Hargett Construction Co.

National Labor Relations Board - Board DecisionsJun 2, 1964

147 N.L.R.B. 210 (N.L.R.B. 1964)

210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hargett Construction Company and Don Taylor Local Union No . 2058, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, and its Agent Robert Rodgers [Hargett Construction Company ] and Don Taylor . Cases Nos. 9-CA-2957 and 9-CB-1146. June 2, 1964 DECISION AND ORDER On March 19, 1964, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled proceeding, finding that the Respond- ents, Hargett Construction Company; Local Union No. 2058, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; and the Local's agent, Robert Rodgers, had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent Local 2058 and Respondent Hargett filed exceptions to the Trial Ex- aminer's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner and orders that Respondent Local Union No. 2058, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, its officers , agents , and representatives, and Re- ' We find no merit in Respondent Hargett's contention that, absent proof of specific knowledge , it cannot be held responsible for Respondent Union's unlawful application of the parties ' valid union-security and hiring hall arrangement . Having agreed to use the Union's hiring hall as its exclusive source of carpenters , Respondent Hargett, in effect, appointed Respondent Local 2058 as its exclusive agent for selecting men to be hired. Accordingly, Respondent Hargett, as party to the exclusive hiring hall arrangement, was liable with its agent, Respondent Local 2058, for the discriminatory refusal to refer Taylor. Lummus Company , 142 NLRB 517 , and cases cited therein . In any event, as the Trial Examiner found, Respondent Hargett did have specific knowledge of the Re- spondent Union's discriminatory hiring hall practices. 147 NLRB No. 32. HARGETT CONSTRUCTION COMPANY 211 spondent Hargett Construction Company, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed by Don Taylor, an individual , on September 11, 1963, against Hargett Construction Company, herein called Respondent Employer, and Local Union No. 2058, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, herein called Respondent Local, and its agent , Robert Rodgers , a complaint was issued on October 31, 1963. The complaint alleges that at all times material herein , Respondent Local and Respondent Employer have maintained an exclusive hiring arrangement or practice whereby all applicants for employment are cleared through or referred for employment by Respondent Local or its agent , Robert Rodgers, and that Respondent Local and its said agent , in violation of Section 8(b) (2) and (1) (A) of the National Labor Relations Act, as amended, refused to refer the Charging Party, Don Taylor, to an available job with Respondent Employer be- cause of Taylor's lack of membership in Respondent Local, and that Respondent Employer, in violation of Section 8 (a) (3) and (1) of the Act, refused to hire Taylor because he was not referred by and was not a member of Respondent Local. Each Respondent filed an answer denying that it had engaged in the unfair labor practices alleged. A hearing was held before Trial Examiner Fannie M. Boyls on Decem- ber 11 and 12, 1963, at Lexington , Kentucky. Subsequent to the hearing all parties filed briefs which I have carefully considered. Upon the entire record in this case , and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS . OF RESPONDENT EMPLOYER Respondent Employer is a Kentucky corporation having its principal office and place of business at Lexington , Kentucky, where it is engaged as a general contractor in the building and construction industry . During the year preceding the issuance of the complaint , Respondent Employer performed services valued in excess of $50,000 within the State of Kentucky for International Business Machines Corpora- tion , which enterprise annually produces and ships goods valued in excess of $50,000 directly out of the State wherein said enterprise is located . Respondents concede, and I find, that Respondent Employer is an employer as defined in Section 2(2) of the Act, and that it is engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. I further find that it will effectuate the policies of the Act for the Board to assert jurisdiction herein. H. THE RESPONDENT LOCAL Respondents concede, and I find , that Respondent Local is a labor organization within the meaning of Section 2 (5) of the Act, and that Respondent Robert Rodgers at all times material herein has been the business agent of Respondent Local and an agent acting in its behalf within the meaning of Sections 2(13) and 8(b) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues presented There are substantial conflicts in the testimony of the Charging Party, Don Taylor, and Respondent Local's business agent, Robert Rodgers , regarding the details of what was said between them during the period when Taylor was seeking carpentry work through Respondent Local, but the essential facts relating to the issues , as I see them, are not in dispute . Thus, it is conceded that Taylor sought referral through Respond- ent Local to an available carpenter 's job at the Sylvania jobsite of Respondent Em- ployer and that Respondent Local refused to refer him to the job or give him a work permit because he was over 2 months delinquent in the payment of dues to a sister local to which Taylor belonged. Under these- circumstances , whether Respondent Local's refusal to clear him or refer him to the job, and Respondent Employer's refusal to hire him for the job with- out clearance by Respondent Local, constituted a violation of Section 8(b)(2) and 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) (A) of the Act on the part of Respondent Local, and of Section 8(a) (3) and (1) of the Act on the part of Respondent Employer, depends, in my view, upon whether Respondent Local and Respondent Employer were operating under a con- tract, arrangement, or understanding whereby Respondent Local had exclusive authority to refer or clear applicants for jobs. There is described below the con- tractual arrangements and understandings between Respondent Local and Respond- ent Employer. B. The hiring arrangements and practices When Respondent Employer commenced the construction of its Sylvania plant in Versailles, Kentucky, in early June 1963, it signed the area contract which Respond- ent Local had negotiated with the General Contractors of Frankfort, Kentucky. This agreement contained , inter alia , a maintenance-of-membership clause and a union-shop provision requiring membership in Respondent Local on or before the 8th day of employment as a condition of employment (article IV, sections I and II). It also required the employer to notify the Union when additional or replacement employees were needed and obligated the Union to furnish applicants to perform the necessary work within 48 hours after request had been received, providing, how- ever, that the decision with regard to hire and tenure of employment would be made by the employer (article IV, section III). Under the contract, Respondent Local also agreed to refer carpenters on a nondiscriminatory basis (article VI, section I). It was further provided, however, that the employer would give careful considera- tion in hiring to those carpenters previously employed by him and whose skill and proficiency were known to him, and that in the event he hired an applicant directly on the jobsite he would notify Respondent Local of the names and classifications and dates of hiring (article VI, sections II and III). The General Counsel does not contend that this contract on its face required any unlawful hiring practice, and, indeed, it appears to conform to the requirements of Section 8(f) of the Act for contracts covering employers in the building and con- struction industry. The General Counsel contends, however, that the arrangements and practices under this contract show that the parties contemplated and actually operated under an exclusive hiring hall procedure. It is undisputed that after Respondent Employer had been awarded the contract for the Sylvania project , Job Superintendent Harold Bowlin , in accordance with his customary procedure , sought out the business agent of the Respondent Local in the area, informed him of Respondent Employer 's anticipated needs with respect to carpenters , and asked if the Respondent Local would be able to meet those needs. Respondent Rodgers, business agent of Respondent Local , promised to supply the needed carpenters . During the conversation Bowlin indicated that Respondent Em- ployer would abide by the area collective -bargaining agreement . Also, in accord- ance with customary procedure , Bowlin informed Rodgers that Respondent Em- ployer wished to bring with it to the project its carpenter foreman and one other carpenter already in its employ, and Rodgers approved this proposal . Pursuant to Bowlin 's request that two carpenters be referred immediately , Rodgers sent two of those on its out-of-work list-the first of whom , Douglas Choate, became Respondent Local's steward on the job. Thereafter, with one exception, whenever Bowlin an- ticipated that he would need additional carpenters , he informed Choate of the number he expected to use and the date upon which they should report for work. Choate, in turn , transmitted these requests to Business Agent Rodgers and. Rodgers referred carpenters to the job in the order in which they had informed Rodgers that they were out of work. The one exception to this procedure was an occasion upon which Bowlin requested Rodgers to clear a specifically named carpenter whose special qualifications for a particular type of carpentry were known to Bowlin and whose special services he needed . In accordance with Respondent Local's practice when a specifically named person is requested by the employer , Rodgers granted Bowlin's re- quest in this instance. A number of men from time to time would come to the jobsite looking for work and, according to Bowlin , he would tell them that he needed no additional men then and that when he did need them he would get them through Respondent Local; or, he might indicate to them that he would be needing men soon and suggest that they get cleared through Respondent Local. Respondent Employer stipulated at the hearing that there was an exclusive hiring practice in effect on the Sylvania job. Respondent Local, however, although initially admitting in its answer that it maintained an exclusive hiring arrangement or practice whereby all applicants for employment with Respondent Employer were cleared through or referred for employment by Respondent Local, later amended its answer to deny this. Respondent Local contends that it operates a "first opportunity hiring HARGETT CONSTRUCTION COMPANY 213 hall" rather than an exclusive hiring hall, pointing out that if, after first being given an opportunity to refer carpenters to Respondent Employer, it failed to refer them, the employer would then be permitted under the contract to obtain carpenters in any way it could. This understanding, nevertheless, recognizes the exclusive right of Respondent Local to refer or clear applicants for employment and it is the posses- sion of this right, whether or not exercised, which determines whether Respondent Local and Respondent Employer maintain an exclusive hiring practice or arrange- ment. It seems clear to me that they in fact did maintain such practice or arrangement. As I see the issue here, however, it is not important whether the arrangement be characterized as a first opportunity or as an exclusive hiring arrangement. In either event Respondent Local's control over job opportunities at Respondent Employer's project was such that it had power to cause Respondent Employer to discriminate in hiring and was, therefore, such as to require Respondent Local to refer or clear ap- plicants on a nondiscriminatory basis, as, indeed, the collective-bargaining agreement required it to do. N.L.R.B. v. George D. Auchter Company, et al., 209 F. 2d 273 (C.A. 5). C. The circumstances under which Don Taylor failed to obtain employment Early in June 1963, while employed on a construction job in Lexington, Kentucky, Taylor went to the Sylvania jobsite at Versailles, Kentucky, to inquire about employ- ment there. Job Superintendent Bowlin told him that Respondent Employer would be needing some carpenters later and that Taylor should see Respondent Local's busi- ness agent if he wanted a job. Taylor continued to work on his Lexington job until about the end of the first week in August, but while still working, as well as after his job ended, he checked with Bowlin from time to time about job opportunities. On these occasions, or some of them, Bowfin would indicate when he thought a car- penter's job might open up but at all times made it clear that Taylor would have to get a work permit from Rodgers or be referred by him before Bowlin could employ Taylor. It would appear from the record that no additional carpenters were in fact needed by Bowfin until Monday, August 26. Taylor testified that on Friday, August 23, Bowlin told him that some carpenters would be needed on the following Monday morning and that Taylor should see Rodgers and be at the jobsite on Monday morn- ing. I am convinced, however, from Bowlin's credited testimony as well as from Taylor's testimony that Bowfin only informed Taylor as to his need for carpenters on Monday and did not offer him a job. At all times Bowlin made it plain that he hired through Respondent Local and that Taylor in order to get a carpenter's job with Respondent Employer would have to be cleared through Respondent Local. It is undisputed that Bowlin did not request either Union Steward Choate or Busi- ness Agent Rodgers to clear Taylor. There was no reason for Bowlin to treat Taylor differently than he did the numerous other jobseekers who appeared at the jobsite, and I am convinced that he, in fact, did not treat him differently. After each occasion when Taylor saw'Bowlin at the jobsite he would get in touch with Rodgers either by telephone or in person . There is a substantial conflict in the testimony of Taylor and Rodgers as to what was said on these occasions. I am satisfied , however, that during the course of these conversations Taylor told Rodgers that he was a member of the Madisonville, Kentucky, local of the Carpenters, that he needed work, and that he desired carpentry work in the territorial jurisdiction of Respondent Local; that Rodgers informed him that no work was then available and that a large number of Respondent Locals' members were out of work and waiting for referral; and that Rodgers, nevertheless, took Taylor's name and address, added it to his out-of-work list, and told Taylor that he would be called and referred to work upon the payment of a work permit fee after Rodgers had referred the other carpenters who were already on the out-of-work list. About 7:30 p.m. on Sunday, August 25, after having been told by Bowlin on the preceding Friday that some carpenters would be needed Monday, August 26, on the Sylvania project, Taylor went to Rodgers' home. Rodgers told Taylor that he was at that moment about to telephone the trailer camp where Taylor was stay- ing in an attempt to reach him and notify him of available work. He informed Taylor that his name had been reached on the out-of-work list and that Rodgers was ready to refer him to a job at the Sylvania project. He then asked to see Taylor's dues book. Taylor's dues book, when produced, indicated that he had not paid any dues to his Madisonville local since May. Taylor, although owing dues for the months of June, July, and August, attempted to deceive Rodgers into believ;ng that his dues were in fact current but had not been posted in his dues book because Taylor needed the book with him as an identification in applying for carpentry jobs. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rodgers, however, insisted that the dues book had to show that Taylor was current in the payment of his dues before Rodgers would refer him to a job, and refused to issue a permit to Taylor under the circumstances .1 In this connection Rodgers refused to wait until Taylor could make the trip to see his business agent at Madison- ville-a round trip of almost 400 miles-before taking further steps to obtain the carpenters needed by Bowlin on the following morning. Nothing was apparently said about the payment by Taylor of a permit fee on this occasion , but on the basis of the evidence as to Rodgers ' uniform practice , I shall assume that if Taylor's dues book had been in order , Rodgers would have issued a permit to Taylor upon Taylor's payment of the regular permit fee of $5.75 2 After thus refusing to refer Taylor to the Sylvania job, Rodgers telephoned Chester Hays, the business agent of the nearby Lexington local, and requested the latter to send two carpenters to the jobsite on the following morning. Hays did so. Respondent Local's steward , Choate, upon checking the dues cards of the two men, found that one of them , Scott, had not paid his current month 's dues in the Lexington local and refused to permit him to work .. Scott left and returned in about an hour with his dues card showing his dues were current . He was then permitted to work. Job Superintendent Bowlin was standing nearby and heard Choate send Scott away because his dues were not current but Bowlin said nothing. D. Analysis and conclusions It is settled, as the Supreme Court pointed out in The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17, 40, that the "policy of the Act is to insulate employees' jobs from their organizational rights" and that Section 8(a) (3) of the Act "prohibits an employer from discriminating against an employee by reason of his membership or nonmembership in a labor organization except to the extent that he obligates him- self to do so under the terms of is permitted union shop or maintenance of member- ship contract." It is equally well established that a labor organization may not cause or attempt to cause the employer to discriminate except in those limited circumstances. The permitted union-shop and maintenance-of-membership contract cannot require an applicant for employment to be a union member or pay dues as a condition pre- cedent to his employment. Under Section 8(f) of the statute, an agreement cover- ing employees in the building and construction industry may not require a new em- ployee, as a condition of employment, to join the union or pay dues to it until after the 7th day of his employment or the effective date of the contract, whichever is the later. Accordingly, Respondent Local, operating under its union-shop and maintenance-of-membership contract and its exclusive hiring arrangement with Re- spondent Employer, could not lawfully refuse to refer even one of its own members because of his delinquency in the payment of dues. Respondent Local suggests in its brief that Taylor became is member of the bar- gaining unit and was covered by the contract between Respondent Local and Re- spondent Employer at the time he sought referral to a job with Respondent Employer in June 1963, and that he thereupon became obligated under the collective- bargaining agreement to remain in good standing by keeping his dues current in his home local. I cannot accept these premises. In the first place, it certainly cannot be said that one becomes an employee in the bargaining unit merely by applying for I On the following day Taylor mailed a check for 4 months' dues to L. E. Tucker, busi- ness agent of the Madisonville local, along with his dues book. The dues book was then posted on August 27 to show a payment of dues through September and promptly re- turned to Taylor. The check, however, "bounced" because of "not sufficient funds." In September, Taylor obtained work in Ohio and at the date of the hearing had apparently become current in the payment of his dues. 2 Because of certain inconsistencies in Taylor's -testimony and •hls prior written state- ments, as well as because of my appraisal of his character, I do not credit some of his testimony, denied by Rodgers, about statements made to him by Rodgers-in particular, testimony that Rodgers at their first meeting, as well as thereafter, told him it would be necessary for him to pay a work permit fee of $100 before he would be referred to a job.' It is possible, of course, that there was some mention. of Respondent Local's $100 initia- tion fee for new members and that Taylor honestly misunderstood what Rodgers said. In any event , Rodgers impressed me 'as an honest man and I credit his denial that he ever made any such statement to Taylor . Rodgers' denial , moreover, is corroborated by the testimony of his wife who stated that she was present or in hearing distance on each occasion when Taylor visited the Rodgers' home. HARGETT CONSTRUCTION COMPANY 215 a job therein even if that person is not already employed elsewhere in another bar- gaining unit as Taylor was when he first sought referral. In the second place, whether or not a member of Respondent Local, of some other local or of no union, Taylor would have been entitled to 8 days under the contract in which to satisfy the dues-paying membership requirements of Respondent Local. To construe the contract otherwise would make it vulnerable under Section 8(a)(3) and 8(f) of the statute. Plasterers' Union Local No. 77, Operative Plasterers' and Cement Masons' International Association (Piper & Greenhall, Inc.), 143 NLRB 765. In their briefs, the parties have treated at length the obligations of membership set forth in the International's constitution and general laws and in the Respondent Local's bylaws, but I need not decide what Taylor's union obligations were to his own union, the International, or to Respondent Local. The union membership requirements may not be enforced so as to prevent him from obtaining, as distinguished from retaining, employment by reason of nonpayment of dues in his own or in any other union .3 In view of the exclusive hiring arrangement between Respondent Local and Re- spondent Employer, I am constrained to find that Respondent Local, in refusing to refer Taylor to an available job with Respondent Employer on August 26 because of his dues delinquency in the Madisonville local, thereby causing Respondent Em- ployer not to hire him, violated Section 8(b)(2) and (1)(A) of the Act. I also find that Respondent Employer, by failing to hire Taylor for a job available for him on August 26 because of the Union's refusal to refer or clear him for the position, violated Section 8 (a) (3) and (1) of the Act. To be sure, Taylor did not return to the jobsite on August 26, but Job Superintendent Bowlin had made clear to him on the preceding Friday as well as on other occasions that he would have to be cleared or referred by Respondent Local before he could be hired. It would, therefore, have been futile for Taylor to have returned since he was unable to obtain a work permit from Rodgers. The futility of an applicant's reporting for work without first complying with Respondent Local's dues-paying requirements was, moreover, amply demonstrated by the manner in which Scott, from the Lexington local, with Respond- ent Employer's acquiescence, was turned away from the jobsite on August 26 until he had satisfied Respondent Local's requirements. Respondent Employer-whose job superintendent was a member of a Carpenters local and who knew of Respondent Local's discriminatory practices-is jointly responsible with Respondent Local and Respondent Rodgers for the discrimination against Taylor. This discrimination, con- trary to Respondent Employer's contention, clearly encouraged membership in a labor organization and interfered with the right of employees to "freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union without imperiling their livelihood" within the meaning of Section 8(a)(3) and (1) of the Act. The Radio Officers' Union of the Commercial Telegraphers' Union, AFL (A. H. Bull -Steamship Company) v. N.L.R.B., 347 U.S., 17, 40; N.L.R.B. v. F. H. McGraw and Company, 206 F. 2d 635 (C.A. 6). I am aware of the fact that it was the theory of the General Counsel in issuing the complaint and arguing the case before me that Respondent Local violated Section 8(b)(2) and (1) (A) and Respondent Employer violated Section 8(a)(3) and (1) of the statute because Taylor's failure to obtain employment with Respondent Em- ployer was due to his nonmembership in Respondent Local, whereas my finding of statutory violations are not based on Taylor's lack of membership in Respondent Local. The facts concerning Taylor's failure to obtain employment with Respond- 8 Cf. N.L.R.B. v. Local Union No. 1842, International Brotherhood of Electrical Work- ers, AFT CIO (Avco Mfg. Corp., Crosby Division), 283 F. 2d 112 (C.A. 6), enfg. 124 NLRB 794, 795, wherein the Board found that a union' had violated Section 8(b) (2) and (1 ) (A) of the Act by causing the discharge of an employee who was already a mem- ber of the union when hired because that employee later refused to pay dues for a 6-week probationary period provided under the contract for new employees. In that case the Board stated, "Moreover, even if the Union had a different union-security agreement, re- quiring the immediate payment of dues without any preliminary grace period for new employees who were union members, such an agreement would clearly be beyond the limits permitted by the proviso to Section 8(a) (3)." See also N.L.R.B. v Spector Freight Systems, Inc., at al., 273 F. 2d 272 (C.A. 8), cert. denied 362 U.S. 962, wherein it was held that the employer and union had violated Section 8(a) (3) and 8(b) (2) of the Act, respectively, when the employer, at the union's request, discharged an employee under a union-security contract because that employee, a union member when hired, failed to pay preemployment union dues. To similar effect, see N.L.R.B. v. Murphy's Motor Freight, Inc., and Local 107, International Brotherhood of Teamsters, eto., AFL, 231 F. 2d 654 (C.A. 3). 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent Employer were, however, fully litigated and all parties were aware that the legality of Respondent Local's refusal to refer him and Respondent Employer's fail- ure to hire him was in issue . Accordingly, an incorrect or unsubstantiated theory of the General Counsel will not preclude the Trial Examiner, the Board, or the courts from correctly applying the statutory provisions in issue to those facts. N.L.R.B. v. MacKay Radio & Telegraph Co., 304 U.S. 333, 349. CONCLUSIONS OF LAW 1. Respondent Local and Respondent Employer at all times material herein main- tained an agreement, understanding, or arrangement whereby all applicants for em- ployment, as a condition of employment with Respondent Employer, were required to be referred by or cleared through Respondent Local. 2. By refusing to hire Don Taylor for a carpenter's job available on August 26, 1963, at its Sylvania jobsite, Respondent Employer engaged in an unfair labor prac- tice within the meaning of Section 8(a) (3) and (1) of the Act. 3. By causing Respondent Employer to violate Section 8(a)(3) and (1) of the Act in refusing to hire Taylor for carpentry work on August 26, Respondent Local and its agent, Respondent Rodgers, have engaged in an unfair labor practice within the meaning of Section (b) (2) and. (1) (A) of the Act. 4. By maintaining and enforcing a hiring arrangement whereby applicants for employment were required to be current in the payment of their union dues, Respond- ent Local and its agent, Respondent Rodgers, violated Section 8(b)(2) and (I) (A) of the Act, and Respondent Employer violated. Section 8(a) (3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in the unfair labor practices de- scribed above, my Recommended Order will require that they cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent Local and its agent, Respondent Rodgers, discriminatorily refused to issue a work permit to Don Taylor after his name had been reached on its out-of-work list, these Respondents will be required to issue such work permit to him upon his tender of the permit fee uniformly required of other carpenters seeking referral, and these Respondents will also be required to notify the Respondent Employer that they have no objection to the employment of Taylor by Respondent Employer .4 Respondent Employer will be required to offer Taylor immediate employment as a carpenter at its Sylvania jobsite upon compliance by Taylor with the customary and lawful permit fee requirements of Respondent Local if such carpentry services are needed by Respondent Employer, displacing, if necessary, any carpenter whose name was reached on Respondent Local's out-of-work list subsequent to the time Taylor's name was reached on said list and who may have been hired by Respondent Employer; provided, however, That if Respondent Local, subsequent to August 26, has offered to refer Taylor to such job, no offer at this time by Respondent Em- ployer will be necessary.5 Since Respondent Local and Respondent Employer have been found jointly respon- sible for the discrimination against Taylor, they will be required jointly and severally to make him whole for any loss of pay suffered as a result of the discrimination against him . The backpay shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum on all amounts due Taylor, as provided in Isis Plumbing & Heating Co., 138 NLRB 716. Since Respondent Rodgers was merely acting as an agent of Respondent Local in engaging in the unlawful conduct for which Respond- ent Local is responsible, it will not be necessary in order to effectuate the policies of the Act that he be required personally to reimburse Taylor for any loss of pay. Myles Worstell, Business Agent of Local 2023; Local 2023 of the United Brotherhood of Carpenters and Joiners of America, AFL (Baker & Coombs, Inc.), 114 NLRB 503, 514. Respondents will also be required to post appropriate notices. I The General Counsel has not contended that the amount of the work permit fee, $5.75, which is also the amount of the monthly dues In Respondent Local, is an unreasonable amount for the use of Respondent Local's hiring facilities and I shall assume for the pur- poses of this proceeding that it is not excessive. 5 There was a suggestion in the record that Respondent Local may have offered to refer Taylor subsequent to August 26. HARGETT CONSTRUCTION COMPANY 217 RECOMMENDED. ORDER Upon the entire record in this case , and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that: A. The Respondent , Hargett Construction Company, its officers , agents, successors, and assigns , shall: 1. Cease and desist from: (a) Refusing employment to Don Taylor, or any other prospective, employee, in violation of Section 8(a) (3) of the Act. (b) Entering into, performing , maintaining , or otherwise giving effect to any ar- rangement with Respondent Local whereby the payment of union dues is required as a condition precedent to the obtaining of employment; provided, however, that nothing herein or in the notices referred to hereinafter shall be construed to prohibit any agreement or practice permitted by Section 8(f) of the Act, as amended, where applicable. (c) In any like or related manner interfering with, restraining, or coercing em- ployees or applicants for employment in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer employment to Don Taylor in the manner described in the section of the Trial Examiner's Decision entitled "The Remedy," without prejudice to any seniority or other rights or privileges 'to which he would have been entitled but for the discrimination against him. (b) Jointly and severally with Respondent Local Union No. 2058, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, make Don Taylor whole for any loss of pay he may have suffered because of the discrimination against him in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (c) Preserve and, upon request , make available to the Board or its agents, for examination and copying , all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary . to analyze the amounts of backpay due under the terms hereof. (d) Post at.its Sylvania jobsite, copies of the attached notice marked "Appendix A." 6 Copies of such notice, to be furnished by the Regional Director for the Ninth Region , shall, after being signed by Respondent Employer 's authorized representa- tive, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter , in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered , defaced, or covered by any other material. (e) Post at the same place and under the same conditions as set forth in (d) above and as soon as they are forwarded by the Regional Director , copies of the Respond- ent Local's notice herein marked "Appendix B." (f) Mail ,to the Regional Director signed copies of Appendix A for posting by Respondent Local as provided herein. Copies of said notice, to be furnished by the Regional Director , shall, after being signed as provided above, be forthwith returned to the Regional Director for disposition. (g) Notify the Regional Director for the Ninth Region, in writing, within 20 days from the receipt of this Recommended Order , what steps the Respondent Employer has taken to comply herewith.? B. The Respondent , Local Union No. 2058, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, its officers , representatives , agents, successors, and assigns, and Respondent Robert Rodgers , business agent for said Local , shall: 1. Cease and desist from: (a) Refusing to refer or clear Don Taylor, or any other prospective employee, for employment with Respondent Hargett Construction Company, or any other employer, because such employee is not current in the payment of his union dues. C If this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 7If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days' from the date.of this Order, what steps the Respondent Employer has taken to comply herewith." 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Entering into, performing, maintaining, or otherwise giving effect to any arrangement with the Respondent Employer whereby the payment of union. dues is required as a condition precedent to the obtaining of employment; provided,. however, that nothing herein nor the notices referred to hereinafter shall be con- strued to prohibit -any -agreement or practice permitted by Section 8(f) of the Act, as amended, where applicable. (c) In any like or related manner restraining or coercing employees or applicants for employment in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon the tender by Don Taylor of the fee uniformly required of other carpenters seeking referral to jobs, issue to him a work permit and refer him or clear him for employment on a nondiscriminatory basis. (b) Notify Hargett Construction Company that it has no objection to the em- ployment of Don Taylor or any other carpenter who has qualified for referral or clearance in the manner set -forth above. (c) Jointly and severally with Hargett Construction Company make Don Taylor whole for any loss of pay he may have suffered because of the discrimination against him in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (d) Post at its office and meeting hall, copies of the attached notice marked "Appendix B." 8 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by Respondent Local's business agent, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by zany other material. (e) Post at the same places and under the same conditions as set forth in (d) above and as soon as they are forwarded by the Regional Director, copies of the Respondent Employer's notice marked "Appendix A." (f) Mail to the Regional Director for the Ninth Region signed copies of Appen- dix B for posting by Respondent Employer as provided herein. Copies of said notice, to be furnished by the said Regional Director, shall, after being signed by Respondent Local's business agent, be forthwith returned to the Regional Director for disposition. (g) Notify the Regional Director for the Ninth Region, in writing, within 20 days from the date hereof, what steps have been taken to comply herewith.s 8 See footnote 6, supra. See footnote 7, supra. APPENDIX A NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT refuse employment to Don Taylor or any other prospective employee in violation of Section 8(a)(3) of the Act. WE WILL NOT enter into, perform, maintain, or otherwise give effect to any arrangement with Respondent Local Union No. 2058, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, whereby the payment of union dues is required as a condition precedent to the obtaining, as distinguished from the retaining , of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees or applicants for employment in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL offer Don Taylor employment as !a carpenter upon compliance by him with the customary and lawful permit fee requirements of Respondent Local and under the conditions prescribed in the section of the Trial Examiner's Decision entitled "The Remedy." WE WILL jointly and severally with Respondent Local make Don Taylor whole for any loss of pay suffered by reason of the discrimination against him. HARGETT CONSTRUCTION COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) STERILON CORPORATION 219 This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate with the Board 's Regional Office , Transit Building, Fourth sand Vine Streets , Cincinnati , Ohio, Telephone No. 381 -1420, if they have any question concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL UNION No. 2058 , UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO , AND TO ALL EMPLOYEES OF HARGETT CONSTRUCTION COMPANY Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT refuse to refer or clear Don Taylor or any other prospective employee for employment with Respondent Hargett Construction Company, or any other employer , because such employee is not current in the payment of his union dues. WE WILL NOT enter into, perform , maintain , or otherwise give effect to any arrangement with Respondent Hargett Construction Company, whereby the payment of union dues is required as a condition precedent to the obtaining, as distinguished from the retaining , of employment. WE WILL NOT in any like or related manner restrain or coerce employees or or applicants for employment in the exercise of rights guaranteed in Section 7 of the Act. WE WILL notify Respondent Hargett Construction Company that we have no objection to its employment of Don Taylor and will, upon the tender by Don Taylor of the fee uniformly required of other carpenters seeking referral to a job, issue to him a work permit and refer him or clear him for employment on a nondiscriminatory basis. WE WILL jointly and severally with Respondent Hargett Construction Com- pany make Don Taylor whole for any loss of pay he may have suffered because of the discrimination against him. LOCAL UNION No . 2058, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (ROBERT RODGERS , Bu&inesa Agent) This notice must -remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced , or covered by any other material. Employees may communicate with the Board 's Regional Office , Transit Building, Fourth 'and Vine Streets, Cincinnati , Ohio , Telephone No. 381-1420 , if they have any question concerning this notice or compliance with its provisions. Sterilon Corporation and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, Petitioner . Case No. 3-RC-1143. June 2, 1964 DECISION AND ORDER DENYING MOTION AND REQUEST TO CLARIFY CERTIFICATION On May 8, 1953, the Board certified the United Rubber, Cork, Linoleum and Plastic Workers of America., AFL-CIO, as the bargain- ing representative of all production and maintenance employees of the Employer at its Buffalo, New York, plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. On December 16, 1963, the Petitioner filed a motion and 147 NLRB No. 37.