Intl. Union of Operating Engineers, Local 12

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local Union No . 12 (Ledford Bros.) and Thomas Connolly . Case 21-CB-2671 June 14,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On November 3, 1966, Trial Examiner David F. Doyle issued his Decision 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 Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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' and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as amended below,2 with the following additions. We agree with the Trial Examiner that the Respondent's demand of Ledford Bros. for Connolly's discharge on the alleged basis that he had not been hired through the contractual hiring hall was not the true reason for the demand, but rather was a pretext; the true reason being that he was not a union member. Though there was a valid union- security contract, Respondent never contended that Connolly when hired had been requested to comply therewith. On the contrary, Arthur Ledford's credited testimony, that, at the time he hired Connolly in 1962, Connolly made an application for reinstatement in the Union and that Ledford Bros. attempted, without success, to get him reinstated, is uncontradicted. Therefore, there was no obligation on Connolly to comply with the union-security provision as long as the Respondent refused him membership. ' Respondent excepts to the credibility resolutions of the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions as to credibility unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Such a conclusion is not warranted here Standard My Wall Products , 91 NLRB 544, 545 , enfd 188 F2d 362 (C A 3) On December 3, 1965, after Respondent's agent Skidmore had repeatedly asked Ledford for Connolly's discharge, with the only reason ever advanced by Skidmore being Connolly's lack of membership, Connolly made another attempt to obtain reinstatement. As found by the Trial Examiner, reinstatement was again refused him by Respondent, through Fitzgerald, its agent. At that time, Fitzgerald told Connolly that he could not be dispatched to Ledford Bros., where he was then working, because he could not qualify for the "A" list which provided that a member must have been dispatched to a certain contractor within the last 5 years and have a work history of having been dispatched from the Respondent's hiring halls. Fitzgerald told him he would have to go on the "B" list from which dispatches are made only after the "A" list is cleared. Yet it was Respondent's past refusal to reinstate Connolly which prevented him from qualifying for the "A" list and thus for continued employment with Ledford. Respondent also demanded $300 as a reinstatement fee, though Fitzgerald also stated he saw no reason for giving Connolly any consideration because he had made no attempt to join the Union and the Union had too many members out of work. At the time of the discharge, Arthur Ledford asked Skidmore why Connolly could not get into the Union and Skidmore stated "We don't like him, or something to that effect." The record shows that Connolly in 1956 had joined the Machinists Union and had attempted to get a withdrawal card from Respondent but had been refused. His membership in the Machinists Union was known to Respondent and may account for the "undercurrent of hostility" the Trial Examiner found in the testimony of Fitzgerald and Skidmore. As the record shows, after Connolly was refused reinstatement, he continued to work. Because of its past refusals to admit Connolly to membership, Respondent placed its demand for his discharge on the basis that he had not been hired through the union hiring hall 4 years before. We agree with the Trial Examiner that this reason was a palpable pretext to cover the basic reason, Connolly's lack of membership which had been denied for reasons other than his failure to pay the usual financial obligations of acquiring or retaining membership in Respondent. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor - Contrary to the Trial Examiner's statement in the last paragraph of the Concluding Findings, under section III, that Skidmore did not inform Connolly of how much the reinstatement fees were, we find Connolly testified that Skidmore in August or September 1965 advised him the fee was $300 165 NLRB No. 46 INTL. UNION OF OPERATING ENGINEERS, LOCAL 12 Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, International Union of Operating Engineers, Local Union No. 12, Santa Ana, California, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID F. DOYLE, Trial Examiner: This proceeding, with the parties represented by the counsel, was heard by me in Los Angeles, California, on May 31, 1966, on complaint of the General Counsel and answer of the Respondent. The issues litigated were whether the Respondent had violated Section 8(b)(1)(A) and (2) of the Act by certain conduct more fully described hereinafter i At the hearing the parties were afforded full opportunity to present evidence, to examine and cross-examine witnesses, to argue orally upon the record, to submit proposed findings of fact and conclusions of law, and to file briefs. Both the General Counsel and the Respondent have filed briefs which have been considered by the Trial Examiner. On the record as a whole, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY At the hearing counsel stipulated to certain facts in regard to the business operations of the Company. Upon the stipulation, I find that Ledford Bros. is, and has been at all times material hereto, a partnership comprised of Arthur E. Ledford and John W. Ledford with its principal place of business at Long Beach, California In the course of the operations of the partnership during the 12 months preceding the issuance of the complaint, the Company caused to be purchased, transferred, and delivered to its Long Beach place of business goods and materials valued in excess of $50,000 which were purchased from suppliers who received the said goods and materials in interstate commerce directly from points outside the State of California. Upon the stipulated facts, I find that the Company is an employer engaged in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is not disputed and I find that, at all times material herein, the Union has been and is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue Thomas Connolly, the Charging Party herein, for several years prior to January 5, 1966, had been an ' In this Decision International Union of Operating Engineers, Local Union No 12, will be referred to as the Respondent or the Union, Ledford Bros , as the Company, the National Labor Relations Board, as the Board, the General Counsel of the Board and its representative at the hearing, as the General Counsel, and the Labor Management Relations Act, 1947, as amended, as the 359 employee of Ledford Bros. Counsel for the parties stipulated that, on that date, the Union requested the discharge of Connolly by Ledford Bros. and the Company on that date, discharged him. The General Counsel contends that Connolly was hired by Ledford Bros. in January 1962; during the month of August 1965, Connolly attempted to obtain membership in the Union and that such membership was denied Connolly for reasons other than his failure to tender periodic dues and initiations fees; and that on January 5, 1966, the Union brought about Connolly's discharge from employment at Ledford Bros., thus violating Section 8(b)(1)(A) and (2) of the Act. The Union's position is that the employment of Connolly by Ledford Bros. was in violation of the hiring regulations in the contract between Ledford Bros. and the Union and that Connolly was discharged at the request of the union only because his hiring was in violation of the hiring regulations set forth in the contract. B. Undisputed Facts in Background It is undisputed that Ledford Bros. had for several years past been a member of Southern California General Contractors and through that association had contractual relations with the Union At the hearing Respondent introduced into evidence the current contract of the association and the Union, which by its terms covers the period July 1, 1965, to July 1, 1969. Section 208 of that contract reads as follows: Employees employed by one or more of the Contractors for a period of eight days continuously or accumulatively shall be or become members of the Union after the eight-day period, or the effective date of this Agreement, whichever is later, and shall remain members of the Union as a condition of continued employment. Membership in the Union shall be available upon terms and qualifications not more burdensome than those applicable at such times to other similarly situated applicants for membership to the Union. Section 209.2.1 reads as follows: The Contractor shall first call District Dispatching Office (as referred to above) for such men as he may from time to time need, and the office shall furnish to the Contractor the required number of qualified and competent workmen of the classifications needed and requested by the Contractor, strictly in accordance with the provisions of this Article. It is undisputed that Connolly began his employment with Ledford Bros. on January 2, 1962. At the hearing counsel for the parties stipulated that at that time January 2, 1962, there existed a contract between Ledford Bros. and the Union which contained a hiring hall agreement, which required that an employer in hiring men, first notify the hiring hall who would dispatch men to the job. If the hiring hall was unable to supply the required men, then the employer could hire men "off the bank."' It was undisputed at the hearing that prior to the hiring of Connolly, Ledford Bros. did not notify the Union that it needed a man and that Connolly was not dispatched to Ledford Bros from the hiring hall of the Union. Act The charge in this case was filed by Thomas Connolly, an individual, on January 14, 1966, and the complaint and notice of hearing herein were issued by the Regional Director Region 21, on March 17, 1966 ' This is a term of the unions which means from other sources 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Oral Testimony The General Counsel called as witnesses Arthur E. and John W. Ledford, the partners, and Thomas Connolly, the Charging Party. The Union called as witnesses two of its officials, Robert D. Fitzgerald and Paul H. Skidmore." There is little disagreement between these groups of witnesses as to the sequence of events which comprises this controversy. However, there is sharp disagreement between the witnesses as to what was said and done on certain occasions. The question presented is sharp, I will set forth a summary of the testimony of these witnesses. Arthur E. Ledford, one of the partners in the Company, testified that he had known Connolly for approximately 20 years and knew the quality of the work which Connolly performed and liked his work. Ledford said that he personally hired Connolly. Ledford testified that before he hired Connolly he talked to a man named Greenstreet, then a business agent of the Union located at Long Beach. Through Greenstreet, Arthur Ledford and Connolly tried to get Connolly reinstated in the Union but they were unsuccessful in that; so Ledford hired him anyway. After he hired Connolly, Arthur Ledford did not contact Greenstreet again. Apparently for the next 2 years Connolly's employment was uneventful because both Ledford and Connolly testified that the first time any union official spoke to Ledford Bros. or to Connolly about his employment was about 2 years before the date of the hearing. Both Ledford and Connolly named the official who first objected to Connolly's employment, as Paul H. Skidmore, business agent for the Union.4 Arthur Ledford testified that on the first occasion that Skidmore spoke to him , Skidmore asked Ledford where he got Connolly. Ledford replied that ' Glenn I Vawter testified also, but his testimony related to certain exhibits which were not received in evidence he had hired Connolly personally and that was all that was said about the matter. Arthur Ledford testified that in January 1965, he had a second conversation concerning Connolly with Skidmore at his place of business. On this occasion Skidmore said in effect that he wanted Ledford to get rid of Connolly because he wasn't a member of the Union. Ledford told Skidmore that he would think about it and see what he could do about it. On this occasion Ledford also told Skidmore that he liked Connolly's work. After that incident about every 2 months Skidmore dropped by the Ledford Bros. job, saw Connolly working, and asked Ledford if he wouldn't get rid of Connolly. On these occasions Skidmore did not give any reason for asking Ledford to get rid of Connolly. Arthur Ledford stated that the only time Skidmore gave him a reason for discharging Connolly was in January 1965 when Skidmore said Connolly wasn't a member of the Union and to get rid of him. Arthur Ledford also testified that on none of these occasions did Skidmore ever say anything about Connolly's not having been hired through the Union's hiring hall. In November 1965, after one of Skidmore's requests, Ledford gave Connolly time off to go to the Union and see about getting in the Union. When Arthur Ledford spoke to Connolly about joining the Union, Connolly said that he had the money and was willing to join. According to Arthur Ledford the matter finally came to a head on January 5, 1966, when the Union demanded Connolly's discharge. Arthur Ledford said that he was out of the yard at the time Skidmore called on this occasion. When he came back John W. Ledford handed him a slip that Skidmore had made out. This slip was received in evidence and reads as follows: 4 Business Agent Greenstreet apparently had dropped out of the picture during the first 2 years of Connolly's employment INTL. UNION OF OPERATING ENGINEERS, LOCAL 12 INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL UNION NO. 12 1. TO BE FILLED IN COMPLETELY BY UNION REPRESENTATIVE Jan. 5, 1965 2:10 p.m. Ledford Bros. (Date) Engineering & Construction (Time) 2718 Gaviota (Name of Company) Yard & Shop (Job Location) You are hereby advised that the employee named below is improperly on your payroll as he is operating or servicing equipment recognized by the AFL-CIO Building Trades Council and your collective bargaining agreement as being within the jurisdiction of the International Union of Operating Engineers , Local Union No. 12. Therefore, this employee is subject to the dispatch procedures and the Union shop provisions of the contract set forth in Article II. You are hereby advised to take immediate, appropriate , corrective action because of the reason indicated. Failure to take immediate , corrective action to remedy your breach of contract will require the Union to institute the remedial provisions of the collective bargaining agreement , including but not limited to suspension of your right to call for an employee by name for a period of ninety (90) days. Thomas Connolly (Name of Employee) REASON FOR REQUEST FOR CORRECTIVE ACTION: A. This employee has been employed more than eight (8) days in the collective bargaining unit and has not tendered the dues and/or initiation fees uniformly required of all employees. B. This employee was not hired through the dispatch hall in conformity with the dispatch procedures established by the collective bargain- ing agreement. Paul H. Skidmore (Business Representative , Local No. 12 (Signature)) 2. TO BE SIGNED BY COMPANY REPRESENTATIVE: I acknowledge receipt of this request for corrective action and agree that such action will be taken as to the employee named above for the reason shown. The Union Representative has not demanded anything other than the correction of the breach of the collective bargaining agreement and I will take the necessary action to remedy this breach as required. NAME (Signature) 361 Title 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arthur and John Ledford discussed the situation and decided that they could not afford to have the Union shut down their job On this work the Company had a penalty clause in its contract of $1,000 a day for each day in excess of the guaranteed date of completion. After discussing the matter, Arthur Ledford called Connolly and told him that the Company would have to let him go because they couldn't afford a shutdown and a penalty on the work that they were doing. John W Ledford, the second partner in the firm, testified that Skidmore did not talk to him about discharging Connolly at any time before January 5, 1966. However, he knew that his brother had talked with Skidmore about Connolly on several occasions. On January 5, 1966, Skidmore came to their yard about 2 p.m. He came into the yard where John Ledford was working on his boat and he said, "I see Mr. Connolly is still here." Ledford replied in the affirmative. Then Skidmore said, "Well, I guess I'm just going to have to write you boys up. I have been telling Arthur to get rid of Tom and I see that he is not going to do it so I'm just going to have to get tough." He said, "1 will have to write you up and and if you don't get rid of Mr. Connolly, I'm just going to have to shut you down." Skidmore wrote out a piece of paper and asked Ledford to sign it but Ledford declined to do so.' Then Ledford said, "I don't see why Tom can't get into the Union. He's a real good man. We like him and we like his work. Just how come that he can't join and belong to the Operating Engineers I understand that he was in there at one time " Skidmore replied as follows according to John Ledford. And he says, "Well he-" something about-something happened and "we don't like him," or something to that effect. Thomas Connolly, the Charging Party, testified that he was a member of the Union but "dropped the card in 1956." After that he joined the International Association of Machinists and is still a member of that Union. He was hired personally by Arthur E. Ledford and began work on January 2, 1962. Connolly admitted frankly that he did not get the job through the union hiring hall. For a long time after lie began his employment, no official of the Union ever spoke to him about his employment According to Connolly the first time that any union official spoke to him was about 4 or 5 months before he was discharged which would place the date in August or September 1965. The first and only one who spoke to him on the job was Skidmore. On Skidmore's first conversation with him, Skidmore asked to see his union card. Connolly told Skidmore that he belonged to the Machinists Union to which Skidmore replied that, "this was no machine shop." Then Connolly asked Skidmore to reinstate him in the Union. Skidmore said if he did reinstate Connolly, it would cost him about $300 and he would go on the "D" list, and that Connolly would never get a job. Connolly offered to pay Skidmore the $300, but he did not remember what Skidmore said in regard to that payment. At a later date, on or around December 3, 1965, Arthur Ledford told Connolly to go to the union hall in Los Angeles and talk to a Mr. Seymour about being reinstated. On December 3, 1965, Connolly went to the union hall and saw Union Representative Dohnke instead of Seymour. He asked Dohnke to reinstate him. Dohnke asked him how long he had worked for Ledford Bros. and he told him 4 years. Then Dohnke said that Connolly had a job and he didn't see any reason why he couldn't be reinstated. Dohnke then phoned to a Mr. Vawter at the Santa Ana office of the Union When Dohnke finished this conversation with Vawter, Dohnke told Connolly to go to the Santa Ana office, and he would be processed there. Dohnke told Connolly that Vawter had said, that he would take care of Connolly. About noontime Connolly arrived at Santa Ana. He was shown into the office of the business agent whom he took to be Vawter. He stated his business and then Vawter told him, "he didn't see any reason why he should show me any consideration. I made no effort to join the Union, and that if I had tried earlier in the year, he might have considered it, but he had too many men out of work and he couldn't see any reason for reinstating me." Connolly did not offer to pay his fee for reinstatement nor did Vawter tell him what would be necessary for reinstatement. According to Connolly, Vawter also said that, "I wasn't hired through the hall and I wasn't eligible because I hadn't been in there for two and one-half years." This was the first time that anyone said anything to Connolly about the hiring hall. Thereafter, Connolly heard nothing from the Union until January 5, 1966. On that date Skidmore came into the yard and saw Connolly working on a truck. Skidmore asked Connolly if he was working hard and he wrote out a discharge request and took it to the front office Skidmore then came back and gave Connolly a copy of this slip and told him that he could do with it as he pleased This was a copy of the slip given to Ledford Bros. set forth previously. Connolly took his copy of the slip to Arthur Ledford and showed it to him. Ledford said that the only thing he could do was discharge Connolly; otherwise, the Union would tie him up. Connolly was terminated that day. In the course of his cross-examination, Connolly said that in 1956 he went to work for the Chessley Transportation Company which was under the jurisdiction of the International Association of Machinists By contract between the Company and the Union he was required to join the International Association of Machinists, so he dropped the Union at that time; he didn't pay any further dues and he went to see Greenstreet, then the business agent for the Union, and asked him for a withdrawal card, but Greenstreet did not give it to him On cross- examination, Connolly was questioned very closely as to the identity of the man to whom he talked at Santa Ana and whom he had identified as Vawter. He said that his conversation with this individual lasted about 3 minutes and that he had never seen Vawter before nor after that date. When pressed by the cross-examiner for a description of Vawter, he said that he did not know the color of Vawter's hair. He only recollected that the man was between 45 and 50 years of age and a good-sized man. At that point Connolly was asked this question: Q. Are you sure that the man you spoke to was Mr. Vawter? A. No, I am not positive, I took the man's word He said he was Mr. Vawter, that is all 1 know. I had never seen him before and have never seen him since. Connolly was then asked if he knew a man by the name of Fitzgerald who was also an official of the Union, and he said that he did not know Fitzgerald. In answer to the next question, Connolly explained that when he talked to the receptionist at Santa Ana, the young lady told him that Fitzgerald wasn't there, but Vawter was in the office. Connolly reiterated that the man in the office told him that he would be put on the "D" list because he hadn't been in ' This is the discharge slip set forth previously, G C Exh 2(a) INTL. UNION OF OPERATING ENGINEERS, LOCAL 12 the Union for 2-1/2 active years, but he admitted that the man might have said the "B" list. The man did not tell Connolly that in connection with the list he would not be able to be asked for, by Ledford Bros., by name. After the noon recess, counsel for the Respondent asked Connolly to identify one of two men who were requested to stand in the courtroom, as the one he talked to at Santa Ana. Connolly identified one of the men who proved to be Robert D. Fitzgerald. It is undisputed that Seymour is the business manager of the Union, Dohnke is an official of the Union in its Los Angeles office; Vawter had the title of senior representative in the Union's District 7, embracing both Long Beach and Santa Ana. Fitzgerald was an official of the Union working in District 7 and was the district representative at the time of Connolly's interview with him at Santa Ana The Trial Examiner asked Connolly if the man he had picked out, and who was Fitzgerald, was the man to whom he had talked at the Santa Ana office The witness said that it was When questioned further by the Trial Examiner, Connolly explained that he was mistaken as to the identity of the person to whom he talked in the conversation at the Santa Ana office of the Union but he said that Fitzgerald had said to him these things which he had attributed to Vawter previously. He said that the conversation which he had related as taking place with Vawter actually occurred with Fitzgerald. The Union, in its defense, called three of its officials Paul H Skidmore testified that he was the district representative of the Union and that he policed the job where a business agent encountered a problem and asked for his assistance. In the course of his duties he visited approximately six or seven jobs per day. Skidmore testified that he first talked to Arthur Ledford about Connolly in June 1965. He recalled the date because this was prior to the negotiations of a new contract, which was going on at that time. At a later date but during the negotiations and the strike which occurred, Ledford called for some emergency help for a small job in the Shell refinery. The emergency committee called Skidmore who went out to the job and talked to Ledford At that time Skidmore asked Arthur Ledford if Connolly was still on the payroll and asked him if he would do something about it again. Ledford said that he would. This was in July 1965. On November 30, Skidmore went in Ledford Bros. yard in the evening and he discovered another man by the name of Ray performing work and he knew that this man was not properly cleared. On the next morning he went to the yard. When he got there, Connolly and another man named Baril, who also was not properly cleared, were doing heavy-duty repair work on a tractor Skidmore took Ledford by the arm and pointed out the two men and explained that they were doing engineers' work and were not properly cleared. Ledford said he would take care of it right away, and that he would see to it that they didn't do any more repair work. Ledford said he would take Connolly off the job immediately Skidmore also testified that he talked to Ledford on December 16 and at that time Arthur Ledford told him that Connolly was not working for the Company. On the Saturday before Skidmore requested Connolly's discharge, he received a phone call that Connolly was still on the payroll of Ledford Bros. and that he could be found working on the Pico Avenue job in the harbor. On January 5 at 2 o'clock in the afternoon he went in the yard and Connolly was doing heavy-duty repair work on a truck, and under the Master Labor Agreement this work was within the jurisdiction of the Union. He then made out the discharge slip and gave one copy to John 363 Ledford who refused to sign it and gave Connolly the carbon copy. On cross-examination Skidmore said that on the first occasion that he went to the yard he talked to Connolly. He asked to see Connolly's card and Connolly said he was not a member of the Union, he was a machinist. Connolly then told him in great length the problems he had in the past with Greenstreet. Skidmore said, "Apparently he had been very unhappy with some of the problems he had with Mr Greenstreet, but he did mention the fact that he was not too happy with Local 12. As far as the engineers were concerned, they never had done him a damn bit of good and he couldn't work; he tried to get a job somewhere and couldn't get cleared or something, apparently in the hiring procedure at that time." At that point Skidmore was asked the following: Q. When you first contacted them concerning Mr. Connolly, did you ask them that he be discharged? A. Oh yes, definitely. I didn't ask that he be discharged I asked that he be taken off our work. Our agreement doesn't say that we ask for his discharge; only that he be taken off the work which is assigned to operating engineers. He mentioned to Ledford that Connolly was not a member of the Union and in talking to Ledford he explained the fact that the AGC, the association to which Ledford Bros belonged, did not negotiate with the International Association of Machinists. The negotiations were with the craft unions. On further cross-examination, Skidmore said that he told Arthur Ledford on his second visit to the job that Connolly was still doing engineer work and that he should be taken off it Also in June, Skidmore explained to Connolly that he could reinstate his card at any time he wanted to. Skidmore further stated that, on the day he requested his termination, Connolly was neither a member of nor had he been hired through the hiring hall. Skidmore explained that he just checked one reason for the request for discharge on the discharge slip because reason marked "A" on the slip, nonmembership in the Union, was used only in cases where there were new agreements and there were new employees coming into the Union. In the course of his cross-examination, Skidmore answered one question as follows: Q. Suppose Mr Connolly had come in when he was not a member, would you have dispatched him? A. No, we don't dispatch nonmembers. On being questioned further the witness reversed himself and said that a nonmember may be registered on the out-of-work list but he would not be dispatched until those members on the "A" list and those on the "B" list had been dispatched. Skidmore also said again in the course of his cross-examination that when he first talked to Connolly, Connolly let Skidmore know that, "He wasn't very happy with them [the Union I and didn't want to join; he had a card and let it drop and let me know why it dropped." He admitted that when he informed Connolly of his obligation to join the Union, Connolly did not refuse to join nor did he offer Skidmore any money as fees. Skidmore said that he did not tell Connolly to go to the union hall in Los Angeles to get back into the Union, but he admitted that he had told Arthur Ledford to tell Connolly to do that. According to Skidmore, he suggested that Connolly go to Los Angeles because he couldn't do anything for Connolly in Santa Ana. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robert D. Fitzgerald testified that he was the district representative of District 7, the top official in charge of the Santa Ana branch office of the Union. He said that he remembered having a conversation with Connolly regarding his employment at Ledford Bros. Around noon on the day in question, his secretary escorted Connolly to Fitzgerald's office. Fitzgerald introduced himself and asked Connolly to be seated. He said that Connolly then explained that he had been working for Ledford Bros and asked as to the possibility of getting cleared or dispatched to this particular Company. Fitzgerald testified that he had been previously acquainted with the situation of Connolly's employment at Ledford Bros. "and, checking back on his previous status and one thing or another discovered that he never had been dispatched, to my knowledge, to this particular company."He then advised Connolly of the hiring procedure and of "A," "B," and "C" out-of-work list as set forth in the contract. Fitzgerald testified as follows: I advised him his first procedure would be to start his reinstatement, that our records showed, if I recall correctly, that he was a suspended member since approximately 1956 which was the last date he was a member in good standing, and also the last date of dispatchment, or thereabouts, and I was going to procede to get him a card if he was desirous of starting his reinstatement . I explained the amounts due and the amount that would be forthcoming to start his reinstatement. The amount to be paid for reinstatement in Connolly's case was $300, with a minimum of one quarter of $75 down with the application. According to Fitzgerald, Connolly said something about Greenstreet not having been of much help to him and he didn't think that Fitzgerald would be of much help either. Connolly did not offer to pay the reinstatement fee and that just about ended the conversation, which lasted about 10 minutes. Connolly's last remarks were, "Well, apparently you can't do me any good." In the course of his testimony, Fitzgerald explained that there are three work lists under the current contract with three groups of employees these being lettered "A," "B," and "C" groups., Fitzgerald said that to his knowledge there never was a "D" out-of-work list. Fitzgerald said that, at the time Connolly came to see him, it was a slack time and it was normal for the Union to have three or four hundred men on the "A" out-of-work list, but during the summer it was not a slack time. Fitzgerald denied that he said to Connolly, "You don't deserve any consideration for reinstatement." He also denied that he said, "I've got so many out of work 1 can't consider your reinstatement." Concluding Findings Upon a consideration of all the evidence, I find that the Union used Connolly's lack of clearance or dispatch as a pretext for securing his discharge, when the real reason for its request for his discharge was his lack of membership in the Union. As to the conflict in the testimony of the witnesses, I have resolved that in favor of the testimony of Arthur and John Ledford and Connolly. Both the Ledfords testified in a frank and candid manner. Neither of the brothers exhibited any animosity or hostility toward the Union because of the controversy. They appeared to be disinterested witnesses and I credit the testimony of the partners in its entirety. In his testimony, Connolly made a mistake as to the identity of the union official with whom he talked at the Santa Ana office of the Union. In his brief, counsel for the Union places heavy stress upon this error in the testimony of Connolly, but I think it is quite understandable under the circumstances. Dohnke in Los Angeles had talked to Vawter by phone and referred Connolly to Vawter at Santa Ana for reinstatement. When Connolly reached the Santa Ana office, he was shown into the office of a union official and he took it for granted that the official was Vawter. It was not; it was Fitzgerald, but Connolly said that Fitzgerald said to him those things which Connolly originally attributed to Vawter. Since this was the only occasion on which Connolly saw either of these two men, his mistake in name is understandable and I find excusable. On all other points, Connolly's testimony stands unweakened in this record. In my judgment, Connolly was an honest, truthful witness. I credit his entire testimony. According to the credited testimony of both Arthur Ledford and Connolly, the Employer notified Greenstreet, the Union's agent at the time that Connolly was originally hired; yet the Union raised no objection to Connolly's employment until August or September 1964 when Skidmore made his first inquiry of Connolly and Arthur Ledford concerning Connolly's employment. When Skidmore accosted Connolly and asked if he was a member of the Union, Connolly stated that he was a member of the Machinists. Skidmore's reply to that was, "This is no machine shop." That certainly implies that Connolly lacked membership in the proper union to be employed on the Ledford Bros. job. Thereafter in his discussion with Arthur Ledford, Skidmore either said or implied that the reason for Connolly's removal from the job was his lack of membership in the Union. When the matter of Connolly's employment reached a crisis, according to Arthur Ledford, Skidmore told Ledford that if Connolly went to Los Angeles, Connolly might be able to obtain reinstatement. Up to that point Skidmore had never mentioned either to Connolly or to Arthur Ledford that he objected to Connolly because Connolly had not been dispatched from the union hiring hall. According to the undisputed testimony of Connolly when he spoke to Dohnke at the union hall in Los Angeles, Dohnke told him that he could be reinstated without any trouble because he already had a job within the jurisdiction of the Union. Even up to this point nothing had been said by any union official about clearance or dispatch from the union hall. If Skidmore's real objection to Connolly's employment was his lack of clearance or dispatch from the hiring hall, Skidmore's conduct in recommending to Ledford that Connolly apply for reinstatement at Los Angeles and Dohnke's referral of Connolly back to Santa Ana were to no purpose, because Connolly's reinstatement would not remove Skidmore's objection to Connolly's employment. In his testimony Fitzgerald stated that he was familiar in a general way with the situation concerning Connolly's being employed at Ledford Bros. but it is perfectly clear from Fitzgerald's testimony, that he did not discover that Connolly had not been dispatched from the hiring hall, until he checked Connolly's file at the union office, after being called on the telephone by Dohnke. As to the conflict in testimony between Fitzgerald and Connolly as to what occurred at the Santa Ana interview, I credit Connolly's version. Fitzgerald said that he saw no reason why he should give any consideration to Connolly. This statement evinces a hostility to Connolly which was also noticeable in Skidmore's testimony. In the course of his testimony, INTL. UNION OF OPERATING ENGINEERS, LOCAL 12 Skidmore said at least twice that Connolly had expressed disapproval with the way the Union had treated him in the past. The tenor of Skidmore's testimony was that such criticism could not be tolerated and warranted some sort of counteraction. Fitzgerald in the Santa Ana conversation displayed the same undercurrent of hostility. He knew that Connolly had been employed for several years without membership in the Union and his statement that he saw no reason for showing consideration to Connolly had the same tenor, that Connolly's conduct had been improper and therefore the Union had the right to deny consideration to his reinstatement. In addition, Skidmore did not appear to be a reliable witness. He was quite uncertain about the date when he first made known his objection to Connolly's employment to Ledford Bros., and, when cross-examined as to why he checked only the dispatch hall reason on the Union's form 154 as to why he had requested the discharge of Connolly, he appeared to be ill at ease and evasive. Upon a consideration of all the evidence and for the reasons stated above, I find that Skidmore requested the discharge of Connolly, not because he was not properly dispatched from the hiring hall, but because Connolly lacked membership in the Union. Skidmore's contention that he requested Connolly's discharge because he was not properly dispatched, I find to be a pretext to cloak the real reason for the Union's action.° From the consideration of all the evidence, it is clear and I also find that the Union did not fulfill its fiduciary duty to deal fairly with Connolly. At the time Connolly was originally hired, the Union was given notice by Ledford Bros. that he was being employed, but the Union took no action against Connolly for his nonmembership for approximately 3 years. Finally, Skidmore, after trying for over a year to have Connolly discharged, told Arthur Ledford that Connolly might be reinstated by going to the Los Angeles office of the Union. In all of this long time, Skidmore did not inform Connolly of how much the reinstatement fees were, or where they were to be paid. When he was not informed of these facts and was not bothered in his employment, Connolly had the right to assume that the Union did not desire him as a member. Therefore, I find that the Union did not fulfill its fiduciary duty to notify Connolly of his obligation and rejected his application for reinstatement for reasons other than his failure to tender periodic dues and initiation fees usually required for membership.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship 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 unfair labor practices, as set forth above, it shall be ^ District Council of Painters No 52 (Maynard C Belvoir), 150 NLRB 1094, enfd 363 F 2d204 )C A 9) ' Philadelphia Sheraton Corporation, 136 NLRB 888, 896, enfd sub nom N L R.B. v Hotel Employees, Local 568, 320 F 2d 365 recommended that the Respondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Among other things, it shall be recommended that the order require the Respondent to notify Ledford Bros., in writing, that it has no objection to the employment of Thomas Connolly without regard to his membership or nonmembership in the Respondent labor organization. It is also recommended that the order shall also require that the Respondent make Connolly whole for any loss of pay suffered by reason of the Respondent's discrimination practiced against him. The Respondent's liability therefor shall terminate 5 days after notifying Ledford Bros., as set forth above, that it has no objection to Connolly's employment. Loss of pay, as aforesaid, shall be computed in accordance with the formula in F. W. Woolworth Company, 90 NLRB 289, and shall bear interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & HeatingCo., 138 NLRB 716. Upon the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Union of Operating Engineers, Local Union No. 12, is a labor organization within the meaning of Section 2(5) of the Act. 2. Ledford Bros. is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3 Paul H . Skidmore is, and at all times material herein has been , Respondent's agent within the meaning of Section 8(b) of the Act. 4. By causing and attempting to cause Ledford Bros., an employer, to discriminate against Thomas Connolly in violation of Section 8(a)(3) of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 5. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case it is recommended that International Union of Operating Engineers, Local Union No. 12, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Ledford Bros. to discriminate against Thomas Connolly, in violation of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coercing employees in the exercise of the 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 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 which I find will effectuate the policies of the Act: 254 )CA 3), Associated Transport inc. 156 NLRB 335, Local 98D, International Union of Operating Engineers, AFL-CIO (Construction Fields Survey, Inc), 156 NLRB 545 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Notify Ledford Bros. and Thomas Connolly, in writing, that the. Respondent has no objection to the employment of Thomas Connolly without regard to his membership or nonmembership in the Respondent Union. Also notify Thomas Connolly, if he is presently serving in the Armed Forces of the United States, that it has no objection to his full reinstatement, without regard to his membership or nonmembership in the Respondent Union, 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 (b) Make Thomas Connolly whole for any loss of pay suffered by reason of the discrimination practiced against him in the manner set forth in the section of this Decision entitled "The Remedy " (c) Post at its offices, meeting halls, and hiring halls, copies of the attached notice marked "Appendix."" Copies of said notice, to be furnished by the Regional Director for Region 21, after being duly signed by an authorized representative of the Respondent, shall be posted by the said Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and other employees using the Respondent's hiring hall 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. (d) Additional copies of the attached notice marked "Appendix" shall be signed by an authorized representative of the Respondent, and forthwith returned to the aforesaid Regional Director for posting by Ledford Bros., the said Employer being willing, at its business offices and construction projects, where notices to the employees are customarily posted. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.`' IT IS FURTHER RECOMMENDED that, unless the Respondent shall, within 20 days from the receipt of this Decision, notify said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board will issue an order requiring the Company to take the action aforesaid. " In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall he substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is 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 " 9 In the event that this Recommended Order is 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 Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION No 12, TO ALL EMPLOYEES OF LEDFORD BROS., AND ALL APPLICANTS FOR EMPLOYMENT Pursuant to the Recommended Order 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 Ledford Bros. to discriminate against Thomas Connolly, in violation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their 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 authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL notify Ledford Bros. and Thomas Connolly, in writing, that we have no objection to the employment of Thomas Connolly without regard to his membership or nonmembership in the Respondent Union WE WILL make Thomas Connolly whole for any loss of pay suffered by reason of the discrimination practiced against him INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION No. 12 (Labor Organization) Dated By (Representative ) (Title) Note: We will notify Thomas Connolly, if presently serving in the Armed Forces of the United States, that we have no objection to his full reinstatement, without regard to his membership or nonmembership in the Respondent Union, upon application in accordance with the Selective Service Act and 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 question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California, Telephone 688-5229.