Operating Engineers, Local 106

OPERATING ENGINEERS. LOCAL. 106 International Union of Operating Engineers, Local 106, AFL-CIO (Green Island Contracting Corpora- tion) and Theodore John Tutera. Case 3 CB 3219 July 18. 1979 DECISION AND ORDER BY MFMBERS JENKINS. MtURPHY, ANt) TRItiSI)At.E On April 10. 1979, Administrative Law Judge Ber- nard Ries issued the attached Decision in this pro- ceeding. Thereafter. Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National l.abor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent. International Union of Operating Engineers, l.ocal 106, AFL-CIO. Albany, New York, its officers. agents, and representatives shall take the action set forth in the said recommended Order, as so modified: I. Substitute the following for paragraph (b): "(b) In any like or related manner restraining or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. I Respondent has excepted to certain credihihl) findings made bh the Ad- ministrative t.aw Judge. It is the Board's estabhshed polhic notl to olerrule an administrative law judge's resolutions with respect to credihilily unless the clear preponderance of all of the reles.ani evidence convinces us that the resolutions are incorrect. Standard Drn Wall Product, Inc. 91 NLRB 544 I1950)1 enfd. 188 F.2d 362 (3d ('ir. 1951). We have carefull examined the record and find no basis for reversing his findings 2 Respondent has excepted to the Administrative Law Judge's recommen- dation thai the Board issue a broad cease-and-desist order requiring Respon- dent to cease and desist from violating the Act "in any other manner" Inasmuch as we do nolt ind Respoindent's ciinduct egregious or persasive enough to warrant the issuance of such n order, we shall substitute the Board's narrow language requiring Respondent to cease and desist fronm violating the Act "in a n hke or related mnlnner" for the provision reco m- mended bhy the Admiilstratlve L.as Judge See H, Anlot f;.s, In., 242 NLRB 1357 (1979). APPENDIX NOFI(cE To EMPLOYEES ANt) Ml MBFRS PO)STII) BY ORDER (): IIIF. NAII()NAI. LABOR RI!I AIIONS BOARI) An Agency of the United States Government The National Labor Relations Board having found after a hearing that we violated the National Labor Relations Act, we hereby notify you that: WI lI, N) cause or attempt to cause Gireen Island Contracting Corporation or ans other em- ployer to discriminate against employees in vio- lation of Section 8(a)(3) of the Act. Wl WEII.l. NOI in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WL vt1.1 request that, if appropriate, Theo- dore J. Tutera be returned to the employment from which he was discharged, upon our instiga- tion, on June 26, 1978, by Green Island ('on- tracting Corporation. Wti wltI. niake Theodore J. Tutera whole fr any loss of pay and other benefits he maN hav'e suffered as a result of the discrimination agailnst him since June 26. 1978. IN IIRNAIIt)N.\I. NI)ON ()i OPIR. \IIN(i N- (,INI RS. I.()(AI 106. AFI. C0 l)i I('lSl(ON BIRA I) AR II s. ,Administrative I.aw Judge: This case was heard in Alhan 5. New York. on Januarv 16. 1979.' T'he complaint alleges that Respondent. concededly a statutor labor organizalion, attempted to cause and did cause Green Island (ontracting ('orporation to discharge Theodore 'Iu- tera because l utera was not a member of Respondent and or because 'Iutera had not been cleared hN Respondent tor employment hy Cireen Island. thus violating Seetion 8(h2) and (I )(A) of the Act.- Green Island Contracting Corporation is engaged in the heavy and highway construction business in New York State. In 1977. it wsas awarded some contracts bh the State Department of Transportation (DOT) to perform construc- tion work on Interstate Highway 88. The testimon) discloses that such contracts are partiall? funded bh the Federal Government, and, apparentl in consequence thereof, contain requirements that a specilied number of minority and disadvantaged citizens be hired bh the contractor as trainees on each project.' John Budd. l'he motion h) counsel tor the General Counsel I, colrrct the Iranscrlpt is granted. ith the excepllon of the propos..ed correction at p 2h. I 6 ': he complainl and anser adequalels estlabhsh the .approprllleness o the assertion ofIjurlsdicllon bh the Board here ' ntortun.ilelv. the record colntlins none of' the relesa.nl conlracls or speclficallions 243 NLRB No. 99 551 I)EC'ISIONS OF NATIONAL, LABOR RELATIONS BOARD Green Island's Equal Employment Opportunity officer at the pertinent times, testified that under a contract for work at the Mineral Springs site,4 Green Island was required to hire nine trainees in four construction trade classifications, of which the three operating engineer trainee jobs are here of interest. In fulfilling these affirmative action training require- ments. Green Island (and presumably other such contrac- tors) makes reference to a list of referral sources published by DOT.' These authorized agencies include colleges. unions, community agencies, etc. Once a qualified trainee has been hired, the contractor places him in a D)OT-ap- proved on-the-job training program at the work site. The "programs" are, from all that appears, essentially alike in character and content, though they may bear different la- bels and be under different sponsorship. Thus, of' particular application to this case. Green Island has its own program for operating engineer trainees. recog- nized as such by DOT, under which it gives prescribed training to the recruits, monitors their progress, and makes periodic reports to the state agency. The Engineers Joint Training Fund (the fund), headquartered in Syracuse and evidently a collective instrumentality of locals of the Oper- ating Engineers, maintains a similar program for trainees (and, as well, serves as a referral agency). It appears that it it is decided that a trainee on a given project is to be trained "under" the fund program rather than the contractor's own program (if any), the actual training will generally be the same and will be overseen by the same journeymen, but the fund will be acknowledged as the official sponsor and will be responsible for performing the reporting and other pa- perwork. Budd testified that the fund program and the Green Island operating engineer program each consist, in total, of' 6.(XX) hours of training, divided into eight segments of concentration on various phases of the operating engi- neer craft. The record indicates that a trainee, once hired. may not necessarily receive all of the training needed to complete the program; there will be projects, obviously, too limited in scope or of too brief a duration to permit moving a trainee through all eight phases. Through its membership in the New York State Chapter of Associated General Contractors of America, Green Is- land recognizes and is in a collective-bargaining relation- ship with four Operating Engineers locals, including Re- spondent. While nothing in the bargaining agreement, or in the contracts awarded by DOT to Green Island, mandates that Green Island obtain operating engineer trainees from the fund or, once obtained, train them under the fund pro- gram. Green Island had in the past secured such trainees from, and trained them under the auspices of, the fund (al- though not exclusively). In April 1978, before the Mineral Springs job got underway. Harold Jones. the "outreach counselor" for the fund, whose job is to screen, place, and oversee the training of trainees, spoke to EEO officer Budd about the selection of the three operating engineer trainees required for the project. Budd said, when asked, that he intended to use the Engineers Joint Training Fund Program 4 Also referred to as "Cobhleskill" and "Shad Point." Work n this job began around April 1978. s Whether the DOT contract requires this is not clear from the record. as his source. Budd was, however, noncommittal when Jones asked if Green Island would take on one Irving Un- derwood, who had undergone another phase of craft train- ing for Green Island on a previous project. Budd thereafter obtained from the Fund two trainees for Mineral Springs. and theN went to work around Ma or June. For the third slot, however, that of grease truck train- ee. Budd decided to approach Operation Hitchhike, at source agency located in Cobleskill, New York. at the loca- tion of the Mineral Springs project. Before he did so. Budd inquired of Ralph Odorisio, Green Island's master me- chanic on the site, a statutory supervisor, and a member of Respondent. and of Frank House. Respondent's steward on the job. if there would be any objections to his going out- side the fund to recruit the third trainee. lTheN both told him, in separate conversations. that they would "check" to see ift' there would be any problems. Odorisio and House later reported to him that they had talked to George Mor- an. business manager of Respondent and member of the board of trustees of the fund. who said that he perceived no problems, but that the question should be presented to Ilar- old Jones. Around June 1,. Budd told Martin Parker. the assistant administrator of the fund, about his plan to recruit from outside the fund. Parker asked that. if Budd did so. he write Parker a letter to that effect. On June 7. Budd hired |utera. the Charging Party here, who had been referred b Opera- tion Hitchhike, and had him report to work as a heav\-dut\ greaser trainee at Mineral Springs on June 8. Budd told Tutera that the job would guarantee about 720 hours of employment and, according to Tutera. "that there would be a possiblility that I could stay beyond 72() hours i the Union would allow me to stay."6 Tutera was assigned to work on the grease truck with Respondent's Steward House, the only heavy-duty greaser on the job. Tutera testified that about a week or so after he was employed. and more than once, louse "mentioned the fact that the job wasn't supposed to go anywhere after 720 hours and then I told him. well. I'd join the Union after. And he told me that the nion wouldn't take me." Tutera further testified that. perhaps 10 days into the job. House said that Tutera "had gotten the job easily and that it took him about six years working as a permit man before he was taken in the Union." Finally., Tutera testified that on June 24, 2 days before his employment ended, tHouse told Tutera that "he resented me, that the men resented me, that I had gotten the job easily and that the mere fact that I was on the job meant that meant that a Union member couldn't get a job because I was there." House denied the first and final conversations, and was not asked about the second. Budd responded to Parker's early June request for notifi- cation of any hiring from outside the fund by sending Parker a letter on June 15, advising that Tutera had been employed "as a Heavy Equipment Operator Trainee but will be trained under Green Island Contracting Corpora- tion approved training program as a Maintenance Grease- man Trainee." The letter noted that Tutera had been re- cruited from Operation Hitchhike, and enclosed a copy of a letter from that organization certifying that Tutera was con- Budd's teslimnon did not confirm) this latter remnark 552 OPERATING ENGINEERS IOCAL 106 sidered "economically disadvantaged" by the New York State Department of Labor "in that he meets Federal re- quirements for CETA Title VI program and is presently unemployed." On June 20. Parker replied in writing, and stated, in per- tinent part: As the Engineers Joint Training Fund did not screen or place this individual with your firm, we have no was of determining whether he meets the criteria (State of [sic] Federal) for selection as a trainee. Thus, I do not feel Engineers Joint Training Fund should assume re- sponsibility or liability for this individual's placement or progress with regards to training on a federally as- sisted New York State Department of Transportation project. There is some uncertainty in the record about the events of the last days of Tutera's employment. Harold Jones. Re- spondent's outreach counselor, testified that in the course of a routine visit to the project around June 14 or 15, he be- came aware that Tutera had been hired and placed under the Green Island program, and he then, as he testified. ad- vised the fund that "a third trainee was placed under the Green Island project . . . [a]nd not bh the Engineers Joint Training Fund." While at the job. he asked master me- chanic Odorisio about this development, and the latter said that "he was under the impression that I had sent the train- ee up." According to Jones. everything that happened after June 14 or 15 "is hearsay as far as [I am] concerned." Odorisio, however, also testifying for Respondent. said that Jones brought a copy of Parker's June 20 letter to the jobsite on June 26 "and spoke to me." What Jones said to Odorisio is unreported, but Odorisio testified that, soon thereafter, he talked to Bruce Distephano. Green Island's project superintendent, and told him that the fund had stated in the letter that "being that Mr. Tutera was not sent out through the training program that they were not re- sponsible for the training of this man . . . and I asked him what he wanted to do." According to Odorisio, Distephano told him to "send the man home," which he then proceeded to do. Although the testimony is confusing as to the events of June 26, it appears that prior to the foregoing conversation, but after Odorisio had been advised of the Parker letter, the Green Island project office, having received a copy of the letter, called Distephano in to the office from the field over a two-way radio. Evidently while Distephano was on his way, Odorisio spoke to Steward House. who had pulled into the yard in the truck which House and Tutera used. and "explained the situation to him." House told Tutera to wait in the truck, and House and Odorisio disappeared. When Distephano arrived, and was about to go into the office, he saw House. According to Distephano, whom I found to be an impressive and creditworthy witness. "Frank said that he had received a call from the hall and that [Tutera] couldn't perform any duties, couldn't work, but he could ride on the truck."7 House, not an outstanding witness, was most equivocal in replying to this testimony, which was the main feature of Distephano's appearance. tHe could not "recall." hut didn't "really think.," that he had such a conversation. House conceded having told Tutera to "stay in the truck and I wasn't going After this conversation. Distephano prohablx spoke to Odorisio, as set out above. Somewhere along the line. Ilu- tera was told to go home. Tutera testified that both Hlouse and Odorisio told him ",ou can't stay here. go home." House testified that he himself made no such statement to Titera. but that lie heard Distephano order Odorisio over the radio to tell utera to leave, which Odorisio then did. Odorisio's testimonS makes it appear. however. that his in- struction fromn Distephano to tell Tutera to depart was given in person ("1 waited for Bruce to come up into the vard"). Based on probability and likelihood. I conclude that u- tera's departure came about as t;llows. Odorisio. having seen a copy of the Parker letter and having talked to Jones about it, acquainted House with the situation. A deteminna- tion was made to call Distephano in to discuss the problem, at which time House told him "he had received a call from the hall and that ed couldn't perform an, duties, couldn't work, but he could ride on the truck." Shortls thereafter. Distephano spoke to Odorisio about the issue. While Di- stephano was not examined to any' extent about subsequent events, it seems likely that he ultimately told ()dorisio over the radio that, if Tutera could not work. he should he in- structed to go home. That Distephano had been told that House would not continue to train Tutera is made clear bh House's testimony that Odorisio reported )istephano as having said "it' [Tutera] is not going to do any work. send him home." Budd testified that when he learned from lutera (at which time Budd was in Sy:racuse) that Tutera had been relieved of duty. he investigated the circumstances, found out from Odorisio about the Parker letter. which he had not then seen,, and, on June 27, called Respondent's Business Manager Moran. he latter assertedls said that "because of the letter from Mr. Parker. he didn't feel that he could train people in two different programs .. [and that lie agreed with Mr. Parker's letter that they would ha'.e no responsi- bility for Mr. Tutera." Budd then called Parker. When lie told Parker that Moran had "interpreted the letter in a uax that he didn't want people on trainees on the job from ... two different programs." Parker replied that "that really wasn't the intent of' the letter." Parker, who did not know until then that Tutera was no longer working said he would look into the situation. On June 28. Budd and Parker spoke again. This time, Parker said that "he had checked all the different possibili- ties and he couldn't get Mr. Tutera into the Fund and that Mr. Moran was very adamant. the fact that he didn't want trainees on the job in two different programs. There ,was nothing he [Parker] could do." Thereafter. Budd called Tu- tera. told him there was nothing more to be done and his layoff would he necessar,. and asked him to pick up his check. ' to train him until I found out what was going on:" "You can st;il as long as you want. It's up to Green Island to ake care of u" I credit )istephano iOdorislo telling him that Tulera "couldn't receive training on the pro- gram because he was not in a L .nion sponsored program " ' Parker testified hat he recalled one telephone cersatlo in which Budd told him that a man had been ternminated and "uld the following day coniact the National La hbor Relat ns Board " lie il ,ld not reall /in- 553 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 5. having received a copy of Tutera's charge filed with the Board. Budd called Moran to discuss this develop- ment. Moran said that Green Island "shouldn't have laid him off. He just said they wouldn't train him. So he said, really, that Mr. Tutera should be filing the suit against Green Island and not Local 106." Analysis and Conclusions The evidence and findings recited above require a con- clusion that the agents of Respondent brought about the discharge of lutera in a manner and for reasons proscribed by the statute. The effective end of Tutera's employment began with Parker's June 20 letter, asserting that the fund would not assume responsibility for Tutera's "progress with regards to training" on the Mineral Springs job. It is reasonable to assume that when Jones, the outreach counselor for the Fund and a member of Respondent, spoke to Odorisio on June 26 and showed him a copy of Parker's letter, his inten- tion was to cause members of Respondent to refuse to lend their skill and energy to the training of Tutera; no other reason suggests itself for Jones' appearance, ctun letter, at the project." That this message was conveyed to Steward House and acted upon by him is indicated by Distephano's credited testimony that House told him "he had received a call from the hall and that [Tutera] couldn't perform any duties, couldn't work, but he could ride on the truck." Since, as the record shows, louse was the only employee whose duties involved greasing equipment, it was, as Distephano eal- ized, pointless to keep Tutera around, and he was told to leave. Thus, House, Respondent's agent, was the efficient cause of Tutera's departure. Thereafter, Tutera was, as Budd tes- tified, "in limbo" for a few days. while Budd attempted to secure agreement to Tutera's reinstatement. The fund's assistant administrator, Parker, felt, or so he said, that his letter had been misinterpreted: however, when he inquired thing else about the conversation. Moran testified that Budd on one occasion called him and asked what Moran thought about the Parker letter. Moran replied that he concurred with its contents. Neither Parker nor Moran was asked about Budd's testimony that Parker had reported Moran as being "very adamant [about) the fact that he didn't want trainees on the job in two different programs." Being a description of Moran's "then existing state of mind," it is questionable whether this remark constitutes hearsay. See Rule 803(3), Federal Rules of Evidence. However, if it is hearsay, it was not objected to and therefore "has probative value." O'Malley Lumber Compans. 234 NLRB 1171 (1978). As noted, Moran was present at the hearing, but offered no contradiction. Parker and Moran made a good impression. However. in view of Parker's failure to "recall" matters about which he likely would have had a recollec- tion, and should have been able to deny or affirm, Moran's failure to address himself to the question of whether he had taken a "very adamant" position in speaking to Parker, and my belief that Budd was an honest man with no ax to grind or ox being gored. I credit Budd's account of the events subse- quent to June 26. 10 Although Odorisio is named in the complaint as an agent of Green Island. not Respondent, I note, while I make no finding that Odorisio was acting on Respondent's behalf, that he obviously allied himself with the Union rather than management. In his testimony, Odorisio uniformly classi- fies himself on the union side ("we") as opposed to the employer's side ("they"): e.g.. "Yes, as far as we were concerned, he could have stayed on the job, but we would not assume the responsibility of training him, seeing that they brought a man on their training program." into the matter, he was thwarted by Moran, Respondent's business manager, who was "very adamant . . . that he didn't want trainees on the job in two different programs." leaving "nothing [that Parker] could do." It followed that Green Island felt compelled to discharge Tutera. It would be a fair inference, on this record, that the desire to have Tutera off the job stemmed from the fact that Green Island had chosen to hire Tutera through Operation Hitchhike rather than obtaining a recruit (and more partic- ularly the partially trained Underwood) from the fund. It is true that on a previous occasion in 1977, Budd had secured an operating engineer trainee from an agency other than the Fund without protest from Respondent or the fund, but there the circumstances were different, in that the fund had been unable to fulfill Budd's request for an applicant. Here, on the other hand, Underwood was offered and rejected. At the hearing, Respondent presented testimony by Howard L. Sheffey, an employee of the affirmative action office of the state DOT. Sheffev testified that his office has a policy of encouraging the use of only one training program on a project, instead of, lor example. training being given under both a Green Island and a Fund program. He cited. as the reason for this, the desire to provide "continuity" by "rolling over" a recruit from one phase of a program to another until the entire 8.000 hours were completed. The fact is, however, that the contracts awarded by the State contain no such limitation. and the Mineral Springs con- tract specifically approved the use of the Green Island pro- gram. While Sheffey testified that it is his "office practice" that this restriction is "generally made known" at precon- struction meetings, there is no evidence that any such an- nouncement was made at the conference preceding the Mineral Springs job, and Budd, on rebuttal, said there was not. The primary purpose of the policy referred to by Sheffley seems to be to assure that trainees qualif'y lor union mem- bership: "[A]gain, in recognition by our office that New York State is a 'Union State,' we, using reality, try to insure that each of our trainees are minimumly qualified, meet the minimum requirement for qualifications for Unions, whether they are accepted in the Union or not"; "[TIhe minimum qualification I spoke of earlier on, that would qualify them for entrance of application of consideration as a Union member." The logic of Sheffey's testimony would seem to dictate that the State should contractually approve no training programs on a given project other than those sponsored by unions; that is not, however, the practice, as stated above. The record does show. however, that the DOT contract contains the following provision, which was read into the record: The contractor will use his or her best efforts to de- velop in cooperation with the Union's Joint Training Program and [sic] towards qualifying more minority group members and women for membership in the Union and then increasing the skills of minority group employees and women so that they may qualify for higher paying employment. The foregoing evidence by Sheffey appeared to fore- shadow a defense that, in objecting to Tutera's employ- ment, Respondent was only acting in furtherance of legiti- 554 OPIRAFING tEN(GINI.ERS. LOC()('Al 106 mate state policy. In its post-hearing brief. however. Respondent's ermiphisis is less on the niotise of its agents than on the asserted wrongs committed h (ireen Island. Thus, "I[tihe Employer not only failed to cooperate with the Engineers Joint Training Fund. but willfully violated its commitment to hire all three of the required Engineer train- ees through the Engineers Training Fund, and also violated the established practice of having only one training pro- gram in operation on the project at the same time, so that the purposes of the Affirmative Action Training program could he properly served." In fact, the contract "cooperation" clause does not re- quire a contractor to hire only through a union source: Green Island made no binding commitment to hire from the fund: and the "established practice" referred to was not established nor was it required by the contract with DOT. Furthermore, the record is bare of any evidence that such a policy or the contract clause inspired the fund or Respon- dent to seek the removal of Tutera. The June 2) letter from Parker, who, as the Fund's assistant administrator, was pre- sumably knowledgeable about state policy in this area, did not charge that Tutera's appointment violated any tenet of that policy. Business Manager Moran. reported b Parker as "very adamant [aboutl the fact that he didn't want train- ees on the job in two different programs," did not testif on this subject, and we therefore have no idea why Moran took this position.'' But the fact that, as the context shows. Parker obviously made some attempt to dispel Moran's adamance is strong evidence that the policy referred to by Sheffey was not thought b Parker to be an inviolable one. Also convincing in this regard is the instance previously mentioned in which Jones was unable to supply a trainee to Budd by a certain date, and Budd thereupon recruited one from another source. A firm policy against the use of multi- ple programs would setmingly have dictated that Budd wait until Jones found an applicant or that the Fund should undertake the sponsorship of whomever Budd eventually recruited. In point of fact, however, neither the fund nor Respondent took any steps of this sort to ensure that there would he no duplication of training programs. It would therefore appear that Respondent, through its agents House and Moran. was the operative cause of the termination of Tutera. and that the underlying motivation for the discharge was the fact that T'utera had been re- cruited from a source other than the fund. The Board has erected a presumption regarding such displays of power by unions, set out in International ntion o ' Operating Engi- neers, Local 18, 4 FL CIO (Ohio Contracrors ssn.), 204 NLRB 681 (1973): When a union prevents an employee from being hired or causes an employee's discharge, it has demon- strated its influence over the employee and its power to affect his livelihood in so dramatic a way that we will infer or, if you please, adopt a presumption that the effect of its action is to encourage union membership u It may be contended that Moran would hardly have been disposed to openly oppose Tutera's employment on the ground that he had not been referred by the fund: the next, more neutral. argument which would sensibly present itself would be a general distaste for having trainees in different programs. on the part of all employees who hase prceivedl that exercise f power. But the inlference nmla\ he ,iercomne, or the presumption rebutted, niot onyI1 Al henI the inlcr- ference with employment was pursuanl to a alid uniorl-securit clause. but also in instances , here the facts show that the union action was necessarN to the effectlve performance of its function ot representilni its constituency. The present case seems to be an unusual one in that the affected employee was not a mnlenlber of the bargailinlg Ulit and the nion conduct was not designed directlt, to strengthen the Inion's own position. but rather that of a related agency, the fund. The quoted principle. hoes.er. raises a presumption of encouragemenlt of' union mellber- ship from the "dramatic" act of causing discharge. regard- less of' the status of the employee insoled r the signif- icance of the advantage occurring to the union: as the Board indicates, the nature of the act is such that It palp;a- hbly inspires respect for union power and a consequent ill- ingness on the part of observant employees to adhere to union desires. The question whether Respondent has rebulltted the pre- sumption hby showing that "the union action t as necessars to the effective performance of' its function 0|' representing its constituenc" is rather difficult to address here hbecause. in a sense. "the union action" in this case na be said to have consisted of two stages. It can be argued that "the union action" was complete and efflectie after Steward tlouse announced to [)istephiano that he sould not traiii I'utera thus setting in motion the termination of the latter. The record does not show that House was Iacting for any reason other than his understanlding that Respondent and` or the futind did not \eant him to train I utera he conceded that he was ignorant of the rules pertaining to traininlg pro- gramls. and thus could not haxe acted in the belief th at he was helping to enforce a state policy. he second stage. arguably. as the period during which Budd attempted to secure clearance for futera. while utera was ''i tiniho." At that point. Budd's efforts were frustrated by Moran. who insisted. despite Parker's eident (and accurate) belief' that there was no legal harrier to reinstating Tutera. and Ldespite the ftact that Green Island had on a presious occasioll trained employees under different programs simuitia- neously, that "he didn't swant trainees on the job in two different programs." Even assuming that Moran's motivation .sas the signifi- cant one here, it is inferable that Moran's determination was grounded in Respondent's pique at Green Island's re- fusal to accept trainee UInder ood and its desire to secure a monopoly for the fund as a trainee source. Since Uinder- wood was not entitled to the job, since Respondent was not the bargaining representative of trainees, and since the fund was not entitled to monopoly status, it can scarcely be said that "the union action was necessary to the effective per- formance of its function of representing its constituenc." Indeed. that standard for rebutting the presumption would not be met even if it were assumed, rgucndo. that House and Moran were moved bh a desire to enforce what they sincerel3 believed to be a state polico prohibiting dual training programs. since, as I find, there was no such strict policy, and. even if there were its enforcement swas plainly DIl)(ISIONS O: NATIO()NAL LABOR RELAI IONS BOARI) not "necessary to the effective performance of [Respon- dent'sl function of representing its constiuency." Moreover. even if the quoted standard were diluted to require only that Respondent was attempting to "[promote] legitimate union objectives," District C(ouncil No. 2 of /the Brotherhood of Painters and llied 7'radcs,4 AFL ('10 (Th11e Plintsmilhs, Inc.), 239 NLRB 1378 (1979). and again mak- ing an argelndo I assumption that Respondent's motive was simply to ensure compliance with State policy, I do not see how causing the termination of an employee in pursuance of a nonexistent state regulation can be considered the pro- motion of "legitimate union objectives." In a section of Respondent's brief entitled "Respondent's Position." two other separate contentions are set out. Quot- ing the brief' "Respondent contends that under the facts there was no obligation or duty on the part of its members to train Tutera." This general assertion is, of'course, subject to the law's strictures: Respondent's members could not, at the behest of Respondent, refuse to train Tutera, if such refusal would result in discrimination against Tutera. for the purpose of accomplishing an unlawful objective. Re- spondent further "contends that the Employer never specif- ically directed any employee member of the Respondent to train Tutera after receipt of said letter, nor did the Respon- dent directly or indirectly ever request that the Employer lay off Tutera." Respondent argues that Green Island should, and could, have "instructled] House to continue to train Tutera and if he refused then discipline him by send- ing him home." House was the only grease truck driver on the job, as well as the steward. To have sparked a confron- tation with him, possibly leading to his suspension or termi- nation, would at the least have resulted in the loss of an employee and at worst a serious labor dispute. By present- ing Green Island with such a Hobson's choice, Respondent effectively paved the way for the termination of Tutera. Cf. Journeymen Plasterers' Protective and Benevolent Society oj Chicago, Local No. 5 (John P. Phillips Plastering Co., Inc.), 145 NLRB 1608, 1609 (1964). Although Tutera testified, as indicated above, to hostile remarks made to him by House during his brief period of employment, I do not think, assuming the remarks were uttered. that they were relevant to the discharge." For the reasons set out above, I conclude that by causing the discharge of Tutera on or about June 26. 1978, Respon- dent violated Section 8(b)(1 )(A) and (2) of the Act. C(ON(CI.USIONS OF LAW 1. Respondent International Union of Operating Engi- neers, Local 106. AFI. CIO, is a labor organization within the meaning of the Act. 2. Green Island Contracting Corporation is an employer engaged in commerce within the meaning of the Act. 3. By causing the discharge of Theodore J. Tutera on or about June 26. 1978. Respondent violated Section 8(b)( )(a) and (2) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of the Act. 12 utera was not a particularly impressive witness for reasons apparent upon the record Still. I was even less taken by House's testimony, and, if I were required to choose between them I would credit rutera. T111 RFMEI)Y Having found that Respondent has engaged in unfair la- bor practices within the meaning of the Act, I shall recom- mend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act. I recommend that Respondent be required to make Theodore J. Tutera whole fr any loss of pay and other benefits sustained by reason of the discrimination against him from June 26, 1978, to the day that Respondent re- quests Green Island to reemploy Tutera or the day upon which Tutera's employment with Green Island could rea- sonably have been expected to terminate, whichever is ear- liest. Backpay shall be computed in accordance with F. W W4oolworth Company, 90 NLRB 289 (1950), Isis Plumbing & Ileating Co.. 138 NLRB 716 (1962). and Florida Steel Cor- poration, 231 NLRB 651 (1977). I further recommend the posting of traditional notices. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: ORDER' The Respondent, International Union of Operating Engi- neers, Local 106, AFL-CIO, its officers, agents, and repre- sentatives, shall: I. Cease and desist from: (a) Causing Green Island Contracting Corporation or any employer to discriminate against employees in viola- tion of Section 8(a)(3) ol the Act. (b) In any other manner interfering with. restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following action which will effectuate the policies of the Act: (a) Make whole Theodore J. Tutera for any loss of' pay and other benefits he may have suffered by reason of the discrimination against him caused by Respondent in the manner set forth in the section of this Decision called "The Remedy." (b) Notify Green Island Contracting Corporation in writing that it has no objection to the employment of Theo- dore J. Tutera and that it requests Green Island Contract- ing Corporation to return Tutera to the employment from which he was discharged, if appropriate in the present cir- cumstances. (c) Post at its offices and hiring halls copies of the at- tached notice marked "Appendix."" Copies of said notice, i~ In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions. and Order, and all objections thereto shall be deemed waived for all purposes. " In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." S5h OPERA IlI(i N(INF ERS. IOC('AI (106 on frms provided by the Regional I)irector fr Region 3. after being duly signed bh Respondent's representative. shall be posted b it immediately upon receipt thereof: and he maintained by it ftr 60 consecutive dass thereafter, in conspicuous places. including all places ihcere notices to members are customarily posted. Reasonable steps shall he taken by Respondent to insure that said notices are not altered, defaced, or covered by ans other material. (d) Mail to the Regional Director fir Region 3 signed copies of the notice attached hereto marked "Appendix" for posting by Green Island Contracting ('orporation. i it be willing, at its premises. in places where notices to em- plosees are customarily posted. Copies oft the notice, to be furnished bh the Regional l)irector for Region 3 after being duly signed hb an authorized representative ofl Re- spondent shall be forthwith returned to the Regional D)i- rector tr such posting. (e) Noti( the Regional I)irector for Region 3. in uriting. ithin 2() dass from the date of' this Order, uhat steps Re- spondent has taken to compl, herewith. 557