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.: 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, 228 (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' INTERNATIONAL 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.-Deeided 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 Respondent 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.1 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 Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only insofar as they are consistent with the findings, conclusions, and Order hereinafter provided.

1The Respondents Bricklayers and Behrens filed no exceptions to the Intermediate Report. The Respondent Council filed a document consenting to the Trial Examiner's 'findings and conclusions.'

228 We agree with the Trial Examiner that the Respondents Bricklayers 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 Report, the Trial Examiner absolved the Council of any liability because, 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 affirmative 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 Intermediate Report, the Council is composed of and acts through the delegates from its constituent unions. As its major function, it coordinates 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. Especially 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 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 Bricklayers 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,5 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 compelling 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 proscribed 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.

SCf. Matter of International Longshoremen's and Warehousemen's Union, C. I 0.,

Local 6, etc. (Sunset Line and Twine Company), 5 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, Inc.) 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.

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 November of 1947 Bright, president of the Council, informed a steel subcontractor that there would be 'trouble' if he undertook a contract from Osterink, and that Olin, the Council's secretary-treasurer, testified at the hearing that he still regarded Osterink as 'unfair.' Moreover, 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.7 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 working '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 construction jobs on which Osterink is the general contractor, without prejudice to their rights, privileges, or standing in...

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