Osterink Construction Co.

National Labor Relations Board - Board Decisions

Mar 18, 1949

82 N.L.R.B. 228 (N.L.R.B. 1949)

In the Matter of BRICKLAYERS, STONE MASONS, MARBLE MASONS, AND
TILE LAYERS BENEVOLENT AND PROTECTIVE UNION No. 1 OF GRAND
RAPIDS, MICHIGAN, BRICKLAYERS, MASONS AND PLASTERERS' INTER-
NATIONAL UNION OF AMERICA, A. F. OF L.: DOUGLAS F. BEHRENS, AS
AGENT FOR BRICKLAYERS, STONE MASONS, MARBLE MASONS, AND TILE
LAYERS BENEVOLENT AND PROTECTIVE UNION No. 1 OF GRAND RAPIDS,
MICHIGAN, BRICKLAYERS, MASONS AND PLASTERERS' INTERNATIONAL
UNION OF AMERICA, A. F. OF L.; AND BUILDING AND CONSTRUCTION
TRADES COUNCIL OF GRAND RAPIDS AND VICINITY and MARTIN
OSTERINK, LEONARD J. OSTERINK AND EUGENE OSTERINK D/B/A
OSTERINK CONSTRUCTION COMPANY
Case No. 7-CC-2.-Decided March 18, 1949
DECISION
AND
ORDER
On July 2, 1948, Trial Examiner William F. Scharnikow issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents Bricklayers and Behrens, its president and agent,
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 copy of the Intermediate
Report attached hereto. The Trial Examiner also found that the Re-
spondent Council had not engaged in the alleged unfair labor practices
and recommended that the complaint be dismissed with respect to it.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.'
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only insofar as they are consistent with
the findings, conclusions, and Order hereinafter provided.
1 The Respondents Bricklayers and Behrens filed no exceptions to the Intermediate Re-
port . The Respondent Council filed a document consenting to the Trial Examiner's
"findings and conclusions."
82 N. L. R. B., No. 27.
228
BRICKLAYERS, STONE MASONS, MARBLE MASONS, ETC . 229
We agree with the Trial Examiner that the Respondents Brick-
layers and Behrens, its president and agent, violated Section 8 (b)
(4) (A) of the Act by ordering Pontello and Austhof, employees
of the Tile Company, a subcontractor of Osterink, off the latter's
construction job, and fining them for thus working "indirectly" for
an "unfair'-' general building contractor,2 with an object of forcing
or requiring the Tile Company to cease doing business with Osterink.
No exception to this finding has been taken. We, however, do not
concur in the Trial Examiner's finding that the Respondent Council
was not also in violation of this Section of the Act by reason of the
acts of the Bricklayers, its affiliate, or because it maintained Osterink
on the so-called unfair list. As indicated in the Intermediate Re-
port, the Trial Examiner absolved the Council of any liability be-
cause, as he found, it lacked the power either to discipline members
of its affiliated unions who disregarded the unfair listing of Osterink
or to compel its affiliated unions to require their members to observe
the mandate of the listing. He further found that, in any event, the
Council had placed Osterink on the unfair list before the enactment
of the amendments to the Act and that, as it had taken no affirma-
tive action since the latter date to continue the unfair list or to enforce
it against members of its affiliates, no violation may be predicated
on the Council's failure to rescind the listing.
Contrary to the Trial Examiner, we find that the Council, at least
as a co-sponsor with its affiliates of the unfair listing of Osterink,
was jointly responsible with the Bricklayers' conduct in enforcing
the listing against Pontello and Austhof. As shown in the Inter-
mediate Report, the Council is composed of and acts through the dele-
gates from its constituent unions. As its major function, it coordi-
nates the activities of these local unions, including the organization
of non-union jobs and shops. Therefore, when the Council, pursuing
its normal procedure, placed Osterink on an unfair list because of
Osterink's refusal to negotiate a closed shop contract with it, and
notified its affiliates of this action, it necessarily contemplated and
anticipated that its affiliates would give effect to the listing, precisely
as the Bricklayers did in the case of Pontello and Austhof. Espe-
cially is this so here, where there is no evidence that the Bricklayers
did not originally concur in the Council's action or that the Council
had at any time disavowed the acts of the Bricklayers or revoked
the listing. And it is significant, as the Trial Examiner found, that
members of the Council's affiliated unions "understood not only that
they were not to work on projects of a contractor listed `unfair' by
2 Like the Trial Examiner , we do not consider it material , under the circumstances of
the case, that the fines were later remitted.
838914-50-vol. 82-16
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Council, but that, if they did so, they would be disciplined by
their unions as were Pontello and Austhof." In these circumstances,
we do not believe that the Council's liability for the acts of the Brick-
layers in enforcing the unfair list depends upon the existence in the
Council of a direct or indirect power to discipline members of its
affiliates who fail to heed the unfair list.3 Rather, it is our opinion
that the Council's liability stems from the fact of its co-sponsorship
with the Bricklayers of the unfair list. Such co-sponsorship, under
well-established legal and equitable principles, carries with it the
familiar responsibility of joint participants in a common enterprise
for one another's acts performed in furtherance of the enterprise 4
Moreover, we find that the Council, by maintaining Osterink on the
unfair list after the enactment of the amendments to the Act, ipso facto
induced and encouraged employees within the meaning of Section
8 (b) (4) (A). In the recent Wadsworth case,' we held that the use
-and promulgation of a similar unfair list by a labor organization as
a means of inducing and encouraging employees in the course of their
.,employment to withhold their services in order to force or require their
employer to cease doing business with the listed employer violated
,Section 8 (b) (4) (A) of the Act, irrespective of whether or not a
-threat of discipline inhered in the unfair list. In the present case, the
record is clear that the unfair listing of Osterink also was designed to
achieve a similar withdrawal of services by employees and had as an
.objective cognpelling their employer to discontinue business dealings
with .Osterink, Accordingly, we find, for the reasons set forth in the
Wadsworth case, that the maintenance of Osterink on the unfair list
for a proseribed objective constituted a violation of Section 8 (b) (4)
,(A).
The Trial Examiner in effect found, however, that we are precluded
from so doing because the unfair list originated before the enactment
of the amendments at a time when no law forbade it, and the Council
itself has taken no affirmative action since the amendments to continue
the unfair list or to enforce it against employees. Apparently the
'Trial Examiner believed that in these circumstances no duty devolved
upon the Council to relieve the members of its affiliates of the effects
3 For this reason , we find it unnecessary to determine whether or not the Council actually
possessed this power of discipline.
4 Cf. Matter of International Longshoremen 's and Warehousemen's Union, C. L 0.,
Local 6, etc. ( iSuneet Line and Twine Company ), 79 N. L . R. B. 1487.
6 Matter of United Brotherhood of Carpenters and Joiners of America , District Council
of Kansas City, Missouri, and Vicinity etc. (Wadsworth Building Company, Inc., and
Klassen & Hodgson, Ine.) 81 N. L. R B. 802. ( Majority opinion by Members Reynolds
and Gray, Chairman Herzog concurring specially, and Members Houston and Murdock
dissenting.) If it is the view of our dissenting colleague , as his opinion seems to suggest,
that the holding in this case represents an extension of the Wadsworth doctrine , we cannot
agree. The decision here precisely follows the principle of the Wadsworth case, which
specifically involved an unfair list as well as picketing.
BRICKLAYERS, STONE MASONS, MARBLE MASONS, ETC. 231
of the unfair list. Although we agree with the Trial Examiner that
no violation under Section 8 (b) (4) (A) may be predicated on acts
committed before the passage of the amended Act, there is sufficient
basis for the finding and remedial order herein because the Council
continued to recognize the unfair list as operative after the passage of
the amendments 6 Thus, the record discloses that in October or No-
vember of 1947 Bright, president of the Council, informed a steel sub-
contractor that there would be "trouble" if he undertook a contract
from Osterink, and that Olin, the Council's secretary-treasurer, testi-
fied at the hearing that he still regarded Osterink as "unfair." More-
over, as discussed above, the Bricklayers enforced the unfair list against
Pontello and Austhof after the passage of the amendments, which
conduct, we have previously found, was imputable to the Council.'
Accordingly, we conclude that the Respondent Council, by means
of the unfair listing of Osterink, induced and encouraged "employees
of any employer," and in particular employees of the Tile Company,
in violation of Section 8 (b) (4) (A). We therefore do not adopt
the Trial Examiner's recommendation that the complaint be dismissed
with respect to the Council.
REMEDY
Having found that the Respondents violated Section 8 (b) (4) (A)
of the Act by maintaining Osterink on an unfair list and calling two
employees of a sub-contractor off their job and fining them for work-
ing "indirectly" for Osterink, we shall order them to cease and desist
from this and related conduct. We shall also order the Respondents
to inform Pontello and Austhof that, if assigned by their employees,
Grand Rapids Tile and Mosaic Company, they may work on con-
struction jobs on which Osterink is the general contractor, without
prejudice to their rights, privileges, or standing in the Respondent
Bricklayers.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board S hereby orders that the Respondents' Bricklayers,
This view is supported by the analogous line of cases cited In the Intermediate Report
I. which company-dominated unions and their successors were ordered disestablished,
though these unions or their predecessors had been organized before the passage of the
Wagner Act , where the employers continued to recognize or support them after passage of
the Wagner Act Cf. Matter of Local 74, United Brotherhood of Carpenters and Joiners
of America, A. F. of L. etc. (Watson'8 Specialty Store ), 80 N. L . R. B. 533.
7 In finding that the Council continued to recognize the unfair list as operative after en-
actment of the amendments , we do not rely on the "Directory" mentioned in the Interme-
diate Report, as evidence of an implied republication of the unfair list , as the General
Counsel seems to urge us to do in his brief.
$ Chairman Herzog joins in this Decision and Order for the reasons and with the reserva-
tions stated In his concurring opinion in the Wadsworth case.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stone Masons, Marble Masons, and Tile Layers Benevolent and Pro-
tective Union No. 1 of Grand Rapids, Michigan, Bricklayers, Masons
and Plasterers' International Union of America, A. F. of L., their
officers, representatives, and agents, including the Respondent Doug-
las F. Behrens; and Building and Construction Trades Council of
Grand Rapids and Vicinity, and their officers, representatives, and
agents, shall :
1. Cease and desist from inducing and encouraging the employees
of Grand Rapids Tile and Mosaic Company or of any other employer,
by maintaining Osterink Construction Company on an unfair list
or by calling any employee off his job, or by related conduct, to en-
gage in a strike or concerted refusal in the course of their employment
to use, manufacture, process, transport, or otherwise handle or work
on any goods, articles, materials , or commodities, or to perform any
services , where an object thereof is to force or require Grand Rapids
Tile and Mosaic Company or any employer or other person to cease
doing business with Osterink Construction Company.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act, as amended :
(a) Notify Anthony Pontello and Louis Austhof that they are free
to work on building jobs on which Osterink Construction Company
is the general contractor, if assigned to such jobs by their employer,
Grand Rapids Tile and Mosaic Company, and that their acceptance
of such employment will not prejudice their rights, privileges and
standing in the Respondent Bricklayers, Stone Masons, Marble Ma-
sons, and Tile Layers Benevolent and Protective Union No. 1 of
Grand Rapids, Michigan, Bricklayers, Masons and Plasterers' In-
ternational Union of America, A. F. of L.;
(b) Post at the business offices of Bricklayers, Stone Masons,
Marble Masons, and Tile Layers Benevolent and Protective Union
No. 1 of Grand Rapids, Michigan, Bricklayers, Masons and Plasterers'
International Union of America, A. F. of L.; and of Building and
Construction Trades Council of Grand Rapids and Vicinity, copies
of the notice attached hereto as an appendix .9 Copies of said notice,
to be furnished by the Regional Director for the Seventh Region,
shall, after being duly signed by an official representative of the
Respondents Bricklayers and Council, and individually by the Re-
spondent Behrens, be posted by the Respondents immediately upon
receipt thereof, and maintained for a period of sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
i In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words "DECISION AND ORDER" the words "DECREE
OF THE UNITED STATES COURT OF APPEALS ENFORCING."
BRICKLAYERS, STONE MASONS, MARBLE MASONS, ETC. 233
notices to members are customarily posted. Reasonable steps shall
be taken by the Respondents to insure that said notices are not al-
tered, defaced, or covered by any other material;
(e) The Respondent Council to send copies of the above-mentioned
notice to its affiliated unions;
(d) Notify the Regional Director for the Seventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the Respondents have taken to comply herewith.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
BOARD MEMBER HOUSTON, dissenting in part :
The decision of the majority in this case holding the Council liable
for publication of an unfair list seems to me a dangerous and unneces-
sary curtailment of rights I should have thought protected under the
free speech provisions of Section 8 (c).- Indeed, I believe that the
majority decision in the Wadsworth case may be considered as having
somewhat less damaging implications than the present majority hold-
ing, because publication of an unfair list is wholly lacking in those
combative features of picketing which make it more than speech even,
when, in its character as speech, I should hold it immune from penalty
by virtue of Section 8 (c).111 But if an unfair list cannot claim pro-
tection under Section 8 (c), neither can any other form or means of
propaganda which a union may wish to use to publicize its view as to
its relations with management, and unions are enjoined to silence to
a degree which seriously imperils their ability to engage in any con-
certed activity at al112 Accordingly, I must reassert the view ex-
pressed at length by Member Murdock and myself in our dissent in
the Wadsworth case : that the construction of the Act there adopted by
the majority, which is only followed to its logical conclusions here, is
10 See the dissenting opinion in Matter of United Brotherhood of Carpenters and Joiners
of America, District Council of Kansas City , Missouri, and vicinsty, etc. (Wadsworth Build-
ing Company, Inc., and Klassen d Hodgson, Inc.), 81 N. L. R. B . 802, in which Member
Murdock and I disagreed with the majority holding that Section 8 (c) does not apply to
charges of unfair labor practices under Section 8 (b) (4) (A ) of the Act . I assume that
my colleagues would agree that the activity of the Council here found unlawful would
fall squarely within Section 8 (c) In any case where that Section could be invoked by
a union as a defense to unfair labor practice charges.
211 agree with the majority , of course , that the presence or absence of disciplinary power
in the union to enforce observance of the list by members of affiliated unions is not
material to the determination of the issues here involved . This conclusion follows
a fortiori from the Board 's unanimous rejection , in the Wadsworth case, of the contention
that peaceful picketing is coercive upon members of the picketing union and its affiliates
by reason of union disciplinary powers.
1' I would point out in this contention that I do not regard the ordering of Pontello
and Austhof off the job by the union as within the protection of Section 8 (c). Indeed this
is an instance of our contention in the Wadsworth dissent that Section 8 ( b) (4) (A) is not
deprived of all meaning even if it is held subject to the limitations of Section 8 (c).
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not required by the legislative history, still less by the statutory
language.
INTERMEDIATE REPORT
Messrs. Walter N. Moldawer, and Jerome Brooks, for the General Counsel.
Mr. M. Thomas Ward, of Grand Rapids, Michigan , for the Respondents.
Mr. Lloyd Cooper, of Grand Rapids, Michigan, for Osterink.
STATEMENT OF THE CASE
Upon second amended charges filed on March 30, 1948, by Martin Osterink,
Leonard J. Osterink, and Eugene Osterink, doing business as Osterink Construc-
tion Company, (herein called Osterink), the General Counsel of the National
Labor Relations Board, (herein called the General Counsel'), by the Regional
Director for the Seventh Region (Detroit, Michigan), issued a complaint on
April 5, 1948, against Bricklayers, Stone Masons, Marble Masons, and Tile Layers
Benevolent and Protective Union No. 1 of Grand Rapids, Michigan, Bricklayers.
Masons and Plasterers International Union of America, AF of L (herein called
Bricklayers ), Douglas F. Behrens, as agent for the Bricklayers ( herein called
Behrens), and Building and Construction Trades Council of Grand Rapids and
Vicinity (herein called the Council), alleging that the respondents Bricklayers,
the Council , and Behrens had engaged in and were engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (b) (4) (A), and
Section 2 (6) and (7) of the National Labor Relations Act, as amended June 23,
1947, herein called the Act a Copies of the complaint and second amended
charges were duly served upon the respondents and Osterink.
With respect to the unfair labor practices, the complaint alleged in substance :
(1) that Bricklayers and 17 other unions are affiliated with the Council;
(2) that "under the constitutions, bylaws, rules, and regulations of Council's
affiliated unions and their parent bodies , employee members of such affiliated
unions, including Bricklayers , are subject to union disciplinary measures should
they work for any contractor designated `unfair' by the Council , or for any
subcontractor in performance of any contract which said subcontractor has with
any contractor so designated as 'unfair"'; (3) that "under the bylaws of the
Council ," the unions affiliated with the Council , including Bricklayers , were and
are "subject to penalty for refusing to carry out the mandate of the Council" ;
(4) that "sometime prior to October 30, 1947," the Council placed Osterink on
its "unfair list" and sent notice of this action to its affiliated unions, including
Bricklayers , and their members, and also to local contractors, subcontractors,
and suppliers in the vicinity of Grand Rapids ; ( 5) that the Council has never
rescinded its action in thus placing Osterink on its "unfair list" nor the notices
accompanying such action; ( 6) that the Council has omitted , and continues to
omit , the name of Osterink from "Directories" or "fair lists" of employers,
which "Directories" it published and distributed , and continues to publish and
distribute, to its affiliated unions, including Bricklayers , and to their members ;
(7) that on or about October 28, 1947, the Grand Rapids Tile and Mosaic Company
(herein called the Tile Company ), pursuant to a subcontract with Osterink,
assigned Anthony Pontello and Louis Austhof, two of the Tile Company's
employees, to perform work upon a high school at Grand Rapids then under
1 This designation will also be used to refer to the attorneys on the staff of the General
Counsel who presented the case in his behalf.
2 Public Law 11-80th Congress , 1st Session.
BRICKLAYERS, STONE MASONS, MARBLE MASONS, ETC. 235
construction by Osterink; (8) that "on or about October 30, 1947, Bricklayers, by
its president and duly authorized agent, [the respondent] Behrens, acting
pursuant to the Council resolution placing Osterink on the `unfair' list .. .
directed Pontello and Austhof to cease their work on the high school and notified
them that they were subject to disciplinary action by the Bricklayers for violation
of the latter's bylaws and rules by working for the Tile Company in performance
of a contract which [the Tile Company] had made with Osterink"; (9) that
in approximately November 1947, "the Bricklayers, acting pursuant to the reso-
lution of the Council placing Osterink on the `unfair list' . . . and pursuant
also to the Bricklayers' bylaws and rules, imposed a fine of $50 against Aushof
and $25 against Pontello for working on the Osterink contract and notified the
Tile Company and its employees, as well as other members of the Bricklayers,
that no member of the Bricklayers was permitted to work with either Austhof
or Pontello until the fines so levied were paid"; and (10) that in violation of
Section 8 (b) (4) (A) of the Act, the Bricklayers, Behrens as its agent, and the
Council "induced and encouraged the employees of the Tile Company and the
employees of other employers in and around Grand Rapids, Michigan, to engage
in strikes and concerted refusals in the course of their employment ... to per-
form any services, an object thereof being to force and require the Tile Company
and said other employers . . . to cease . . . doing business with Osterink"
(a) by the threat of discipline generally inherent in the Council's continuing
designation of Osterink as "unfair," (b) by their specific application of that
threat to induce Pontello and Austhof to quit their work on the high school
project, and (c ) by their fining Pontello and Austhof for having worked on the
high school project of Ostering 3
In an answer filed by the respondents Bricklayers and Behrens, and in a
a separate answer filed by the respondent Council, the respondents admitted
some of the allegations of the complaint, but denied that any of them had com-
mitted unfair labor practices. In substance, the respondents' answers further
asserted (1) that the Council had committed no unfair labor practice because
its "unfair listing" of Osterink and its distribution of the "Directories" occurred
before the effective date of the Act; (2) that the Board has no jurisdiction in
the present case, since the alleged conduct of the respondents did not affect
commerce; and (3) that, in any event, the conduct attributed to the respondents
by the complaint would be protected under the First, Thirteenth, and Fourteenth
Amendments of the Constitution of the United States of America.
Before the hearing in the present case was held, the General Counsel insti-
tuted a proceeding under Section 10 (1) of the Act in the United States District
Court for the Western District of Michigan-Southern Division, seeking an
injunction against the respondents pending a decision by the Board in the
present case. The injunction proceeding was tried before Judge Raymond W.
Starr of that Court on April 12, 13, 14, and 15.
Pursuant to notice, a hearing was held in the present case at Grand Rapids,
Michigan, on May 17, 1948, before the undersigned Trial Examiner designated
by the Chief Trial Examiner. The General Counsel, Osterink, and the re-
spondents Are represented by counsel. Counsel stipulated that the case should
be tried on the record made by the parties in the injunction proceeding before
Judge Starr, whose decision however, should not be binding upon the Trial
3 In view of the briefs submitted by the General Counsel and the evidence adduced at
the trial and discussed below, this is clearly the limited theory on which the case has
been tried , although the complaint is framed in the complete and broader language
of Section 8 (b) (4) (A) of the Act.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner either as to the facts or conclusions. Pursuant to this stipulation
the record in the injunction trial, including the full transcript of testimony and
the exhibits, was admitted in evidence and the hearing was then closed. Since
the hearing, the General Counsel and the respondents have filed briefs.
Upon the entire record in the case the undersigned makes the following:
FINDINGS OF FACT
I. Commerce
Osterink Construction Company, a co-partnership consisting of Martin Oster-
ink, Leonard J. Osterink, and Eugene Osterink, is engaged in Grand Rapids,
Michigan, as a general contractor in the construction of industrial and com-
mercial buildings within the State of Michigan. During the year 1947, its total
receipts from its construction work amounted to approximately $470,000, while
the work subcontracted by it to others amounted to approximately $117,000.
During the same year, Osterink purchased supplies, materials, and equipment
for use in its business , valued at approximately $164,000, more than 50 percent of
which was received from points outside the State of Michigan, and its various
subcontractors purchased materials amounting to about $70,000, of which 60
percent was derived from points outside the State of Michigan.
Among the buildings under construction in Grand Rapids by Osterink and its
subcontractors during 1947 were plant additions upon a contract for $80,000 for
the Wolverine Finishing Materials Company (manufacturers of wood finishes) ;
a plant addition and alterations upon a contract for $12,000 for Keeler Brass
Company (manufacturers of automobile, stove, and furniture hardware) ; plant
additions upon a contract for $50,000 for National Brass Company ( manufac-
turers of builders' hardware) ; plant additions upon a contract for $40,000 for
Metal Office Furniture Company (manufacturers of office furniture) ; and the
Grand Rapids Christian High School upon a contract for $307,521. All of the
manufacturers for whom Osterink was thus engaged in plant construction, sell
their products not only in Michigan but in other States as well.
The Grand Rapids Christian High School project, from which two union tile-
men employed by the Grand Rapids Tile and Mosaic Company were allegedly
withdrawn by the respondents in violation of the Act, was begun on or about
October 1, 1946, and was almost completed at the time of the trial. In the con-
struction of the high school, Osterink has used materials of an approximate value
of $120,000, about 50 percent of which has been secured from points outside the
State of Michigan, and subcontractors have used about $60,000 worth of materials,
approximately 60 percent of which has been derived from points outside the State
of Michigan. In addition, other contractors engaged in the same project, such
as plumbing and heating, electrical, and ventilating contractors, the completion
of whose work depended upon the progress of Osterink also have used quantities
of material, a substantial portion of which originated outside the State of
Michigan.
The respondents contend that their activities with respect to Osterink do not
affect commerce and, therefore, that the Board is without jurisdiction in the
present case. However, in view of the substantial inflow of materials to Osterink
and his subcontractors from states other than the State of Michigan,` and the
4 Newport News Shipbuild tng & Drydock Co. v. N. L. R. B., 101 F. (2d) 841 , 843 (C. C. A.
4), aff'd 308 U. S 241; N. L. it. B. v. Richter's Bakery, 140 F. ( 2d) 870 , 871 (C. C. A. 5) ;
N. L. it. B. v. Van DeKamp'8 Holland Dutch Bakers, 152 F. ( 2d) 818, 819 (C . C. A. 9).
BRICKLAYERS, STONE MASONS, MARBLE MASONS, ETC. 237
engagement of Osterink in the construction of industrial plants whose goods are
shipped in interstate commerce,` it appears clear, and the undersigned finds, that
a disruption of Osterink's operations would have a substantial effect upon com-
merce, and therefore, that if the activities of the respondents have affected
Osterink's operations, they have also affected commerce within the meaning of
Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The respondent, Bricklayers, Stone Masons, Marble Masons, and Tile Layers
Benevolent and Protective Union No. 1 of Grand Rapids, Michigan, (herein called
Bricklayers) is a local union of Bricklayers, Masons and Plasterers International
Union of America, affiliated with the American Federation of Labor. The Brick-
layers and 18 other local building trades unions affiliated with various interna-
tional unions of the American Federation of Labor, are members of the respond-
ent Building and Construction Trades Council of Grand Rapids and Vicinity
(herein called the Council). The Council was formed in 1938 under the consti-
tution and bylaws of the Building and Construction Trades Department of the
American Federation of Labor, and has negotiated and executed contracts with
various employers in the vicinity of Grand Rapids. Delegates from the various
constituent locals to the Council are required by the Council's constitution to be
journeymen workers. The complaint alleges, the answers of the respondents
admit, and the undersigned finds, that both the Bricklayers and the Council are
labor organizations within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The unfair labor practices of the respondents Bricklayers and Behrens
Osterink has recognized the Christian Labor Association as the exclusive
bargaining representative of its employees since 1944, when that organization
was so certified by the Michigan State Labor Mediation Board. On January 31,
1944, as the result of Osterink's refusal to negotiate a closed-shop contract with
the Council covering employees then engaged in the construction of a packing
house, the Council voted "that the Osterink Construction Co. be placed on the
unfair list; [that] the [Grand Rapids] Labor News and C. I. O. paper and other
papers be so notified ; [and that] a letter be sent to all subcontractors in regards
to Osterink."
Accordingly, the Council notified the newspapers and sent a letter to all
subcontractors stating :
The Osterink Construction Co. refuses to work with the various trades
affiliated with the American Federation of Labor. We have found it neces-
sary to picket jobs on which he has been employed.
When a picket line is placed on a job, we know that it creates a hardship,
upon those furnishing supplies, if they are required to make unnecessary
trips and are unable to deliver their products.
Until the Osterink Construction Co. becomes fair with labor, it will be
necessary for us to picket each of his jobs.
To you, having always been fair with labor, we are giving this notification
so you may save yourself the embarrassment and the cost of attempting to
6 See Kirschbaum Co. v. Walling , 316 U. S. 517 ; Butler Bros . V. N. L. R. B., 134 F. (2d)
981; N. L. R. B. v. Austin Co., 165 F. (2d) 592 (C. C. A. 7).
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deliver supplies to Osterink Construction Co., and have imposed upon you
the cost of hauling back.
We would like your cooperation, and as soon as Osterink Construction Co.
does become fair, we will notify you. In the meantime we would like to
have you govern your business relationship, while with the Osterink Construc-
tion Co., that we both may continue our cooperative and friendly relations.
In addition, mimeographed copies of the minutes of the Council's meeting were
sent to the constituent locals. The Council's action and the accompanying
notices were never rescinded by the Council. Furthermore, the Council pub-
lished and distributed to each of its constituent locals and, on request, to their
members and to contractors and subcontractors in the vicinity, so-called "Direc-
tories" in which it listed "Contractors and Firms having Union Agreements."
Since 1944 Osterink's name has been omitted from these "Directories," the last
of which was published in 1946.
In October 1947, the Grand Rapids Tile and Mosaic Company (herein called
the Tile Company), having received a subcontract from Osterink, assigned
Anthony Pontello and Louis Austhof, two of its employees who were members
of the Bricklayers, to install the Tile and Terrazzo work in the Grand Rapids
High School project. On or about October 30, 1947, when they had worked 2 or
3 days on this job, they were visited by the respondent Douglas Behrens, the
president of the Bricklayers, who informed them that they "had no business
working on this job;" that they should read their "rules"; and that Behrens
"would follow up this case when it came up . . . if it were [his] own brother."
As a result, Pontello quit the work at the end of the day and Austhof a few
days later, without finishing the tile work on the job, although since then they
have continued to work for the Tile Company on other jobs. At the time of
the trial, Osterink was still in the process of completing the tile and terrazzo
work at the high school with its own employees.
Upon charges preferred by Behrens that Pontello and Austhof "were found
working contrary to the rules and to the detriment of this Union," the Brick-
layers fined Austhof $50 and Pontello $25. According to the minutes of the
meeting of the Bricklayers on November 26, 1947, at which the fine was assessed
against Pontello, Behrens "was instructed to contact Contractor Zanolla [the
Tile Company] and command that the fines of both these men, Pontello and
Austhof, be paid immediately and all work on the unfair list be suspended, or
recommendation would be made to place him on the unfair list also." Accord-
ingly, on November 28, Behrens notified the Tile Company of the fines and secured
the Tile Company's checks to cover them. On December 12, 1947, the checks
were returned to the Tile Company, the officers of the Bricklayers having decided
in the meantime "to forget the fine."
Behrens testified that Pontello and Austhof "were taken off the [Osterink]
job" and fined by the Bricklayers because Osterink was on the "unfair list" and
the 2 men, though employed by the Tile Company, were therefore working "for
an unfair contractor indirectly" in violation of "their [union] obligation and
our rules of order." In view of this testimony and the above quoted portion of
the minutes of the Bricklayers' meeting of November 26 in which the Brick-
layers' in fining Pontello also directed that concomitant pressure be brought
upon the Tile Company to suspend "all work on the unfair list," the undersigned
finds that the respondents Bricklayers and Douglas F. Behrens, its president
and agent , in pulling Pontello and Austhof off Osterink's high school job and
fining them, did so in order to compel their employer, the Tile Company, and
BRICKLAYERS, STONE MASONS, MARBLE MASONS, ETC. 239
other employers similarly situated, to cease doing business with Osterink, and
that, in violation of Section 8 (b) (4) (A) of the Act, they thereby induced and
encouraged the employees of the Tile Company, and the employees of other
employers in Grand Rapids and its vicinity to engage in strikes and concerted
refusals in the course of their employment to perform service, an object thereof
being to force and require the Tile Company and the other employers to cease
doing business with Osterink. In accordance with the normal and proper as-
sumption by administration agencies of the constitutionality of acts of Congress,
the undersigned furthermore rejects the contention of the respondents that
Section 8 (b) (4) (A) of the Act is unconstitutional°
B. The alleged unfair labor practices of the Council
There remains for consideration the question of whether the Council has also
committed unfair labor practices within the meaning of Section 8 (b) (4) (A)
of the Act.
One of the clear general objectives of the Council has been to unionize the
building trades employees in the vicinity of Grand Rapids and to represent
them directly or indirectly through the Council's constituent unions. Before
the enactment of Section 8 (b) (4) (A) in 1947, the Council sought, in part, to
attain this objective through the execution of closed shop contracts with con-
tractors and subcontractors containing a provision to the effect that the covered
employees should not be required by their respective employers to work on
projects with non-union employees of other employers. In addition, as in the
case of Osterink in 1944, the Council listed as "unfair," employers who refused
to execute such contracts, gave notice to this effect to other contractors and
subcontractors, to its constituent unions, and to their members, and thereafter
omitted the name of the "unfair" contractor from its "Directories."
There was uncontradicted testimony, which the undersigned credits, that the
members of the Council's constituent unions, including the Bricklayers, under-
stood not only that they were not to work on projects of a contractor listed as
"unfair" by the Council, but that, if they did so, they would be disciplined by
their unions as were Pontello and Austhof in November, 1947. It is the General
Counsel's contention that this expectation of discipline was based upon provi-
sions of the bylaws and constitutions of both the Council and its constituent
unions. In support of this contention, the General Counsel introduced in
evidence the bylaws and constitutions of the Building and Construction Trades
Department of the American Federation of Labor, containing the bylaws and
constitution prescribed for local councils of the Department, including the
respondent Council in the present case, and also the bylaws and constitutions
of the Bricklayer's International and the Paperhangers' International, whose
local subordinate, affiliated unions are members of the Council.
From these constitutions, it appears that the American Federation of Labor
has established two parallel organizational structures in the building field.
The first of these, of course, is the traditional, primary structure of interna-
tional craft unions with their respective locals. In addition, for the purpose of
coordinating the activities of these unions, both upon the level of the international
unions and upon the level of their affiliated, subordinate locals, the American
Federation of Labor organized the Building and Construction Trades Depart-
ment (herein called the Department), and also subordinate local councils of
the Department, such as the respondent Council in the present case . Under its
0 Matter of Rite-Form Corset Co., 75 N. L. R. B. 174.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constitution , the Department and its subordinate councils are "the official method'
of the American Federation of Labor for conducting the portion of its business
indicated by the name of the Department , in consequence of which affiliated
and eligible organizations should be part of their respective Departments and
should comply with their actions and decisions , subject to appeal therefrom to
the Executive Council , and the conventions of the American Federation of
Labor." Accordingly, international unions in the building trades field must be-
come members of the Department ; and whenever a local council of the Depart-
ment is organized , all the American Federation of Labor 's building trades
unions in the locality must become members of that council. The constitution
of the Department further provides that the jurisdiction of its local councils
"shall completely cover the building and construction industry" and the councils
"shall be endowed with full autonomy over all matters affecting all workmen
engaged in said industry . . ."; it also provides, however, that international
unions "shall have autonomy over the conduct of their respective members."
For a resolution of conflicts between the councils and the internationals, pro-
vision is made for an appeal to the Department, in the first instance, and then
to the Executive Council of the American Federation of Labor.
With respect to "unfair listings," Section 36 of the constitution prescribed for
the Council by the Department, provides :
... any contractor who works on a struck job, or employs nonunion men
to work on a struck job, shall be declared unfair and all union men shall
be called off from his work or shop.
... Any member of an affiliated craft who refuses to stop work when
ordered to do so by the business agent of the council , shall be reported to
the council . All employees on a struck job shall leave the same when or-
dered to do so by the business agent , and remain away from the same until
such time as a settlement is made or otherwise ordered by an official act of
the local council , and if any international officer of an affiliated organization
issues any adverse or nullifying order thereto , he shall also jointly serve
the local Building and Construction Trades Council with a duplicate copy
thereof.
The constitutions and bylaws of the two international unions which were sub-
mitted in evidence contain no reference to the Council 's "unfair listings" and their
effect upon its constituent unions and their members , although they do contain
provisions penalizing their members for working directly or indirectly for con-
tractors designated as "unfair " by the internationals , their locals , or their district
councils. Thus, the constitution of the Bricklayers International provides :
No member of this International Union shall work for any person, firm
or corporation which employs any non -union employees in any branch of thr
trades within the jurisdiction of this International Union , or work for any
sub-contractor who takes a contract from any person or firm who employs
any non-union employee in any branch of the trade composing this Inter-
national Union , or work for any firm or person either directly or indirectly
who has been placed on the unfair list by this International Union.
Similarly , the constitution of the Paperhangers' International provides :
Any member going to work on a job declared unfair or non -union shall
after trial and conviction , be disciplined as the district or local union may
decide.
BRICKLAYERS, STONE MASONS, MARBLE MASONS, ETC. 241
In spite of the enactment of Section 8 (b) (4) (A) of the Act which became
,effective on August 23, 1947, these provisions of the Council's and internationals'
constitutions have remained unchanged. The Council' s "unfair listing" of
Osterink has not been rescinded, and its "Directories" omitting the name of
Osterink have been distributed. on request. In October 1947, a steward for the
Glazers Union (one of the members of the Council) informed a glass company that
its union glazers would not install glass in a project of Osterink, with the result
that the glass company delivered the glass without installing it' Furthermore,
when a steel subcontractor who had been solicited by Osterink for a bid on the
high school project, asked Bright, the Council's president, in October or November
1947 whether there would be trouble if he undertook the job, Bright " assured"
him there would be trouble.
However, this is no evidence, nor is there any other evidence, that, since
August 23, 1947, the Council has acted affirmatively in a manner violative of
Section 8 (b) (4) (A) of the Act. According to Bright's uncontradicted and cred-
ible testimony, the Bricklayers' and Behrens' inducement of Pontello and Austhof
to quit working on the high school project and the fines imposed in their cases
by the Bricklayers, were not initiated by, nor even known to, the Council. Nor
does it appear that any order or threat issued by the Council since August 23,
1947, prompted the notice given by the Glazers Union's steward to the glass com-
pany concerning the unwillingness of the union glazers to work on Osterink's
project. Finally, Bright's statement to the steel subcontractor that there would
be trouble on Osterink's job, was not, so far as the record discloses, commu-
nicated to any of the union members, and does not, therefore, demonstrate the
inducement or encouragement of "employees" which constitutes the unfair labor
practice forbidden by Section 8 (b) (4) (A) of the Act.
From the foregoing, therefore, it is clear that, if the record discloses any viola-
tion of Section 8 (b) (4) (A) of the Act on the part of the Council, it can be found,
not in any affirmative action by the Council since that section of the Act became
effective on August 23, 1947, but solely in the Council's failure to revoke its 1944
"unfair listing" of Osterink and the provisions of its constitution concerning
the effect of such "unfair listings ." Pursuing this line of attack, the General
Counsel contends, in substance, that under the constitutions of the Council and its
constituent unions, the Council's unrevoked "unfair listing" of Osterink has been,
and is , violative of Section 8 (b) (4) (A) of the Act both as a continuing direc-
tion or order to union members to cease working for subcontractors on jobs of
Osterink and as a continuing threat of disciplinary action if they should disobey.
In making this broad contention, the General Counsel stresses the argument
that inherent in the Council's continued "unfair listings" is a threat of disci-
plinary action which, under its constitution, the Council can and will itself
execute or compel its constituent unions to execute. Contrary to this argument,
however, the Council's constitution makes no provision for the imposition of
penalties upon union members for their mere non-observance of the Council's
"unfair" listings nor for the mandatory enforcement of these listings by its
constituent unions. Although Section 36 provides that "all union men shall be
called from [a contractor's] work or shop" when the contractor is "declared
unfair" by the Council, no penalty is attached to non-observance of the "unfair
listing" until a union member "refuses to stop work when ordered to do so by the
' Without consulting the unions or their own union glazers , several other glass com-
panies also refused to install glass in Osterink 's projects because they assumed that
the glazers would refuse to work on Osterink 's buildings just as they had refused before
Section 8 ( b) (4) (A) of the Act became effective.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business agent of the Council." [Emphasis supplied.) Thus the visitation of
possible penalty flows not from the mere disobedience of any order implicit in an
"unfair listing," but only from disobediance of a specific, enforcing order issued
in particular cases by the Council through its business agent. No such order
has been issued since the effective date of Section 8 (b) (4) (A). Conse-
quently, under the provisions of the Council's constitution, not only has there
been no threat of discipline by the Council implicit in its unrevoked "unfair
listing" of Osterink, but the Council has refrained from taking the additional
step of issuing the specific enforcement orders which would invoke penalties-
a convincing indication that at least in this respect the Council has observed the
prohibitions of Section 8 (b) (4) (A) of the Act. Nor is it true, as the General
Counsel also argues, that under its constitution the Council may compel its con-
stituent unions to enforce its "unfair list" by the imposition of penalties, for
Section 36 of the Council's constitution expressly recognizes the right of the
international unions' officers to issue an "adverse or nullifying order" when and
if the Council's business agent issues a specific order to stop work. It is certainly
clear that the independence of the constituent unions with respect to the Council's
"unfair listings" has been preserved. Upon these considerations, the undersigned
rejects the primary argument of the General Counsel that, by virtue of the pro-
visions of the Council's constitution, its "unfair listings" have constituted, and
still constitute, threats of union disciplinary action.
There is, however, a more general and fundamental defect in the General
Counsel's broad argument that the Council, without having committed any
illegal act since the effective date of Section 8 (b) (4) (A) of the Act, has
nevertheless violated that section by failing to rescind and announce its rescis-
sion, of its "unfair listings" and the hitherto legal provisions of its constitution
pertaining thereto. For, it is axiomatic that regulatory legislation of the type
exemplified by the Act is purely prospective in effect and that only conduct
occurring after its passage may be held unlawful. Thus the Board and the
Courts have held that acts of an employer preceding the passage of the Wagner
Act could not themselves be regarded as unfair labor practices although they
might be considered as pertinent background to the employer's subsequent acts
of unfair labor practices.'
The General Counsel argues in substance, however, that there has been one
recognized exception, analogous to the present situation, in which employers
were properly held responsible under the Wagner Act for their previous forma-
tion and support of labor organizations and were required to disestablish
these organizations "on the theory that the employees minds had been so
conditionel to employer domination or interference that it was impossible
for them to make a free choice of labor organizations unless the employer
publicly repudiated the tainted labor organization and disavowed any intention
to interfere in the organizational activities of his employees." ° Urging the
Board to apply the alleged principle of these cases to the present case, the
See e. g., N. L. R. B. v. Link-Belt Co., 311 U. S. 584 , 588; N. L. R B. v. Falk Corp,
308 U. S 453, 460; Appalachian Electric Power Co. v. N. L. R. B, 93 F. (2d) 985, 988
(C. C. A. 4) ; Bethlehem Shipbuilding Corporation, Ltd V. N. L. R. B., 114 F. 2d 930, 938
(C. C. A. 1) ; C. C. Conn Ltd. v. N. L. R. B., 108 F. 2d 390, 399 (C. C. A. 7)
9 General Counsel's Supplemental Brief, p. 2 The General Counsel cites the following
cases: Western Union Co. V. N. L. R. B. 113 F. 2d. 992 (C. C. A. 1), cert. denied, 312
U. S. 710; Atlas Underwear Co. v. N. L R. B, 116 F. 2d. 1020 (C. C. A. 6) ; N. L. R. B v.
Newport News Shipbuilding & Drydock Co., 308 U. S. 241 ; Westinghouse Electric & Mfg
Co v. N. L. R. B, 112 F. 2d 657 (C C. A. 2), aff'd 312 U. S. 660; Roebling Employees'
Assn. v. N. L. R. B., 120 F. 2d 289 (C. C. A. 2).
BRICKLAYERS, STONE MASONS, MARBLE MASONS, ETC. 243
General Counsel states : "Considerations, similar to those which prompted the
Board to enter such orders, prevail here. The unfair list [of the Council]
which has been in existence for a number of years has conditioned the minds
of union members to 'boycott' Osterink. In the absence of a public revocation
or rescission of the unfair list, union members will continue to believe, rea-
sonably, that there has been no change in the Council's official position notwith-
standing the amendments to the Act here involved. "0
But the General Counsel misapprehends the significance of the Wagner Act
decisions cited by him in support of this argument by analogy. It is true
that the Courts in these cases expressly recognized the fact that pre-Act
domination or assistance of a labor organization by an employer continued
to foreclose the employees' freedom of choice of bargaining representative until
the employer openly withdrew his domination, assistance and support. But
in none of these cases, contrary to the General Counsel's statement, was the
employer found to have committed an unfair labor practice merely by reason
of his failure to make such a withdrawal after the passage of the Wagner
Act. In each case, the employer had also committed some affirmative act or
acts after the passage of the Wagner Act, which, when considered independently
or in conjunction with the existing "taint" or infirmity of the assisted organiza-
tion, improperly enured to the further benefit of that organization and justified
the finding of unfair labor practice. In several of the cited cases, the em-
ployer's post-Act conduct consisted of a continuance of the eariler support ; "
in the other cited cases, the employer affirmatively continued his recognition
of, and dealings with, the assisted labor organization as the representative of
his employees." In all of the cases cited by the General Counsel, therefore,
the disestablishment orders were directed, not to the condemnation and cor-
rection of, the employers' pre-Act conduct, but rather to the cessation of their
continuing , affirmative post-Act support, domination , or recognition of the
consistently favored labor organization." When thus appraised , the cases
cited furnish no exceptional rule but rather confirm the general principle, to
which reference has already been made, that a finding of unfair labor practice
may be based only upon affirmative conduct which occurs after the effective
date of the statutory provision defining and prohibiting the particular type of
unfair labor practice.
Upon application of this principle in the present ease, it appears that there
has been no affirmative attempt by the Council to continue its apparent previous
practice of inducing or encouraging union members to refuse to work for a sub-
contractor in the course of their employment on an "unfair" general contractor's
job, nor to enforce the Council's constitutional provisions dealing with that sub-
ject. Furthermore, from the intervention of Section 8 (b) (4) (A) of the Act
which has made the continuation of these practices and the enforcement of these
provisions illegal, it must be assumed , until the contrary is shown , that the Coun-
cil does not intend to do so.
The undersigned therefore concludes that there is no basis in the record for
finding that the Council committed unfair labor practices within the meaning
of Section 8 (b) (4) (A) of the Act.
70 General Counsel's Supplemental Brief, pp 2-3.
11 See the Western Union, the Atlas, and the Roebling cases, supra.
See the Newport News Shipbuilding case, and the Westinghouse case, supra.
'$ See the Newport News Shipbuilding case, supra (308 U. S. at 250) ; and the
Western Union case, supra ( 113 F. 2d. at 996).
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent Bricklayers and Behrens set forth in Section
III above, occurring in connection with the operations of the general contractors
and sub-contractors set forth in Section I above, have a close, intimate and sub-
stantial relation to trade, traffic, and commerce among the several states, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the respondents Bricklayers and Behrens have violated
Section 8 (b) (4) (A) of the Act, it will be recommended that they cease and
.desist therefrom, and take certain affirmative action designed to effectuate the
policies of the Act. Having found that the Council has not committed the unfair
labor practices alleged in the complaint, it will be recommended that the com-
plaint against the Council be dismissed.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. The respondent Bricklayers and Council are labor organizations within the
meaning of Section 2 (5) of the Act.
2. The respondent Douglas F. Behrens is an agent of the respondent Brick-
,layers.
3. By inducing and encouraging employees to engage in strikes and concerted
refusals to perform services in the course of their employment, an object thereof
being to force and require their respective employers to cease doing business with
the Osterink Construction Company, the respondent Bricklayers and Douglas F.
Behrens as its agent, have engaged in unfair labor practices within the meaning
,of Section 8 (b) (4) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The respondent Council has not engaged in the unfair labor practices charged
,in the complaint.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the respondent Bricklayers, Stone Masons, Marble Masons,
and Tile Layers Benevolent and Protective Union No. 1 of Grand Rapids, Mich-
igan, Bricklayers, Masons and Plasterers International Union of America, A. F.
of L., and the respondent Douglas F. Behrens, as agent for Bricklayers, Stone
Masons, Marble Masons, and Tile Layers Benevolent and Protective Union No. 1
of Grand Rapids, Michigan, Bricklayers Masons and Plasterers, International
Union of America, A. F. of L., and their agents shall :
1. Cease and desist from inducing or encouraging employees of any employer
to engage in a strike or concerted refusal to perform services for their employers
in the course of their employment where an object thereof is to force and require
their employers or any other person to cease doing business with Osterink Con-
struction Company.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act.
(a) Post in conspicuous places at the business office of the Bricklayers, Stone
Masons, Marble Masons, and Tile Layers Benevolent and Protective Union No. 1
BRICKLAYERS, STONE MASONS , MARBLE MASONS , ETC . 245
of Grand Rapids, Michigan , copies of the notice attached hereto as an appendix.
Copies of said notice to be furnished by the Regional Director for the Seventh
Region , shall , after being duly signed by the respondents Bricklayers and Behrens,
be posted by them immediately upon receipt thereof and maintained for a period
of sixty ( 60) consecutive days thereafter in conspicuous places, including all
places where notices to members are customarily posted. Reasonable steps shall
be taken by the said respondent to insure that these notices are not altered,
defaced, or covered by any other material;
(b) Notify the Regional Director for the Seventh Region in writing within
ten (10) days from the receipt of this Intermediate Report what steps the said
respondents have taken to comply therewith.
It is further recommended that, unless the respondents who are subject to
this recommended order shall , within ten (10 ) days from the receipt of this
Intermediate Report, notify the said Regional Director in writing that they will
comply with the foregoing recommendations , the National Labor Relations Board
issue an order requiring the said respondents to take the action aforesaid.
It is also recommended that the complaint be dismissed with respect to the
respondent Building and Construction Trades Council of Grand Rapids and
vicinity.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22 , 1947, any party may
within twenty ( 20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203 45 of said Rules and Regulations, file
with the Board, Rochaulbeau Building , Washington 25, D. C., an original and
six copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report or to any other part of the record or proceeding ( including rul-
ings upon all motions or objections ) as he relies upon, together with the original
and six copies of a brief in support thereof ; and any party may, within the
same period , file an original and six copies of a brief in support of the Inter-
mediate Report. Immediately upon the filing of such statement of exceptions
and/or briefs, the party filing the same shall serve a copy thereof upon each
of the other parties. Proof of service on the other parties of all papers filed
with the Board shall be promptly made as required by Section 203.85. As
further provided in said Section 203.46, should any party desire permission to
argue orally before the Board, request must be made in writing to the Board
within ten ( 10) days from the date of service of the order transferring the
case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations and recom-
mended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations , be adopted by the Board and become its findings, con-
clusions and order , and all objections and exceptions thereto shall be deemed
waived for all purposes.
WILLIAM F. SCHARNIKOW,
Trial Examiner.
Dated July 2, 1948.
APPENDIX
NOTICE
To all members of Bricklayers , Stone Masons, Marble Masons, and Tile Layers
Benevolent and Protective Union No. 1 of Grand Rapids, Michigan , Bricklayers,
Masons and Plasterers International Union of America , A. F. of L.
838914-50-vol. 82-17
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the recommendations 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 our members that :
WE WILL NOT induce or encourage employees of any employer to engage
in strikes and concerted refusals to perform services in the course of their
employment , with the object of forcing and requiring any employer to cease
doing business with the OSTERINK CONSTRUCTION COMPANY.
BRICKLAYERS, STONE MASONS , MARBLE MASONS, AND TILE
LAYERS BENEVOLENT AND PROTECTIVE UNION NO. 1 OF
GRAND RAPIDS, MICHIGAN , BRICKLAYERS , MASONS AND
PLASTERERS INTERNATIONAL UNION OF AMERICA, A. F.
OF L.
Labor Organization.
By --------------------------------------
(Agent or Representative ) ( Title)
--------------------------------------
DOUGLAS F. BEHRENS
as Agent to the above Labor Organization.
Dated : -----------------------------
This notice must remain posted for sixty ( 60) days from the date hereof,
and must not be altered , defaced , or covered by any other material.