Local Union No. 38, United Assn. of Plumbers

370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are, free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization , except to the extent that such right may be affected by an agreement authorized by Section 8(a)(3) of the Act, as aforesaid., THE GOLUB CORPORATION, Employer. Dated ------------------- By------------------------------------------- (Representative ) ( Title) MECHANICVILLE CENTRAL, INC., Employer. Dated------------------- By-------------------------------------------- (Representative ) (Title) 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board 's Regional Office, Fourth Floor, The 120- Building, 120 Delaware Avenue , Buffalo, New York, Telephone 842-3112. _ , , , Local Union No. 38, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (D. I. Chadbourne, Inc.) 1 and Phillip Havill. Case 20-CB-1297. Jwne 15,1966 DECISION AND ORDER On February 9, 1966, Trial Examiner Paul Bisgyer issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner further found that the Respondent had not engaged in certain other unfair labor practices and recommended that these allegations be dismissed. The Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief. Thereafter,, the General Council filed cross-exceptions and a supporting brief, and the Charg- ing Party and the Respondent filed reply briefs. Pursuant to the provisions of Section 3(b) of the Natonal Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Zagoria]. 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 Trial Examiner's Decision,_the exceptions, the cross-exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, con- 1 The caption of this case is corrected to include the name of the Employer. 159 NLRB No. 36. LOCAL UNION NO. 38, UNITED ASSN. OF PLUMBERS 371 clusions, and recommendations of the Trial Examiner, with the modi- fication noted below.2 [The Board adopted the Trial Examiner's Recommended Order]. 2 In adopting the Trial Examiner 's conclusion that the Respondent violated Section 8(b) (2) and (1) (A) of the Act by causing Chadbourne to terminate the employment of Havill for discriminatory reasons, we find it unnecessary to rely upon the Trial Examiner's comments, in the penultimate paragraph of his concluding findings, with respect to the Respondent's liability if it were assumed that the Respondent entertained an honest belief that Chadbourne had breached its contractual obligation by employing Havill outside the hiring hall. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was heard before Trial Examiner Paul Bisgyer on July 14, 15,• and 16, 1965, in San Francisco, California, on the amended complaint of the General Counsel,' and the amended answer of Local Union -No. 38, United Asso-' ciation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, herein called the Respondent or Union. Two questions are presented for decision (1) whether the Respondent, in violation of Section 8(b)(2) and (1)(A) of the National Labor Relations Act, as amended, caused D. I. Chadbourne, Inc., herein called the Company or Chad- bourne, to discharge Phillip Havill because he was not a member of the Union, and (2) whether the Respondent, in violation of the same subsections of the Act, operated a contractual hiring hall in such a manner as to accord preference-in job referrals to its members. Oral argument was heard at the close of the case and briefs were thereafter filed by the General Counsel and the Respondent in amplifica- tion of their positions. Upon the entire record,2 and from my observations of the demeanor of the wit- nesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF CHADBOURNE The Company, a California corporation, is engaged in the plumbing and heating contracting business in San Francisco, California. During 1964, it sales and services amounted to approximately $300,000, of which some $29,000 was paid by various governmental agencies for work. performed in connection with national defense. During the same period, the Company purchased materials valued at $15,000 which it received from suppliers located outside California. I find that the Company's' operations exert a substantial impact on national defense. At all material times, the Company has been a member of Associated Plumbing, Heating and Cooling Contractors of San Francisco, Inc., herein called the Associa- tion, which is an organization comprised of various employers engaged in the plumbing and heating contracting business. The Association represents its employer-members in collective bargaining and negotiated with the Respondent the agreement involved in this case. During 1964, the sales of Clausen-Patten, Inc., a member of the Association, amounted to approximately $761,000. Its purchases of materials during the same year approximated $223,900 in value, of which materials costing in excess of $50,000 were shipped to its California estab- lishment directly from outside the State or were received from a California supplier who, in turn, had received the materials from outside the State. 1 The original charge was filed on October 29, 1964, and a copy was served on the Re- spondent the next day. An amended charge was filed, with a copy being similarly served on the Respondent , on May 6, 1965. '2 The parties joint motion to correct transcript and General Counsel's Exhibits is hereby granted and the record is accordingly corrected to reflect the proposed changes. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. In view of the substantial impact of the Company's operations on national defense and its participation through the Association in multiemployer bargaining, I find it will effectuate the policies of the Act for the Board to assert jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Alleged unlawful discharge of Phillip Havill 1. The evidence The Company, as a member of the Association, has been party to a collective- bargaining agreement with the Respondent. Under this agreement, the Company, as well as the other contracting employers, is required to secure qualified journey- men plumbers and pipefitters from the Union's hiring hall. For such purposes, the Union maintains out-of-work lists for each craft. The agreement further pro- vides that "if the Union is unable to furnish qualified workmen within 48 hours after an Employer calls for them, the Employer shall be free to procure the work- men from any other source or sources." (Article II, section 7.) The legality of the contractual arrangement is not questioned. Pursuant to this agreement, Daniel I. Chadbourne, the Company's president, requested Robert J. Costello, the Union's business representative and dispatcher under the hiring hall arrangement, to send him a jobbing plumber and pipefitter competent to service boilers On July 27, 1964,3 Costello referred William Guse. Although Guse proved to be deficient in boilerwork, Chadbourne nevertheless retained him for other duties. About a month later, Chadbourne informed Cos, tello of this fact and asked for another jobbing plumber who had the ability to service boilers . On August 26, Costello dispatched Harold Stone who also lacked the required boiler skills. As a result, Chadbourne, on August 28 (Friday) spoke to Havill about his futile efforts to secure a competent boiler repairman from the Union and offered the job to Havill, although Havill had never registered on the Union's out-of-work list? It appears that Chadbourne had previously learned of Havill's boiler experience from a customer and his conversations with Havill. Havill accepted Chadbourne's offer. In accordance with Chadbourne's instructions, Havill went to the union hall the following Monday afternoon, August 31, to register and report his employment and Chadbourne's intention to send the Union written notification of this fact .5 However, finding the dispatch office closed, Havill spoke to Business Manager Maz- zola's secretary and advised her of the purpose of his visit. The secretary sug- gested that he return later to see Costello but before doing so that he first tele- phone to ascertain whether Costello was in. Havill's subsequent efforts to reach Costello that afternoon were unsuccessful. The next day, September 1, Havill managed to talk to Costello on the telephone. After identifying himself, Havill informed Costello that he was hired by Chad- bourne and that he wanted to be cleared for the job. Costello inquired about his prior employment. When Havill began to relate his employment history, Costello interrupted him and asked what "local" had he worked out of. In response, Havill stated, "Different locals," at which point, Costello again interrupted and said that he was "talking about the plumbing and pipefitting locals." 6 Havill's negative 3 All subsequent dates refer to 1964, unless otherwise indicated. * Havill had been in the Company's employ at various times since the fall of 1963, per- forming work not covered by the collective-bargaining contract. 5In situations where an employer exercises his right to secure workmen from outside the hiring hall, article II, section 7, provides that the employer shall "within 48 hours of such hiring, notify the Union of the name, address and social security number of each workman so employed, and shall require each such workman to come to the office of the Union for registration " 9 Havill so testified . According to Costello, he simply mentioned "locals" but not "plumbing and pipefitting locals." Considering the nature of their conversation, I find it very likely that Costello referred to "plumbing and pipefitting locals." In any event, whether he described the locals in those terms, it is obvious he meant local unions having jurisdiction over those trades 1 LOCAL UNION NO. 38, UNITED ASSN. OF PLUMBERS 373 reply elicited the statement from Costello that Havill was not going to work for Chadbourne, that he was not qualified, that he had not served an apprenticeship, and that Chadbourne could not hire whomever he wanted to. Probably at this point, Costello alluded to the fact that Chadbourne was under contractual obliga- tion to utilize that Union's hiring hall to recruit tradesmen .? Havill then remarked that Chadbourne had told him that the Union was not sending Chadbourne quali- fied men and that he considered Havill qualified to perform the boiler-work he needed done. Costello denied that Chadbourne had requested any men from the hiring hall and directed Havill to inform Chadbourne that if he wanted men, the Union had "men sitting on the bench." The conversation ended with Havill stating that Chadbourne had hired him and that he was going to work the following morn- ing and with Costello retorting, "like -hell" he was.8 Immediately after speaking to Costello, Havill telephoned Chadbourne and apprised him of his experience with Costello. During their conversation, Costello also made a call to Chadbourne which the latter received on another telephone while Havill held on to his wire. Referring to his conversation with Havill, Cos- tello, complained about Chadbourne's intention to hire Havill, whom he charac- terized as a "non-union man," 9 in disregard of Chadbourne's contractual obligation to recruit men from the Union's hiring hall. Chadbourne responded that the Union had failed to fill his requests for men qualified to service boilers and that therefore he was hiring Havill who possessed that ability. Despite Costello's indi- cation that the Union would take action unless Chadbourne utilized the hiring hall, Chadbourne expressed his determination to put Havill to work. Thereupon, Chadbourne resumed his discussion with Havill, informing him that Costello presented Havill's contemptuous attitude toward him. Havill denied such conduct Chadbourne then stated that he could not afford any trouble and sug- gested that they drop the matter. As indicated above, Guse and Stone, though lacking in boiler skills sought by Chadbourne, were dispatched to Chadbourne. As a result, Chadbourne com- municated with Costello, expressed his disappointment over those referrals and asked for an opportunity to interview others for the job. On the morning of Sep- tember 1, Costello dispatched Jack Baker, and on September 3, R. W. Unger. In their interviews, Baker admitted that he had not worked on boilers for 20 years and wanted to learn that phase of the trade, and Unger conceded he had no experi- ence in servicing boilers. For this reason, neither was hired. The Respondent does not dispute their lack of qualifications, but simply asserts the Union's good- faith belief that these individuals were qualified to do the required boilerwork. On September 3, Chadbourne called Havill and told him to report for work the next day, which he did. In reply to Havill's inquiry whether to return to the union hall for clearance, Chadbourne said that it would not be necessary but that he would send the Union a letter advising it of Havill's employment. Accordingly, on the same day (September 3 )10 Chadbourne addressed the following communica- tion to the Union. We have called you on numerous occasions for a qualified workman to do our boiler and control work as we are in' dire need of a man for this specialized work. We put in a request August 25th and you sent Mr. Harold Stone whom we have hired, but he has informed us he knows nothing about boiler or controls. 7 In the context of the interchange of remarks , I find , contrary to Havill 's denial, that Costello mentioned the existence of the contractual hiring hall , as Costello testified. 8 Except as indicated above, the foregoing findings are based on Havill 's more convinc- ing testimony which was not contradicted in material respects. 9 The characterization of Havill as a "non-union man" is based on Chadbourne's testi- mony, which Costello contradicted . The reference to Havill as a "non-union man" is also contained in the Union's September 22 letter, quoted infra, which Business Manager Maz- zola sent to Chadbourne after being briefed by Costello concerning Chadbourne's deter- mination to hire Havill Moreover, Costello was not too candid when , in addition to denying that he referred to Havill as a "non-union man," he volunteered that he "never really knew-[Havill] status " It is quite apparent to me that not only did Mazzola derive knowledge from Costello that Havill was not affiliated with the Respondent's parent organization, but also Costello 's Inquiry of Havill concerning the "locals" out of which he had worked and Havill's response , plainly reveal Costello's awareness of Havill's "non-union status " I credit Chadbourne's above testimony. zo It is apparent that the letter was erroneously dated September 2, since it mentions Unger's referral which admittedly occurr,d on September 3. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since then, we called August 28th, 31st and September 2nd requesting a workman for boiler and controls. You have sent us three men and to date you have been unable to send an experienced man for boilers and controls as specifically requested. This morning you sent Mr. Unger who has been employed with a water treatment firm and has had no background in steam fitting and readily admitted this fact. We do not consider this qualified steam fitters as requested. Since you have been unable to furnish us with a qualified workman, we are forced to hire a man that is familiar with this type of work, and are doing so according to our agreement as shown in Article II, Section 7, Notification of Hiring of Unregistered Person. Mr. Phil Havill has contacted your office and his name will be appearing on our regular monthly report. He will be employed starting September 4, 1964. Several days after receiving this letter, Costello briefed Joseph P. Mazzola, the Union's business manager who had previously been absent from the city, about the Chadbourne situation. Costello then telephoned Chadbourne arranged for a meet- ing with Mazzola concerning Havill's employment. Apparently, there was a mis- understanding as to the scheduled date. When Chadbourne appeared at the union hall, Costello told him the meeting was supposed to be held the day before and that Mazzola had since left the city but assured him that he would notify Chad- bourne by mail of the rescheduled meeting date. On September 22, Mazzola acknowledged receipt of Chadbourne's letter . which refers to your experience in hiring men from Local 38. You state that you have employed Mr. Phil Havill, a Non-Union man, as a steamfitter. I am hereby serving notice that you have violated our Agreement, and I ask that you immediately correct this situation and get rid of all Non-Union men in your employ. We will expect you to comply with the Contract wherever the hiring of men is concerned. We have no alternative but to insist on this, so that we can con- tinue to send you men as needed, as the Contract provides." Mazzola's letter prompted Chadbourne to seek an immediate appointment with him to discuss this matter. Accordingly, on September 29, Chadbourne met with Mazzola, Costello, and others in the union hall. Mazzola repeated his demand that Havill be discharged. Chadbourne declined to do so, asserting that Havill possessed the experience and skills to perform the boilerwork he needed. Mazzola insisted that Chadbourne was in violation of their collective-bargaining agreement by disregarding the hiring hall to employ Havill. Chadbourne, however, countered that, notwithstanding his many requests, the Union was unable to supply qualified men and for this reason, he exercised his contractual right to go outside the hiring ,hall for help. It is quite clear that Chadbourne was relying on article II, section 7 of the agreement which permits the employer "to procure the workmen from any other source" he desired in the event the Union was unable to furnish qualified workmen within 48 hours after request. Although Mazzola verified with Costello Chadbourne's prior efforts to secure men with boiler experience, he, nevertheless, took the position that the contract required Chadbourne to exhaust the out-of-work list before turning to other sources and stated that he had about 50 available men "sitting on the bench," many of whom had experience to fill the job. In response, Chadbourne questioned the availability of qualified men in view of the Union's inability to fulfill his earlier requests. In the course of the discussion, Mazzola also expressed his opposition to hiring Havill because he was "non-union" and the employment of any "non-union help" outside the hiring hall, asserting that other- wise it would encourage other employers to do what Chadbourne did. The meeting closed with neither party budging from his position.12 u Mazzola testified that, in using the term "Non-Union man," he meant a person who was not hired through the hiring hall. 12 The foregoing findings are substantially based on Chadbourne's testimony which, in many respects, was not contradicted. Although Chadbourne revealed a weakness in remembering dates of various events , the substance of his testimony had the ring of truth. Mazzola denied making' any reference to Havill's "non-union" status or to "non-union help." Yet, only a week before, in his September 22 letter to Chadbourne, Mazzola simi- larly described Havill and other persons presumed to be in Chadbourne's employ. More- over, Mazzola testified that Chadbourne requested him to accept Havill in his Union as LOCAL UNION NO. 38, UNITED ASSN. OF PLUMBERS 375 Shortly after this meeting, Chadbourne had a further discussion with his attorney concerning the Union's demand for Havill's discharge. His attorney offered the opinion that the hiring hall was illegal and that if Chadbourne terminated Havill, both he and the Union would be subject to unfair labor practice charges. The attorney therefore advised Chadbourne to confer again with the Union before act- ing on the Union's demand. About a week or so later, Chadbourne had a second meeting with Mazzola and Costello, which others also attended.13 Chadbourne conveyed his attorney' s opin- ion, mentioned his prior involvement in unfair labor practice charges, and expressed his desire to avoid similar charges if he acceded to the Union's demand for Havill's termination. Chadbourne then suggested that they solve their problem by per- mitting Havill to join the Union. Mazzola's response was negative but he proposed instead that Havill register on the out-of-work list and await his turn for referral. Admittedly, registration entailed compliance with various qualification provisions of the contract, including passing an examination and his placement into an appro- priate seniority group (article II). Chadbourne was not amenable to this proposal because it lacked assurance that he could retain Havill and was in disregard of his rights under the contract. Chadbourne similarly rejected Mazzola's suggestion that Chadbourne submit their dispute to the Joint Hiring Committee 14 for the reason that the contract explicitly gave him the right to go outside the hiring hall for help when the Union failed to refer qualified workmen within 48 hours after request. During the course of this meeting, Mazzola, in Chadbourne's presence, tele- phoned the Union's attorney. Both Mazzola and Chadbourne took turns to speak to the Union's attorney concerning Chadbourne's right to hire Havill under the ,circumstances related previously and the Union's right to demand his discharge. The Union's attorney agreed with the reasonableness of Mazzola's position and stated that Chadbourne was obligated to exhaust the out-of-work list before employ- ing anyone outside the hiring hall provided the Union honestly believed there were qualified men available. The Union's attorney also stated that on the basis of facts given to him by Mazzola the Union's demand for Havill's discharge was not unlaw- ful. Chadbourne, however, replied that his attorney had given him contrary advice and the Union's attorney indicated that he would discuss the matter further with Chadbourne's attorney.15 a member, which he refused to do According to Chadbourne, Mazzola stated at the second meeting, later discussed , that he could not take Havill Into the Union In light of this testimony , it seems reasonable to infer that Chadbonrne 's request was prompted by Mazzola's asserted opposition to the employment of nonunion men and in that respect corroborates Chadbourne 's testimony concerning Mazzola's "non-union" remarks On the other hand, I do not credit Mazzola's testimony that when he rejected Chadbourne's pro- posal for Havill's membership in-the Union he (Mazzola) added that membership in the Union would not give , anyone priority in, employment . Mazzola impressed me as a witness given to exaggeration and without a reliable recollection of events . For example , Mazzola testified that when Chadbourne spoke to the Union's attorney on the telephone during his second meeting with Mazzola, later discussed , Chadbourne admitted to the Union's attorney that his own attorney agreed with the former 's opinion that Chadbourne was in violation of the hiring hall agreement in employing Havill and that Chadbourne further stated he was not concerned about the opinion of either attorney . This testimony was contrary to the union attorney 's statement offered at the hearing in lieu of testimony. Another example is Mazzola's testimony that at the first meeting he inveighed against Chadbourne for asking the Union for the referral of a steamfitter and then using him for plumbing work Costello conceded the incorrectness of such testimony 13 The findings made with respect to this meeting are based on a composite of credible testimony. 14 Article II, section 10 of the agreement provides for a Joint Hiring Committee com- posed of an equal number of union and employer representatives to supervise the opera- tion of the hiring hall and to hear and determine disputes . There is no evidence that the Union itself ever submitted the propriety of its demand for Havill 's discharge to this committee. I also credit Chadbourne 's testimony , that the foregoing proposal was made at the second and not the first meeting , as Mazzola testified. 13 Both attorneys later considered the subject between themselves As expected, their divergent views were based on conflicting versions of, the facts given -by'their respectide 'clients ' 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 22, Mazzola sent Chadbourne the following letter which the Union's attorney drafted: This will renew our request that you dismiss from employment your employee, Mr. Phil Havill, for the reason that he was hired contrary to the provisions of our Collective Bargaining Agreement. Specifically, he was hired from outside the Hiring Hall without first exhaust- ing our list of available applicants for employment. A few days later, Chadbourne discharged Havill. On October 28 Chadbourne handed Mazzola a communication in which he advised him that he had terminated Havill in compliance with the Union's demand. The letter also went on to say: As I stated to you in our numerous discussions of this matter in the past month, I do not want to get involved with a labor dispute with your Union. I cannot afford it and I think the cards are stacked against me. However, I want you to know that I do not agree with the statements in your letter I have not violated the hiring procedure of the union contract. Mr. Havill was hired only after the Union was unable to supply a qualified man. When he went to the Union, he was told he could not join. I told you this several times. I am sorry that you feel it necessary to force me to lose a qualified employee I am doing so only to avoid trouble, not because it's right. On October 29, Havill filed a charge with the Board's Regional Office, alleging that the Union unlawfully caused his discharge. On or about November 10, Havill, at the suggestion of a Board agent, went to the union hall with the expecta- tion of being dispatched to Chadbourne. Upon learning that that was not the Union's intention but that he was to undergo the contract's qualifying procedure, including taking an examination before being dispatched in regular order, Havill left the hail.16 2. Concluding findings The General Counsel contends that the record establishes that the Respondent caused Chadbourne to discharge Havill because Havill was not a member of the Respondent's International Union and that it thereby violated Section 8(b)(2) and (1) (A) of the Act. The Respondent, on the other hand, denies that it was so motivated, justifying its action on the ground that it in good faith believed that Chadbourne had employed Havill outside the Union's hiring hall in complete disre- gard of his contractual obligation. From a careful evaluation of all the evidence, I am persuaded that Havill's dis- charge was prompted, if not solely, then in substantial part at least, by his lack of union membership. The Respondent's preoccupation with Havill's nonunion status can lead to no other inference. As found above, this attitude was clearly displayed in Business Representative Costello's inquiry of Havill when the latter unsuccess- fully sought clearance to the Chadbourne job as to what "plumbing and pipefitting locals" he had worked out of, and Costello's utter disinterestedness in Havill's attempted listing of his qualifying employment history; in Costello's telephone call to Chadbourne made shortly after his conversation with Havill, complaining about his employment of a "non-union man"; in obviously advising Business Manager Mazzola that Havill was not a union member; and in Mazzola's subsequent letter of September 22 to Chadbourne demanding the dismissal of Havill "a Non-Union man," 17 which characterization Mazzola repeated at his September 29 meeting with Chadbourne. While it is true that Mazzola and Costello also, insisted that Chad- 1e On November 2, In accordance with Mazzola's prior request, Chadbourne submitted to him a list of qualifications Chadbourne deemed necessary for an applicant to possess in order to fill the job vacated by Havill. 17 In light of all the evidence, I find, contrary to Mazzola's assertion, that the term "Non-Union" was not used by him simply to indicate that Havill was not hired through the hiring hall. Bricklayers, Masons and Plasterers' International Union of America (Park Construction Company ), 150 NLRB 1490, cited by the Respondent, Is plainly dis- tinguishable on its facts from the present case. There the Board found, on the basis of the entire record, that the General Counsel failed to prove that the union 's reference to the hiring of local men meant members of the local union rather than men living In the local area. LOCAL UNION NO. 38, UNITED ASSN. OF PLUMBERS 377 bourne was contractually obligated to utilize the hiring hall, this does not neces- sarily militate against a finding of discriminatory motivation. If anything, it strengthens such an inference. For, it is quite clear that the hiring hall provisions did not bar Chadbourne from employing Havill but, on the contrary, plainly rec- ognized his right to do so. I find it difficult to believe that Mazzola and Costello were not well aware of this fact. In unequivocal language, article II, section 7 provides that "if the Union is unable to furnish qualified workmen within 48 hours after an Employer calls for them, the Employer shall be free to procure the workmen from any other source or sources." It is undisputed that over a period of time, by far in excess of 48 hours, Chadbourne endeavored to secure from the union hiring hall a plumber with experi- ence to service boilers and that the Union dispatched several individuals whom Chadbourne determined, after trial or interview, were seriously lacking in the skills he needed. The Respondent does not contend that these individuals were improp- erly rejected or that such action was improperly inspired by a desire to circumvent the hiring hall. At most, it asserts that it in good faith believed that these,indi- viduals possessed the required qualifications to perform the job and that Chad- bourne was obligated to exhaust the hiring hall's out-of-work list and await 48 hours thereafter before recruiting help from other sources.18 However, the contract is devoid of any language which either expressly or by necessary implication places such limitations on the employer's right to go outside the hiring hall where, as here, We Union fails to fill the employer's request "within 48 hours after an [e]mployer calls for" a workman.19 In short, the Respondent's asserted reliance upon a pur- ported obligation of Chadbourne to utilize the Union's hiring hall does not negative the compelling inference of discrimination implicit in its demands for the discharge of Havill, a "Non-Union man." Even assuming that Respondent entertained an honest belief that Chadbourne had breached his contractual obligation by employing Havill outside the hiring hall, I find that this would not exonerate the Respondent from liability under the Act for causing Havill's discharge. To be sure, the Act does not outlaw nondiscrimi- natory hiring hall arrangements such as that prescribed in the collective-bargaining agreement involved herein 20 Nor is it an unfair labor practice for a Union to seek the termination of an employee hired by an employer who bypassed the union's hiring hall in contravention of his contractual obligation21 However, it is quite another thing for a union to bring about the discharge of any employee hired outside the hiring hall where, as here, the contract expressly recognizes the em- ployer's right to do so. Such conduct on the union's part has been held to consti- tute a violation of Section (8)(b)(2) of the Act for causing an employer to dis- criminate against an employee to encourage membership in a labor organization within the meaning of Section 8(a)(3) of the Act and a violation of Section (8) (b) (1) (A) of the Act for restraining and coercing employees in the exercise is There is more than a faint suggestion in the record that Costello had actually ex- hausted the out-of-work list when on August 26 he dispatched Harold Stone whom Chad- bourne found was not suitable for boilerwork. Costello testified that at the time of Stone's referral there were probably 55 to 60 men on the list ; that he "proceeded to call down the list, explaining first the nature and type of job and proceeded to exhaust the list until-[he] could acquire someone who would take this job referral" ; and that such person was Stone who "was the only man that would take the job." After Stone proved to be unsuitable for boiler work Chadbourne hired Havill on August 28. 'Olt is noted that where the parties intended that the out-of-work list be exhausted specific language in the contract was used. Thus, section 8 of article II, entitled "Out- side Contractors," provides that "it shall be a violation of this contract for any con- tractor having a permanent shop within the territory covered by this agreement to trans- fer men into the area from outside that territory without first exhausting this out-of-work list maintained by the local union" [Emphasis added.] In view of the fact that the pertinent contract provisions are clear and unambiguous and not reasonably susceptible of a different interpretation, I find no occasion for having them interpreted by the Joint Hiring Committee, as the Respondent had proposed at one of its meetings with Chadbourne. Cf. Century Papers, Inc., 155 NLRB 358 . Local 357, International Brotherhood of Teamsters (Los Angeles-Seattle Motor Ex- press ) v. N.L.R.B., 365 U S 667. ii Local 542, International Union of Opetating Engineers , AFL-CIO (Ralph A. Marino), 151 NLRB 497; Hoisting and Portable Engineers, Local 302 (West Coast Steel Works), 144 NLRB 1449, 1452. 3,78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their statutory rights 22 Certainly, the Respondent's alleged good faith cannot make its discharge demand lawful simply because it mistakingly believed it was sanctioned by the hiring hall contract, which is the only legal justification for requiring referral from the union's hiring hall. Accordingly, I find that the Respondent, by causing Chadbourne to terminate the employment of Havill for discriminatory reasons, violated Section 8(b)(2) and (1) (A) of the Act. B. Alleged discriminatory operation of the hiring hall As indicated in the preceding section of this Decision, the Respondent and the Association have been for some years parties to a collective-bargaining agreement which requires the employer members of the Association to secure their journey- men plumbers and pipefitters exclusively from the Respondent's hiring hall.23 In connection with the operation of the hiring hall, article II of the agreement contains provisions dealing with the qualifications of journeymen plumbers and pipefitters for registration and referral ; the maintenance of out-of-work lists; dispatch procedures;. special priority rules for the employment of a contractor's keymen and applicants with special skills; the exemption from the hiring hall requirement of employees of an ' outside contractor temporarily performing work within the area serviced by the Respondent; and priority in referral of applicants on the basis of employment within the area covered by the agreement and within neighboring areas. With respect to the order of referral, the contract establishes the following seniority groups: SENIORITY GROUP I shall consist of plumbers and pipe fitters who have been employed by a contractor party to this agreement for a period of at least 1200 hours each year during the two years preceeding their registration on the out-of-work list, in the territory covered by this agreement or temporarily on work outside that territory. SENIORITY GROUP II shall consist of plumbers and pipe fitters who have been employed for a period of at least 1200 hours each year during the two years preceding their registration on the out-of-work list, in the Greater Bay Area-. SENIORITY GROUP III shall consist of all other qualified plumbers and pipe fitters. Overall supervision of the hiring hall under the contract is vested in a Joint Hiring Committee composed of an equal number of union and employer representatives. The committee is empowered, among other things, to promulgate all the rules and regulations it deems advisable for the proper operation of the job referral plan and to hear and determine all "grievances arising out of work registration, work refer- rals and the preparation of the referral registration lists." The General Counsel concedes the validity of the hiring hall arrangement. How- ever, the complaint alleges, and he sought to prove, that since on or about Novem- ber 7, 1964,24 the Respondent administered the hiring hall in a manner that accorded preference in job referrals to its members. In support of this allegation, the General Counsel relies on the evidence showing the following: a. William Helm, a member of the Union, was dispatched on different occasions from the three seniority groups, although he had never passed a written examina- tion to qualify for journeyman status. Costello explained that Helm's was an unusual case and that, while Helm had the ability to do the work, he had difficulty passing the written part. Costello further testified that he usually dispatched Helm when he had virtually exhausted the out-of-work lists. The record also shows that there are about 1600 to 1700 members covered by the Building Trades Agreement here involved and that Helm seems to be the only one of this number who failed to qualify. b. In placing certain members of sister locals in seniority group H. Costello failed to verify adequately whether the registrants possessed the required number of hours of employment to make them eligible for such classification. However, the evi- dence relied upon principally relates to welders and plumbers whom Costello had m The Radio Officers' Union of the Commercial Telegraphers Union , AFL (A. H. Bull Steamship Company ) v. N.L.R.B., 347 U.S. 17. 24 This' obligation; however, is subject to the 48-hour provision previously discussed. 21 Apparently , this date was selected because of the 6-month limitation period prescribed by Section 10(b) of the Act. LOCAL UNION NO. 38, UNITED ASSN. OF PLUMBERS 379 recruited from sister locals because of his inability at those times to fill employers' requests for such employees from the Union's available out-of-work lists. Other instances of alleged insufficient verification of eligibility pertain to individuals who, by reason of article II, section 8,25 were exempt from the referral procedures as employees of outside contractors working on a temporary job in the area. Mani- festly, verification of seniority group eligibility was unnecessary in the above- indicated circumstances and registration by those employees was actually only a matter of record-keeping. c. On occasions, Costello dispatched apprentices as helpers, even though they did not qualify for inclusion in any seniority group. However, it is clear that appren- tices, although members of the Union, are not covered by, nor are they dispatched under, the referral system. At the times Costello sent them to a job it was because of the absence of the Apprentice Coordinator whose function it is to do so in con- junction with the concededly valid apprentice program which the contract also establishes. d. Contrary to the language in the contract pertaining to group I seniority, the Respondent permits its members to register in the group I out-of-work list, even if they had previously left the area for more than 2 years. However, whether or not the Respondent's action is justified is essentially a matter of interpretation of the phrase "temporarily on work outside" the territory covered by the contract, as set forth in the paragraph dealing with group I seniority. e. Union members were permitted to register on a higher seniority list than that to which they were entitled. However, the record reveals quite clearly that in many instances improper registration was due to the loose and careless practices sur- rounding the signing of the out-of-work lists.26 Indeed, the record discloses that a substantial number of union members eligible for group I iregistration have fre- quently signed group II and III out-of-work lists. Moreover, it appears that some of these instances of erroneous registration cited by the General Counsel involved employees whom Costello had recruited from sister locals to fill demands he could not satisfy from the Union's own lists or involved exempt employees of outside contractors. As previously indicated, the registration by such workmen was merely for record purposes and not for the purpose of attaining a position on the list for future referral. Evaluating the Respondent's administration of the hiring hall in the light of all the facts and circumstances developed at the hearing, I am not persuaded that the General Counsel has proved that the hiring hall was operated in a discriminatory manner to the unlawful advantage of members of the Union or sister locals. Sig- nificantly, no evidence was adduced that since November 7 the Respondent has deprived any job applicant of the right to register or referral or other rights to which he was entitled under the hiring hall provisions because he was not a mem- ber of the Union or a sister local. NOT is there any evidence in the record showing any disparate treatment between union and nonunion members or that union affilia- tion otherwise played any role in job referrals. While it is undoubtedly true-as the Respondent candidly admits-that the operation of the hiring hall leaves much to be desired, particularly in the registration and verification of seniority eligibility practices,27 more is required to warrant a finding that the Respondent operated the hiring hall in a manner prohibited by the Act. Indeed, the deficiencies appear to relate to matters of peculiar concern to the Joint Hiring Committee created by the contract to oversee the proper functioning of the hiring hall and not to the Board whose power is restricted to the elimination of discrimination that encourages or discourages union membership,28 which has not been established here. As I find that the General Counsel has failed to sustain his burden of proving that the Respondent has caused unlawful discrimination against job applicants in the manner it operated the contractual hiring hall, I find that the Respondent has 25 Article II, section 8 provides , in relevant part, that "outside contractors may bring into the area temporarily to perform work herein on each job, one plumber, one steam- fitter or pipe fitter , one lead burner and one sprinkler fitter - - - . ^ According to Costello , he is in charge of some 16 books in which job applicants register for work in the building trades covered by the contract involved in this case and the metal trades covered by contracts with other employers. 27 The Respondent stated at the hearing and in its brief that measures are being taken to rectify some of these deficiencies. 2s The Radio O f cers' Union v. N.L.R.B., supra. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not violated Section 8(b)(2) and (1) (A) of the Act in this respect. Accordingly, I recommend dismissal of the relevant allegations of the amended complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent , as set forth in section III, above , in connection with the Company's operations described 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 its free flow. V. THE REMEDY Pursuant to Section 10(c) of the Act, I recommend that the Respondent cease and desist from engaging in the unfair labor practices found and like and related conduct and take certain affirmative action designed to effectuate the policies of the Act. To redress the discriminatory discharge of Phillip Havill, which the Respondent has unlawfully caused, I recommend that the Union notify the Company in writing, and furnish a copy of such notice to Havill, that it has withdrawn its objection to Havill's employment for the job in question in this proceeding, without prejudice to his seniority or other rights and privileges, and that it requests such uncondi- tional reinstatement. In addition, I recommend that the Respondent make Havill whole for any loss of earnings he may have suffered by reason of the discrimina- tion against him by payment to him of a sum of money equal to that which he nor- mally would have earned from the date of his discharge to the date 5 days after it serves the written notice of withdrawal of objection mentioned above. Backpay shall be computed with interest on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294, and Isis Plumb- ing & Heating Co., 138 NLRB 716. The posting of an appropriate notice is also recommended. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section (2) (5) of the Act. 3. By causing the Company to discriminate against Phillip Havill in violation of Section 2(a)(3) of the Act, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not engaged in unfair labor practices by reason of the manner it administered the contractual job referral system since on or about November 7, 1964. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that the Respondent, Local Union No. 38 , United Association of Journeyman and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL-CIO, San Francisco , California, its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Causing or attempting to cause D. I. Chadbourne, Inc., to discriminate against Phillip Havill or other employees in violation of Section 8(a)(3) of the Act by causing or attempting to cause that Company to discharge them because of their nonmembership in its labor organization , except to the extent that the employ- ees' rights in that regard may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coercing employees of D. I. Chadbourne, Inc., in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following action which is necessary to effectuate the policies of the Act. LOCAL UNION NO. 38, UNITED ASSN. OF PLUMBERS 381 (a) Make whole Phillip Havill for any loss of pay suffered by him by reason of the discrimination against him, as provided in the section of this Decision entitled "The Remedy." (b) Notify D. I. Chadbourne, Inc., and Phillip Havill, in writing, that it with- draws its objections to Havill's employment and requests the said Company to offer Havill reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed by him. (c) In the event that Havill is presently serving in the Armed Forces of the United States, notify him in writing that it has no objection to his employment on the ground that he is not a member of the Respondent, upon application, in accord- ance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge. from the Armed Forces. (d) Post at its meeting hall and offices, copies of the attached notice marked "Appendix." 29 Copies of said notice, to be furnished by the Regional Director for Region 20, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director for Region 20 signed copies of the attached notice marked "Appendix" for posting by the Company at its place of business, if it is willing to do so. Copies of said notice, to be furnished by the Regional Director, shall, after being signed by the Respondent's representative, be forthwith returned to the Regional Director for such posting. (f) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of the Trial Examiner's Decision as to what steps the Respondent has taken to comply herewith 30 IT IS FURTHER ORDERED that the complaint, as amended, be and it hereby is,,dis- missed insofar as it alleges that the Respondent operated the contractual hiring hall in a discriminatory manner in violation of Section 8(b)(2) and (1) (A) of the Act. 21 In the event that this Recommended Order is 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 "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 80In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order as to what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS OF LOCAL UNION No. 38, UNITED ASSOCIATION OF JOUR- NEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause D. I. Chadbourne, Inc., to discrimi- nate against Phillip Havill or other employees in violation of Section 8(a)(3) of the Act, by causing or attempting to cause that Company to discharge them because of their nonmembership in our labor organization, except to the extent that the employees' rights in that regard may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. WE WILL make whole Phillip Havill for any loss of pay he may have suf- fered as a result of our discriminatory action against him, as provided in "The Remedy" section of the Trial Examiner's Decision. WE WILL notify D. I. Chadbourne, Inc. and Phillip Havill in writing that we withdraw our objections to the employment of,Havill by the said Company 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that we request the Company to offer Havill reinstatement to his former or a substantially equivalent position , without prejudice to his seniority or other rights and privileges previously enjoyed by him. LOCAL UNION No. 38 UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify Phillip Havill, in writing, if presently serving in the Armed Forces of the United States that we have no objection to his employment on the ground that he is not a member of our labor organization, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. 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. If members have any questions concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335. International Longshoremen's Association, Local 1575, District Council of the Ports of Puerto Rico , ILA, AFL-CIO and Sea- Land Service, Inc. Cases 24-CP-18 and 24-CB-541. June 15, 1966 DECISION AND ORDER On November 26, 1965, Trial Examiner Samuel Ross issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The National Labor Relations Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions. The record shows, as the Trial Examiner found, that when the four classifications in question were included in Office Employees International Union's contract on January 25, 1963, the Respondent Union voiced no objection. Indeed, it signed a contract with the Company on March 22, 1963, 2 months later, without contending that those employees should be included in the contract unit or asserting that its certification covered them. Not until October 1964, when 159 NLRB No. 35.