The H. K. Ferguson Co., 76 (1961)

, the Board filed in the United States Court of Appeals for the Fifth Circuit a petition for enforcement of each of the provisions of its Order of August 18, 1959, relating to the Respondent Unions, and for enforcement of its Supplemental Order with respect to the Respondent Company. On April 17, 1961, while this petition was pending, the Supreme Court handed down its decisions in Local 357, Teamsters,' Local 60, Carpenters,' and News Syndicate? On motion of the Board, leave to withdraw the petition for enforcement was granted by the Court, and these cases are presently before the Board for reconsideration.

The Board 8 has reconsidered these cases in the light of the Supreme Court decisions and, in accord with those decisions, hereby vacates those portions of its Decision and Order which found Respondents' hiring agreements and practices unlawful solely because of the absence of the Mountain Pacific standards. Local 357, Teamsters, supra.

Also vacated are those portions which found that the bylaws and trade rules of the Respondent Unions were incorporated into the agreements, thereby providing for a closed shop. News Syndicate, supra. In sum, we now find that no violation can be predicated upon any provisions contained in the written agreements between the parties.

We reaffirm, however, that portion of the Decision which found that the hiring practices between the Respondent Company and the District Council and Local 1337 were unlawful in that they imposed closed-shop employment conditions. As is more fully detailed in the Intermediate Report, the practice followed at the local level in the Tuscaloosa-Demopolis area, in the enforcement and administration of the 1956 master agreement and its 1957 supplement, gave unfettered control to Business Agent Goodman and established closed-shop conditions at the Demopolis project. Thus, the record establishes that referral by Goodman was a prerequisite to hire at this project, and, as particularly evidenced by Goodman's treatment of the eight discriminatees and others similarly situated, Goodman conditioned referral upon matters connected with union membership or obligations.

4 As the Board by this Supplemental Order severed the instant cases, the two cases have been consolidated here for decisional purposes only.

6Local 357, International Brotherhood of Teemste,s , etc. (Los Angeles-Seattle Motor Empress ) v. ]V.L R.B., 365 U.S 667.

G Local 60, United Brotherhood of Carpenters , etc. (Mechanical Handling Systems) v.

NL.R.B., 365 U.S. 651.

7 N L R.B v. News Syndicate Company, Inc , et al., 365 US 695 sPursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Leedom, and Brown).

THE H. K. FERGUSON COMPANY 79

Accordingly, as stated above, we reaffirm our previous finding that by maintaining and enforcing the unlawful practices, Respondent District Council and Respondent Local 1337 violated Section 8 (b) (1) (A) and (2), and Respondent Company violated Section 8(a) (1) and (3).

We similarly reaffirm our previous finding that Herbert F. Roberts,

Morris Grace, W. R. Vice, N. T. Steadham, E. M. Peacock, J. E.

Mathers, B. S. Irvin, and Robert Hartman were discriminatorily denied employment. It is clear that the denial of employment to these individuals was an implementation of the unlawful closed-shop practices. It is equally clear that apart from the practices, Goodman's denial of referrals to them was for reasons connected with their union membership or obligations. Accordingly, we find that by their implementation of the unlawful practices, Goodman's discriminatory denial of referrals and Respondent Company's refusal to employ these eight individuals, Respondent District Council and Respondent Local 1337 violated Section 8(b) (1) (A) and (2) and Respondent Company violated Section 8(a) (1) and (3).

As stated above, we do not now find that the 1956 master agreement or its 1957 supplement, to which Respondent United Brotherhood of Carpenters was a party, were in themselves unlawful. As our original findings against the United Brotherhood rested primarily upon the illegality of these written agreements, and not upon this Respondent's being a party to the unlawful practices at the local level, there is no basis for sustaining the finding that this Respondent violated the Act, and we shall dismiss the complaint as to it.

THE REMEDY

As noted above, to remedy the unfair labor practices found, the Board, inter alia, had ordered the reinmbursement of all millwrights and millwrights apprentices-including union members as well as nonmembers-employed at the Demopolis project for dues and other fees paid to the Respondent Unions. We now find that the direction of reimbursement should be limited to the fees and other moneys paid by nonmembers to obtain their jobs at the Demopolis project. In Local 60, Carpenters, supra, the Supreme Court held that the Board could not order a union to return to its members union dues and fees, absent evidence that those members were coerced into joining the union, or that they joined in order to obtain employment, or that they involuntarily retained their membership in the Union. In sum, the Court held that the refunding of dues to members is not a remedial measure unless it can be shown that their membership was induced, obtained, or retained, in violation of the Act. Such evidence is absent in this case. However, the Supreme Court's decision did not withhold from the Board the power to direct reimbursement of SO DECISIONS OF NATIONAL LABOR RELATIONS BOARD fees paid by nonmembers to obtain employment.' Accordingly, we shall direct that nonmembers of Respondent Local 1337 hired pursuant to the unlawful practices be reimbursed for the permit fees and/or 'dobies' they paid in order to obtain employment.

As stated above, subsequent to the issuance of the Decision and Order herein, the Board approved a stipulation to which the Respondent Company, the Charging Party, and the General Counsel were parties. The original Order issued herein provided that the Respondents were jointly and severally liable for making the eight discriminatees whole and for reimbursing employees. The Order herein follows the terms of the stipulation.

ORDER

Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that :

1. Respondent, The H. K. Ferguson Company, Cleveland, Ohio, its officers, agents, successors, and assigns, shall : 10

   1. Cease and desist from :

      (

      1. Maintaining, enforcing, or giving effect to any arrangement, understanding, or practice with The Tuscaloosa and Vicinity District Council of Tuscaloosa and Selma, Alabama, Local Union No. 1337, or any other labor organization, which requires membership in a labor organization as a condition of referral or employment.

      (b) Encouraging membership in Local Union No. 1337, or any other labor organization, by discriminating in regard to hire or tenure of employment or any term or condition of employment.

      (c) In any other manner interfering with, restraining, or coercing employees in the exercise of right guaranteed in Section 700f the Act.

   2. , Take the following affirmative action which the Board finds will effectuate the policies of the Act :

      (

      1. Make whole, in the manner set forth in the section of the Intermediate Report entitled 'The Remedy,' Herbert F. Roberts, Morris Grace, W. R. Vice, N. T. Steadham, E. M. Peacock, J. E. Mathers,

2. S. Irvin, and Robert Hartman, by paying to each of them an amount equal to one-half of any loss of pay he may have suffered as a result of the discrimination against him.

   (b) Reimburse, in the manner set forth in the section of the Intermediate Report entitled 'The Remedy,' as modified herein, all nonmember millwrights and millwright apprentices employed at the Demopolis project by payment to each of them an amount equal to 9 Porter-DeWitte Construction Co, The., 134 NLRB 963.

   10 In its answer to the Board ' s petition for enforcement , the Respondent Company asserted that it had fully complied with the stipulation except for that provision respecting reimbursement. To the extent that the Respondent has so complied , it is not intended by this Order to require further action by the Respondent Company.

   THE H. K. FERGUSON COMPANY 81 one-half of the moneys illegally exacted from him by the Respondent Unions.

   (c) If enforcement by a circuit court of appeals of the provisions of section B, 2, (a) and (b) and/or section C, 2, (a) and (b) of this Order, in whole or in part, is obtained, and compliance cannot be• secured from the Respondent Union, then jointly and severally with the Respondent Unions make whole the employees named in...