Local Union No. 18, IUOE, AFL-CIO, Etc.

512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the operations of the Employer Martino's as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor proctices, it is recommended that the Respondent cease and desist from engaging in such unlaw- ful activities. On the basis of the foregoing findings of fact, and upon the entire record in this case, there are hereby made the following: CONCLUSIONS OF LAW 1. Martino's Complete Home Furnishings is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. The object of the picketing which occurred on and after December 7, 1961, was to force recognition of Respondent as the bargaining representative of Martino's employees. 4. By the acts described above, Respondent Union did engage in and is engaging in unfair labor practices within the meaning of Section 8(b) (7) (C). [Recommended Order omitted from publication.] Local Union No. 18, International Union of Operating Engineers, AFL-CIO and its Agent, George E. Miller (Earl D. Creager, Inc.) and Paul Lewis. Case No. 9-CB-1044-1. March 15, 1963 DECISION AND ORDER On December 3, 1962, Trial Examiner Samuel M. Singer 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 at- tached Intermediate Report. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a supporting brief. Pursuant 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 [Chairman McCulloch and Members Rodgers and Fanning]. 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 In- termediate Report and the entire record in the case, including the 1 Respondent excepts to the Trial Examiner's conduct of the proceedings, and a1legps bias and prejudice on the part of the Trial Examiner and denial of due process. We are satisfied, on the basis of the entire record, that the Trial Examiner conducted the hearing fairly and that his factual findings and ultimate conclusions are supported by the record. ,See Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F. 2d 362 (C.A. 3) ; A. 0. Smith Corporation, Granite City Plant, 132 NLRB 339; Baker Hotel of Dallas, Inc., 134 NLRB 524, enfd . 311 F. 2d 528 (CA. 5). 141 NLRB No. 47. LOCAL UNION NO. 18, IUOE, AFL-CIO, ETC. 513 exceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner 2 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. 2 For the reasons set forth in the dissenting opinion in Isis Plumbing & Heating Co., 138 NLRB 716, Member Rodgers would not award interest on backpay. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed April 30, 1962, by Paul Lewis, an individual, the General Counsel on July 26, 1962, issued a complaint alleging that Respondents, in violation of Section 8 (b) (2) and (1) (A) of the Act, attempted to cause and caused the Em- ployer, Earl D. Creager, Inc., to discharge the Charging Party who had been employed by the Employer. Respondents, in their answer, conceded certain allegations of the complaint but denied the commission of the alleged unfair labor practice. The case was heard before Trial Examiner Samuel M. Singer at Dayton, Ohio, on Septem- ber 24, 25, and 27, 1962. All parties appeared, were represented by counsel, and were afforded full opportunity to be heard and to examine and cross-examine wit- nesses. Briefs were thereafter filed by the General Counsel and the Respondent Union which have been fully considered.' Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER; THE STATUS OF THE RESPONDENT Earl D Creager, Inc., the employer of the Charging Party at the time of his dis- charge, is an Ohio corporation with offices in Dayton, Ohio, where it is engaged in the building and construction industry as a general contractor. During the past 12 months, which is a representative period, the Employer had a direct inflow of goods and materials, in interstate commerce, valued in excess of $50,000, which were shipped to it directly from points outside the State of Ohio. Upon these admitted facts, I find that Earl D. Creager, Inc., is an employer within the meaning of the Act, and that it is appropriate for the Board to assert jurisdiction. Respondent, Local Union No 18, International Union of Operating Engineers, AFL-CIO, is conceded to be a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES The basic issue presented in this case is whether, as the complaint alleges, Respond- ent 2 violated the Act by causing the Employer (Earl D. Creager, Inc.) to discharge the Charging Party (Paul Lewis) because he was a member of a group which was opposed to, and sought to effect the removal of, the incumbent leadership in a pend- ing union election. Respondent admits that it had requested the discharge of Lewis but contends that the sole reason for this request was Lewis' alleged failure to abide by the terms and conditions of the referral system which was in effect under a collective-bargaining agreement between the Employer and Respondent. The facts pertinent to the consideration of this issue are detailed below. A. The antiadministration campaign in the pending union election and employee Lewis' role in that campaign Respondent Local 18, whose area of jurisdiction covers portions of Ohio and sev- eral counties in Kentucky, is composed of "six districts." Frank Converse has been 1 Respondents also filed a "motion to strike" the General Counsel 's brief because it "misquotes " portions of the record and makes "erroneous" or "non-existent" citations The motion is denied. I have, of course, ignored any quotations and citations which I found erroneous. 2 For convenience , Local 18 and Its agent , Miller, are herein referred to collectively as Respondent. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business manager of the local for over 20 years, and, as such, is "in full charge of its affairs" under the direction of the local's executive board. Under him and working under his direction is George E. Miller, the "District Representative" of District No. 4, situated in Dayton, who, as such, is "in charge" of this district.3 He is assisted by David Young, a business agent, and two clerks. At the time of the hearing, there were approximately 1,300 members in District 4. Lewis, the dischargee, has been a member of District 4 for many years. In Septem- ber 1961, he joined a group which sought to depose the incumbent leadership of Re- spondent Local 18 in the next union election to be held in June 1962. Commencing with September 1961, and ending with June 1962, the antiadministration group held monthly meetings in various cities in Ohio, attendance at the meetings ranging from 60 to 100. While the earlier meetings were attended primarily by members of Dis- trict 4, members of other districts of the local joined in subsequent meetings. Foster McComas, a District 4 member, was the chairman of the antiadministration drive. Lewis, along with others, took an active part in the campaign. He not only at- tended the insurgents' meetings, but also passed out antiadministration literature and cards, solicited members to attend the meetings, and "talked to the boys around the union hall." Lewis was not, however, a candidate for any office Two of the princi- pal candidates heading the anti-Converse administration slate were William Brewer and Gordon Body who came from District 4.4 George Miller was a candidate on the Commerce slate for the local's State executive board and for conductor.5 Miller conceded at the hearing that he and several of the local's business agents made it a practice to visit the meeting places of the insurgents. Miller and the agents would stand in the hall or lobby, a few feet from the entrance of the meeting places, and distribute proadministration campaign literature, the local's bylaws and consti- tution, and other items such as pencils. Miller admitted that he was not welcome at these meetings, stating, "I wasn't allowed in the meetings. I was there." Miller did not dispute that he met Lewis in the lobby of the hotel at one of the first meeings which he covered. Miller further conceded that he also covered two social functions held by the in- surgents to raise campaign funds. One of these was a dance held in a wooded area in the country, late at night, on Saturday, February 17, 1962, for the purpose of pro- moting "a free and democratic election in Local 18." The other function-also a dance-was likewise held in a rural area. Miller, who at least on one of these occa- sions was accompanied by his assistant, David Young, would station himself outside the dance hall, drive around the building, and question members as to the identity of the men attending the function and as to "what went on in the meetings." 6 The record shows, and I find, that Miller resented the antiadministration activities of the insurgents, including that of Lewis. Ellen R. Collings, who was employed as a clerk in the office of the local until February 1962, credibly testified that in a con- versation with Miller concerning Lewis' registration card sometime in November 1961, Miller referred to Lewis as a "damn rebel." Lewis credibly testified that at a regular meeting of the local sometime in April 1962, Miller, after remarking that Lewis was "hired off bank to Cripps." 7 told him that "some of your so-called buddy rebels put you up to go out there and get that job." Miller, on direct examination, flatly denied that he had ever referred to Lewis or any other member as a "rebel." On cross-examination, Miller retracted somewhat, stating, "I don't recall it, sir. I don't remember using the word." When confronted with his prehearing statement, he retracted still further, stating, "I referred to the group as that, but never did I call anyone to his face a rebel." The union election, held June 24, 1962, was won by the incumbent slate by a vote of approximately 2,700 to 1,700. 3 Miller is also identified in the record as a "business agent." 4 The slate, selected at the January 1962 meeting of the antiadministration group, came to be known as the Body-Shimman-Brewer slate. B The "conductor" checks the membership status of employees for admission to union meetings 6 Miller conceded that he made these inquiries, but be also testified that he went to these functions, as an agent of District 4, to determine "if they were bootlegging if it was held under the name of Local 18." I do not credit Miller's explanation of the motive which allegedly prompted his surveillance of the insurgents' social gatherings On the record as a whole, I find that Miller's presence near the dance halls, as well as at the business meetings of the insurgents, was motivated by his desire to ascertain the identity of the antiadministration supporters and to discourage, if not intimidate, the attendants 7 See snfra The term "hired off bank" refers to the procedure followed by employees in securing employment outside the referral system or, in the local's view, in violation of that system. LOCAL UNION NO. 18, IUOE, AFL-CIO, ETC. 515 B. The Union's request for the discharge of Lewis and his consequent discharge Lewis is an experienced operating engineer, having worked in that capacity for many years.8 The items of machinery which he has operated include dozers, side loaders, and all types of rubber equipment He was employed by Earl Creager, Inc., from June until the latter part of September 1961, when he was laid off. On September 24, Lewis registered as an applicant for employment with the Union. From the middle of October until the middle of November, he was again employed after which he again registered for employment with the Union. He returned to work for Charles H. Shook on November 24 and worked there through Novem- ber 29. On December 29 he registered once more with the local but remained unemployed until March 26, 1962. In the meantime, he reregistered for employment on January 23, February 20, and March 16, 1962. Responding to an ad placed in a newspaper by Robert S. Cripps, Lewis was hired by Cripps on March 26 and worked there 9 hours that day; Lewis did not report this employment to the Union.9 The next day, March 27, Lewis reported to work for Earl D. Creager, Inc., in response to a direct call from Creager.i0 There is a sharp conflict in the record as to whether Lewis had reported his em- ployment with Creager to the Union within 24 hours as required by the Union's rules and the referral agreement then in effect between Creager and the Union.ii Lewis testified that prior to leaving for work on March 27, he instructed his wife to telephone Miller that he was "going back to work for Earl Creager." Mrs Lewis confirmed her husband's testimony, stating that she made the call, as instructed, the same day, between 9 and 10 a.m. Miller was not in the office, whereupon she told the office clerk with whom she spoke to "please tell him that Paul went back to work" for Creager that day.12 The witnesses called by Respondent, including Miller and the Union's two office girls, could not recall receiving such a call from Mrs. Lewis. One of them testified that she receives numerous calls, on some days hundreds of them, and the other protested that she had no information regarding the Lewis matter.13 Miller himself first testified that he was not in the office on the morning of March 27,14 but then testified that he did not know whether he was present. I was favorably impressed by Mrs. Lewis' straightforward and forthright testimony on this and other points,15 and find her to be a credible and trustworthy witness. Under all the circumstances, I credit her testimony that she made the telephone call notifying the local's office that her husband returned to work to Creager. 8 Miller testified that he has known Lewis for 10 years, that each has visited the other socially, and that he has worked with him in the past 9 Under the referral system, described infra, an applicant for employment is obligated to report his employment to the Union's office within 24 hours of such employment Cripps, who testified at the hearing, indicated that he was not subject to the referral system, as he had resigned from the association before it had executed the current referral agreement with the Union in behalf of its members (see infra). As hereafter noted, Respondent disputes that the resignation was effective. ii There is no dispute that Creager was a union employer and bound by the referral agreement between the Union and the employer association of which Creager was a member. See infra "Admittedly Creager did not hire Lewis through the Union. Miller testified that although direct hiring by an employer is a violation of the written referral agreement, the Union "would accept" such hiring procedure if the employee reports his employment within 24 hours 1" As indicated infra, it was customary for members of an employee's family to make such telephone calls on behalf of the employee. 13 The latter, Rozella Rains, appeared to me most anxious to prove that she knew noth- ing about the Lewis case and did not wish to be involved in it. 14 When asked if he was in the office on March 27, Miller replied, "I would say that I was maybe at midnight," indicating that he was in Cleveland that day from which city he does not normally return to his office in Dayton until 11 p.m or midnight When asked at a later point whether, if one of the office girls received Mrs Lewis' call she could have ignored it, Miller replied, "It's possible, but I don't believe it happened " At one point in his testimony Miller acknowledged that in a conversation with Lewis on April 30 or May 1, subsequent to Lewis' discharge, infra, Lewis had called his attention to the fact that his wife had made the telephone call in question 15 Mrs Lewis also testified as to her husband's periods of employment during the period here involved on the basis of meticulously kept records. Her testimony jibes with the Union's own records (the registration cards). 708-006-64-vol. 141-34 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sometime during the week of April 2, Charles D. Creager, a foreman of Earl D. Creager, put in a call to the Union for some operating engineers. Miller assured Craeger that he would furnish the operators but complained that the Company had been violating the referral agreement by hiring operators directly, citing the case of Lewis and eight other operators whom the Company had hired in this manner 2 or 3 days previously.16 Miller claimed that there was a violation, because neither the Company nor the operators called "the Union Hall." Miller then said if the Company "didn't lay Paul Lewis off they were going to shut the job down." Nothing was said with reference to the other men hired directly by the Company.17 On April 10, Miller called Earl Creager himself, requesting that he discharge Lewis because he was not "eligible" to work under the referral system. Creager agreed to do so provided the request was made in writing. Thereupon, Miller for- warded to Creager a letter dated April 11, 1962, requesting Lewis' "immediate re- lease and discharge from your employment" because Lewis had allegedly failed to report his employment to the Union within 24 hours of securing such employment. In it he recited the language of section 2(E) of the referral agreement in effect between the Union and the Company (see infra). Creager discharged Lewis on April 13 "per Union request." During the next month, Lewis discussed his discharge with Miller on three separate occasions. When Lewis sought to reregister as an applicant for employment, Miller declined to register him, stating that his only recourse was to file an appeal with the board of review and arbitration-a procedure set up in the referral agreement (see infra). According to Miller, at their last meeting in the middle of May, Lewis asked "when this hearing [before the Board] was coming up." Miller replied by asking Lewis if he had made a formal written request. Miller could not recall Lewis' reply, but he did recall telling Lewis "that I felt that he had chosen to take his case to the Labor Board rather than through the board of review and Arbitration." 18 In the meantime, on April 17, 1962, Lewis obtained employment "on [his] own," at Cripps-the employer for whom he had worked briefly on March 26. Lewis was again laid off at the end of July. C. The referral agreement and hiring procedures Reference already has been made to various provisions of the referral agreement between Earl D. Creager and the Union. These provisions were embodied in a collective-bargaining contract, executed June 5, 1961, by the Union and the Miami Valley Association Contractors, of which Creager was a member.19 The referral agreement provides, among other things, for referrals of qualified personnel on a nondiscriminatory basis and without restriction to union membership. The Union is to set up and maintain a register or roster of available applicants. Referrals are to be made in accordance with a system of priority, depending on length of employ- ment and experience as operating engineers in the State of Ohio. The employer reserves the right to reject any applicants referred to him. He may also, as we have 16 The foreman took the position that the Company had before this similarly recalled employees who had worked for it during the past year, and stated that he did not think that this action was a violation of the agreement Apparently Miller similarly construed the referral agreement on May 14, 1962, when he signed his prehearing affidavit. At that time he stated, "If Lewis had not gone to work for Cripps in violation of the referral system, his going to work for Creager would not have been a violation, since he had worked for them within the past twelve months " However, at the hearing, Miller re- pudiated this statement as incorrect and as a "slipup" on his part. The applicable pro- vision in the referral agreement, described infra, reads: "Employers may hire through this Referral Policy by name former employees who have been employed within the State of Ohio during the past twelve months and who are registered and available for work, notwithstanding their place on the register." 17 Miller admitted that he had threatened "to pull the operators out at Earl Creager's" but claimed that he did so because of Creager's violations of the referral agreement re- specting other hirings and not respecting Lewis alone. I do not credit Miller's version, particularly in view of the fact, noted infra, that the Union did not resort to the drastic step of requesting their discharge, as it had done in the case of Lewis. Is Lewis filed his charge in this proceeding on April 30, 1962. He never filed a formal appeal with the board of review and arbitration. 19 The agreement, under its terms, was to expire May 1, 1964. However, the association actually "closed" and became defunct on May 15, 1962. 'George Miller was one of the signatories on behalf of the Union. LOCAL UNION NO. 18, IUOE, AFL-CIO, ETC. 517 seen (supra, footnote 15) request referral of a specifically named employee who has worked for him the past 12 months, irrespective of the employee's position on the register. Provision is also made for applicants to notify the Union "by telephone or letter or telegram, or in person, of their continued availability for employment, within thirty (30) days after the date of last registration or re-registration, in order to maintain their places on the registers." The names of applicants employed for 5 or more days are to be removed from the register. With respect to the applicant's obligation to report employment-an obligation which, the Union contends, Lewis flouted-the referral agreement (section 2(E)) states: When an applicant is actually employed, he shall notify the Union's office at which he is registered within twenty-four hours. Failure to do so is an imposi- tion upon those registered and not employed, and, therefore, such applicant will be barred from re-registering unless and until he had made application to the Board of Review and Arbitration, provided for in Section 6 . . . and shows good cause for his failure to give such notice. Section 6, referred to above, permits a registrant or an employee who feels "ag- grieved by the operation of this referral system," to appeal to a tripartite Board, com- posed of a representative of the Union, of the employer, and a third person selected by these two.20 George Miller, the district representative, is in overall charge of the operation of the referral system He credibly testified that an applicant for employment registers by completing a registration or referral card in which he sets forth, among other things, the work for which he is qualified, his previous employers, and his last date of employment. One of the Union's clerks then classifies the card according to the employee's priority group and files it according to chronology; 21 she also puts the information on a "Rol-dex" which shows alphabetically, under the registrant's name, the date of registration. If the applicant obtains employment for 12 days within 30 days after registration, the clerk "pulls" it and places it in a "dead" file 22 If the applicant does not obtain employment, he must reregister at the end of the 30-day period-otherwise his card is also "pulled" and turned over to George Miller. Miller testified that he keeps these cards in the left drawer of his desk "for further reference." He further testified that if an applicant "comes in later after the thirty days, he is asked to fill out a new referral card"; if he does not reregister at all, his card is placed in the "dead file." Miller testified also that reregistration could be effected personally and by tele- phone or mail from the applicant or a member of his family; the receiver of the call, whether it be Miller or any of the office clerks, would then enter the date of registra- tion on a card. Similarly, the records shows, and I find, that an applicant or a mem- ber of his family could, and did, report by telephone that he secured employment. Maxine Howar, one of the Union's clerks, credibly testified that when such a call came in it was her practice to record it on a piece of paper and put it on Miller's desk along with the referral card of the applicant; no permanent record of the call, how- ever, was made. At the hearing the General Counsel and the Charging Party conceded the validity of the written referral agreement. They contended, however, that it was applied in a discriminatory manner, to the detriment of the anti administration group, of which Lewis was a member. In support of this contention, evidence was adduced purporting to show that members of this group, including Foster McComas, the in- surgents' campaign chairman, and others, were either not referred to jobs or were referred only sporadically, during the major part of the campaign, January-May 20 Section 6 reads: "Any registrant or any Employer who may feel aggrieved by the operation of this referral system shall have the right to file his grievance in writing within ten (10) days after the occurrence of the event concerning which he complains, with a Board of Review and Arbitration, consisting of one representative of the Union, one representative of the Employer, and an impartial third member to be selected by agreement of the Union and the Employer , and the decision of this Board shall be final and binding on all parties" 21 Lewis was classified in the top priority group as an employee who, among other things , had worked at least 120 days per year during each of the past 4 years as an operating engineer. 22 If the employee works less than 12 days, he is restored to his previous position on the register As already noted, the contract itself fixes the period of employment as 5 days, not 12 days. According to the Union this departure from the contract was brought about by "mutual agreement" because there were "many complaints by members that they had short spans of employment." 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1962. Respondent, on the other hand, adduced evidence purporting to negate the existence of discrimination-claiming that neither McComas, nor Lewis , nor other antiadministration members were treated differently . In view of the findings and conclusions hereinafter made and, further , in view of the failure of the complaint to allege any violation on the part of Respondent by reason of the discriminatory appli- cation of the referral agreement , I do not find it necessary to resolve the conflicting evidence on this point. Conclusions It goes without saying-and Respondent does not contend otherwise-that the activities of employees , such as those of Paul Lewis, to oust the incumbent union leadership and elect new union officers in a forthcoming union election , are con- certed activities protected by Section 7 of the Act. Local 138, International Union of Operating Engineers AFL-CIO (A. Crestone Co.), 118 NLRB 669, enfd. 254 F. 2d 958 (C.A. 2); Falstaff Brewing Corporation, 128 NLRB 294, 305, enfd. 301 F. 2d 216 (C.A. 8). Hence, if, as the General Counsel contends, Respondent brought about the discharge of Lewis because of his antiadministration activities , Respondent's action was a violation of Section 8(b)(2) and 1(A) of the Act. On the whole record, and particularly in view of the considerations set forth below, I find and conclude that the General Counsel met the burden of establishing that the Union caused the discharge of Lewis because of his opposition to the union leadership, and not because of his alleged failure to comply with the Union's referral system, as claimed by Respondent. 1. The record shows, and I find, that Lewis , a member of long standing in the Union, took an active role in the campaign to depose the union leadership, including Miller, the district representative of District No. 4 who ran for office on the admin- istration slate headed by Converse, his superior . Lewis joined the antiadministration drive early in the campaign (September 1961) even before the antiadministration slate was selected . He attended the insurgents ' meetings, passed out antiadministra- tion literature, solicited others to attend the meetings, and spoke to members around the union hall about the insurgents' cause. 2. Miller had known Lewis for many years and, indeed, had worked with him in the past and each visited the other socially. The record shows, and I find, that he was aware of Lewis' alignment with the antiadministration group and that he resented his activities, as well as those of the group he joined. Miller, as did other proadministration business agents, stationed themselves outside the meeting places of the antiadministration group held in different cities in Ohio, and admittedly saw Lewis at one of these meetings . He even observed the two dances held by the insurgents in isolated rural areas, where he questioned members concern- ing the identity of the attendants. Miller's resentment of the antiadministration adherents is evidenced by his characterization of these adherents as "rebels" and Lewis as a "damn rebel." 3. The insubstantiality and inadequacy of the explanations advanced by Respond- ent for its request to discharge Lewis also reflects on the motive of its conduct. Cf. N.L.R.B. v. International Brotherhood of Electrical Workers, Local 340, 301 F. 2d 824, 827 (CA. 9). As already found, Lewis, unemployed since December 1961, decided to secure a job on his own-without awaiting union referral-on March 26, 1962. Hired for the job by Robert S. Cripps, Lewis worked 1 day. The next day Lewis went to work for Earl D. Creager, who called him directly to take the job. Respondent contends that Lewis on each occasion violated the referral system by failing to report his employment within 24 hours, and that these two violations motivated its request for discharge. There is no claim that Lewis violated the referral system in any other respect. As already noted, Lewis regularly registered with the Union when he became unemployed. He renewed his registration every 30 days to remain current, his last registration prior to his discharge being March 16, 1962, 10 days before he secured the Cripps job. 4. I have already found that, contrary to Respondent's contention, Lewis (through his wife ) had made a timely report of his employment with Creager , in compliance with the referral system. Hence, the question here is whether Lewis' failure to comply with the 24-hour rule respecting the Cripps job motivated or justified the Union's request for his discharge . In disposing of this question I need not pass upon the contention of the General Counsel and the Charging Party that Lewis was not re- quired to report this employment under the referral system because (a) the employ- ment was only of brief duration (9 hours in a 1-day period ) and, if anything, the violation was de minimis; and (b ) Cripps was not a union contractor , bound by the referral agreement between the Union and the Miami Valley Associated Contractors, because he had resigned from the Association before the execution of the current LOCAL UNION NO. 18, IUOE, AFL-CIO, ETC. 519 agreement. Cf. District Council No. 19 and Local 334, Brotherhood of Painters, etc. (William B. G. Pitman Co., Inc.), 137 NLRB 682 .23 I shall, for purposes of this ,case, assume that Lewis was required to make a report of his employment with Cripps under the 24-hour rule. I find and conclude, however, that the alleged violation of the 24-hour rule was not the real cause for the Union 's instigation of Lewis' discharge and that in any event his antiadministration activity was at least a con- tributory factor, but for which the discharge request would not have been made. I further find and conclude that even if the claimed violation had been the sole factor in the Union's request for the discharge, Respondent's defense is not justifiable in law. 5. The record shows, and I find, that the Union, far from strictly enforcing the 24- hour rule, frequently condoned and waived it with respect to other employees. Admittedly, the eight operators whom Creager had hired 2 or 3 days before Lewis was engaged on March 27, did not give the required 24-hour notice and, yet, there is no evidence that any of them was discharged 24 One employee, Druscher, who testified that he had obtained a job directly through Creager, stated that he did not make a report until 1 week later (through his mother) and this employee is still employed by Creager; Druscher, though sympathetic with the antiadministration cause, did not campaign in its behalf. Respondent also waived the 24-hour rule against another employee, Charles Johnson, although Respondent first attempted to enforce it against this employee also 25 Significantly, the two office girls who, under Miller's supervision, handled the day-to-day operations of the referral system, could not even recall the existence of the 24-hour rule. One of them testified that the only time she would "pull" a registration card was when an employee would fail to reregister after 30 days of unemployment. Under all the circumstances, I find that Respondent would have condoned Lewis' noncompliance with the 24-hour rule-particularly as to a brief 9-hour job-were it not for the fact that Lewis was an active adherent of the antiadministration group which Miller resented. In any event, in seeking to justify the discharge of Lewis, Respondent relies on two alleged instances of noncompliance with the 24-hour rule. Since I have found that Lewis did comply in one instance (the Creager job), I must conclude that Respondent at best had mixed motives-one legal and one illegal-for effecting the discharge. The legal effect of Respondent's conduct is therefore the same as though the illegal reason for its action were the only operative one. Cf. N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883, 885 (C.A. 1); N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C.A. 2). 6. Moreover, if I am correct in my finding with respect to Lewis' compliance as to the Creager job, Respondent brought about the discharge of Lewis at Creager for an alleged past violation, which took place while Lewis was in the employ of another employer (Cripps). I do not believe that a union may even under a valid hiring hall agreement exact such sanction. A union may well be within its rights in seeing to it that an employee on a job holds that job in accordance with a valid referral agree- ment. When, however, it seeks to remove an employee from a job because of a past infraction of the referral agreement, having nothing to do with his present employ- ment, then it is seeking to apply punitive sanctions rather than merely seeking en- forcement of the referral agreement. This is not to say that the union may not still discipline its member for his past infraction , but whatever internal sanctions are imposed (e g., fine, suspension , expulsion ), these must not affect the right of the 28 By a letter dated May 24, 1961, Cripps informed the association that he was resign- ing from it as of August 1, 1961. Although the current contract was executed June 5, 1962, Respondent took the position that Cripps remained bound by the new contract as his resignation was not effective and timely under the bylaws of the association, a view supported by the executive secretary of the association , whom Respondent called as a witness. 24 While Miller testified that some of them reported their employment at a later period, he could not say that all had done so. 25 Johnson , like Lewis, had filed unfair labor practice charges against Respondent. Miller sought to justify the different treatment meted out to Johnson and Lewis, by ex- plaining that Johnson , unlike Lewis, was repentant, had acknowledged the errors of his ways, and had withdrawn the unfair labor practice charges In seeking to differentiate Lewis' attitude , Miller emphasized that Lewis , in a conversation subsequent to the dis- charge, told Miller, "To hell with the Union and the referral " Lewis ' denied making this statement I credit Miller's testimony on this point rather than Lewis as it is quite prob- able that he made such remarks, considering Lewis' temperament and the fact that Lewis felt himself unjustly discriminated against. I do not, however , credit Miller's testimony that it was this remark by Lewis which motivated the different treatment of Lewis. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD member to retain his job. See Union Starch & Refining Co. v. N.L.R.B., 186 F. 2c1 1008, 1012-1013 (C A. 7), cert. denied 342 U.S 815.26 7. One additional point raised by Respondent merits comment, though only briefly. Respondent seeks to negate the existence of discrimination by contending that no similar charges were lodged against it for discriminating against other anti- administration adherents-even the more prominent ones such as the candidates on the insurgents' slate. Apart from the fact that the General Counsel and the Charg- ing Party adduced evidence purporting to show otherwise, 27 It is clear that a discrimina- tory motive otherwise established is not disproved by a showing that a union or employer did not also discriminate against others. See N.L R.B. v. W. C. Nabors, d/b/a W. C. Nabors Company, 196 F. 2d 272, 275-276 (C.A. 5), cert. denied 344 U.S. 865.28 Respondent may well have believed that it could succeed in its objective by making "an example" (N L R.B. v. Link-Belt Company, 311 U S. 584, 602) of Lewis. Moreover, to have caused the discharge of the more prominent members on the opposition slate might have been too obvious. Finally, Lewis, who succeeded in securing a job at the height of the election campaign, may well have appeared to be the best target for Respondent's action. For all of the foregoing reasons, I find that the preponderance of evidence sup- ports the allegation in the complaint that Respondent caused the discharge of Paul Lewis because he was a member of a group that was opposed to, and sought to- unseat, the incumbent union leadership and, hence, that Respondent thereby violated Section 8(b)(2) and (1)(A) of the Act. III. THE REMEDY Having found that Respondents engaged in certain unfair labor practices, I will' recommend that they cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. And having found that Respondents have caused' Earl D. Creager, Inc, to discharge Paul Lewis, I shall further recommend that Re- spondents notify Lewis and Creager in writing that Respondents have no objection to his employment by Creager. I will also recommend that Respondent Union make Lewis whole for any loss of earnings suffered by reason of the discrimination against him.29 Respondent Union's liability for backpay shall terminate 5 days after it notifies Creager and Lewis as aforesaid Loss of earnings shall be computed in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. The backpay obligation of the Union shall include the payment of interest, to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the nature of the unfair labor practices committed, the commission by Respondents of similar and other unfair labor practices may be anticipated. The remedy should be coextensive with the threat. I will therefore also recommend that Respondents be ordered to cease and desist from infringing in any manner on the rights of employees guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. By causing and attempting to cause Earl D. Creager, Inc , to discharge Paul Lewis because of his sympathies for, and activities on behalf of, a group of employees 26 See also N L R B v Murphy's Motor, Freight, Inc, et al., 231 F lid 654 (C.A. 3) ; N L.R B. v. Spector Freight System, Inc, et al., 273 F 2d 272, 275-277 (C.A. 8), Bert denied 362 U.S 962; N.L.R.B. v. International Union, United Automobile, Aircraft, Agri- cultural Implement Workers of America, AFL-CIO, and Local 899, UAW-AFL-CIO (John 1. Paulding, Inc.), 297 F. 2d 272 (C.A. 1) ; N.L R B. v. International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers o f America, CIO, Local 291 (Wis- consin Axle Division, Timken-Detroit Axle Co ), 194 F. 2d 698, 701-702 (C A. 7) ; cf. Marlin Rockwell Corporation, 114 NLRB 553 27I have already noted that in view of the disposition herein, resolution of the con- flicting evidence on this point is not necessary. 27 See also N L.R B. v. Shedd-Brown Mfg Co., 213 F 2d 163, 174-175 (C.A. 7), cert denied 344 U.S. 865; N L R.B v. Local 369, International Hod Carriers' Building and Common Laborers' Union of America, AFL (A. C Frommeyer Co.), 240 F. 2d 539, 543 (C A. 3) ; N L.R B. v. L. J. Williams d/b/a Williams Lumber Company, et al., 195 F. 2d 669, 672 (C A. 4), cert. denied 344 U.S. 834. 29 As Respondent George E. Miller merely acted as agent for the Respondent Union, an order requiring him personally to reimburse the discriminatee for losses suffered is not necessary to effectuate the policies of the Act. Myles Worstell, Business Agent of Local 2023, et al. (Baker & Coombs, Inc), 114 NLRB 503, 514. LOCAL UNION NO. 18, IUOE, AFL-CIO, ETC. 521 which sought to defeat the reelection of incumbent union officers, Respondent Union and its agent, George E. Miller, caused an employer to discriminate against an em- ployee in violation of Section 8(a) (3) of the Act and thereby engaged in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 2. By the foregoing conduct, Respondents also restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act and thereby com- mitted unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, Respondent Union, Local Union No. 18, International Union of Operating Engineers, AFL-CIO, its officers, agents, representatives, suc- cessors, and assigns, and George E. Miller, its agent, shall: 1. Cease and desist from. (a) Causing, or attempting to cause, Earl D. Creager, Inc., its officers, agents, successors, or assigns, to discharge employees for seeking to defeat the reelection of union officers or otherwise engaging in concerted union activities in violation of Section 8 (a) (3) of the Act. (b) In any like or other manner restraining or coercing employees of said Company or any employee member of Respondent Union in the exercise of the rights guar- anteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action designed to effectuate the policies of the Act (a) Notify Earl D. Creager, Inc., in writing, that they have no objection to Lewis' employment, with a copy to Lewis individually, and that they request Lewis' immediate and full reinstatement to his former or substantially equivalent position (b) Post at their offices and meeting halls, copies of the attached notice marked "Appendix." 30 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by Respondent Union's representative and Respondent George E. Miller, be posted immediately upon receipt thereof, and be maintained by Respondents for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reason- able steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. 3. In addition, Respondent Union shall take the following affirmative action designed to effectuate the policies of the Act: (a) Make whole Paul Lewis 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 4. Respondents shall notify the Regional Director for the Ninth Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps have been taken to comply therewith.3i "In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." ai In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read* "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, as amended , we hereby notify you that. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT cause or attempt to cause Earl D. Creager, Inc., to discharge employees because they have sought to defeat the reelection of union officers or otherwise engaged in concerted union activities, or to discriminate against Paul Lewis or any of its employees in violation of Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL notify Earl D. Creager, Inc., in writing , that we withdraw our ob- jection to the employment of Paul Lewis and request his reinstatement to his former or a substantially equivalent position. WE WILL NOT in any other manner restrain or coerce employees of Earl D. Creager, Inc., or any employee member of this Union, in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. This Union WILL make Paul Lewis whole for any loss of pay suffered because of the discrimination against him. LOCAL UNION NO. 18, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) GEORGE E. MILLER, AGENT, LOCAL UNION No. 18, INTERNATIONAL UNION OF OPERATING ENGINEERS , AFL-CIO, Individual. Dated ------------------- By-------------------------------------------- GF.OHGE E. MILLEIL This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Transit Building, Fourth and Vine Streets, Cincinnati 2, Ohio , Telephone No. Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions. Cal-Style Furniture Manufacturing Co. and International Union, Allied Industrial Workers of America, AFL-CIO. Case No. 21-CA-4610. March 15, 1963 DECISION AND ORDER On December 17, 1962, Trial Examiner Morton D. Friedman 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 attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support of the exceptions, and the General Counsel filed a memorandum in support of Intermediate Report and Recommended Order of the Trial Examiner. Pursuant 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 Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Re- 141 NLRB No. 45.