consist of sitting as a body to decide which unresolved grievances should be referred to the business manager for further action. The executive committee's other responsibilities primarily involve reviewing corre- spondence and authorizing payment of bills. It is apparent that the role of the executive committee in administration of the collective-bargaining agree- ment could be performed as effectively when its members are not actively employed on the job as when they are. We therefore conclude that the discriminatory effect of awarding this significant benefit to current members of the executive commit- tee cannot be justified as being merely incidental to the furtherance of a legitimate statutory purpose. assistant business managers, and current executive committee members. Even if it be assumed that Respondent acted for the reasons claimed, this would not serve as lawful justification for its conduct or in any way alter the violations found. 2 For this reason we view Limpco Mfg., Inc., 230 NLRB 406 (1977). which involved the applicability of superseniority clauses to union officers for purposes of job retention, as factually distinguishable and therefore not dispositive of the preferential referral issue in this case. Members Jenkins and Penello note that they dissented in Limpco and adhere to their views expressed therein. 430 PATTERN MAKERS' ASSN. OF DETROIT Moreover, the award of this preference to former business managers and assistant business managers is not even plausibly justifiable. Inasmuch as these individuals no longer have any official union responsibilities it can hardly be maintained that their presence on the job accords any significant benefit to unit employees generally. It is evident that the preferential referral of former business managers and assistant managers accomplishes nothing more than rewarding these individuals for their past service to the Union. Finally, the justification interposed by the Union in support of its preferential referral practice serves to underscore the unlawful basis for its maintenance. The Union asserts that its practice is necessary to counter employers' discriminatory hiring practices directed at members of the executive committee, former business managers, and former assistant business managers because of their union activity. This contention clearly indicates that the thrust of Respondent's policy is to protect the jobs of specific individuals because of their current or former status in the Union and not to benefit members of the bargaining unit generally by facilitating the effective administration of the collective-bargaining agree- ment. Accordingly, we conclude that this practice encourages participation in union activity and discriminates against those who would exercise their Section 7 right to refrain from engaging in such activity, in violation of Section 8(b)(1)(A) and (2) of the Act. 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, as modified below, and hereby orders that the Respon- dent, Pattern Makers' Association of Detroit and Vicinity, Pattern Makers' League of North America, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the said recommend- ed Order, as so modified. Substitute the following for paragraph 2(c): "(c) Post at its office and meeting halls, frequented by its members and by employees, copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by its representative, shall be posted by Respondent Union immediately upon receipt thereof, and be maintained by Respondent Union 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." DECISION STATEMENT OF THE CASE NORMAN ZANKEL, Administrative Law Judge: This case was heard before me on April 4 and 5, 1977, at Detroit, Michigan. The charge was filed by Michigan Pattern Manufacturers Association (hereinafter the Association) on August 30, 1976,1 against Pattern Makers' Association of Detroit and Vicinity, Pattern Makers' League of North America, AFL-CIO (hereinafter the Union). On January 17, 1977, a complaint 2 and notice of hearing was issued by the Regional Director for Region 7 of the National Labor Relations Board (hereinafter the Board) alleging, inter alia, that the Union violated Section 8(b)(IXA), (2), and (3) of the National Labor Relations Act, as amended (hereinafter the Act), by having (I) refused to bargain collectively in good faith with the Association when it unilaterally instituted a change in past referral practices and threatened to engage in a strike in order to compel compliance with that change; (2) caused or attempted to cause the employer-members of the Association to discriminate against employees by imple- mentation of the alleged unilateral change; and (3) unlawfully created a preferred status to certain union officials in the established job-referral system. The Union filed a timely answer3 in which it denied the substantive allegations of the complaint. All parties were afforded full opportunity to participate in the proceeding, to examine and cross-examine witnesses, and to present oral arguments. Counsel for the General Counsel, the Union's counsel, and counsel for the Associa- tion filed posthearing briefs which have been considered. Upon the entire record in the case, including my observation of the demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS i. THE BUSINESS OF THE ASSOCIATION The parties agree that the Association is an unincorpo- rated association comprised of the following employer- members: Annex Pattern Automotive Pattern Commerce Engineering & Pattern Peerless Pattern Perfection Pattern & Manufacturing Co. Progress Pattern Superior Pattern i All dates are in 1976 unless otherwise stated. 2 At the hearing, I granted General Counsel's unopposed motion to amend the complaint to strike par. 2 and to amend par. 3 to allege the Association is an "unincorporated association." a At the heanng, the Union amended its answer to admit the jurisdictional allegations of pars. 4, 5, and 6. Furthermore, the Union admitted the allegations of par. 3, except that portion which alleges the Association engages in collective bargaining. 431 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties further agree that during the year which ended December 31, 1976, at least one of the Association's constituent members, Perfection Pattern & Manufacturing Co., a Michigan corporation with a place of business in Madison Heights, Michigan, purchased and caused to be transported goods and materials valued in excess of $1 million to its Madison Heights location, and that goods and materials exceeding $50,000 in value were transported and delivered to that location directly from points outside the State of Michigan. Additionally, the parties agree that, during the same period of time, Perfection Pattern & Manufacturing Co. sold and distributed products exceed- ing $1 million in value from the Madison Heights location, of which goods and materials valued in excess of $50,000 were shipped from that location directly to points outside of Michigan. The Union admits, and I find, that each of the Association members is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED - THE RESPONDENT The Union admits, the record reflects, and I find that Pattern Makers' Association of Detroit and Vicinity, Pattern Makers' League of North America, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues and Contentions It is alleged that shortly after the election of George Serkian as the Union's business manager, in April, the Union unilaterally revised the previously existing, and mutually agreeable, job-referral practice from one which permitted Association members the selection of its employ- ees from among the top five names on the Union's out-of- work list to a practice which entirely eliminated any option in employee selection. The General Counsel contends that such a change could not be made unilaterally because, by established practice (though admittedly not by written contract), the Association and Union had in effect a job- referral system in which the parties participated by mutual acquiescence and which made the Union the exclusive source of job referrals. The Union admits the change was made but asserts that, inasmuch as the parties had between them no contractual exclusive referral provisions, it was free to alter the referral procedure. Moreover, the Union claims that operation of an out-of-work list is a matter of internal regulation. The complaint further alleges that in late May or early June, and again in August, the Union's assistant business manager, Leo Virga, threatened employer-members of the Association with a strike in order to compel adherence to 4 G.C. Exh. I(c), par. 13. s Brief of General Counsel. 6 The material facts herein are not disputed. Wherever there are incidents described involving Assistant Business Manager Virga, those incidents are based upon the testimony of General Counsel's witnesses inasmuch as their narrations are uncontradicted and each such witness was the alleged unilaterally instituted change in the aforesaid referral practice. The General Counsel contends that both the change and the threat to strike constitute unlawful refusals to bargain on behalf of the Union, while the Union denies this assertion. Finally, the Complaint alleges that, "since on or about March 1, 1976 .. . [the Union] has established the practice of placing"4 the names of former business managers and current executive committee members at the top of its out- of-work list, thereby awarding unlawful referral preference to those union officials. As will be further noted hereafter, the evidence in the record demonstrates that the Union maintained the practice of placing the names of its executive committee members and former business manag- ers and former assistant business managers at the top of the out-of-work list for approximately the past 30 years. In her posthearing brief, counsel for the General Counsel con- tends that the allegation, insofar as it claims the practice was "established" on March 1, 1976, was drafted to contain the reference to that date only to satisfy the Board's statute of limitations. General Counsel argues that the gravamen of that allegation is, in reality, based upon the "mnainte- nance" of such a practice by the Union throughout the period of time material herein. Thus, General Counsel contends that the continuation of the longstanding practice of placing the names of the stated union officials at the head of the out-of-work list unlawfully "encourages union membership and discriminates with respect to hiring against employees who in the exercise of their Section 7 rights desire to refrain from Union activity,"5 while the Union disclaims such an effect. B. The Facts6 As noted above,7 the Union declined to agree that the Association engages in collective bargaining on behalf of its employer-members. In this connection, Luther R. Hardin, vice president of Perfection Pattern & Manufac- turing Co., testified that the Association has been in existence for at least 25 years preceding the hearing and that one of its purposes is that its employer-members bargain collectively, as a unit, with the Union. Hardin is a member of the Association's negotiating committee. He further testified that he has participated in negotiations for collective-bargaining agreements with the Union and that the authority for Associationwide bargaining emanates from the execution of powers of attorney executed by the Association's constituent employers to the Association. The current collective-bargaining agreement between the parties was received in evidence 8 and reveals that the Association (therein referred to as the Employer) is a signatory, together with the Union. Hardin's uncontradict- ed testimony was that the Union has not requested bargaining on any basis more narrow than Association- wide. Additionally, the Association's bylaws9 recognize its existence for collective-bargaining purposes by providing sure and forthright in his testimony. Virga did not appear as a witness at the hearing. 7 See fn. 3. supra. G.C. Exh. 3, effective September I, 1974, through August 31, 1977. 9 G.C. Exh. 2, sec. 7. 432 PATTERN MAKERS' ASSN. OF DETROIT for convening of special emergency meetings of the Association to consider "any problems dealing with changes in the Labor Agreement ... ." Upon all the foregoing, I conclude and find that the Association does bargain collectively on behalf of its employer-members with the Union and exists, in part, for that purpose. 0O At least during the existence of the current collective- bargaining agreement, the parties maintained the following job-referral provisions: Article V, paragraph 13: The Union shall list and classify its members as wood pattern makers, metal pattern makers, model makers, plastic and plaster pattern makers, and additional classifications, if any, and when the Employer calls the Union for pattern makers, the Employer shall be furnished the type of pattern makers designated by him provided they are available. The Employer shall have the right to use any type of pattern maker on any kind of pattern work. There are no other contractual provisions referring to hiring. To implement the above contract provision the Union's bylaws contain "Rules"" which provide, in relevant part, that the Union will maintain an "Out-of-Work" list and "shall endeavor to secure employment for members in the order in which their names appear" 12 on the list. The current agreement applies to all journeyman wood and metal pattern and model makers, plaster and plastic patternmakers, and apprentices employed by the Associa- tion's members, excluding guards and supervisors as defined in the Act, and the parties agree that those employees constitute a unit appropriate for collective bargaining within the meaning of the Act. As indicated above, for approximately the last 30 years, continuing up to and including the hearing dates, the Union engaged in the practice of inserting the names of its executive committee members and former business manag- ers and assistant business managers at the top of the out-of- work list which was maintained in the categories of "Wood," "Metal," and "Hold and Away."'3 Former business managers and assistant business managers were placed at the top of the appropriate list once, upon leaving office, while executive committee members received that status throughout their terms of office. The record reveals that the business managers, their assistants, and executive committee members are elected to their positions by the Union's membership and are required to be members in o1 Stein Printing Company. 204 NLRB 17, fn. 3 (1973); Bill O'Grady Carpet Service, Inc., 185 NLRB 587, 590 (1970). " See Exh, B attached to G.C. Exh. 6, art. IV. 12 Rule 7. 13 This is a category designed to reflect that those whose names appeared were unemployed, but temporarily indisposed to accept employment. 14 Compare the out-of-work lists, G.C. Exh. 5, with the union officials identified on the last page of G.C. Exh. 4. 1i Although he acknowledged he was not solely responsible for acquinng employees as needed, I rely upon his testimony as evidence of the exclusive nature of the Union-Association referral practices because no contradictory evidence was adduced by the Union, except that a designer had been hired from other sources in 1975. That evidence does not, in my opinion, vitiate the substance of Shepler's testimony which relates to patternmakers, not designers. Even if the comparison of job titles is invalid. Doolin testified that good standing of the Union to be eligible to run for those offices. The Union, through testimony of Serkian and executive committee members John Surina and Arcade LaPointe, concedes the existence of the above-described procedure in compilation of the out-of-work list. Moreover, the lists themselves abundantly reflect that practice.' 4 Although the current agreement contains no explicit language making the Union the exclusive source of job referral, the evidence before me establishes, rather convinc- ingly, that such exclusivity existed in practice. Thus, General Counsel's witness, Wendell M. Doolin, president of Automotive Pattern, testified that in his experience (since 1959) his corporation hired no patternmaker from any source but the Union and Wallace W. Shepler, foreman at Automotive Pattern, testified that he sought employees exclusively from the Union for at least the past 6 years.15 Doolin and Fred C. West, president of Peerless Pattern, admitted that, in 1975, Peerless Pattern hired three patternmakers "off the street," but the record reveals this was accomplished with the Union's assent, there having been executed a memorandum of understanding which amended the collective-bargaining agreement. Noteworthy in this connection is the testimony of Donald Pellegren, Serkian's predecessor as the Union's business manager that the only instance during his two terms of office as business manager (1976 to 1969; and 1973 to 1976) where the Union was not used by Association members for job referral was that which involved the designer hired by Automotive Pattern.16 General Counsel contends the evidence demonstrates the existence of an exclusive hiring arrangement between the Association and the Union, in practice, while the Union strenuously argues that is not the case because (1) the current agreement is "silent as to any employer obligation to hire exclusively through" the Union, (2) any employer member of the Association may recall all its laid-off employees before utilizing the out-of-work list, 7 and (3) there existed instances where hirings were made from sources other than the Union. s8 I conclude none of these reasons effectively diminishes the impact of the historical operation of the parties with one another herein. In situations where contracts did not provide explicitly that job-referral clauses made the labor organizations the exclusive referral source, the Board nonetheless found such exclusive arrangements existed either by implication or tacit agreement derived from the surrounding circumstanc- es.' 9 Thus, the Union's first reason is negated. As to the Union's second claim, and assuming laid-off employees had in fact been recalled without use of the out-of-work he called the Union and inquired whether there were designers available prior to hiring that designer. 19 Ibid '7 Serkian testified that such laid-off employees could be recalled without recourse to the list and without regard to their position on the list. This testimony was not contradicted. though he was not asked to specify any situation where this occurred. is This refers to the hiring of the three patternmakers pursuant to the memorandum of understanding, and to the designer, both of which matters have been discussed above. 19 Southern Electrical and Pipefitting Corporation, 131 NLRB 44. 53-54 (1961), Pipe Fitters Local Union No. 392 (Aleo Products, Inc.), 130 NLRB 663, 664 (1961); Local 490, International Hod Carriers Building and Construction Laborers Union, AFL-CIO, and J. Carl Dicus, Sr., Business (Continued) 433 DECISIONS OF NATIONAL LABOR RELATIONS BOARD list, it is probable that those employees would have been referred to their laid-off positions originally by the Union from the out-of-work list, in accordance with the normal well-established practice. Thus, it cannot be said that such recalls are useful examples of such Association members' freedom to hire as the Union seeks to ascribe to them. Finally, I discount the Union's third reason because the designer had been hired only after an inquiry as to designer availability had been made and because the three pattern- makers had been hired pursuant to revised contractual arrangements between the parties. Indeed, the latter two episodes serve to buttress General Counsel's position that the Association considered the Union its singular source of referrals and enhances the implicit exclusive character of the referral system. Of significance in assessing the Union's disclaimer that an exclusive hiring arrangement existed is the evidence presented in connection with the allegation that a strike had been threatened to enforce the alleged unilateral change in the referral system. Shepler testified that, sometime in August, Virga told him there would be "trouble" if Shepler hired patternmakers off the street. Shepler was unable to recall anything more specific. Doolin, however, recounted that Virga said to him there would be no work done by patternmakers if Doolin hired patternmakers off the street.2 0 Doolin recalled this conver- sation occurred a few weeks after Serkian assumed his business manager position on April 21. The Union contends that what Virga said to Shepler is too ambiguous to comprise a threat. 2' I find the remark valuable, however, as an aid in ascertaining the Union's views of the referral practice. Thus, I view Virga's use of the word "trouble," in the context uttered, as an expression of possessiveness naturally attendant to a belief that the subject matter to which it is addressed contains the element of exclusivity. Similarly, Virga's remarks to Doolin (not considered in the context of the alleged threat) are an even stronger pronouncement of such a feeling. If, indeed, Virga understood that the Association members owed no obliga- tion to use the Union's referral system, it is illogical that he would have found it necessary to say anything more than his first few words, to the effect that Doolin "had the privilege of hiring off the street." The continued comments advising Doolin of a potential cessation of work are regarded as the logical extension and oral expression of an understanding that the Union's referral system should be the source of Doolin's employees. The Union, in its posthearing brief, notes that Doolin "acknowledged that he was under no compulsion to hire the man referred by" the Union.22 Presumably, from this acknowledgment the Union would argue that the employer-members of the Association themselves did not look toward the Union as their exclusive source of referrals. Examination of the context of Doolin's acknowledgment reveals it was made in Agent (Dickmann-Pickens-Bond Construction Company), 130 NLRB 380, 385-386 (1961). 20 As noted in fn. 6, supra, Virga did not testify at the hearing. Doolin testified as follows: (By Doolin): He (Virga) said that I had the privilege of hiring off the street, but that there would be no work done in our shop by pattern makers if I hired from the street. And I asked him at the time if he was response to a question relating to the employer's procedure subsequent to a referral having been made by the Union. Thus, I consider the fact that an employer has the right to reject someone referred to it by the union irrelevant to the employer's comprehension as to the initial contact with the union to solicit the referral. In my opinion, the evidence as a whole warrants the conclusion that the parties herein, at all times relevant, did in fact operate pursuant to an implied exclusive job-referral system, and I so find. The current agreement is mute as to the manner in which the out-of-work lists will be utilized by the Union when referring employees to Association members. In practice, the business manager is responsible for maintenance and operation of the out-of-work lists, and is assisted by his secretary and the assistant business manager. As noted above in subsection A, the General Counsel contends that the practice of the Union submitting five names from the lists was unlawfully unilaterally changed to submitting only one name after Serkian became business manager in April. The record reveals that, historically, the Union, prior to approximately the year 1958, operated the out-of-work lists under a so-called rule-of-one. In 1958, apparently because that operation was not sufficiently flexible, the union membership voted to change the operation of the referral lists to a "rule-of-five." There is no evidence that the change, in 1958, from the rule-of-one to the rule-of-five was negotiated between the parties. Since 1958, and until shortly after Serkian became business manager, the rule-of- five governed the Union's referrals to Association mem- bers. Under this rule, Association members seeking referrals would inform the Union's business manager who would submit the top five names on the out-of-work list to the employer. The employer then selected the number of employees it needed from among the five names. Under the rule-of-one, as operated by Serkian after May 1976, only the top name on the out-of-work list was submitted by the Union. According to the uncontradicted testimony of Thomas J. Bedford, union president in early 1976, five rank-and-file union members presented a petition to him proposing a change in the rule-of-five. This petition ultimately resulted in the union membership voting, on June 15 and 16,23 to eliminate the rule-of-five. This action was taken upon the recommendation of the Union's executive committee which had considered the Associa- tion's employers had utilized the rule-of-five in a discrimi- natory manner. Thus, Bedford (who also is the current union president) testified that union officers usually are the first employees selected for layoff,24 and La Pointe testified that, after having served as an executive committee member and engaged in a strike in 1971, he was forced to accept employment with a nonmember of the Association telling me that they would go on a strike and he said, no, I am not telling you we will go on a strike. I am just telling you that our card- carrying members will not work. 21 This contention will be disposed of in subsection C, I, infra. 22 See Union's brief. 23 See Exh. C attached to G.C. Exh. 6. 24 The current agreement contains no seniority provisions. 434 PATTERN MAKERS' ASSN. OF DETROIT because, although referred, no Association member had hired him.25 I find that the change to the rule-of-one in 1976 was instituted by the union membership acting upon the petition seeking a revision of the referral procedure, and upon the belief of certain union officials that the Association members had misused their privileges under the operation of the rule-of-five.26 After the membership vote, the union members were advised of it by distribution of a notice dated June 1727 and, according to Serkian (whose testimony was uncon- tradicted on this point), a copy of that notice was "posted in every shop . .. "28 Thereafter, the Union sought to comply with referral requests in accordance with the rule- of-one. There is a dispute as to whether or not the employees have an option to reject someone referred under the rule-of-one. The Union claims such option exists, while the Association denies this claim. Serkian testified that the Union does not require an employer to accept the employee referred from the top of the list. He indicated on cross-examination, however, that the Union would inquire as to the reasons for rejection and evaluate their validity. 29 I find, by this testimony, that the Union reserves to itself a modicum of final control over the employer's selection. To complete the description of the operation of the rule- of-one, reference is made to the discussion hereinabove relative to Virga's dealings with Doolin and Shepler. 30 C. Analysis I. The alleged refusal to bargain As noted above, the General Counsel's theory of the alleged 8(b)(3) violation is based upon two acts: first, a unilateral change of the rule-of-five to the rule-of-one; and second, a threat to strike if employees are hired off-the- street. 25 The Union offered the testimony of executive committee members John Surina and Charles Nagy, and also of former Business Manager Pellegren, to provide further evidence of the Union's belief the Association members had utilized the rule-of-five in a manner discriminatory toward union officials, thereby providing justification for the 1976 change to the rule-of-one. I sustained objections of the General Counsel and Charging Party to such evidence and also rejected the offers of proof on this subject matter which were orally stated by the Union's counsel. It was my belief at the hearing that the motivation for the change to the rule-of-one is irrelevant to the issue of whether the alleged, and admitted, change to the rule-of-one is such a unilateral change under the circumstances herein as to constitute a refusal to bargain. So framed, the admissibility of the rejected evidence is dependent upon whether or not it relates to the Union's obligation to bargain with the Association about a change in the referral system. I have carefully reconsidered my rulings in the light of the posthearing briefs, and the law applicable to the issue as I have stated it, and adhere to the rulings made at the hearing. It must be noted that, at the hearing (see transcript) it was claimed. during argument upon the admissibility of the rejected evidence, that that evidence related to the refusal-to-bargain allegations of complaint, par. 14. In his brief, for the first time, the Union's counsel urges the applicability of the rejected evidence to the issues of restraint, coercion, and discrimination alleged in complaint par. 13. While I perceive merit to the Union's latter argument. I find no reason to alter my previous rulings because I conclude that Bedford's and La Pointe's testimony concerning their perception of possible employer circumvention of the rights of union officials, coupled with Serkian's uncontradicted testimony that he complained to several employer representatives of employer abuse of the rule-of-five, sufficiently satisfies the Union's effort to supply evidence herein of the factor of justification which was addressed in Dairvlea Cooperarive Inc., 219 NLRB 656(1975). The thrust of the Union's defense claims (a) the Union's referral procedures are not matters appropriate for collec- tive bargaining because they are internal rules, and (b) no threats to strike can be derived from Virga's discussions with Doolin or Shepler. There is no issue before me claiming the subject referral procedures as they appear in, or operated under, the current agreement comprise a discriminatory hiring hall. Therefore, the predicate of this analysis is that the referral procedures between the parties herein, broadly speaking, are a mandatory subject for collective bargaining.3t Indeed, the Union acknowledges this point when, in its brief, it states that "Although it may be lawful to demand bargaining over the referral service procedures in the contract negotiations . . [at the end of the term of the current agreement] ... .in August 1977, there is no right to demand negotiations at the present time, especially in view of the past practice of allowing the . . . [Union] . . . to operate the referral service with no interference from the · . . [Association]." 32 The Union rests its defense of this issue upon its contention that the specific mechanics of operating the referral procedure is an internal union procedure. Conse- quently, the Union contends it must follow that the statutory mandates of bargaining do not attach to such procedure. I disagree.33 In Tom Joyce Floors, Inc.,34 the Board held that an employer unlawfully refused to bargain collectively when it declined to bargain over a nondiscrimi- natory hiring arrangement. The contractual referral clause in Tom Joyce, as herein, was not explicitly stated to be exclusive. Unlike the instant clause, however, that involved in Tom Joyce contained extensive provisions describing the union procedures for implementation of the referral process. Thus, the clause provided, among other things, for the union to maintain two separate lists: the method by which workmen will be entered on the lists, and the order Accordingly, I conclude the Union has not been prejudiced by my rulings. 26 The General Counsel implies Serkian is not credible in his explanation that the rule change was effected by vote of the membership by noting that Serkian. in his preheating affidavit (G.C. Exh. 6) inconsistently stated that "the Executive Board voted to inform the ... Association of a change" in the rules. I do not find the contents of the affidavit inconsistent with Serkian's oral testimony because, considering the total chronology of events herein, it is clear that both occurrences actually took place. Thus, prior to submitting the proposal to change the referral procedure to membership-at- large, the Union's executive committee took preliminary action. 27 See Exh. C attached to G.C. Exh. 6. 2I Transcnpt, p. 152. Serkian was positive the notice was posted, although not sure a copy, in the form attached to G.C. Exh. 6, had been mailed by the Union to the Association members. 29 Transcript, pp. 143-149. 0 See also fn. 20, supra. 31 Local 357, International Brotherhood of Teamsters. Chauffeurs. Ware- housemen and Helpers of Anmerica [Los Angeles-Seattle Motor Express] v. N.LR.BB, 365 U.S. 667, 676 (1961): Houston Chapter, Associated General Contractors of America, Inc., 143 NLRB 409, 411-413 (1963), affd. 349 F.2d 449 (C.A. 5, 1965), cert. denied 382 U.S. 1026 (1966). 32 Union's brief, p. 34. 33 As aptly noted by the First Circuit Court of Appeals: "Congress did not intend to restrict the duty to bargain collectively only to those subjects which up to 1935 had been commonly bargained about in negotiations between employers and employees," but also it meant to compel bargaining "with respect to any lemployment I matter which umight in the future emerge as a bone of contention between them." W W Cross and Company. Inc., v. N.LRB., 174 F.2d 875, 878 (C.A. 1. 1949). 34 149 NLRB 896(1964). 435 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in which the union was to make referrals. The Board, pro forma, adopted the trial examiner's conclusion that he had "no doubt that the proposed hiring procedures are 'terms and conditions of employment' within the reach of the statutory bargaining obligation." 35 Inherent in that conclu- sion is the threshold resolution of the character of the hiring and referral machinery as bargainable subject matter. I conclude that, although the Board did not specifically address this issue in Tom Joyce, it is encom- passed within its finding of violation. Accordingly, I find that the subject matter of the rules-of-one and five herein constitutes a mandatory subject for collective bargaining. It cannot be said, as the Union would have it, that no bargaining order is appropriate herein because the current agreement is not due to expire until August 31, 1977. The bargaining obligation does not cease with the execution of a contract. It is clear that the parties to collective bargaining must deal with one another throughout the term of their agreement on issues pertinent to contract imple- mentation. The Union cites National Carbon Division, Union Carbide and Carbon Corporation3 6 to support its claim of exoneration from the general duty to bargain. Inasmuch as the National Carbon Division case contains evidence that the subject matter over which midcontract negotiations was sought had been considered by the parties during contract negotiations, I find it distinguishable from the instant proceeding. Herein, there is hardly a scintilla of evidence that the parties had the referral machinery before them at the negotiating table. No party has suggested that the rules-of-one and five do not fall within the class of matters necessary to implemen- tation of their agreement. Paradoxically, the evidence that some employees were hired in 1975 pursuant to a memorandum of understanding reveals that the Union itself acknowledged the relationship of the hiring and referral practices to contract implementation. Upon the foregoing, I reject the Union's contentions based upon timing and, upon all the foregoing, I find that by unilaterally37 changing the referral machinery from the rule-of-five to the rule-of-one, in the period of May and June 1976, the Union refused to bargain collectively in good faith with the Association for the employees in the undisputed appropriate unit herein, in violation of Section 8(b)(3) of the Act. With respect to the allegation that the Union threatened a strike to enforce compliance with the rule-of-one in 1976, the Union, claiming no such threat was made, asserts (I) that Virga's remarks to Doolin and to Shepler were nothing more than his innocuous way of communicating expression of the mood of the Union's membership when learning that the employers were circumventing the reestablished rule- of-one, and (2) that the words used by Virga3 8 are not 35 Id. at 905. 36 IOO NLRB 689 (1952). 37 As noted hereinabove, there is no dispute that the rule-of-one was reestablished in 1976 by the Union acting alone. 38 See fn. 20, supra. "3 Sheet Metal Workers International Association, Local Union No. 223, AFL-CIO (Continental Air Filters Company and Cambridge Filter Corpora- lion and Gelfand Roofing Company), 196 NLRB 55 (1972), members would not install nonunion label products; Los Angeles Mailers Union No. 9, International Typographical Union (Hillbro Newspaper Printing Company, Division of Hearst Publishing Companv. Inc.). 135 NLRB 1132, 1133-34 susceptible, in any event, to the interpretation of a strike. I reject both these contentions. Although it is true, as the Union submits, Virga at no time actually used the word "strike" and literally denied the Union would strike, it is appropriate to examine the plain meaning of his actual words within the context of utterance. Virga first told Doolin if he hired off-the-street "there would be no work" and the "card-carrying members will not work." Virga later told Shepler there would be "trouble" if employees were hired off-the-street. In isolation, the comment to Shepler, is ambiguous but, viewed in the totality and chronological order of events herein, the Doolin conversation affords meaning and substance to what was said to Shepler. I conclude that the words used by Virga impart the classic definition of a strike.39 Thus, I find that by both conversations (Virga's self-serving denials notwithstanding) Virga uttered threats to strike. In urging Virga's words are merely advisory of the union membership's sentiments rather than threats, the Union's brief suggests he spoke as an individual and, therefore, in the absence of direct evidence of official or formal authorization, ratification, or adoption by the Union, no responsibility for his words can be imposed upon it. I find this suggestion untenable for the following reasons. First, it is clear that Virga's remarks are consistent with the previously announced intentions of the Union, as manifest by the above-described actions of its executive committee and membership-at-large to reestablish the rule-of-one. Second, Virga, when making the comments, occupied the elective position as the Union's assistant business manager. Finally, no evidence was adduced at the hearing to show any effort to disavow his comments. In these circum- stances, I conclude that Virga, a designated agent of the Union, was so endowed with ostensible and real authority to act in its behalf as to impute to it responsibility for his conduct herein. Upon the foregoing discussion relating to the alleged threat to strike and, having in mind that Virga's words were uttered in the context of Doolin and Shepler indicating that the Union's return to the rule-of-one might require them to hire off-the-street, and that the rules-of-one and five is a mandatory bargaining subject, I find that Virga sought to deter the employer's action and to enforce adherence to the unilaterally imposed rule-of-one by unlawfully threatening a strike, in violation of Section 8(b)(3) of the Act.4 0 (1962), employer could expect "trouble"; Building and Construction Trades Council of Tampa and Vicinity, AFL-CIO, et al. (Tarmpa Sand and Material Co.), 132 NLRB 1564, 1566 (1961), members would walk off the job: Lafayette Building and Construction Trades Council (Southern Construction Corporation). 132 NLRB 673 (1961), employer could expect trouble. Although the above statements were uttered in contexts differing from the instant case, they are valid precedent to comprehend the relationship between the word "trouble" or the effect of members refusing to work and a strike. 4i Newspaper Printing Corporation, 221 NLRB 811, 821 (1975). 436 PATTERN MAKERS' ASSN. OF DETROIT 2. The alleged restraint, coercion, and discrimination The parties agree that the underlying theory of the 8(b)(1)(A) and (2) allegations is founded upon the princi- ples of Dairylea Cooperative, Inc.41 where the Board, as enforced by the Court of Appeals 42 for the Second Circuit, found it violative of the Act to accord superseniority to union stewards for purposes other than layoff and recall. While the General Counsel and the Charging Party claim the Dairylea holding supports a finding of violation herein, the Union contends that case is distinguishable from the facts herein so as to preclude the existence of a violation. In consideration of the various arguments presented, the following uncontested facts (not heretofore described) in the instant record must be noted: (a) The current agreement between the parties contains both maintenance-of-membership and valid union-shop clauses.4 3 (b) Neither executive committee members, business managers, nor assistant business managers regularly perform day-to-day servicing of employees under the agreement. Such functions are performed by shop captains. 4 4 (c) Shop captains enjoy the right to be employed "when any other employees are working .. .".45 (d) The agreement contains no seniority provisions governing layoff and recall of unit employees. (e) The Union's membership, on past occasions, voted that certain members (including executive com- mittee members) be placed out of order on top of the out-of-work lists. (f) Shop captains are not executive committee members. (g) The executive committee consists of the Union's five officers, in addition to six members-at-large. My review and my analysis of all the arguments made and precedent cited by the parties, together with my independent research, convince me this case presents a unique situation, requiring a preliminary determination whether it is appropriate to apply the Board's Dairylea doctrine to union officials other than stewards. To resolve this issue requires consideration of the Dairylea rationale and those cases decided by the Board subsequent to its promulgation. Since 1949, the efficacy of maintaining continuity on the job for union stewards was recognized by the Supreme Court.4 6 The Court noted, "Because a labor agreement assumes the proper adjustment of grievances at their source, the union chairmen play a very important role in the whole process of collective bargaining." That this rationale continues in existence is demonstrated by a very recent case issued by the Board on April 5, 1977. Thus, in Union Carbide Corporation Chemical and Plastics Opera- 4" See fn. 24, supra. 42 N.L.R.B. v. Milk Drivers & Dairy Employees. Local 338, Teamsters, 531 F.2d 1162 (C.A. 2, 1976). 43 G.C. Exh. 3, art. V, par. I Iand 12. 44 G.C. Exh. 3, art. XV, pars. 51 53; art. XVIII; art. XIX. Executive committee members, business managers, and their assistants become involved in grievance handling in the second step of the grievance tions Division, 228 NLRB 1152, 1154 (1977), the Board declared, "We believe that the continuous presence of the steward on the job 'redounds in its effect to the benefit of all.' " It is noteworthy that the superseniority provisions in issue in the recent Union Carbide case, by its terms, applied to "elected officials" as well as stewards, but the Board's decision is not so far-reaching because the practice of the parties therein was to accord the contractual superseniority only to the stewards. In finding the grant of superseniority to stewards lawful under the circumstances of that case, the Board explicitly recognized the continued validity of the Campbell rationale. Of particular interest with reference to the instant issue is the concurring opinion of then Board Chairman Betty Southard Murphy who observed she "would find presumptively lawful job retention supersen- iority clauses for union stewards or officers whose functions relate in general to furthering the bargaining relationship." [Emphasis supplied. 228 NLRB at 1155.1 In the more recent case of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, and its Local 1331 (Chrysler Corpora- tion), 228 NLRB 1446 (1977), the Board again affirmed the applicability of Dairylea to determine the lawfulness of a superior grant of overtime benefit to plant shop committee- men and chief stewards. These committeemen performed primary grievance procedure functions. Thus, in the instant case, there yet exists the question whether Dairylea should be applied to business managers, assistant business manag- ers, and executive committee members. I conclude the combination of the Campbell rationale and its adoption by the Board both in Dairylea47 and the above-cited Union Carbide and Auto Workers cases impels the application of their principles to any union official, regardless of union job title, whose regular functions are identified with those of stewards. Accordingly, I find it appropriate to utilize the Dairylea criteria in resolving the 8(b)(IXA) and (2) issues herein. I turn now to the merits of the case at bar. Dairylea stands for the proposition that steward superseniority not patently limited to layoff and recall is presumptively unlawful. This presumption can be rebutted by the presentation of evidence in justification of a broader grant, and the burden of proof is upon the party asserting the legality of the superseniority provision.48 Herein, placing the names of executive committee members, business managers, and assistant business managers at the top of the out-of-work lists necessarily entitles them to more than mere recall rights for, if and when hired, they become entitled to all contractual benefits. As noted hereinabove, the Union contends that its policy was needed to rectify apparent discriminatory hiring practices of the Associa- tion's members. Thus, the Union's actions were designed to be a substitute for the absence of seniority provisions in the agreement. I find, however, this is not precisely true because shop captains apparently were accorded the procedure. Shop captains process grievances in the first step of the grievance procedure. "1 G.C. Exh. 3, art. XV, par. 51. 46 Aeronautical Industrial District Lodge 727 v. Canpbell et al., 337 U.S. 521, 528 (1949). 41 219 NLRB at 658, fn. 6. 48 Id at 658. 437 DECISIONS OF NATIONAL LABOR RELATIONS BOARD privilege of remaining on the job so long as other bargaining unit employees were at work. I find no basis in the relevant cases of Motion Picture Laboratory Technicians Local 780, IATSE, AFL-CIO (McGregor-Werner, Inc.),49 Hospital Service Plan of New Jersey,50 or Union Carbide5s from which it is discernible that, in the instant circum- stances, the Union's evidence of justification (both received and submitted by offers of proof) effectively rebuts the presumption of illegality. If the discrimination charged by the Union had been practiced against stewards (or, herein, shop captains) or any other union official performing on- site servicing of employees, then I could possibly find the evidence herein satisfies the Union's burden of proof. However, the instant record makes it clear that it is the shop captains who are the primary functionaries in the grievance procedure. 52 The executive committee principal- ly reviews correspondence and authorizes payment of bills and the main duties of the business manager and his assistant involve collective-bargaining negotiations, griev- ance handling in the second step, and operation of the out- of-work list. It is clear, therefore, that the beneficial policy enunciated in Campbell and Dairylea is fulfilled by permitting shop captains herein to retain their employment for as long as their services as union officials are required. I perceive nothing in this record which demonstrates that the executive committee, the business manager, or the assistant business manager cannot perform their regular union activities unless actively employed by one of the Associa- tion's members, and upon all the foregoing, I conclude that placement of those officers at the top of the out-of-work lists is not justified under the lesson of Dairylea.5 3 It follows that the Union's practice in operating the out- of-work lists is inherently discriminatory and encourages participation in union activities. In order to gain the highest position on the lists an employee would have to commend himself to the consideration of the entire membership and become elected to office. It is not unrealistic to presume that those who evince a belief in and support for union policy and goals will be victorious in the quest to achieve office. Thus (to paraphrase the Board in Dairylea) "participating in union activities ... an activity even employees with merit and ability are free to forego under Section 7 [of the Act] - is a necessary precondition to obtaining the benefit preference of the disputed" 54 operation by the Union herein of its out-of-work lists. No extensive discussion is necessary to demonstrate the discriminatory effect of the Union's operation. Normally, the record reveals, employees sign the lists when they become unemployed and are referred to the Association members as called for, in the order in which they signed the list. As each name is deleted, the succeeding name is advanced to a closer position for referral. Placing the names of executive committee members, business manag- ers, and assistant business managers at the top of the lists clearly deprives others of normal mobility on those lists. Ironically, the Union argues the fact that the membership 49 227 NLRB 558(1976). so 227 NLRB 585 (1976). 51 228 NLRB 1152(1977). 52 See, in this connection. International Union, United Automobile. Aerospace and Agricultural Implement Workers of America (Chnrsler Corporation), supra. itself authorized the preferential placement on occasions in the past negates the existence of evidence of discriminatory motivation, but I deem the facts such a vote was even necessary and the membership did not grant that authority carte blanche to be strong evidence that the employees possessed (or believed they possessed) certain proprietary rights in the operation of the lists. Any encroachment on those rights surely is discriminatory. Upon all the foregoing, I find that by maintaining a system of placing the names of its executive committee members, business managers, and assistant business man- agers on top of the out-of-work lists, the Union violated Section 8(b)( )(A) and (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union set forth above, occurring in connection with the operations of the employer-members of the Association, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact, conclusions, and the entire record, I make the following: CONCLUSIONS OF LAW 1. Pattern Makers' Association of Detroit and Vicinity, Pattern Makers' League of North America, AFL-CIO, the Respondent Union, is a labor organization within the meaning of Section 2(5) of the Act. 2. Michigan Pattern Manufacturers Association, the Charging Party, is an unincorporated association which engages in collective bargaining on behalf of its members which are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. By unilaterally changing the operation of its out-of- work lists in the period May-June 1976, the Union refused to bargain collectively in good faith with the Association, in violation of Section 8(b)(3) of the Act. 4. By Leo Virga, the Union's assistant business manag- er, stating that union members would not work and there would be trouble if employees were hired off-the-street, the Union unlawfully sought to compel compliance of Associa- tion members with the Union's unilaterally instituted change in operation of its out-of-work list, thereby refusing to bargain collectively in good faith with the Association, in violation of Section 8(bX3) of the Act. 5. By maintaining in effect, and operating, in 1976 and 1977, a system of placing the names of its executive committee members, and former business managers and assistant business managers, on top of its out-of-work lists, 53 This conclusion does not leave the Union without remedy for, if evidence of the asserted discrimination against union officials is available, the Union could file unfair labor practice charges with the Board and, perhaps, a grievance under the agreement. 5' 219 NLRB at 658. 438 PATTERN MAKERS' ASSN. OF DETROIT the Union restrained, coerced, and discriminated, and is restraining, coercing, and discriminating, 5 5 against employ- ees in the exercise of their rights guaranteed in Section 7 of the Act, and thereby violated, and is violating, Section 8(b)(1)(A) and (2) of the Act. THE REMEDY 56 Having found that the Union has engaged, and is engaging, in certain unfair labor practices, I shall recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Union discriminated against, restrained, and coerced, and is discriminating against, restraining, and coercing, employees by placing the names of its executive committee members, former business managers, and assistant business managers at the top of its out-of-work lists, I shall recommend that the Union cease and desist from that practice. Having found that the Union unlawfully refused to bargain collectively in good faith with the Association by unilaterally changing its referral system from a rule-of-five to a rule-of-one and by threatening a strike to force compliance with that change, I shall recommend that the Union cease and desist from making unilateral changes in the operation of its referral system and from threatening to strike to compel compliance with such changes. I shall also recommend that the Union return to its operation of out-of-work lists pursuant to the rule-of-five until such time, if any, that a different machinery for operating the lists is mutually negotiated between the Union and the Association through good-faith collective bargaining or until a bona fide impasse has been reached; end recommend, in addition, that the Union forthwith notify, in writing, the Association and each of its constitu- ent employer-members, and also the Union's membership- at-large, that the Union has reinstated the rule-of-five, as prescribed herein. Because there is no evidence herein to the effect that any particular employee suffered financial loss resulting from any of the unfair labor practices found herein, and because there is record evidence that all available employees were able to work during the period of these unfair labor practices, the recommended Order will contain no provi- sion for payment by the Union of any monetary reimburse- ment. 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: ORDER 57 Respondent, Pattern Makers' Association of Detroit and Vicinity, Pattern Makers' League of North America, AFL- CIO, its officers, representatives, and agents, shall: 1. Cease and desist from: (a) Maintaining or operating a referral system by which the names of union executive committee members, or those of former business managers and assistant business managers, are placed at the top of its out-of-work lists. (b) Making any unilateral changes in the operation of its out-of-work lists. (c) Threatening a strike in order to obtain compliance with unilateral changes in its referral procedure. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Immediately return the operation of its out-of-work lists to the manner in which it operated under the rule-of- five and maintain that manner of operation until such time, if any, that a different referral system has been mutually negotiated between it and Michigan Pattern Makers' Association through collective bargaining, or until a bona fide impasse has been reached on that subject matter. (b) Forthwith notify, in writing, the Michigan Pattern Makers' Association, and each constituent employer-mem- ber thereof, together with each member of the Union, 58 that the rule-of-five has been reinstated. (c) Post at its offices or meeting halls copies of the notice attached marked "Appendix." 5 9 Copies of said notice, on forms provided by the Regional Director for Region 7 of the Board, after being duly signed by the Union's duly authorized representative, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 55 Based upon the evidence that the rule-of-one was in effect at the time of the hearing. 56 In developing the remedy, I am not unmindful of the potential argument of mootness based upon the probability that the forthcoming negotiations in August 1977 may well resolve the issues herein. Nonetheless. because of the unique situation presented by the application of Dairylea and because I consider the posting of a notice to the attention of the employees against whom the discrimination was practiced will have a salutory effect consistent with the purposes of the Act. I find it necessary that an appropriate remedy be formulated. 57 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. 5s The requirement of notice to all union members may be satisfied by posting a notice to their attention at all locations in the Union's office and meeting halls where notices to employees and members are customarily posted. 59 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." 439 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportunity to present evidence, it has been decided that we violated the law. We have been ordered to take certain steps to correct our violations and have been ordered to post this notice. We intend to abide by the Order and do the following: First, we notify you that the National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To engage in collective bargaining through a representative selected by you To act together for collective bargaining or for other mutual aid or protection To refrain from any and all these things. WE WILL NOT restrain, coerce, or discriminate against you in the exercise of any of the above rights; more particularly WE WILL NOT maintain or operate our out-of-work lists by placing the names of the Union's executive committee members, former business managers, and assistant business managers at the top of that list. WE WILL NOT make any changes in the operations of our out-of-work lists on our own and without first bargaining with Michigan Pattern Manufacturers Asso- ciation. WE WILL NOT threaten a strike for the purpose of making any employer use ourjob-referral system in the way we unlawfully changed it. WE WILL immediately return the operation of our out-of-work lists to the rule-of-five, and WE WILL notify Michigan Pattern Manufacturers Association and each employer-member of that association, in writing, that we have done so. PATTERN MAKERS' ASSOCIATION OF DETROIT AND VICINITY, PATTERN MAKERS' LEAGUE OF NORTH AMERICA, AFL- CIO 440