United Brotherhood of Carpenters and Joiners

National Labor Relations Board - Board Decisions

May 12, 1955

112 N.L.R.B. 714 (N.L.R.B. 1955)

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall therefore set aside the election of February 10, 1955, and
direct that a new election be held.
[The Board set aside the election held on February 10, 1955.]
[Text of Direction of Election omitted from publication.]
MEMBER LEEDOM took no part in the consideration of the above De-
cision, Order, and Direction of Election.
United Brotherhood of Carpenters and Joiners of America, Local
#517, AFL and Ambroise Desjardins and Gil Wyner Construc-
tion Company, Party to the Contract . Case No. 1-CB-283.
May 12,1955
DECISION AND ORDER
On December 10, 1954, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions 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 Interme-
diate Report, the exceptions and brief, and the entire record in the
case and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the modifications and additions noted
below.
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (b) (1) (A) and (2) of the Act by including in its contract
with Gil Wyner Construction Company the clauses quoted in the Inter-
mediate Report which plainly exceed the limited form of union secu-
rity permitted by Section 8 (a) (3) of the Act. Although the Re-
spondent does not dispute the Trial Examiner's finding that the clauses
in question do not satisfy the statutory requirements, it contends that
they were not presently operative but were to take effect in the future
when permitted by Federal law and therefore may not be found to be
violative of the Act. We find no merit in this contention.
Despite the language of the purported deferral provision in the con-
tract, the evidence establishes that the parties never intended to post-
pone the application of the union-security provisions to some indeter-
minate future time. Thus, during the course of his testimony, Vanier,
112 NLRB No. 95.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 715
the Respondent's financial secretary and business agent, identified Gil
Wyner Construction Company as a union contractor and defined a
union contractor as one who "agrees to employ union men if the same
can be had." Indeed, as discussed in the Intermediate Report, the
parties actually pursued a discriminatory hiring practice reasonably
contemplated by the clauses in question whereby employment was con-
ditioned on union membership or clearance. Further indicating the
parties' intention that the hiring provisions of the contract were to be
immediately operative is the requirement in another section of the con-
tract (article IV), to which the purported deferral clause is clearly
not applicable, that specified work was reserved for members of the Re-
spondent.t As we are persuaded by the evidence in this case that the
inclusion of the unlawful union-security provisions in the contract was
designed to create present discriminatory conditions of employment, we
find that the Respondent thereby violated Section 8 (b) (1) (A) and
(2) of the Act.'
2. We agree with the Trial Examiner that the Respondent was re-
sponsible for Foreman Ablonc's conduct in maintaining a discrimina-
tory hiring practice whereby employment at the Portland bridge con-
struction site of Gil Wyner Construction Company was conditioned
upon union membership or clearance and that the Respondent thereby
violated Section 8 (b) (1) (A) and (2) of the Act. In addition to the
evidence relied upon by the Trial Examiner, the existence of this unlaw-
ful hiring practice is dramatically demonstrated by Ablondi' s instruc-
tion to the Charging Party, Desjardins, to secure a clearance from the
Respondent before reporting for work the following Monday. Sig-
nificantly, Vanier, the Respondent's financial secretary and business
agent, not only refused to give Desjardins a clearance because of his
failure to pay the balance of a fine previously imposed upon him, but
did not even disavow that a clearance was necessary in order to work
on the job. There is also other evidence of a prevailing discriminatory
hiring practice in Foreman Ablondi's testimony at the hearing con-
cerning the custom of new employees reporting to the steward before
being put to work. In reply to a question as to what would happen if
the steward, whose function it was to check the union membership of
1 See United Association of Journeymen and Apprentices of the Plumbing and Pipeftti ng
Industry , etc (Philadelphia Association ), 108 NLRB 186 , where the Board has held that
a conti actual reservation of woi k to members of a labor organization violated the Act
The contract also has a clause ( article V fl. section 2) which provides that the company
agrees that no carpenter member of the Respondent will be assigned, expected , or required
to work on any job on which any person is or will perform any work "within the luus-
dnction of any craft unions , A F L , if said worker on person is not a member of the
particular craft union within whose juiisdnctnon the wok lies"
The facts in the present ease are distinguishable from those in the cases relied upon
by the Respondent where the Board held that a contract containing an inoperative unlawful
union-security provision barred a representation election Unlike here, those cases did
not involve inconsistent conduct by the contracting parties o other evidence showing that
the operation of the union-security piovnsion was not intended to he deferred
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
new employees, determined that an employee was not in good standing,
Ablondi testified, "It was up to the business agent to decide." More-
over, Vanier's testimony, mentioned above, admitting that Gil Wyner
Construction Company was a union contractor which "agrees to employ
union men if the same can be had," also reveals the existence of an un-
lawful hiring practice.
The Respondent denies that Foreman Ablondi was its agent for
whose acts it was responsible. We find, however, as did the Trial
Examiner, that, in maintaining the unlawful hiring practice, Ablondi
acted as the Respondent's agent within the scope of the authority and
duty vested in him by the Respondent's constitution. The relevant
constitutional provision required foremen members to "comply with
Union rules and hire none but members of the United Brotherhood"
(section 42, paragraph U). We therefore find that the Respondent is
responsible for the discriminatory conditions of employment main-
tained by Foreman Ablondi at the construction site.'
3. We also find, in agreement with the Trial Examiner, that Des-
jardins was discriminatorily denied employment by reason of the Re-
spondent's refusal to give him clearance, which Foreman Ablondi, as its
agent, required as a condition of employment.4
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 orders that the Respondent, United Brotherhood of
Carpenters and Joiners of America, Local #517, AFL, Portland,
Maine, its officers, representatives, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Executing, maintaining, renewing, or enforcing any provision
of any collective-bargaining agreement, or maintaining any practice
3C-rove Shepherd Wilson & Kruge, Inc, et al, 109 NLRB 209; Anderson-IVestfall Com-
pany, 102 NLRB 1408; see also Restatement of Agency, section 15
4In accordance with Board policy, we shall also require the Respondent to give Desjardins
the sane written notification which the Trial Examiner recommended that the Respondent
be required to give to Gil Wyner Construction Company that it has no objection to the
employment of Desjardms The Respondent shall he obligated to icunburse Desjardins
for the loss of back pay, as provided in the Intermediate Report, except that such liability
shall terminate 5 days after giving such notice to Gil Wyner Construction Company and
Desjardms or the date of completion of the Portland bridge project involved in this case,
whichever event shall first occur Cf. The Lane Construction Corporation, Ill NLRB 952
In addition to computing the back pay due Desjaidins in accordance with the Woolworth
formula, as provided in the Intermediate Report, the Respondent shall deduct from the
amount payable to Desjardins such sums as would normally have been deducted from his
wages for deposit with State and Federal agencies on account of social security and other
similar benefits The Respondent shall pay to the appropriate State and Fedeial agencies,
to the credit of Dejarduis and Gil wyner Construction Company, a sum of money equal
to the amount which, absent discrimination, would have been deposited to such credit by
the Company, either as a tax upon the Company or on account of deductions made from
Desjardins ' wages by the Company , on account of such social security or other similar
benefits . Pen and Pencil IVoikers Union Local 19593 , AFL (Becker ), 91 NLRB 883.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 717
-with Gil Wyner Construction Company or any other employer, which
requires membership in, or clearance by, the Respondent as a condition
of employment, except as authorized by Section 8 (a) (3) of the Act.
(b) Causing or attempting to cause Gil Wyner Construction Com-
pany or any other employer to refuse employment to employees or
applicants for employment because they are not members in, or have
not received clearance from, the Respondent or in any other manner
to discriminate against them in violation of Section 8 (a) (3) of the
Act.
(c) In any other manner restraining or coercing employees of, or
applicants for employment with, the above-named or any other em-
ployer in the exercise of their rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an agree-
inent requiring membership in a labor organization as a condition of
-employment, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Notify Gil Wyner Construction Company and Ambroise
Desjardins, in writing, that it withdraws objection to the employment
of Ambroise Desjardins and, if the Portland bridge project has not
been completed, that it requests the Company to offer him immediate
Kind full employment.
(b) Make Ambroise Desjardins whole for any loss of pay he may
have suffered by reason of the discrimination against him, in the
,manner set forth in "The Remedy" section of the Intermediate Report
as modified ii i the Board's decision herein.
(c) Post at its offices and meeting halls in Portland, Maine, copies
of the notice attached hereto marked "Appendix." 5 Copies of said
notice, to be furnished by the Regional Director for the First Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive clays thereafter in conspicuous
places, including, all places where notices to its members are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(d) Mail to the Regional Director for the First Region signed copies
of the notice attached hereto marked "Appendix," for posting, the
Company willing, on the Portland bridge job, for sixty (60) consecu-
tive days, in places where notices to employees are customarily posted.
Copies of said notice, to be furnished by the Regional Director for
the First Region, shall, after being duly signed by the Respondent's
5In the event that this Oider is enfoiced by deciee of a United States Count of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the voids
Pursuant to a Deci ce of the United States Court of Appeals, Enforcing an Order "
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative, be forthwith returned to said Regional Director for
such posting.
(e) Notify the Regional Director for the First Region, in writing,
within ten (10) days from the date of this Order as to what steps it
has taken to comply herewith.
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE To ALL MEMBERS OF UNITED BP.OTIIEni-IOOD OF CARPENTERS AND
JOINERS OF AMERTCA, LOCAL # 5 71, AND EMPLOYEES OF GIL WYNER
CONSTRUCTION COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT execute, maintain, renew, or enforce any provision
of any agreement or maintain any practice with Gil Wyner Con-
struction Company or any other employer, which requires mem-
bership in, or clearance by, our organization as a condition of em-
ployment, except as authorized by Section 8 (a) (3) of the Act.
WE WILL NOT cause or attempt to cause Gil Wyner Construction
Company or any other employer to refuse employment to em-
employees or applicants for employment because they are not
members in, or have not received clearance from, our organization
or in any other manner to discriminate against them in violation
of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
of, or applicants for employment with, the above-named or any
other employer in the exercise of their rights guaranteed in Sec-
tion 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, except as authorized by Sec-
tion 8 (a) (3) of the Act.
WE WILL make Ambroise Desjardins whole for any loss of pay
suffered as a result of the discrimination against him.
UNITED BROTITERIIOOD OF CARPENTERS AND
JOINERS or AMERICA, LOCAL #517, AFL,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 719
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein alleges that the Union has violated Section 8 (b) (1) (A)
and (2) of the National Labor Relations Act, as amended, 61 Stat. 136, by executing,
maintaining, and enforcing a written agreement which required membership in or
clearance from the Union as a condition of employment, compelling the Company to
,employ only members or persons who have been cleared by the Union, and causing the
Company to discriminate against Desjardins because of his union status or the Union's
refusal to clear him. The answer denies the allegations of unfair labor practices. A
hearing was held before me at Portland, Maine, on November 4 and 5, 1954.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was stipulated and I find that the Company, a Massachusetts corporation with
principal office in Malden, Massachusetts, is engaged in the building and con-
struction business in the States of Massachusetts, Maine, and New York among
others; that during the 12-month period preceding the hearing the Company engaged
in building and construction projects in the States of Maine and New York, its
services on such projects being valued at more than $500,000; that during said
period the Company has provided services directly related to national defense
pursuant to United States Government contracts in an amount exceeding $100,000,
including construction work in an amount exceeding $100,000 at the United States
Naval Air Base at Brunswick, Maine, under a contract with the United States Navy
,or its agent for such work; and that the Company is engaged in commerce within the
meaning of the Act.
It was admitted and I find that the Union is a labor organization within the
meaning of the Act
II THE UNFAIR LABOR PRACTICES
A. The contracts
The record shows that there has been a series of 1-year contracts to which the
Union is a party, the first effective April 16, 1952, and the third effective April 16,
1954, and now in effect, and that the Company "automatically" abides thereby.
For present purposes it is regarded and accepted, as it was at the hearing, that the
Company is and has been a party to such contracts. Article VII of the contracts
includes the following:
Section 3. If at any time, during the life of this agreement, it shall become
permissible and legal, under Federal Law, for the following Sections herewith
designated, Sections 3 (a) and 3 (b), to be incorporated as part of this contract,
it is hereby agreed that from that time or until the expiration of this agreement,
these sections shall automatically become effective and in force as part of this
agreement, to wit;
Section 3 (a). The EMPLOYER agrees to employ carpenters who are mem-
bers of the UNION to do all carpenter work within the UNION'S jurisdiction as
long as the UNION is able to supply the EMPLOYER with reliable, competent
and otherwise acceptable workmen in sufficient numbers to meet the EM-
PLOYER'S requirements. The UNION agrees that if after twenty-four (24)
hours notice it has not furnished a sufficient number of Journeymen to the
EMPLOYER giving such notice, then the EMPLOYER may employ such men
as he can obtain to perform the work until such time as the UNION can supply
men to the EMPLOYER to replace these men. The EMPLOYER agrees that
when he employs men in the manner described above that he will give notice
of such employment to the UNION containing the names and addresses of
these men within forty-eight (48) hours, providing that they are qualified
carpenters.
Section 3 (b). The UNION agrees to give preference in furnishing workmen
to the EMPLOYER, and the EMPLOYER agrees to give preference in the
employing of workmen to members of the UNION. The EMPLOYER agrees
that any carpenters who are not members of the UNION shall within forty-eight
(48) hours apply to the UNION for membership, and that they will continue in
employment as long as they are members of the UNION.
Leaving for later consideration the question whether the parties followed the
-practices outlined in the contracts or any unlawful practices, I find that the last 2
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the 3 sections quoted are violative of the Act, and that the first or deferral clause
does not exculpate either the Company or the Union.' Whatever the technical dis-
tinction between conditions precedent and conditions subsequent, it would not be
recognized by employees: the effect on them is readily seen in either situation Noi.
as far as the Company is concerned, and as will be seen in the next subsection, does it
appear that any difference in phraseology prompted different action. Neither, re-
gardless of the practices followed, is there evidence that employees (within the
meaning of the Act, both actual and prospective) were notified of any deferral 2
Counsel for the Company argues that only provisions which are legal are binding
But such a statement cannot be accepted to bar a finding that inclusion of illegal
provisions constitutes a violation of the Act
Violation is found with respect to the last or current contract in its execution,
maintenance, and enforcement. With respect to the one which immediately pre-
ceded the current contract, violation is found in its maintenance and enforcement,
its execution falling outside the statutory 6-month limitation.
B. The general practices followed
Aside from any finding of violation because of the recognition of the unlawful
contract, we should consider the practices actually followed, which further indicate
violation of the Act.3 In this connection, we must first determine an issue of agency
It appears that Desjardins, the Charging Party herein, was twice hired at the Bruns-
wick Naval Air Base, and then on the Portland bridge job, by Ablondi, who was
carpenter foreman for the Company. Further, it was stipulated that Ablondi was a
supervisor within the meaning of the Act, although not that he had the authority to
hire. He selected men for transfer to another job, permitted some to continue, and
laid off others. Thereafter, he did hire carpenters when the weather permitted,
although he testified that he has done very little hiring.
While declaring that he abides by the constitution and laws of the International
Union, United Brotherhood of Carpenters and Joiners of America, Ablondi pleaded
ignorance of various provisions He stated that he was given "special instructions"
by the Company not to ask applicants whether they were union or nonunion men,
and that he has never checked anyone's union book; nor does he send new men to
the union steward for that purpose although, as a matter of practice, they do go to
the steward. He testified that the practice on the Portland job was to clear applicants
with the Union to see whether they were members in good standing Then, denying
that union approval was sought before men were hired, he explained that after he
hired a man and approval was obtained from the company official, the steward would
check his book, after which Ablondi would put him to work That only union men
were employed on the Portland bridge job is thus quite understandable.
The Company's responsibility for that situation is clear its representative, the
foreman, vicariously complied with the union provision that he hire only union
members as new employees were checked by the steward before the foremen put them
to work. The Company's acceptance, via its supervisor, of the international's con-
stitution and bylaws as a basis for conducting its operations had the effect of impos-
ing on employees the requirement of membership in or clearance by the Union as a
condition of employment. Aside from this evidence of practice which indicates dis-
crimination by the Company in violation of Section 8 (a) (3) of the Act, such dis-
crimination would also appear, as a foundation for the Union's violation, from the
testimony of Vanier, financial secretary and business representative of the Union,
that contractors must abide by the established rules and regulations.4
Turning now to the question of the Union's liability for Ablondi's acts, he testified
as noted that he abides by union regulations although he has not himself lived up
to their terms. As he put it, he "guessed" that he did carry out the required practice
as well as he could. Reluctant as he was to admit any practice which favored union
members, he testified to "an interest to see that union men are employed before non-
union men" since he is himself a member of the Carpenters Union. This explains
why Ablondi acted on behalf of the Union, it does not justify what was done. With
introduction of the International's constitution and laws which govern the Local
Union, it appears that the foreman is in fact its agent since it is provided that "Mem-
INeiu Yort State Employe) Association, Inc, 93 NLRB 127, at 127-128. .Jaiidel Fin
100 NLRB 1390, 1391 Gottfried Bating Company, Inc, 103 NLRB 227, 228
2Jandel Furs, supra
Cf. N L R B v Kingston Cake Company, Inc , 191 F 2d 563 (C A 3)
Cf The Laminas Company, 101 NLRP. 1628, 1630
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 721
bers who contract work or become foremen, must comply with Union rules and hire
none but members of the United Brotherhood."
As a member (by permit) of the Union and one who "abided" by the International
constitution which governs its activities, Ablondl fell within its design and "within
the scope of the general authority delegated to him by the constitution, bylaws, and
working rules, and operated to bind the Union." 5 Further authority on the issue of
the Union's responsibility can be found in the Cement Masons case.6 There the
Union's "working rules imposed upon the . foreman, who was required to be a
member under the rules, the responsibility for their enforcement . . . Included in
these rules, was one prohibiting, with certain unimportant exceptions, members from
working with nonmembers . . . In these circumstances, it is clear that (the fore-
man's) removal of (the employee) from the job because of his suspension from union
membership, fell within the contemplated scope of the authority and responsibility
the (union) thus placed in him." The finding of the union's responsibility in the case
cited covered a greater exercise of authority by the foreman than occuired in the
instant case.
The evidence which thus indicates that Ablondi was a representative of both the
Company and the Union and that both are bound by his acts and statements has also
disclosed first, that unlawful practices were required and second, that such practices
were in fact followed Nor is the existence of practices overcome by Vanier's testi-
mony that he did not tell Ablondi or the Company generally to discriminate 7 Fur-
ther evidence of violation of the Act is found in Ablondi's prehearing affidavit: "In
the Union bylaws, a person must be a member in good standing to hold a job. I as
foreman would not check the books but the steward on the job would." This state-
ment by the carpenter foreman is admissible against both the Company and the Union
on the issue of practice maintained.8
In the interest of clear understanding it should be pointed out that the affidavit
is but one element of proof 9 In the Grove Shepherd case other elements were cited
by the Board to support its findings, even as the Trial Examiner had previously cited
other proof in making his findings on a different credibility resolution Received
in evidence, the prior statement in Grove Shepherd was at no time relied upon as
alone determinative of the issue Here the record shows by Ablondi's oral testimony,
his own interest and also that while applicants were first hired, the steward checked
their union book before they went to work (Ablondi did know that all of the men
on the Portland bridge job were union members.) Ablondi's affidavit, received in
evidence as an admission against interest binding on both the General Counsel and
the Union since his agency had been established, confirmed this oral testimony of prac-
tices maintained in violation of Section 8 (b) (1) (A) and (2) of the Act.
This finding is consistent with the testimony that only union men were employed
on the Portland job,1i and that it was the Company's practice to call the Union for
men. The evidence heretofore noted indicates the Union's responsibility for these
circumstances and warrants a finding of violation.
s Grove Sliephei d Wilson if Kruge, Inc, et at., 109 NLRB 209.
6 Cement Masons Local No 555, 102 NLRB 1408, at 1408-1409
7 Consolidated Western Steel Corporation, 94 NLRB 1590, 1,593
8 Grove Shepherd Wilson 6 Kruge, Inc , et al, supra
U The Union argues that, despite Ablondi's testimony that he abides by the constitution
and himself sought and obtained a peimrt from the Union, he did not in fact police the
contract as the constitution required, leaving such matters to the steward on the job; and
that he thus (lid not recognize his agency Whether or not his reliance on the steward
indicates "i ecognition," the test, where the question is the alleged principal's liability,
appears rather to be whether the principal authorized the agency Failure of the agent to
i ecog ize it may lead to inaction , but where he has acted within what would otherwise
be recognized as the apparent scope of his authority, it is not properly to be urged that lie
did not formally accept or recognize his own authority It is the principal who recognizes
the agent's status and is bound by his acts On the other hand, the General Counsel,
recognizing the distinction between proof of practice and an admission, appears to iely
on the Grove Shepherd case as authority not only for such distinction but also for accept-
ance of the admission as itself supporting a finding of violation regardless of other evidence
on the point lint here lie claims more for that case than it held The admission is itself
only evidentiary and pioof of a practice, which is to be consideied with othci pioof (This
is not to say that an admission cannot be accepted as sufficient proof where no other proof
is available )
10 It was testified that nonunion nien also were employed at the air base Different
conclusions could be drawn from the fact that reports made to the Union referred to the
number of membei s on that job without mention of any nonunion men
'722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Desjardins
Desjardins had been a member of another local union of the Carpenters Inter-
national He went to work for the Company on January 6, 1953, and joined this
Union on January 19. On or about February 2, charges were filed against him in the
Union, alleging that he had gone to work for the Company in January 1953 while
a dispute was pending between the Company and the Union and while members of
the Union were "waiting to go to work." At a meeting on July 6, 1953, the Union
fined him $100, half of which he paid on August 17. The balance of the fine re-
mains unpaid, although his dues were paid until January 1954. He was suspended
from the Union on June 30, 1954, and turned his union book in on August 6. It
was stipulated that the Union commonly suspends a man when he is in arrears for
6 months. Desjardins further testified without contradiction except by Vanier that
he tendered his dues to the Union for the months of January through April 1954.
In the meantime, by letter dated September 10, 1953, he had appealed to the
International, apparently from imposition of the fine On September 15, the Inter-
national replied, directing him to send the receipt for the $50 which he had paid on
account of the fine He testified that he had sent the receipt with his fist letter,
and that about a month after receiving the reply he so advised the International
On March 6, 1954, he again wrote to the International, recalling to it that he had
previously sent the receipt. (To the extent that this letter is self-serving, it repeats
and corroborates his oral testimony He had been questioned on cross-examination
concerning what he said in that letter.) On April 1, the International replied to
this letter, advising him that he had not complied with the provisions of the constitu-
tion concerning appeals, and returned his dues book and the money order.
Much was made at the hearing, pro and con, of Desjardins' efforts or failure to
obtain satisfaction from the Union herein or the International. Whatever sugges-
tion there may be that he did not vigorously pursue his rights (and I make no such
finding, the result of the approach which he made to the International was not
encouraging), certainly the evidence does not show that he failed to seek action
looking to his clearance for employment or that he otherwise exculpated the Union
from any responsibility for violating the Act. Aside from Vanier's denial that he had
insisted on payment of the full fine, it is nowhere suggested that the refusal to
accept the dues was modified by any change in the Union's policy in this respect."
Unlike the issue in the Bloomingdale case, which revolved around the alleged tender
and refusal to accept dues, I find that Desjardins did in fact tender his dues and that
he was told that they would not be accepted until he paid the balance of the fine
imposed on him, as he testified But this still leaves the question of the alleged
refusal to employ him.
The preliminary but normally essential elements having been determined, we
come now to the question whether, as alleged, the Union did in fact and by specific
acts pointed to him interfere with Desjardins' employment and cause the Company
to deny employment to him. Here I find the issue much closer. Although the
,natter of the Union's liability for Ablondi's acts has posed little difficulty, there
remains for evaluation the statements which he made to Desjardins and on which
a finding on behalf of the latter must rest, when such statements are considered in
conjunction with Vanier's.
Desjardrns had worked under Ablondi on the Portland bridge job from November
1953 until January 1954, when weather forced a layoff. He testified that on or
about April 1, 1954, at that job, he asked Ablondi for work, and that the latter said
they were starting to work again, and that Desjardins should get a working permit
from the Union and come back the following Monday; that the same day he went
to the union office, told Vanier that he had a job and wanted a work permit, but
that Vanier told him as he had several times before that he could not get such a
permit until the balance of the fine and the back dues were paid, Desjardins replying
that he would pay the back dues but not the rest of the fine.
Ablondi, himself a member of another local of the International, got a permit
from the Union herein when he started to work for the Company early in 1953
He testified that he was not hiring on the day that Desjardins came to see him in
April; the cold weather had not yet cleared to the point where hiring could be com-
menced for the job; he did not seek out the men, but when the weather broke, they
came around. He testified further that he had heard of Desjardrns' trouble and
asked how he was doing with the Union. Declaring that he did not recall all of the
conversation, he testified that he told Desjardins he would be hiring shortly when
11 Cf N L R B v Local 3, Blooinuuldale District 65, Retail, Wholesaled Deliai tnaent
Stoic Uiuon, CIO, 216 F 2d 285 (C A 2), revg 107 NLRB 191. See also Biscuit and
Cracker Workers Local Union No. 405, tPL, 109 NLRB 985
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 723
the weather permitted. While he did not at first recall telling Desjardins to go to
the Union concerning the fine and then report for work the following Monday, he
did recall, after his recollection had been refreshed, that he had asked Desjardins
why he didn't get straightened up and come back to work; he may have added, with
respect to coming to work, "Next Monday," but of this he wasn't sure.
Vanier denied that he ever refused to accept Desjardins' dues while the fine
remained unpaid. He also denied that Desjardins ever offered to pay the arrears
in dues. I do not credit these denials. There is no other explanation for the
Union's instructions to Vanier on March 15, when Desjardins was several months
in arrears, that he not accept the dues until the fine was paid. Vanier testified
that he was not so instructed by the Union. When shown the minutes of the union
meeting of March 15, 1954, which indicated that such instructions were given
him, he testified that he had not heard them and was now surprised. Vanier clearly
sought to "win his case," and I was not impressed by his reliability on the stand.
He was less than frank in pointing out that the Company was not a party to a
contract received in evidence, although he then acknowledged that it agreed to and
abided by the contract. He even denied that he had received a subpena.
Crediting 12 Desjardins' testimony that earlier and again on or about April 1
he offered to pay his dues, I accept his further testimony that at that time he
asked for and Vanier denied him a working permit With the finding that the
Union insisted on payment of the fine as a condition for Desjardins' employment,
I cannot accept Ablondi's characterization of his part in the conversation with
Desjardins as a matter of friendly conversation and advice; nor his testimony that
there was no connection between this advice and Desjardins' request for work.
The control over employment and the unlawful condition imposed are clear; but
for such, Desjardins would have gone to work on the Monday after these con-
versations of "on or about April 1," or apparently on April 5, 1954. Whether
the latter date is correct can be determined on compliance by reference to the date
when additional men were first called back.13
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union set forth in section II, above, occurring in connec-
tion with the operations of the Company described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the sev-
eral States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
IV. THE REMEDY
Having found that the Union has engaged in and is engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist
therefrom and take certain affirmative action to effectuate the policies of the Act.
It has been found that the Union has violated Section 8 (b) (1) (A) and (2)
of the Act by executing and maintaining contracts which required membership
in or clearance from the Union as a condition of employment, compelling the
Company to employ on the Portland bridge job only persons who have been cleared
by the Union, and causing the Company to discriminate against Desjardins be-
cause of the Union's refusal to clear him for employment. I shall therefore recom-
mend that the Union cease and desist from maintaining such practice or enforcing
or giving effect to any agreement therefor
I shall further recommend that the Union make Desjardins whole for any loss
of pay he may have suffered by reason of the discriminatory action aforementioned
by payment to him of a sum of money equal to that which he would normally
have earned less his net earnings,14 which sum shall be computed 15 on a quarterly
I"I have not overlooked Deslardins' momentary denial that he tendered the back dues.
Whether he did not understand "tender," or whatever the reason, he clearly and repeatedly
asseverated that he offered to pay several times His iceollection of his correspondence
with the International nas good, although he did not recall one letter until it was shown
to him (The correspondence was nowhere inconsistent with his claim herein or his testi-
mony ) While he testified that, when Vanier refused to accept his dues, lie said th 't he
was suspended, Deslardins was correct in declaring that lie had not been suspended as
noted. lie was not suspended until June 30, 1954.
13 Cf The Cummins Company, 101 NLRP. 1628, 1632
" Crossett Lumber Company, 8 NLRB 440. See also Republic Steel Cor poration v
N L R B,311U.S 7
15 F W lVoolv,orth Company, 90 NLRB 289, 291-294.
369028-56-vol 112-47
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis from the date of the discriminatory refusal to employ him to the date of
completion of the project or the date on which the Union serves upon the Company
the written notice, as set forth in section 2 (a) of the Board's Order, whichever
shall first occur.
The violations of the Act which the Union has committed are persuasively related
to other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is to be anticipated from the Union's conduct in the past
The preventive purposes of the Act will be thwarted unless the order is coexten-
sive with the threat. In order, therefore, to make more effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby
minimize industrial strife which burdens and obstructs commerce, and thus effectuate
the policies of the Act, I shall recommend that the Union be ordered to cease and
desist from infringing in any manner upon the rights guaranteed in Section 7 of the
Act
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. United Brotherhood of Carpenters and Joiners of America, Local #517, AFL,
is a labor organization within the meaning of Section 2 (5) of the Act
2. By restraining and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (I) (A) of the Act
3. By causing Gil Wyner Construction Company to discriminate in regard to
hire , tenure , terms, and conditions of employment in violation of Section 8 (a) (3)
of the Act, the Union has engaged in unfair labor practices within the meaning of
Section 8 (b) (2) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Rugcroffters of Puerto Rico, Inc. and Unidad General De Traba-
jadores De Puerto Rico . Case No. 24-CA-386. May 12,1955
DECISION AND ORDER
On July 28, 1954, Trial Examiner Eugene E. Dixon issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was conunitted. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the Respondent's exceptions and brief, and the entire record in the
case tool hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only insofar as they are consistent with
the Decision and Order herein.
1. We agree with the Trial Examiner that the Respondent inde-
pendently violated Section S (a) (1) of the Act in the manner set
forth in the Intermediate Report.
112 NLRB No. 97.