Boston Cement Masons, Union No. 534

568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boston Cement Masons and Asphalt Layers Union No. 534, a/w Operative Plasterers and Cement Masons International Association, AFL-CIO (Duran Maguire Eastern Corp.) and Peter Frattaroll and Enrico P. Ventresca. Cases 1-CB-2377 and 1-CB-2386 February 12, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On May 30, 1974, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, the Respondent Union filed exceptions and a supporting brief. The General Counsel filed an answer to the exceptions of the Respondent. 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 only to the extent consistent herewith. The complaint alleges that the Respondent Union restrained and coerced nonmembers Frattaroli and Ventresca in the exercise of the rights guaranteed by Section 7 of the Act "by demanding an exaction of money which was not an initiation fee or dues as a requirement for the continuous employment" by the Employer and thereby violated Section 8(b)(1)(A) of the Act. The complaint further alleges that the Respondent Union caused or attempted to cause the Employer to refuse to hire Frattarroli and Ventresea "because of their failure and/or refusal to pay an exaction of money which was not an initiation fee or dues" to the Respondent Union and thereby violated Section 8(b)(2) of the Act. The allegations of the complaint fail to state facts showing a violation of the Act has occurred. The complaint speaks only in terms of "an exaction of money which was not an initiation fee or dues." It is well-established that a reasonable hiring hall fee may be imposed upon applicants for referral as long as such fees are imposed in a nondiscriminatory manner. These fees have been referred to by a variety of terms including service fees, referral fees, and permit fees. There is no allegation that the Union sought to require nonmembers Frattaroli and Ven- tresca to pay assessments in excess of costs attributa- ble to the hiring hall and related collective bargain- ing. As we find, infra, that Respondent Union had, by contract, a valid, exclusive referral system applicable to the job Fratarroli and Ventresca had been hired for, it was entirely proper for it to require that they comply with the nondiscriminatory condi- tions pursuant to which job referrals were made. Accordingly, in the absence of any allegation that the Union charged excessive or discriminatory fees as a condition of referral to employment or for continued employment, we find that no violation has been alleged. While the defectiveness of the complaint in and of itself requires a dismissal of the action, this is not the only basis upon which we predicate our dismissal. We would conclude on the basis of the evidence adduced at the hearing that no violation of Section 8(b)(1)(A) or (b)(2) has been established. Thus, the record shows that the Union has a collective-bargain- ing agreement with the Associated General Contrac- tors of Massachusetts, Inc., and the Building Trades Employer's Association of Boston and Eastern Massachusetts, Inc., which extends from May 1, 1973, to April 30,1974. The Employer was a member of the Associated General Contractors of Massachu- setts, Inc., on May 1, 1973, and is bound by the collective-bargaining agreement . Among the terms of the applicable agreement is a provision which requires the Employer to notify the Union "of all opportunities for employment prior to the filling of job vacancies" in order that the Union "may refer qualified applicants" for such employment. A provi- sion of this nature between parties primarily engaged in the building and construction industry is given recognition and approval by Section 8(f) of the Act which provides that such a practice is not an unfair labor practice under subsections (a) and (b) of Section 8. It is undisputed that the Employer failed to notify and offer the Union an opportunity to refer qualified applicants for two positions at the Shawmut Bank job and that the Employer directly hired Frattaroli and Ventresca who were not members of Respondent Union and were from outside the area. The record also shows that the Union conveyed its objections to the hiring of Frattaroli and Ventresca to the Employer on July 3, 1973, when it first learned that the Employer would hire them, and repeated its objections again on July 6 and 16, 1973. In each instance, the Union's protest was over the Employ- er's failure to give the Union an opportunity to refer qualified applicants for the two positions. Under these circumstances, the Union could, without violating the Act, properly seek the discharge of the employees in question who had bypassed the contractual referral system. We disagree with the finding by the Administrative Law, ,Judge that there is no exclusive referral system 216 NLRB No. 90 BOSTON CEMENT MASONS, UNION NO. 534 established in section 3 of the agreement and with his finding that the Union violated Section 8(b)(1)(A) and (b)(2) by enforcing the provision here. The literal language of the provision is that the Employer "agrees to notify the [Union] of all opportunities for employment prior to the filling of job vacancies in order that the [Union] may refer qualified applicants as hereinafter defined, for such employment." The absence of any specific language requiring the Employer to hire those who are referred to it, or that the Union is the only source of applicants, cannot properly be interpreted to mean that the Employer is under no obligation to hire qualified applicants referred by the Union because such an interpretation would render the provision meaningless.' Thus, we think it is clear that the Union had a legitimate contract right to police and enforce when it protested the hiring of Frattaroli and Ventresca. Although the Union had not in the past insisted on such a strict interpretation of the agreement, the explanation can be found in the fact that during the time in question here many of the Union's members were out of work. Merely because the Union failed in the past to insist upon rigid enforcement of the provisions of the agreement does not mean that it waived the right to do so in the future. While there is testimony concerning the payment of money by Frattaroli, and a refusal by Ventresca to pay the 2-percent service fee unless he was made a member,2 we do not believe that Frattaroli and Ventresca were denied clearance or referral merely because of their lack of membership in the Respon- dent Union, but because local men in the area were out of work and Frattaroli and Ventresca had not utilized the Union's referral system. In sum, we believe that the evidence shows that the motivation underlying the Respondent Union's protest of the hiring of Frattaroli and Ventresca was the Employ- er's failure to give it the opportunity to refer qualified employees in accordance with the contractual refer- ral system and that by protesting the hiring of Frattaroli and Ventresca the Union was merely policing and enforcing the terms of its collective- bargaining agreement with the Employer. Accordingly, for the foregoing reasons, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. i Secs. 3 and 4 of art. V of the contract closely track the language of Sec. 8(fX3) and (4) of the Act. Both the Senate and House Reports on the bills that became these sections of the Act refer to what is designated by these sections as an "exclusive referral system or hiring hall." I Leg. Hist. 569 LMRDA 424, 452, 778 (1959). See also Local 673, Laborers international Union of America, AFL-CIO (Perini Corporation), 171 NLRB 894, 895, 899-900 (1968) We note also that, although there is evidence that the Union had not insisted upon rigid enforcement of the provisions regarding the qualifications of hirees, there is no evidence that it had ever allowed its referral system to be totally bypassed. 2 The Union's assistant business agent, O'Neill, testified that the Union uniformly charges a service fee, equal to 2 percent of take-home pay, to all employees who have been referred by the Union within its jurisdictional area. This fee is used to defray the costs of the referral system and of collective-bargaining and contract enforcement. Members of the Union also pay $4.50 per capita per month and a $5 fee in the months when they are not employed. DECISION STATEMENT OF THE CASE JoHN M. DYER, Administrative Law Judge: Peter Frattaroli filed the charge in Case l-CB-2377 on July 31, 1973,1 and Enrico P. Ventresca filed the charge in Case 1-CB-2386 on August 8, against Boston Cement Masons and Asphalt Layers Union No. 534, a/w Operative Plasterers and Cement Masons International Association, AFL-CIO (herein called Respondent, the Union, or Local 534), alleging that Local 534, by its officers and representa- tives and in particular Assistant Business Agent John O'Neil; caused Duron Maguire Eastern Corp., herein called the Company or Employer, to terminate their employment in violation of Section 8(bxl)(A) and (2) of the Act. The consolidated complaint and notice of hearing was issued by the Regional Director on January 17, 1974. In addition to the standard service and jurisdictional allegations the consolidated complaint alleged that Local 534, through O'Neil, had restrained and coerced Frattaroli and Ventresca in the exercise of their rights by demanding an exaction of money which was not an initiation fee or dues, as a requirement for their continued employment by the Employer at the building site of the Shawmut Bank Building Project in Boston, Massachusetts, and caused the Employer to terminate them in violation of Section 8(b)(1)(A) and (2) of the Act. As amended at the trial of this matter, Respondent's answer admitted the service and jurisdictional allegations, its status as a labor organization, and the status of Business Agent Charles Spillane and Assistant Business Agent John O'Neil as its agents. Respondent denied that it had violated the Act in any way. On the basis of the testimony in this case, I have concluded that Respondent violated Section 8(b)(1XA) and (2) of the Act. On the crucial question of whether O'Neil threatened to pull Local 534 men off the job if Frattaroli and Ventresca continued to be employed by the Company on And after July 16, I have not credited O'Neil's denial of such statement, but have credited the testimony of Company General Superintendent Russel Pitz, which is substantiated to an extent by Frattaroli and Ventresca. The parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally at the trial in this matter, held in Boston, Massachusetts, on March 13, 1974. General Counsel and Respondent have both filed briefs which have been carefully considered. On the entire record in this case, including my evaluation of the reliability of the witnesses, based on the evidence i Unless otherwise stated all events herein took place during 1973 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received and my observation of their demeanor , I make the following: FINDINGS OF FACT I. COMMERCE FINDINGS AND UNION STATUS Duron Maguire Eastern Corp., is a Delaware corpora- tion maintaining its principal office and place of business in Natick, Massachusetts. The Company is engaged in the installation of concrete and plastic flooring on construction sites in Massachusetts and in other States, and has caused large quantities of concrete and plastic products valued in excess of $50,000, used by it in such installations to be purchased or sold and transported in interstate commerce from and to Massachusetts and other States . The Company annually performs services valued in excess of $50,000 for other companies engaged in interstate commerce and also performs services valued in excess of $50,000 in other States than Massachusetts. Local 534 admits and I find that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find that it is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Facts Local 534, as mentioned above, is affiliated with the Operative Plasterers and Cement Masons International (herein called Cement Masons) and appears to be mainly a cement masons local in Boston . The Bricklayers, Masons and Plasterers International Union of America (herein called the Bricklayers), which has various locals through- out the United States and in Massachusetts is a rival international whose members may work as cement masons. Frattaroli is a member of Bricklayers Local 15 in Waltham, Massachusetts, and Ventresca is a member of Bricklayers Local 52 in Quincy, Massachusetts. Testimony made it clear that most cement mason work in the central Boston area which was performed under union contracts came under the jurisdictional claims of Local 534 and there was no testimony to show that the Bricklayers had a local in Boston which claimed that type of work. It was also clear from Mr. O'Neil's testimony that he considered Boston to be Local 534's area, and, particularly since construction work had slowed down beginning in the 1970's, he felt that the members of Local 534 were entitled to first priority on jobs in the area. The Associated General Contractors of Massachusetts, Inc., and the Building Trades Employer's Association of Boston and Eastern Massachusetts , Inc., have a contract with Local 534 which extends from May 1, 1973, to April 30, 1974, and is a continuation of a prior contractual relationship. The Company was a member of the Associat- ed General Contractors on May 1, 1973, and is bound by this contract. Bearing on this case are sections 2, 3, and 4 of article V of the contract. These are as follows: Section 2. All employees who are members of the Union on the effective date of this Agreement shall be required to remain members of the Union as a condition of employment during the term of this Agreement. New employees shall be required to become and remain members of the Union as a condition of employment, from and after the seventh day following the date of their employment, or the effective date of this Agreement, whichever is later. Section 3. The party of the first part agrees to notify the party of the second part of all opportunities for employment prior to the filling of job vacancies in order that the party of the second part may refer qualified applicants as hereinafter defined , for such employment. Section 4. The party of the first part agrees to hire only qualified cement masons whose minimum training includes completion of an Apprentice Program as a cement mason as evidenced by a certificate of completion, or its equivalent. Said program must have been accredited by the Massachusetts Department of Labor and Industries, or other similar Agency. If all the cement masons who have ' completed an accredited Apprentice Program or its equivalent, have been hired and there are still job vacancies, then the party of the first part agrees to hire the applicants with the longest length of service as a cement mason in the following order; First : With the particular employing contractor; Second: In the geographical area defined in article XII; and Third: In the industry. According to testimony, these clauses and particularly section 4 have been in the contract between these parties for some 8 to 10 years. The Company operated mainly in other areas than Boston and began in the Boston area under this contract after bidding on the Shawmut Bank job as a subcontractor for the pouring and finishing of cement. The Company had other jobs in other areas and during early 1973, employed some Local 534 members to lay a "trap rock" floor in another area of Massachusetts. Local 534 learned that the Company would probably be the low subbidder on the bank job some time before the Company contacted it. Russell Pitz is the general superintendent of construction for the Company and in July was the resident superintend- ent on the Shawmut Bank job . Concrete finishing opera- tions were scheduled to start on July 5, and about 10 days before that, Pitz called Union Business Agent Spillane, telling him that he planned to use a previous employee, Dino Centafani, as the foreman on the job. Spillane replied that he hoped Centafani was clean, that is, that his dues were paid up, etc. Pitz said he would check that with him. Centafani was a member of the Bricklayers . Pitz also asked Spillane for three or four specific cement finishers who had worked for him previously. About a week later Pitz told Centafani that Spillane had indicated Centafani's union book was not paid up, and that he did not want any problems . Centafani said that everything would be taken care of. Around July 1 or 2 Mr. Kinney, Pitz' superior, said he had talked to Spillane and had agreed not to use Centafani as the foreman until his dues were straightened out, adding that he wanted no labor BOSTON CEMENT MASONS, UNION NO. 534 problems. Around July 3 Pitz repeated this conversation to Centafani. Centafani later told Pitz he had gone to the union secretary's home on July 4, had paid the dues and everything was all right. In the earlier conversation Pitz and Centafani discussed the job and who would be employed. Centafani mentioned Frattaroli and Ventresca and Pitz told him to check with the Union for the other named individuals and hire Frattaroli and Ventresca directly. Respondent's brief admits that it was aware of the Company's hiring of Frattaroli and Ventresca on July 3, when Centafam called Assistant Business Agent O'Neil to request specific men from Local 534. From the size of the job involved, the Union had an idea of approximately how many men would be needed on the job, with O'Neil testifying it was the biggest job then in Boston and would employ the most people in that trade. On July 5, the scheduled day of the pour, all the employees and designated foreman Centafani showed up, as well as Spillane and O'Neil. Business Agent Spillane went into the office-trailer with Centafani and Pitz. Spillane told Centafani that going to the union secretary's house on a holiday was not a proper way to do things and things were not completely cleared up yet. Spillane then reminded Pitt of Spillane's conversation with Kinney, and Kinney's conversation with Pitz, that Centafani was not to go to work until everything was squared away. Centafani was not allowed to start work as the supervisor. Spillane mentioned that of the members there present, Avery would probably be the best qualified as the foreman. Pitz agreed, and Avery was made the foreman for the day. About that time it started to rain, and the concrete pour was canceled, with the men being told to return the following day, July 6, for the pour. Article I, section V, of the contract, provides that foremen shall be practical mechanics and members in good standing of the Cement Masons. Although according to the testimony only Centafam's dues were mentioned and nothing was said concerning Centafani's not being a member of the Cement Masons, Respondent used this as its reason for not wanting Centafani on the job. Centafam did not return to thatjob but was placed on another job by the Company. According to Pitz, nothing was said concerning Frattaroli or Ventresca on July 5. On July 6, Pitz asked Avery to be the foreman and Spillane brought another man to replace Avery. Spillane mentioned Frattaroli and Ventresca to Pitz and then called Mr. Gunning, the executive director of the Building Trades Employer's Association who deals with labor negotiations and labor relations. Gunning went to the jobsite and there was a discussion with Spillane and Pitz about "outside" cement masons working on the•job. O'Neil testified that he and Spillane told Pitz before Spillane called Gunning, that the Company was violating the contract by hiring people. After Gunning arrived, Pitz stated that Frattaroli and Ventresca had worked for him before and were good men. O'Neil said that either Spillane or he said there was too much unemployment in the area and these outsiders should be sent to other places and let the Boston men do the work. In regard to Centafani, O'Neil said Gunning proposed that both Centafani and 571 Avery act as foremen and Spillane would not agree to such a compromise. O'Neil stated that Business Agent Spillane went on vacation that weekend (July 7) and instructed him to stay on top of the job and if the Company violated the hiring rules to take them through the grievance route and to arbitration if necessary. O'Neil testified that when Pitt called Spillane in late June he heard Spillane's end of the conversation and received a report of the rest of the conversation from Spillane. O'Neil said he heard Spillane tell Pitz that Centafani had violated the contract when he had previous- ly worked in Boston and when there was plenty of work around, not much was said about it, but now they had a lot of men loafing they were going to go by the contract. When Centafani called the union hall around July 3, he spoke to O'Neil. Centafani asked for some specific men and said he was bringing in two friends. O'Neil said he told Centafani that it was bad enough for him to come in with all the unemployment, but Centafani was violating the contract by bringing in friends as well. On Monday, July 9, all the men worked and there was no visit from union officials. The men were notified at the end of the day that some work had to be done on the building by another group and that they would be off for about a week or so and would be notified when to come back. The next pour was scheduled for Monday, July 16, and Avery and the other men were notified by a call to the union office. Centafani called Ventresca and Ventresca called Frattaroli to report back on July 16. When Pitz got to the job (on July 16), O'Neil was there and came into the trailer. Pitz stated that O'Neil said there were two men on the job who had not paid their union dues. Pitt asked who they were, and was told it was Ventresca and Frattaroli. O'Neil testified that he additionally told Pitz that he was violating the contract, and moreover both Frattaroli and Ventresca were delinquent in their dues. Pitz agrees that O'Neil said that Frattaroli had not paid since January and Ventresca had not paid in 3 years. Pitz had Frattaroh and Ventresca come into the trailer and he walked away and let O'Neil talk to them. It is a small trailer and Pitz testified he heard Frattaroli say that he was paid up and had made a recent payment. O'Neil told Frattaroli that he was not paid up and to go down to the union hall and get a receipt to show that he was paid up. Pitz heard O'Neil tell Ventresca that he had not paid in years. Ventresca said he had checked with his international union and was told he did not have to pay dues to two unions but he would pay the 2 percent fee if O'Neil would let him join Local 534. O'Neil said no and the conversation stopped. Pitz then asked O'Neil where they went from there. O'Neil said, "If these two guys go to work, my men won't." Pita testified that he had scheduled cement waiting to be poured and he could do nothing but acquiesce and told O'Neil to send two replacements. He told Frattaroli to get his receipt and go to the union hall and straighten it out and then get hold of O'Neil later and get it cleared up. As to job duration, Pitz said that Frattaroli and Ventresca were competent and he would have kept them employed until completion of the job. The Shawmut Bank Building will be a 40-story building, and at the time of the 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trial, the Company was working on the 24th floor. Frattaroli and Ventresca were longtime journeymen and received journeymen's wages. Pitz stated that Frattaroli had worked for him as a foreman on other jobs. Frattaroli testified that he had been a journeyman member of Bricklayers Local 15 for some 20 years and had worked in the Boston area over half of that time through the early 1970s and then it slowed down. When he worked in the Boston area Frattaroli paid 2 percent of his take- home pay to Local 534, which is equivalent to the union dues less the per capita tax. On the morning of July 16 when he was called into the trailer, O'Neil said he had not paid his 2 percent and he replied that he had paid all along. O'Neil said Frattaroli owed $40 and Frattaroli said he did not, that he had paid his dues only the previous week. O'Neil told him and Ventresca that if they did not pay the 2 percent they could not work. Frattaroli heard Ventresca say that if O'Neil wanted 2 percent of his take-home pay he would have to make him a member of Local 534. O'Neil said no and that ended the conversation. , Ventresca corroborated Frattaroli's testimony, noting that O'Neil said that if the two of them did not pay the 2 percent they were not going to work on that job. Ventresca added that after O'Neil talked with Pitz he said he was going to get two more men for the job. After leaving the job Frattaroli went to the union hall where he talked to one of the clericals concerning whether he owed any dues. He was told that he did not owe any dues but did owe a $14 fine . He paid that amount and gave the clerical another $ 10 as a dues payment and received a receipt from the local noting the payment of dues and a fine. Frattaroli went back to the jobsite and showed Pitz the receipt but nothing was said and he was not put back to work. That night Frattaroli called O'Neil and told him he had owed no dues but had been made to pay a fine and wanted his job back. O'Neil said no, that he could not do it. Two days later Frattaroli called O'Neil at the union hall and asked for his job back. O'Neil told him to go find a job in Waltham or some other place outside of Boston where he belonged. O'Neil said nothing about a contract violation but only said they had a lot of Local 534 men loafing. About a week later, Frattaroli called Business Agent Spillane and asked him for his job back . Spillane replied that he could not do it , it was O'Neil's problem. I credit Frattaroli and Ventresca's testimony as to what O'Neil told them. I also credit Pitz' testimony as to O'Neil's statement that if he put Frattaroli and Ventresca to work none of the Local 534 men would work. This testimony is consistent since O'Neil told Frattaroli and Ventresca that they could not work without paying the 2- percent fee. I do not credit O'Neil's denial of his statement to Pitz concerning allowing the two men to work. Frattaroli's subsequent conversations with O'Neil and Spillane are undenied and I credit him. B. Arguments and Conclusions Respondent first denied that a threat was made. I have concluded and found above that it was made . Respondent next urges that the Company was breaching the contract by hiring Frattaroli and Ventresca and not referring the job openings to the Union. The Union bases its position on contract sections 3 and 4 of article V quoted supra. In essence the Union states it was supposed to have an opportunity to be told of and to fill job vacancies with certificated employees and that the Company did not give them that opportunity when it hired Ventresca and Frattaroli, who it states do not meet the minimum qualifications for employees as established in section 4 of article V. Section 4 provides that companies agree to hire cement masons whose minimum qualifica- tions include completion of an apprentice program as a cement mason as evidenced by a certificate of completion ,.or its equivalent" and further that cement masons who have completed such an accredited apprentice program "or its equivalent" are to be hired first, followed by former employees, then those who are within the Union's geographical area, and lastly those who have been in the industry. There is a state backed apprentice program for cement masons in Massachusetts which is run by a committee of Local 534 officials and some AGC representatives. When the course is completed a certificate signed by a Massachu- setts official is issued to the new journeyman and according to Local 534, this certificate is the sine qua non for job priority under the contract. O'Neil testified that the words "or its equivalent" meant only an equivalent certificate and so far as he knew, such certificates were issued only by the State of California and by the city of Chicago, Illinois. Essentially, Respondent denies that reaching a journeyman status is the equivalent of having completed this Massachusetts apprentice program regard- less of what apprentice training a journeyman has had. In regard to contract section 3 of article V, the wording is "may refer qualified applicants." There is no exclusivity in this section of the contract, and there is no exclusive referral system established . Likewise the language does not require an employer to hire those who are referred to it, nor that the Union is the only source of applicants. Apparently such an end is sought by the interpretation Respondent seeks to place on "or its equivalent" phrase since practically all of its members would comprise the total roster of those certificated by Massachusetts under this particular apprentice program. Of its 300 members approximately 250 have received these certificates and the other 50 members have been journeymen for 30 to 40 years and so their status predated this apprentice program. O'Neil testified that Local 534 views the status of these 50 members as being equivalent to a certificate. Respondent's interpretation of the contract terms is new, in that for the past 8 to 10 years these clauses have been in the contract and have not been interpreted in that manner, and a journeyman status was accepted as the "equivalent." O'Neil and Local 534 claim that in previous years there was plenty of work and the contract simply was not enforced, but now that work is short and Local 534 men need work, the contract is to be enforced to the letter and that means that journeymen who do not have a certificate are not entitled to work before certificated men have been employed. O'Neil claims the contract was written to save the work for Local 534 members. O'Neil, however, was a BOSTON CEMENT MASONS, UNION NO. 534 573 temporary assistant business agent who was elected to a permanent post as assistant business agent shortly before the problems arose in this case. The fact is that the contract and the phrase "or its equivalent" had not been interpreted in the manner which O'Neil and Local 534 now seek, during the previous 8 to 10 years it had been included in the contract between these parties. Frattaroli had worked in and out of the Boston area for 20 years and his status as a journeyman had never been questioned. It is clear that the AGC representatives and employees such as Frattaroli and Ventresca under- stood that a journeyman was a journeyman and having reached that status it made no difference how you got there, whether with or without a certificate. Thus, "or its equivalent" for the previous 8 to 10 years had apparently been interpreted as having become a journeyman by undergoing an apprentice program or passing a journey- man examination. Under this accepted interpretation and with a nonexclusive referral system, the contract provisions had been adhered to by the Company. The Union knew the size of the job before Pitz and Centafani requested referrals and were informed as to the number of jobs which would be filled. Since the Company was not bound to an exclusive referral system and the parties understood how "or its equivalent" had been interpreted, there was no question in the Company's mind but what it could employ Frattaroli and Ventresca. The nub of the question was not certification but what amounts of money the "outsiders" were paying to Local 534. The testimony regarding Centafani makes it clear that Respondent wanted a dues equivalency from Centafani even though he was not a member of Local 534. The testimony credited above as to the July 16 confrontation makes it abundantly clear that Local 534 through O'Neil wanted money from Ventresca and Frattaroli in order for them to work in Boston, and even if they were prepared to pay it, O'Neil on behalf of Local 534 was just as happy to have their jbbs for members of his local. O'Neil told Frattaroli that the contract was written to protect Local 534 men and that it was his job to see that the contract was enforced. He added that if there was plenty of work, Frattaroli could have the job, but work was slow and Frattaroli should work elsewhere. O'Neil further testified that in referringjourneymen to jobs he would give preference to Local 534 members since he knew them and their skills and believed that they would live up to all the contractual agreements including adherence to area work- ing rules. In fact he believed that only Local 534 members would adhere to the working rules . O'Neil admitted that he had known Ventresca and Frattaroli as journeymen in cement masonry for a number of years. In this situation we have a recently elected assistant business agent who apparently is trying to establish himself as a guardian of Local 534. All of O'Neil's testimony makes it clear that he wanted to get rid of the "outsiders" and have them "go where they belonged." To this end he indulged in the conduct which I have found, seeking first to exact what he considered dues equivalencies from them. To cover this attempt a new contract "interpretation" is used as a cloak. Respondent, as another defense, urges that there was an agreement between the Cement Masons and the Bricklay- ers internationals providing for full faith and credit to each other's members and allowing them to charge local dues when a member of one international worked in the territory of the other. According to Local 534, it received on May 31, 1972, its Exhibit 1 from its general secretary- treasurer which stated that at a meeting on May 3, 1972, between the executive committees of the two international unions, they had agreed to interchangeable working cards and clearance cards and would use the dues books of workmen as their credentials. The letter went on to state that members working in other jurisdictional areas would be required to pay service fees equivalent to the dues and working assessments of the local union each month, minus the international per capita tax and that each international would adopt a schedule of receipts for issuance to the members as evidence of their having paid dues and working assessments. The letter continued that the Cement Masons had decided to print a standard record of payment book to be issued to members of the Bricklayers union instead of issuing a separate receipt for each dues payment and notified local officials that they would be hearing more about it. According to the testimony, nothing further has been received from either international, but based on this one document, Local 534 takes the position that it is entitled to charge "outsiders" who are working in its geographical jurisdiction the equivalent of dues less per capita taxes, which amount it charges its own members. Local 534 charges its working members a monthly per capita tax plus 2 percent of a member's take-home pay as dues. This is the 2-percent figure mentioned by O'Neil and which Frattaroli stated he had paid throughout the years he worked in the Boston area and the amount Ventresca refused to pay without getting membership. It is not possible to conclude, on the basis of this one document from one international union, that a binding agreement had been reached between the two international unions on a joint type of jurisdiction and dues. There has been no further documentation and no showing that there is such an agreement between the two internationals which has been made known to all members. Absent a clear and convincing demonstration that there is such an agreement between the two international unions which has been made known to all the members so that they could know what their rights, duties, and obligations are, I cannot accept this document as proof that members of one international union owe dues to another interna- tional union, when they are working in its claimed geographical territory. Respondent's Exhibit 1 does not meet this test. In this case Frattaroli was not only charged "dues," but was also told he had to pay a "fine." Thus moneys were demanded of Frattaroli and Ventresca while at the same time they were refused membership in Local 534. This defense which must include "full faith and credit to journeymen of another international" would appear to negate the "certificate" claim supra. In this case Respondent threatened the Company with a strike if it continued to employ journeymen who were denied membership in respondent while being told they must pay "dues" and "fines" to respondent in order to 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work in its claimed geographical jurisdiction. None of Respondent's defenses negate its actions which I conclude and find violate Section 8(bXIXA) and (2) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activity of Respondent as set forth in section II, above, and therein found to constitute unfair labor practices in violation of Section 8(bXl)(A) and 8(b)(2) of the Act, occurring in connection with the business operations of the Company as set forth in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY exacting "dues" and "fines" from nonmembers because they work in its claimed geographical jurisdiction, it is necessary that such practices be stopped . Therefore Respondent will notify its members and the Associated General Contractors of Massachusetts Inc., and Building Trades Employers Association of Boston and Eastern Massachusetts Inc., that for the duration of its present contract with them, that it will abide by the interpretation of the contract phrasing "or its equivalent" which the parties have previously used; that journeyman status of a cement mason is the equivalent of having passed any apprentice program ; and further that Respondent will not attempt to unlawfully exact "dues" or "fines" from nonmembers who are working or seek to work in its claimed geographical area. On the basis of the foregoing findings and the record herein, I make the following: Having found that Respondent violated Section 8(b)(1)(A) and 8(bX2) of the Act, I shall recommend that it cease and desist therefrom. Accordingly, since I have found that Respondent caused the termination of Peter Frattaroli and Enrico P. Ventresca on July 16, 1973, and their nonemployment on various dates thereafter when work was available, it will be ordered that Respondent make them whole for any loss of earnings suffered by each of them from and after July 16, 1973, as a result of the discrimination practiced against them. Such payment shall be equal to the amount of wages each would have earned as wages but for the aforesaid discrimination. Their backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), together with interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Respondent shall also notify Duron Maguire Eastern Corp., in writing, and furnish Frattaroli and Ventresca a copy, that it has no objection to their employment by the Company. Because of Respondent's changed interpretation of its contract phrase "or its equivalent" and because it has been CONCLUSIONS OF LAw I. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. The Company is an employer within the meaning of Section 2(2) of the Act. 3.. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 4. By discriminatorily causing the termination of Peter Frattaroli and Enrico P. Ventresca , from employment with Duron Maguire Eastern Corp., on and after July 16, 1973, Respondent violated Section 8(bX2) and (1XA) of the Act. 5. By unlawfully exacting "dues" and "fines" from nonmembers while at the same time denying them membership in Respondent for reasons other than nonpay- ment of legitimate initiation fees or dues, Respondent violated Section 8(bx1XA) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]