Lake County, Indiana, Carpenters

National Labor Relations Board - Board Decisions

Apr 29, 1970

182 N.L.R.B. 233 (N.L.R.B. 1970)

LAKE COUNTY, INDIANA , CARPENTERS
Lake Counri, Indiana and Vicinity District Council of
the 1 mted Brotherhood of Carpenters and Joiners of
America and Richard Matzat and Wilbur Kouw and
Tonn and Blank , Inc , Party of Interest
Tonn and Blank , Inc and Wilbur Kouw
Tonn and Blank , Inc and Lake County, Indiana and
Vicinity District Council of the United Brotherhood
of Carpenters and Joiners of America Cases
25-CB-861, 25-CB-861-2, 25-CA-3350, and
25-CA-3385
April 29, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On October 13, 1969, Trial Examiner Joseph I Nach-
man issued his Decision in the above-entitled proceeding,
finding that the Respondents had engaged in and were
engaging in certain unfair labor practices and recom-
mending that they cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision Thereafter, the Respondents
filed exceptions and briefs in support and the General
Counsel filed exceptions and a brief in support
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel
The Board has reviewed the rulings of the Trial Exam-
iner 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,
the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, as modified
herein i
' The Respondent Union and the Respondent Employer except to
the Trial Examiners conclusion that there existed an arrangement or
understanding between the Union and the Employer that the latter
would employ only those persons who were members of or had been
cleared by the Union They contend that the complaint did not allege
any illegal arrangement the bill of particulars submitted by the General
Counsel did not refer to any illegal arrangement and the opening
statement by the General Counsel made it clear that no illegal hiring
arrangement was claimed While the complaint and the bill of particulars
do not contain specific allegations that there existed an illegal arrangement
or understanding between the Union and the Employer such issue
was closely related to specific allegations found within the complaint
Respondents did not claim surprise and the issue was never specifically
removed from the case at the hearing Although the written contract
between the Respondent Union and the Respondent Employer was
not in issue in view of the agreement between the General Counsel
and the Respondents at the hearing not to litigate the written contract
containing union security clauses we find that such agreement did
not preclude the General Counsel from litigating the issue of the existence
of an illegal oral arrangement or understanding Accordingly we find
that the Trial Examiners findings are supported by record evidence
and that the issue of the existence of an unlawful oral understanding
or arrangement between the Respondents was fully litigated by the
parties at the hearing We further find that such issue was relevant
that there is no evidence of surprise or that the Respondents were
ORDER
233
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner, as modified herein, and hereby
orders that Respondent, Lake County, Indiana and Vicin-
ity District Council of the United Brotherhood of Carpen-
ters and Joiners of America, La Porte, Indiana, its
officers, agents, and representatives, and Respondent
Tonn and Blank, Inc , Michigan City, Indiana, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended
Order, as so modified
I Delete from paragraph A, 1, (c), of the Recommend-
ed Order against the Company "like or related," and
substitute therefor "other manner" between the words
"any" and "interfering "
2 Paragraph A, 2, (a) is modified as follows
"(a) Offer to Richard Matzat and Wilbur Kouw imme
diate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, as provided in the section hereof
entitled The Remedy "
3 Insert in paragraph B, 1 of the Recommended
Order against the Union a new paragraph
"(c) Entering into any agreement or understanding
with Tonn and Blank, or any other employer, requiring
clearance from or membership in Lake County, Indiana
and Vicinity District Council of the United Brotherhood
of Carpenters and Joiners of America, as a condition
of employment, except to the extent authorized by Sec-
tion 8(a)(3) of the Act "
4 Insert in Appendix A between the first and second
indented paragraphs a paragraph stating
WE WILL NOT enter into any agreement or under-
standing with Lake County, Indiana and Vicinity
District Council of the United Brotherhood of Car-
penters and Joiners of America, or any other labor
organization, requiring clearance from or member-
ship in a labor prganization as a condition of employ-
ment, except to the extent authorized by Section
8(a)(3) of the National Labor Relations Act, as
amended
5 The third indented paragraph in Appendix A is
modified as follows
not properly afforded an opportunity of defense concerning such issue
and that such understanding was directly responsible for the discriminato
ry termination of Matzat and Kouw
Respondent Employer contends that Tews was never in the hearing
room and that the Trial Examiner was wrong in finding that Tews
w is in the he inng room ind crediting Kouw s testimony bec muse of
Tews failure to testify We find it unnecessary to resolve this apparent
conflict between the Employer and the Trial Examiner with respect
to whether or not Tews was present at the hearing in view of our
finding herein that the Trial Examiner did not credit Kouw s testimony
on the basis of Tews failure to testify The Trial Examiner credited
the testimony of Kouw and noted without attaching any specril signi
ficance that Tews though present in the courtroom did not testify
We find it unnecessary to rely on the Trial Examiners inference
that no other nonunion men were on the jobs
182 NLRB No 39
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Richard Matzat and Wilbur
Kouw immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions , without prejudice
to their seniority and other rights and privileges
6 Insert in Appendix B between the first and second
indented paragraphs a paragraph stating
WE WILL NOT enter into any agreement or under-
standing with Tonn and Blank , Inc , or with any
other employer , requiring clearance from or mem
bership in Lake County, Indiana and Vicinity Dis-
trict Council of the United Brotherhood of Carpen
ters and Joiners of America , AFL-CIO, as a condi-
tion of employment, except to the extent authorized
by Section 8(a)(3) of the Act, as amended
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I NACHMAN, Trial Examiner These cases
tried before me at Michigan City, Indiana, on June
30, July I and 2, 1969, involve three complaints' consoli-
dated for hearing In totality the complaints allege that
Lake County, Indiana and Vicinity District Council of
the United Brotherhood of Carpenters and Joiners of
America (herein the Union) caused at attempted to cause
Tonn and Blank, Inc (herein Company), to hire or
continue to employ only those persons referred or cleared
by the Union, instead of Richard Matzat and Wilbur
Kouw (herein Matzat and Kouw), then employed by
the Company, and to whom the Union had initially
granted but thereafter refused a work permit, and that
the Company discharged and refused to reinstate Matzat
and Kouw because they lacked a valid permit from
the Union The Employer and the Union, respectively,
filed answers to the complaints admitting certain allega
tions of the complaints, but denying the commission
of any unfair labor practice For reasons hereafter stated,
I find and conclude that the evidence establishes a
violation of Section 8(b)(2) and (1)(A) of the Act by
the Union, and of Section 8(a)(3) of the Act by the
Company, and I recommend an appropriate remedial
order against both Respondents
At the tiial the respective parties were represented
by counsel, and were afforded full opportunity to intro-
duce relevant evidence , to examine and cross -examine
witnesses, to argue orally on the record, and to submit
briefs Oral argument was waived Briefs submitted
by the respective parties have been duly considered
' On April 2 1969 complaint issued in Cases 25-CB-861 and 861-2
based on a charge filed by Richard Matzat on January 22 1969 and
amended February 24 1969 as well as a charge filed by Wilbur Kouw
on February 12 1969 On April 17 1969 the aforementioned complaint
was amended to include Case 25-CA-3350 based on a charge filed
on March 5 1969 by Wilbur Kouw against Tonn and Blank Inc
On May 13 1969 a complaint issued in Case 25-CB-3385 based
on a charge April 11 1969 by Attorney Mamet as counsel for Lake
County District Council of Carpenters against Tonn & Blank Inc
On May 13 1969 an order issued consolidating the three complaints
for hearing
Upon the entire record in the case,' including my
observation of the demeanor of the witnesses while
testifying, I make the following
FINDINGS OF FACT3
Background
Contract provisions
The Company is engaged in and about Michigan City,
Indiana, as a general contractor in the building and
construction industry, and along with about 600 other
contractors, is a party to a collective-bargaining agree
ment with the Union which became effective August
1, 1968, and runs through May 31, 1970 The contract
contains , inter alia, the following provisions
ARTICLE I
RECOGNITION
Section 1 Bargaining Unit The bargaining unit
shall be comprised of all employees engaged in
the work described in Section 2 of the Article
X hereof
Section 2 Recognition The EMPLOYER recog-
nizes the UNION as the sole and exclusive collec-
tive bargaining representative for the employees
now or hereafter employed in the bargaining unit,
with respect to wages, hours of work and all other
terms and conditions of employment
Section 3 Equal Representation The UNION,
realizes its duty under the National Labor Relations
Act, as amended, and to the extent that it is the
exclusive representative, recognizes that it must
represent all employees in the bargaining unit equal-
ly, without discrimination, irrespective of member-
ship or non-membership in the UNION
ARTICLE II
UNION SECURITY
Section 1 Maintenance of Membership All
employees who are or become members of the
UNION shall maintain their membership in the
UNION as a condition of continued employment
Section 2 Discharge Members of the Union
who fail to maintain their membership in the
2 The General Counsel has filed with me and served on all other
parties a motion to correct the transcript of evidence in certain respects
set forth in said motion No opposition having been received and
deeming the corrections necessary to accurately reflect the proceedings
before me the motion s granted and the transcript corrected accordingly
3 No issue of commerce or labor organization is presented The
complaints allege and the answers admit facts which establish these
jurisdictional allegations I find these facts to be as pleaded
LAKE COUNTY, INDIANA, CARPENTERS 235
UNION shall, upon request of the UNION, be
discharged
ARTICLE VIII
NO DISCRIMINATION-EQUAL BENEFITS-
EQUAL OBLIGATION
Section 1 Membership in Union Not Compulso-
ry Joining the UNION is not compulsory Neither
party shall exert any pressure on or discriminate
against an employee as regards such matters
*
ARTICLE IX
HIRING AND NOTICE
Section 1 Responsibility for Hiring The
EMPLOYER shall have the sole and exclusive
responsibility for hiring and may hire from any
source it desires without paying heed to membership
in the UNION or referral or clearance therefrom
Section 2 No obligation to Refer The UNION
shall have no obligation to refer prospective employ-
ees to the EMPLOYER but may do so if it desires 4
Company's hiring practices
Company Vice President 0 J Blank testified with
respect to the hiring practices followed by his Company,
particularly with respect to carpenters, and also that,
while job superintendents have authority to hire and
fire, they are under instructions that such hiring and
firing must be without regard to union affiliation Blank's
testimony in that regard is uncontroverted Blank tes-
tified, as he stated in his prehearing affidavit, that,
to keep his crews employed to the fullest extent, men
are transferred from one job to another, as the volume
of work may require and the skills of the employees
may dictate The Company interviews and employs men
at its general offices in Michigan City, this being done
by its general superintendent His first approach is to
recall carpenters who may have been laid off for lack
of work 5 If this does not fill his needs, he calls other
persons whom he may know who might be available
" The contract also provides (art VIII) that (1) as the Union will
represent all employees in the unit union and nonunion fairness demands
that all employees pay their fair share of the cost of obtaining and
enforcing the benefits under the contract and (2) in accordance with
such policy nonmembers in the unit will pay to the Union as their
bargaining representative an amount equal to that paid by members
for the usual initiation fees and dues Although the General Counsel
argues that this provision is a form of union security from which
he infers some kind of illegality the uncontradicted evidence is that
this contract provison was not enforced and that the fees therein
referred to were not collected have no relation to and are separate
and apart from the permit or service fees hereafter discussed
3 This is to reduce unemployment compensation costs
for work If this does not satisfy requirements, the
Union is notified that specific numbers of men of desig-
nated skills are needed at a particular Iobstte Additional-
ly, if needed, advertisements are placed in the local
newspapers and applicants from the street are hired
at the jobsite if they possess the necessary skills and
work is available at the particular job Except for the
transfer of men from one job to another, and the recall
of men previously employed, the remaining sources
of labor are not pursued in any particular order, but
in a mariner calculated to best satisfy the Company's
needs Blank further testified without contradiction that,
when applicants for employment are interviewed, no
inquiry is made as to union status or lack thereof,
nor is any report made to the Union that a particular
applicant was, or was not, hired According to Blank,
there is no obligation on the Company to employ carpen
ters who are referred by the Union
While job superintendents have authority to hire and
fire for their job after first clearing with the general
superintendent, the j have specific instructions that, when
interviewing an applicant for employment, they are not
to ask if the applicant is a union member, whether
he has cleared with the Union, or whether he has
a referral slip Vernon Johnson, the Company's superin-
tendent at the Holiday Inn job in LaPorte, Indiana,
one of the jobs involved in this proceeding, testified
without contradiction that, after checking with the gener-
al superintendent as to available men by way of transfer
from other jobs, he may hire from any source, and
has at times hired persons who came to the job looking
for work, as well as men sent by the Union pursuant
to his request According to Johnson, when hiring a
new man he makes no inquiry with respect to union
status, does not request evidence of union clearance,
nor does he report to the Union that he has hired
or refused to hire any applicant for employment Not-
withstanding this uncontroverted testimony with respect
to the Company's nondiscriminatory hiring practices,
the uncontradicted testimony in this record shows that
all carpenters on the two jobs involved in this proceeding
were members of the Union except Matzat and Kouw,
who were initially permit holders referred to the Compa-
ny by the Union
Work records of Matzat and Kouw
Apparently not knowing each other, Matzat and Kouw
as out-of-jurisdiction men solicited the Union for avail
able work in the LaPorte area, in late July or early
August 1968 Matzat was a member in good standing
of Carpenters Local 3220, Winnebago, Illinois, and Kouw
a member in good standing of Local 1908, Holland,
Michigan, neither Local being affiliated with Respondent
Union Notwithstanding Matzat's membership in the
Winnebago Local, he in fact has resided for some time
at Knox, Starke County, Indiana, within the jurisdiction
of the Union, and had sought, but unsuccessfully, to
transfer his membership to a local affiliated with
Respondent Union Because they construed the constitu-
tion and bylaws of the International Union as imposing
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon them the duty to obtain a work permit when
working outside the jurisdiction of their home local,
Matzat and Kouw separately went to the Union and
spoke with Union Business Agent Bolen regarding the
availability of work and a permit to work in the Union's
jurisdiction Both received a permit from Bolen and
were referred by him to jobs of employers other than
the Company here involved Each month up to and
including the month of December, 1968, the permits
were renewed upon payment of the appropriate fee s
On October 21, 1968, a number of carpenters, includ-
ing Matzat and Kouw whose prior jobs had terminated,
were in the union hall seeking work Bolen announced
that he had a request for four carpenters on the Holiday
Inn job at LaPorte, Indiana, which began in July or
August, and on which the Company was the general
contractor Matzat and Kouw volunteered for the work
and were sent by Bolen to that job ' Each was given
a slip, which the General Counsel calls a "referral
slip," and the Union calls ' an introductory slip "" Mat-
zat and Kouw delivered these slips to Job Superintendent
Johnson, who interviewed them at different times, and,
apparently satisfied with their qualifications, hired both
men to work on that job Although Johnson did not
request it, Matzat and Kouw showed Johnson the work
permits issued them by the Union for the month of
October Matzat worked on the Holiday Inn job until
his employee status ceased on January 15,9 under circum-
stances hereafter detailed Kouw worked at the Holiday
Inn job but a few days and was transferred to other
company jobs, until his employee status ended on Janu-
ary 15, as hereafter detailed While the termination
of employee status of Matzat and Kouw are in some
respects identical , there are some significant differences,
hence they will be discussed separately
Events as to Matzat
Matzat worked Thursday and Friday, January 2 and
3 He was off ill Monday through Wednesday (January
6-8), but worked the following Thursday, Friday, and
Monday (January 9, 10, and 13) While Matzat was
off ill, Gladys (Bolen's secretary) called the jobsite
and spoke with Johnson She asked for Matzat but,
being informed that he was out ill, asked Johnson to
tell Matzat to come to the union hall and get his permit
" The initial permit was issued to Matzat on August 5 1968 and
the renewals are dated September 4 October 2 November 11 and
December 9 In the case of Kouw the record does not indicate the
dates his August and September permits were issued but renewals
were issued to him October 3 November 1 and December 2 1968
All renewals were issued by Bolen s secretary and show the name
of the employer for whom Matzat and Kouw were working when
the permit was issued
' Whether Bolen made referrals for the other two jobs the record
does not disclose
9 I find it unnecessary to decide which label if either is correct
It is sufficient for the purposes of this case that on its face the slip
which bears the Union s name recites that it is introducing a named
person to a named employer at a specific job and is dated and signed
by the business agent
6 This date and all hereafter mentioned are 1969 unless otherwise
indicated
renewed Toward the end of the workday on January
13, Matzat asked Johnson for permission to leave the
job early, saying that he had to go get his work permit
renewed at the union hall Johnson agreed and at this
point told Matzat of the message left by Gladys that
he forgot to tell Matzat about it, adding, "you had
better go tend to it "10 That afternoon Matzat went
to the union hall and, as he had for the past 4 months,
asked Gladys, the office girl, to renew his permit Gladys
first made a telephone call, which Matzat did not over-
hear, and then told the latter that she had talked to
Bolen who said that he should return the following
morning to see him, and that she could not renew
his permit
Early the following morning (January 14), Matzat
went to the union hall and waited for Bolen About
9 30 a in , he was informed by Gladys that she did
not think Bolen would be in Matzat left the union
hall, going to the jobsite, some 10 to 15 minutes away
Although Matzat was dressed for work, he did not
go to work when he reached the job What he did
in the interim does not appear, but it was not until
the lunch period that Matzat saw Johnson and informed
the latter that he had been unable to get his permit
renewed, that he had to see Bolen and would have
to go back to the union hall Wednesday for that purpose
According to Matzat, and this is not denied or explained
by Johnson, the latter then said that he did not want
to cause any hard feelings among the men and that
Matzat should wait and see Bolen the next day Matzat
then left the job Both Matzat and Johnson are in
accord that, on the 14th, Johnson did not tell Matzat
to work or not to work and that Matzat made no
request to be put to work, nor otherwise indicated
his desire to work Matzat's explanation for his failure
to do so is that he construed Johnson's remark that
he would have to wait until Wednesday as meaning
that he had to have a permit to work and, since he
didn't have it, he could not work However, on the
job work records]] for Tuesday, January 14, opposite
Matzat's name, Johnson made the entry "No permit,
Bolen not in office " No entry was made for hours
worked Johnson's only explanation of this entry is
that he made it solely for his information and that
it does not mean that Matzat was terminated
Wednesday morning (January 15), Matzat again went
to the union hall and, this time finding Bolen, asked
for a renewal permit Bolen refused, saying that he
had too many of his local people out of work Matzat
10 The General Counsel argues that this statement by Johnson indi
cates and urges that I find that he (Johnson) regarded a valid and
current work permit issued by the Union as a condition to the right
to work I do not so construe it Rather I find that it was a casual
remark to the effect that as several days had passed during which
Johnson forgot to tell Matzat of the call from the Union and as
the latter wished to get a work permit he should not delay the matter
further
11 These are timesheets which the superintendent keeps for all employ
ees on job and from which he makes up timecards which he forwards
to the office and which become the basis for computing the wages
due The time records kept by Johnson remain at the job until its
completion and are then destroyed
LAKE COUNTY, INDIANA, CARPENTERS
tried to argue with Bolen but the latter remained firm,
suggesting that Matzat might return in about a month
to see if work for him was available 12 Matzat then
went to the jobsite and told Johnson that Bolen would
not issue him a permit Johnson expressed the view
that Bolen could not so refuse but that he would call
Company Vice President Blank Johnson told Blank
that Bolen had refused to issue Matzat a permit and
was not going to let him work because there were
too many local men out of work, that Matzat was
a good carpenter whom he needed and if possible would
like to keep, but that he had no permit 13 Johnson
also told Blank that there was another carpenter, working
on the Company's Sollair job to whom Bolen had refused
a work permit for the same reason that a permit had
been refused Matzat 14 Blank told Johnson that he would
telephone Bolen , and promptly did so
In the conversation between Blank and Bolen, and
during which Blank admitted that when he met with
some resistance from Bolen he became "a little excited,"
he told Bolen that Matzat was a good employee who
was needed by the Company and that he could not
terminate Matzat because he lacked a permit Bolen
told Blank that his (Bolen's) responsibility was to his
local people who were complaining about outsiders work-
ing at their expense and that Blank as a local employer
should give preference to local people who support
the community and its institutions Bolen urged Blank
to terminate Matzat so local people could have the
work Blank refused to comply with Bolen 's request
saying that, while he agreed with Bolen's objective
to get the work for local people, he could not terminate
Matzat for that reason Blank then requested that Bolen
put his request for the termination of Matzat in writing
and that he also obtain from Matzat a waiver of any
claim Matzat might have for unemployment compensa-
tion, but Bolen refused At this point, Blank brought
up the name of Kouw as an employee to whom Bolen
had also refused a work permit Bolen professed to
have no information concerning that situation and the
conversation concluded with Bolen stating that he would
talk to Superintendent Tews about Kouw 15
12 I do not credit Bolen s testimony that he did not refuse to give
Matzat a permit but merely delayed acting on the request until he
checked if Matzat was still working on the Holiday Inn job His
testimony in that regard is contradicted not only by Matzat but implicitly
by Johnson and Blank as hereafter detailed
13 This finding is based on a composite of the uncontradicted and
credited testimony of Johnson and Blank and Blank s prehearing affidavit
which was received as an admission against interest
19 How Johnson got this information the record does not disclose
Kouw was not working on Johnson s job at the time
15 My findings with respect to the telephone conversation between
Blank and Bolen is based on the credited testimony of Blank Bolen
admitted that he had a conversation with Blank and that the refusal
of permits to Matzat and Kouw was discussed According to Bolen
he told Blank that the alleged refusal to issue permits was a bunch
of malarkey that he would talk to superintendents Johnson and Tews
and get the thing straightened out Bolen admits that Blank was
speaking louder than his normal tone of voice that he (Bolen) raised
the subject that the Company should give preference to local men
and that Blank asked him to write a letter and he responded `that
would be silly Bolen denied that he made any request to Blank
that Matzat or Kouw be terminated Also significant in this regard
237
Immediately after his conversation with Blank, Bolen
called Superintendent Johnson and asked him to come
to the union hall Nothing was said about the purpose
of the proposed meeting, although Johnson assumed
that it would relate to the continued employment of
Matzat After first obtaining permission from Blank to
do so, Johnson left for Bolen's office, reaching there
about 11 30 am As Johnson was leaving his office
for the conference with Bolen , he told Matzat that
he was going to do what he could to get Bolen to
issue him a permit, but that until he (Johnson) returned
Matzat was not to go to work 16 Bolen told Johnson
that there were a lot of local members who were out
of work and referred to Johnson's status as a member
of an affiliated local, as such it was Johnson's duty
to employ local men as much as possible Bolen then
stated that he wanted Johnson to tell him (Bolen) to
issue Matzat a permit Johnson refused, saying that
what he wanted was a letter from Bolen stating why
he would not issue Matzat a permit Bolen replied that
he "would be the biggest damn fool in the world to
do that " About this time Bolen was informed that
he was wanted on the phone in another room Going
there Bolen had to pass his secretary's workspace and,
as he did so, Johnson overheard Bolen tell her, "If
Matzat comes in, fix him up with a permit " When
Bolen resumed his conversation with Johnson, he asked
the latter how much work remained on the Holiday
Inn job Johnson replied that it was running out and
didn't know how much longer it would last, because
the job was cutting back and that people being hired
would probably be laid off by the end of January
Bolen then asked, "if I give Matzat a permit, will
you agree to lay him off the end of January " Johnson
refused, saying he did not know what the situation
would be at that time After some discussion of matters
not relevant here, Johnson left for the jobsite 17
Returning to the job shortly after noon, Johnson
went to his office where he found Matzat The evidence
bearing on the events which followed not only raises
some credibility issues but is in some material respects
confusing Johnson credibly testified that he told Matzat
that, if the latter would go to the union hall, We would
is the fact as Bolen admitted that when the supply of men in the
hall exceeds the requests of employers for labor it is his desire to
bring about the employment of his members over those from other
locals To the extent that Bolen s testimony conflicts with that of
Blank I credit the latter
11 Johnson denied that he made such a statement but I credit Matzat
because I regard his testimony in that respect to be the more probable
under the circumstances
17 My findings with respect to the conversation between Bolen and
Johnson are based on the credited testimony of Johnson Bolen admitted
that he called Johnson and asked him to come to his office that
the matter of a permit for Matzat was discussed that he told Johnson
that he owed a duty to the community to give preference in employment
to local people and that Johnson asked for a letter a request he
dismissed as silly The substance of Bolen s testimony is that he
only asked Johnson if Matzat was working at the Holiday Inn job
(information which Bolen could just as easily have obtained over the
phone ) and that when Johnson replied in the affirmative and indicated
that the job would probably be over the end of January he asked
if Matzat would be laid off at that time To the extent that Bolen s
testimony conflicts with that of Johnson I credit the latter
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
get his permit and that, although Bolen sought to extract
a promise that he would lay Matzat off at the end
of the month, he (Johnson) "refused to go for that."'A
Johnson also credibly testified that, when he informed
Matzat of the results of his talk with Bolen, the latter
replied that under the circumstances he didn't know
if he wanted to get the permit or not. Matzat admitted
that his response to Johnson's statement was that the
latter should "not get into any trouble on my account,"
and "this looks like it." At this point Matzat did not
ask to be put to work, nor did Johnson inform Matzat
that the latter could go to work if he wished to do
so, and, after arranging to have his check mailed to
him, Matzat left the job.'9
About mid-February and again about mid-March, Mat-
zat went to the union hall, asked Bolen if work was
available, and was told there wasn't. On the first of
these occasions Matzat also asked Bolen if he could
get a permit. Bolen replied that there was no work
and, according to the constitution and bylaws, he could
not issue him a permit. Matzat then asked if he found
his own job would Bolen issue him a permit. Bolen
replied he could not do so. In the same period, Matzat
also went to the Holiday Inn job and asked Johnson
if he got a permit would there be any work for him.
Johnson told Matzat that the motel part of the job
was shutting down but the restaurant portion had not
yet started; when it did, work might be available. On
this occasion Matzat showed Johnson a letter dated
January 24, which he had received from Union Attorney
Mamet, and asked Johnson if he understood what it
meant. Johnson testified that he read the letter but
that he "couldn't make much heads or tails out of
it either. "20 In about 4 weeks Matzat again saw Johnson
at the jobsite and inquired about the availability of
work. Johnson replied that at the time the job was
full On this occasion Matzat observed some five or
" Matzat admitted that, upon his return from the union hall, Johnson
told him that "he had talked to Mr Bolen and that Mr Bolen had
agreed to issue a permit on his say so if he laid me off at the end
of the month [but that he, Johnson] didn't like that idea " Matzat
also admitted that he understood the last part of the above-quoted
statement to mean that Johnson would not agree to Bolen's request
In view of these admissions, I do not credit Matzat's claim that Johnson
did not tell him that if he would go to the union hall he would
get his permit
11 Although Johnson admitted that he did not tell Matzat to go to
work, or not to go to work, he claimed that he told Matzat that,
so far as he (Johnson) was concerned, Matzat still had a job Johnson
further testified that whether Matzat had a permit meant nothing to
him and Matzat could have worked whether he had a permit or not
I do not credit Johnson's testimony in that regard because I regarded
it as inconsistent with his other deliberately assumed attitude on Tuesday,
and on Wednesday before he spoke with Bolen , of not telling Matzat
that, so far as he was concerned, Matzat was free to work, permit
or no permit
20 The letter reads
I note that you have filed charges against [the Union]
apparently contending that you have been discriminated against
in violation of the National Labor Relations Act There must be
some confusion in your mind Clearance by or referral from the
Union is not a condition of obtaining or retaining employment
You are free to obtain any job you want
I am sending a copy of this letter to [the Company] so that
in the event there is any confusion in their mind, they will fully
understand
six carpenters working on the job. Except as indicated,
Matzat has had no word from the Company as to the
availability of work
Events as to Kouw
Kouw, who had been transferred to a number of
the Company's jobs, during the early part of December
1968, was employed on the Sollair job were he worked
until shortly before Christmas, thereafter being trans-
ferred to the Peters & Marsh job, where he worked
through December 30, 1968. Because bad weather pre-
vented work on December 31, and the impending New
Year holiday, Kouw went to his home in Holland,
Michigan, where he became ill and was unable to return
to work until Tuesday, January 14. On that day Kouw
reported first to the Peters & Marsh job, where he,
had last worked, but, being told there was no work
there, went to the Sollair job, arriving about 12:25
p.m. Foreman Kowalski told Kouw to go to work and
explained to Kouw the substantial volume of work that
remained to be done on that job. It is undisputed that,
at the end of the workday, Kouw asked Superintendent
Tews and Foreman Kowalski for permission to report
late the following morning, explaining that he had to
go to the union hall to get his work permit renewed
Such permission was granted. From the fact that such
permission was granted, and the Company's practice
of notifying employees at the end of a day if their
service was not required the following day, I infer
and find that Tews intended and expected that Kouw
would work the next day.
The following morning (January 15), Kouw went to
the union hall, where he talked with Bolen, tendered
his fee, and requested renewal of his work permit.
Bolen refused, saying that he had too many of his
local men out of work. Kouw argued that he was not
asking to be referred to a job, that he had one and
simply wanted his permit renewed. Bolen asked where
Kouw was working and the latter replied for Tonn
& Blank at the Sollair job. Bolen replied that the Sollair
job was not working too well and couldn't understand
why Kouw would want to renew his permit, but that
in any event he could not renew it. Kouw left for
the Sollair jobsite and, after arriving there about 8:30
a.m., went to the construction office where he first
met with Foreman Kowalski .21
Kouw told Kowalski that Bolen had refused to renew
his permit, to which Kowalski replied that Bolen's action
was bad for Kouw because it meant that his employment
was "at the end of the road." About this point Superin-
tendent Tews came in the room and Kouw told him
that Bolen would not renew his permit. Tews asked
why and Kouw told him that Bolen stated he had too
many local men out of work. Tews then told Kouw;
"Well, under those conditions don't go to work," and
added that, if Bolen came to the job and found Kouw
21 The findings with respect to Kouw, to this point, are based on
the credited testimony of Kouw Bolen's denial that he had any conversa-
tion with Kouw regarding the renewal of a work permit is not credited
LAKE COUNTY, INDIANA , CARPENTERS
working when he had refused to renew Kouw's permit,
"he is going to get a little nasty"; that he "might
even throw up a picket and shut this job down," an
event the Company could not afford because the contract
had a penalty clause and was already behind schedule.
Then, turning to Kowalski, Tews said, "He had better
not go to work. You know if Bolen comes out here
and finds him he might even try to bump you off the
job. "22 Kouw's stay at the construction site was no
more than a half hour and from there he went to
the Company's main office where he spoke with Paymas-
ter Potts and arranged for his check and W-2 form
to be sent him promptly.23
On March 10, Company Vice President O. J. Blank
wrote Kouw.24 denying that Kouw was terminated
because of union considerations, but because of lack
of work, as the Sollair job was completed on January
15 and there was no other job on which Kouw could
be placed.25 Blank admitted that he wrote this letter
in the hope that it would terminate backpay liability,
if any existed. The testimony, however, does not support
his assertion that Kouw was terminated because work
was unavailable for him. In the first place Blank himself
testified that, on January 15, concrete was being poured
on the Sollair job-a time when carpenters are normally
needed to strip forms after the concrete hardens-and
for that reason Tews could not leave the job to see
Bolen at the latter's office. Secondly, Foreman Kowalski
testified that, on January 15, he had work for Kouw
that would have lasted about a week.24 And finally,
22 The findings in this paragraph are based on the credited testimony
of Kouw Although I observed Tews in the courtroom, he did not
testify Kowalski denied that he told Kouw that he was "at the end
of the road " He further denied that he or Tews told Kouw not
to go to work without a permit or made any comment about anything
Bolen might do if Kouw worked without a permit To the extent
that Kowalski's testimony conflicts with that of Kouw, I credit the
latter It is noted for purposes of clarification that, after his conversation
with Blank, Bolen called Tews and asked the latter to come to his
office, Tews called Blank and explained that he was pouring concrete
that day and could not leave the job Blank telephoned Bolen again
and explained the reason for Tew's inability to come to Bolen's office
that day For this reason there was no conference between Tews
and Bolen regarding the employment of Kouw, as there was between
Johnson and Bolen regarding the employment of Matzat
21 Kouw additionally testified that while at the company office he
told Paymaster Potts "what the situation was " Although Kouw did
not elaborate on this phrase, he admitted that he did not tell Potts
of his conversation with Tews According to Kouw, Potts brought
Company President John G Blank to him and the latter stated that
he could do nothing for Kouw, that if he did not have a permit
he could not be put to work Both Potts and Company President
Blank denied that any such statement was made to Kouw I find
it unnecessary to resolve the conflict in view of my findings with
respect to the statements made to Kouw by Tews
24 This was 4 days after the Company received a copy of the 8(a)(3)'
and (I) charge Kouw filed against the Company on March 5 Prior
to this day the only charge filed by Kouw was the one he filed on
February 12, alleging a violation of Sec 8(b)(1)(A) and (2) by the
Union
2i The letter also stated that, should work become available for
which Kouw was considered qualified, he would be considered for
further employment At the time of the trial Kouw had not been
called for work
2h Respondents also attempted to show through Kowalski that Kouw
was incompetent and had to be kept under almost constant supervision,
but I do not credit Kowalski's testimony in that regard I find it
239
the reason Tews gave for not permitting Kouw to work
was that he lacked a permit and feared what Bolen
might do if he found Kouw on the job, not the lack
of work. The reason which Tews assigned takes on
added significance in view of Blank's instructions to
his supervisors to give terminated employees the true
reason for their termination.
Although Kouw denied that he told Tews on January
15 that he could not work because he lacked a work
permit, he admitted not only that he was aware of
and intended to comply with the rules of the International
Brotherhood27 which require him to refrain from working
outside the jurisdiction of his own local without a permit
from the local in whose jurisdiction he proposed to
work, but also admitted that, when he left Bolen's
office on the morning of January 15, he had made
the decision that he would not work on the Sollair
job if he couldn't get the required permit, and that
his purpose in going to the jobsite that morning was
to get Tews to intercede with Bolen and prevail upon
him to issue the permit. Kouw further admitted that,
when he spoke with Tews on the morning of January
15, he, in effect, told Tews, "I don't have a permit,
I can't work."
Contentions and concluding findings
The initial question to be determined is whether there
existed any agreement or understanding between the
Company and the Union that only those nonmembers
of the Union who possessed valid work permits issued
by the latter would be employed by the Company.
Absent such agreement or understanding:
Neither employer nor union can be held accountable
for the unilateral actions of the other. Neither
is bound to police the other nor can it be inferred
that an unfair labor practice indulged in by one
is caused by the undisclosed activity of the other
or through the tacit understanding of both. Evidence
of such activity or understanding is necessary.28
The record before me is clear that there existed no
written agreement imposing upon the Company an obliga-
tion to hire or retain in its employment only those
who possess clearance from the Union. But that does
not end the inquiry. As the Board held in Bricklayers,
Masons, and Plasterers' International Local Union No.
18 (Ferguson Tile and Marble Co.), 151 NLRB 160,
difficult to believe that, with an oversupply of carpenters in the union
hall, and the construction industry experiencing a slowdown because
of the tight money market, as Blank testified, the Company would
have retained an incompetent for about 3 months Furthermore, the
alleged incompetence is somewhat inconsistent with the statement in
Blank's letter to Kouw that the Company would consider him for
further employment
2' Although these rules are not in evidence, the substance of them
is set ,forth in Carpenters Local -40 (Stop & Shop, Inc ), 143 NLRB
142, 145-146. What the rules in fact provide is unimportant here
The important question is what Kouw thought they required of him,
and the action he took based on that state of mind
24 N L R B v Brotherhood of Painters, Decorators & Paperhangers
of America, etc [Spoon Tile Co ], 242 F 2d 477, 480 (C A 10), quoted
with approval by the Board in Local 626, United Brotherhood of Carpen-
ters, etc. (Food Fair Stores, Inc ), 142 NLRB 1238, 1240
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
even though the written agreement between the parties
contains no union -security clause or referral provision,
and unlawful "understanding" may,be found if, in the
particular case. "the record reveals the existence of
an oral agreement or, arrangement which requires 'mem-
bership, in, our clearance from [the Union] as a condition
of employment." Id. at 163. On the basis of the record,
before me I am convinced , and therefore find and con-
clude , that the evidence establishes the existence 'of
an oral arrangement or understanding between the Union
and the Company that the latter would '', retain' in its
employment only those carpenters who were members
of, or had clearance from, the Union This conclusion
is predicated on the following:
1. Despite the extensive evidence ' with , respect to
the Company' s right , and its practice of hiring without
reference to union considerations , the fact remains that
all carpenters on the two jobs here involved were mem-
bers of the Union, except Matzat and Kouw, both
of whom, when initially employed, had clearance from
the Union.
2. When Johnson learned on January 14 that Matzat
had been unable to see Bolen and that his permit was
not renewed, he did not direct Matzat to work or inform
him that so far as the Company was concerned Matzat
was free to work regardless of the status'of'his permit.
Rather, Johnson made 'the entry on his work records
that Matzat had no permit . I find ' it difficult to put
credence in Johnson ' s explanation that this entry was
for information only and had no other significance.
3. When Johnson called Blank on January) 5 to inform
the latter that Bolen had denied Matzat a renewal permit,
it was not simply for the purpose of obtaining Blank's
opinion on an academic question . Rather , Johnson placed
emphasis on the fact that Matzat was a good employee
whom he needed and wanted to keep, but that Bolen
was interfering with his plans ' by denying Matzat a
permit. If, as the Company contends, ;the, lack of the
permit constituted no impediment to Matzat ' s continued
employment, it is difficult to understand why Johnson
emphasized that the employee he needed and wished'
to keep lacked a permit'from the Union.
4. Even more difficult to understand is why Blank
telephoned Bolen to protest the latter ' s refusal to renew
Matzat 's permit , and admittedly became "a little excit-
ed" when he met with resistance from Bolen, if the`
lack of such permit presented no problem to it in continu-
ing Matzat ' s employment.
5. When Johnson left for'Bolen's office, he told Matzat
that he was going to do what ' he * could 'to. get the
latter ' s permit renewed ,, but cautioned Matzat not to
go to work before he (Johnson) returned.
6. When Johnson met with Bolen, he demanded a
letter from the latter explaining why he (Bolen) would
not renew Matzat ' s permit . It is, to say the least , difficult
to understand why Johnson would go to this length
if he did not regard the possession of such a permit
by Matzat as necessary to the' latter's continued employ-
ment.
7. In talking with Matzat both' on January 14 and
following his conference with' Bolen on, January 15,
Johnson refrained from telling Matzat that, so far as
the Company was concerned, he was free to work
whether he had the permit or not and permitted Matzat.
to leave the job,under,the impression that the Company
regarded a valid permit as a condition ' precedent to
his right to work. '
8. At the Sollair job Kouw was told by the foreman
that absence of 'the permit meant that his employment
with the Company*was' "at the end of the road" and
by Superintendent Tews that, under the circumstances,
he'(Kouw) should not go to 'work, expressing his fear
of possible action by Bolen should he find Kouw on
the•job.29 , .
Having concluded . that'there existed an arrangement
or understanding between the Union and the Company
that the latter would ;employ only those persons who
were members of or who had valid work permits from
the Union, it follows, and I further find and conclude,
that, by'•withholdingr work permits from Matzat and
Kouw and, by requesting Blank to terminate Matzat
and- Kouw,' all because of their lack of membership
in the' Union, the Union attempted to cause and caused
the Company to discriminate against Matzat and Kouw
in regard to their-tenure of employment, or a term
or condition thereof , to encourage membership in the
Union, in' violation of; Section 8(b) (2) and ,(1) (A) of
the Act 3` and that the Company by its adherence to
the aforesaid arrangement or, understanding , and failing
and refusing to permit Matzat and' Kouw to work without
a permit from the' Union , discriminated against them
in regard 'to' the' tenure of their employment, or a term
or condition thereof;' which encouraged membership in
the' Union, and thereby 'violated Section 8(a) (3) and
(1)oftheAct31 ,
Although I may not regard any of the above factors , standing
alone , , of sufficient evidentiary value to sustain the conclusion which
I have , reached , their totality, in my opinion , makes - that conclusion
inescapable '
70 Cases like Bricklayers , Masons and Plasterers ' International Union
of America, etc (Plaza 'Builders , Incorporated), 134 NLRB 751, and
Local 369 , International Hod Carriers , Building and Common Laborers
Union of America , AFL-CIO (McCloskey Construction Corp ), 147
NLRB 1209, where the Board found that a union's request for preference
in employment for persons-who resided in the locale , as distinguished
from those having membership in the local, did not violate the Act
because it involved only a discrimination not based on union membership
In the instant case it is clear and I find that the Union ' s demand
it-as based on the fact that Matzat and Kouw lacked membership
in the Union As Matzat lived within the territorial jurisdiction of
the Union, it is clear that Bolen's reference to "local men" was
not limited to those who reside in the locale, but referred to those
who held membership in local unions which made up the District
Council he represented
" Having reached this conclusion, I find it unnecessary to decide
whether , as the General Counsel contends, the Union as the collective-
bargaining representative of the employees in the unit here involved
also violated Section 8 (b)(1)(A) of, the Act by its failure to represent
fairly and equally all employees in the unit United Brotherhood of
Carpenters and Joiners of America,- 'Local 143 (Helm Construction,
Inc ), 170 NLRB No 97, cited and relied upon by the General Counsel,
does not support his contention Of the three Board Members participat-
ing in that case, Chairman McCulloch would find no violation based
on the aforementioned theory and Member Zagoria found it unnecessary
to consider the question Thus , in Helms, supra, a majority of the
Board , did not adopt the Trial Examiner ' s holding on which the General
Counsel relies
LAKE COUNTY, INDIANA , CARPENTERS
I reject as unsupported by the evidence the argument
advanced by the Union and the Company that the latter
did not prevent Matzat and -Kouw from working and
that both voluntarily quit. Turning first to the case
of Kouw, the facts show that Superintendent Tews
told Kouw not to go to work without a permit , because
he feared what action Bolen might take that might
adversely affect the progress of the job, and directed
Foreman Kowalski to see that Kouw did not work.
That Kouw may have decided for reasons of his own
that he did not wish to risk discipline by the Union
for working without a permit is irrelevant. His decision
in that regard was not based on a reasoned conclusion
that he no longer wished to work on the job but he
was simply bowing to what he regarded as the inevitable
in view of the arrangement or understanding between
the Company and the Union, an arrangement or under-
standing rooted in illegality, which he had every right
to protest. So viewed, I must and do find and conclude
that Kouw did not quit but was forced off the job
by the illegal arrangement between his Employer and
his bargaining representative. 32 In the case of Matzat,
not only do the same considerations prevail but the
notation Johnson made on his time records•on January
14 giving the reason for Matzat's failure to work that
day-"No permit, Bolen not in office"-strongly indi-
cates that he did not regard Matzat eligible for employ-
ment because he lacked a permit from the Union. It
is true that on January 15 Johnson told Matzat that
if he would go to the union hall he would get his
permit, and that he failed to do so. Whether Matzat
was unjustified in his construction of what Johnson
said is beside the point. The crucial fact is that, before
going to Bolen's office, Johnson told Matzat not to
work without a permit. This was the discrimination
on the part of the Company which the statute prohibits.
Matzat was entitled to have his employment continued
without regard to a permit from the Union and to
protest, as I find he did, the Company's insistence
that he have a permit in order to work. In this sense,
I find and conclude Matzat did not quit but was prevented
from working by the Company.
Upon the foregoing findings of fact, and the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer within the meaning
of Section 2(2) of the Act. -
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3: The evidence establishes that -there existed an
arrangement or understanding between the Union and
the Employer that the latter would employ only those
persons who were members of or had been cleared
by the Union. - - -
7R As heretofore pointed out, even Blank recognized that Kouw did
not quit and claimed that he was not employed by the Company
after January 14 because of lack of work, a claim which I have found
unsupported by the record
241
4. By denying its employees Matzat and Kouw the
right to continue their employment, because they were
not members of and did not possess permits from the
Union, the Company discriminated against Matzat and
Kouw in regard to their hire and tenure of employment,
and the terms and conditions thereof, encouraging mem-
bership in the Union, and thereby engaged in and is
engaging in unfair labor practices proscribed by Section
8(a) (3) and (1) of the Act.
5. 'By denying clearance or work permits to Matzat
and Kouw and by requesting the Company to deny
employment-to Matzat and Kouw because they were
not members of the Union, the latter caused or attempted
to cause the Company to discriminate against Matzat
and Kouw in violation of Section 8(a) (3) and (1) of
the Act and thereby engaged in and is engaging in
unfair labor practices proscribed by Section 8(b) (2)
and (l) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found. that the Union and the Company were
parties to and maintained in effect an arrangement or
understanding pursuant to which the latter would hire
and retain in its employment only,those persons who
are members of or have work permits from the Union,
both the Company and the Union will be required to
cease maintaining or giving effect to such arrangement
or understanding.
Having also found' that pursuant to the aforesaid
arrangement or understanding the Union denied work
permits to Matzat and Kouw, and demanded that the
Company discontinue their employment, and that pur-
suant to such request the Company terminated the
employment of Matzat and Kouw, it-will be recommend-
ed that the Union advise the Company, in writing,
with copies to Matzat and Kouw, that the Union has
no objection to, their employment by the Company,
whether they have a work permit from the Union or
not .33
It will be further recommended that the Company
be required to offer Matzat and Kouw full and uncondi-
tional reinstatement to their former or substantially
equivalent jobs, without prejudice to their seniority or
other rights or privileges, leaving to the compliance
stage of this proceeding the question whether, in the
normal course of the Company's policy and practice,
Matzat and/or Kouw would have continued on the job,
and if not, for what period they would have been
employed .14
" I do not regard Attorney Mamet's letter to Matzat, quoted supra,
fn 20, a copy of which was sent to the Company, as complying
with this requirement Not only does the letter fail to state-that a
work permit from the Union will not be required as a condition of
employment, but Johnson who has the authority to hire on behalf
of the Company did not so understand it
'" In making this recommendation , I have fully considered the Board's
Decision in Rusciano Construction Corporation-Del Balso Construction
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It will additionally be recommended that the Company
and the Union, jointly and severally, make whole Matzat
and Kouw for any loss of pay they may have suffered,
respectively, by reason of the discrimination against
them, by paying to each a sum of money equal to
the wages he normally would have earned from January
14 in the case of Matzat, and January 15, in the case
of Kouw until the Company's offer of reinstatement
as above mentioned, or to such prior date as it may
be determined they would have been lawfully terminated
less net earnings during that period with interest thereon
at the rate of 6 percent per annum, all in accordance
with the Board's formula set forth in F W Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating
Co , 138 NLRB 716, provided, however, that the Union s
liability for backpay shall cease to accrue 5 days after
it provides the Company with written notice that it
has no objection to the employment of Matzat and
Kouw, as above stated, but absent such notification
the Union shall remain jointly and severally liable with
the Company for all backpay that may accrue thereafter
until the Company complies with the Board s Order
The Gabriel Division of the Maremont Corporation, 153
NLRB 631 631 1, The Company will also be required
Corporation 136 Ni RB 1332 dealing with the question of reinstatement
but regard the facts of that case as distinguishable from those present
here In that c ise the discrimmatee w is employed on a project involving
work on the George W ishington Bridge Finding that the employer
discriminatorily dischirged the employee and that the Union had caused
that discrimin ikon the Trial Ex miner recommended that he be reinstat
ed to the George Wshington Bridge project if still in progress and
if not to any job of the employer in the area The Board however
required the employer to offer iemstatement only in the event the
Bridge project is still in progress 136 NI RB at 1331 There is
nothing in the reported decision to indicate whether the employer had
other projects in the area nor is there any indication that the employer
had any practice or custom of transferring employees from one job
to another In the instant case Blank testified at length on the Company s
established practice of transferring employees among its jobs and panic
ularly when one job w-is completed to transfer the entire personnel
on that job to one of its many others in the area to the extent
that it was feasible to do so giving as one reason therefor his desire
to give his crews the fullest employment possible with resultant improve
ment in rating experience for unemployment compensation taxes In
view of this evidence it would appear that limiting the reinstatement
of Matzat and Kouw to the specific job on which they were employed
at the time of the discrimination against them would afford only a
partril remedy whereas the reinstatement remedy I propose is one
tailored to the needs of the situation presented that does not impose
an undue or unfair burden upon the [Company ] Royal Plating and
Polishing Co Inc 160 NLRB 990 998 and is in accord with the
statutory mandate that in fashioning remedies the Board must bear
in mind that the remedy should be adapted to the situation that calls
for redress with a view toward restoring the situation as nearly
as possible to that which would have obtained but for [the unfair
labor practice] Royal Plating and Polishing Co Inc 148 NLRB
545 548-549 and the cases there cited While it is possible neither
Matzat nor Kouw would have been terminated upon completion of
the projects on which they were employed assuming that they have
been completed or it some subsequent time such facts are best known
to the Company and as above stated do not appear in this record
and can best be developed at the compliance stage of this proceeding
' Had the Company continued to resist the Union s demands as
Blank did in his conversation with Bolen and succumbed only when
all avenues of resistance became closed to it such as was the case
in Zoe Cliemual Co Inc 160 NLRB 1001 1002 I would be inclined
to recommend that the Union be adjudged primarily responsible for
the b ickpay and the Company only secondarily liable therefor as
the Board did in Zoe Chemical supra However as the record in
to preserve and upon request make available to the
Board or its agents, for inspection and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary or useful in computing the amount
of backpay due as herein provided
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclu-
sions of law, and the entire record in the case and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that
A Tonn and Blank, Inc its officers, agents, succes
sors and assigns shall
1 Cease and desist from
(a) Encouraging membership in Lake County, Indiana
and Vicinity District Council of the United Brotherhood
of Carpenters and Joiners of America, or any other
labor organization, by requiring of any employee clear
ance from, or membership in, a labor organization as
a condition of employment, except to the extent that
such requirement of clearance or membership is in
accordance with the provisions of Section 8(a)(3) of
the aforesaid Act
(b) Entering into any agreement or understanding with
the aforementioned or any other labor organization,
requiring clearance from or membership in a labor organi-
zation as a condition of employment, except of the
extent authorized by Section 8 8(a)(3) of the aforesaid
Act
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the aforesaid
Act
2 Take the following affirmative action designed and
found necessary to effectuate the policies of the Act
(a) Offer Richard Matzat and Wilbur Kouw immedi-
ate full, and unconditional reinstatement to their former
or substantially equivalent jobs, without prejudice to
their seniority or other rights and privileges, as provided
in the section hereof entitled "The Remedy "
(b) Notify Richard Matzat and Wilbur Kouw if pres-
ently serving in the Armed Forces of the United States
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act, as amended,
after discharge from the Armed Forces
(c) Jointly and severally with Lake County, Indiana
and Vicinity District Council of the United Brotherhood
of Carpenters and Joiners of America make whole Rich-
ard Matzat and Wilbur Kouw for any loss of pay they
severally suffered by reason of the discrimination against
them, in the manner provided in the section hereof
entitled "The Remedy '
the instant case shows and as I have found except for Blank s statements
to Bolen the Company did not resist the latter s demands but permitted
its supervisors to deny employment to Matzat and Kouw because
they lacked the required union permit In such cases the Board s
usual remedy of joint and several liability must prevail
LAKE COUNTY, INDIANA , CARPENTERS
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Recommended Order.
(e) Post at its principal office in Michigan City, Indian-
a, and at its Holiday Inn and Sollair jobsites, if either
is still in progress, copies of the attached notices marked
"Appendix A" and "Appendix B."31 Copies of said
notices, on forms provided by the Regional Director
for Region 25, after being duly signed by Respondents'
representatives, respectively, shall be posted by it imme-
diately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by it to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Mail to the aforesaid Regional Director sufficient
signed copies of the attached notice marked "Appendix
A," for posting by Respondent Union. Copies of said
notice, on forms provided by said Regional Director
shall, after being signed by an authorized representative,
be forthwith returned to the aforesaid Regional Director
for posting.
(g) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of receipt of this Decision,
what steps it has taken to comply herewith.37
B. Respondent Union, Lake County, Indiana and
Vicinity District Council of the United Brotherhood
of Carpenters and Joiners of America, its officers, agents,
representatives, successors, and assigns, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Tonn & Blank,
Inc., to discharge or in any other manner discriminate
against any employee in regard to his hire or tenure
of employment, or any term or condition thereof, except
to the extent authorized by Section 8(a)(3) of the National
Labor Relations Act, as amended.
(b) In any other manner restraining or coercing any
employee of Tonn & Blank , Inc., in the exercise of
rights guaranteed by Section 7 of the aforesaid Act.
2. Take the following affirmative action found neces-
sary and designed to effectuate the policies of the afore-
said Act:
°h 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, recommendations, 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
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 be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
37 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the aforesaid
Regional Director, in writing, within 10 days from the date of this
Order, what steps it has taken to comply herewith "
243
(a) Jointly and severally with Tonn & Blank, Inc.,
make whole Richard Matzat and Wilbur Kouw, respec-
tively, for any loss of earnings suffered by reason of
the discrimination against them as herein found, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Notify Tonn & Blank, Inc., in writing, that it
has no objection to the employment of Richard Matzat
or Wilbur Kouw on any project within its territorial
jurisdiction, whether they possess a work permit or
not, and send a copy of such notification to Richard
Matzat and Wilbur Kouw.
(c) Post at its business offices and meeting halls copies
of the attached notices marked "Appendix A" and
"Appendix B."38 Copies of said notices, on forms pro-
vided by the Regional Director for Region 25, after
being duly signed by Respondents' representatives,
respectively, shall be posted by Respondent Union imme-
diately 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
by it to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Mail to the aforesaid Regional Director signed
copies of the attached notice marked "Appendix B,"
for posting by Respondent Company. Copies of said
notice, on forms provided by said Regional Director
shall, after being signed by an authorized representative
of Respondent Union, be forthwith returned to the afore-
said Regional Director for posting.
(e) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of receipt of this Decision,
what steps it has taken to comply herewith.39
See fn 36, supra
In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the aforesaid
Regional Director, in writing, within 10 days from the date of this
Order, what steps it has taken to comply herewith "
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT encourage membership in Lake
County, Indiana and Vicinity District Council of
the United Brotherhood of Carpenters and Joiners
of America, or any other union , by discharging
or in any other manner discriminating against any
of our employees in regard to their hire or tenure
of employment, or any term or condition thereof,
except to the extent permitted by Section 8(a)(3)
of the National Labor Relations Act, as amended.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of rights guaranteed to them by Section 7
of the National Labor Relations Act.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, as directed in the Board's Decision,
offer Richard Matzat and Wilbur Kouw reinstate-
ment to their former or substantially equivalent
positions , without prejudice to their seniority or
other rights and privileges
WE WILL jointly and severally with the aforesaid
District Council make whole Richard Matzat and
Wilbur Kouw for any loss of earnings they may
have suffered as a result of the discrimination
against them since January 14, 1969 , together with
6 percent interest, as provided in the Board's Deci-
sion
WE WILL notify Richard Matzat and Wilbur
Kouw if presently serving in the Armed Forces
of the United States of their right to full reinstate-
ment upon application in accordance with the Selec-
tive Service Act and the Universal Military Training
and Service Act, as amended, after discharge from
the Armed Forces
TONN AND BLANK INC
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
614 ISTA Center , 150 West Market Street , Indianapolis,
Indiana 46204, Telephone 317-633-8921
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Tonn
and Blank , Inc , to discharge or in any other manner
discriminate against its employees in regard to their
hire or tenure of employment , or any term or
condition thereof, except to the extent permitted
by Section 8(a)(3) of the National Labor Relations
Act, as amended
WE WILL NOT in any other manner restrain or
coerce employees of Tonn and Blank , Inc , in
the exercise of rights guaranteed by Section 7 of
said Act
WE WILL, jointly and severally with Tonn and
Blank, Inc , make whole Richard Matzat and Wilbur
Kouw for any loss of earnings they may have
suffered as a result of the discrimination against
them since January 14, 1969, together with 6 percent
interest, as provided in the Board's Decision
WE HAVE no objection to the employment of
Richard Matzat or Wilbur Kouw by Tonn and Blank,
Inc on any of its projects within our territorial
jurisdiction, whether they have a work permit issued
by this Union, or not and we have so notified
Tonn and Blank, Inc , as well as Richard Matzat
and Wilbur Kouw
Dated By
LAKE COUNTY, INDIANA
AND VICINITY DISTRICT
COUNCIL OF THE UNITED
BROTHERHOOD OF
CARPENTERS AND
JOINERS OF AMERICA
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
614 ISTA Center, 150 West Market Street, Indianapolis,
Indiana 46204 Telephone 317-633-8921