Construction, Production & Maintenance Laborers Union, Local No. 383

CONSTRUCTION. PRODUCTION & MAINTENANCE LABORERS UNION. LOCAL NO. 383 Construction, Production & Maintenance Laborers' Union, Local No. 383, affiliated with Laborers' In- ternational Union of North America, AFL-CIO (William Pulice Concrete Construction) and Jack D. Perkins, Jr. Case 28-CB-1163 May 16, 1978 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MilMBEiRS Pi-NI I.1. AND TRtIESDAI.}' On January 26. 1978, Administrative Law Judge Gordon J. Myatt issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(h) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith.' We agree with the Administrative Law Judge's finding that the Union's stated objection to the em- ployment of Jack D. Perkins, Jr.. was that he was not a member of the Union as well as the fact that he had not been referred for employment pursuant to the contractual provisions of the labor agreement. HoW- ever, we do not agree with the Administrative Law Judge's failure to find a violation on the basis of the above finding. The Board has repeatedly held that to find a viola- tion of the Act it need only be shown that a respon- dent's conduct was, in part, discriminatorily motivat- ed and the coexistence of separate lawful reasons does not eliminate the unlawful aspect of the conduct in question.2 In such cases, where a respondent's mo- tivations are mixed, the Board has held that the legal effect of the conduct is the same as though the illegal reason for its action was the only operative reason)3 i the AdministratiSe Lai Judge inadxerlentlv found In Sec II Ihit the labor organization involved in the instanl casC is "C oncrele Prodiuc tiolnand Maintenance Laborers' Union. Iocal No 381. affiliated with l.ahorers' In- ternational U nion of North America" We find that the correct nalnte of the labhor orgnization herein is ·(onstruclion. Produtlcon & M alitiiena nce i.a- borers' I nion. I ocal No. 13. affillated .iih l.aborers' International l nlon of N orth Ameri.ca AFI. CI O. and ue do hereh\ correct his erior l)rir cl ('Iuniil ,of Paintcer ;,' , AN , 4 L (/(), IBrot herhtwe, d ,f t' . DeicorIiors and Pupcerhanyier, ,, t .4-eriino, Ofalnrj od ( Bh'/iir), 151) NlRB 1094 (1965): : 1 R B . 4 hrin ,loi/iint Hri orAs 20W4 F 2d 883 (( A I 1965). enfg I00 NIRB 279 (1952.) 1".,Il I n 'r ,, IN, Intrnaltnal ,i I m iun oIp Oanltn . F. in c{'r,. 4I I' Thus, the facts. as found by the Administrative L.aw Judge in this case. clearly demonstrate that the Union in causing Perkins' discharge was motivated, at least in part, b. unlawful considerations. We therefore find that its conduct violated Section 8(b)( I )(A) and (2) of the Act. THE EFFECT OF THE UNFAIR LABOR PRA(CTICE UPON COMMERCF The activities of the Respondent set forth above, occurring in connection with the operation of Wil- liam Pulice d hb/a William Pulice Concrete Con- struction. as described in section I of the Administra- tive Law Judge's Decision. have a close, intimate. and substantial relationship to trade, traffic, and commerce among the several States and tend to la- bor disputes burdening and obstructing commerce and the free flow of commerce. Tiiil Ri xLiil) Itaving found that Respondent has engaged in unfair labor practices within the meaning of Section 8(b)( I )(A) andr (2) of the Act. we shall order that it cease and desist therefrom and take certain affirma- tive action, including the posting of appropriate no- tices, designed to effectuate the policies of the Act. Specially, we shall order that Respondent Union be required to send a letter to the Charging Partm, with a copy to William Pulice Concrete Construc- tion, his former employer, stating that it has no ob- jection to his employment notwithstanding his non- membership in Respondent Union. We shall further order Respondent to make Jack D. Perkins. Jr.. whole for an'N loss of earnings suffered by reason of its unlawful conduct bh payment to him of the sum of mone' equal to the amount that he would have earned from the date of the discrimination against him, less net earnings during said period.4 Respon- dent's backpa\ liability will terminate 5 days after it notifies the FI mploNer and Perkins that it has no oh- jection to Perkins' employment by the Employer. Backpay shall be computed in the manner prescribed bh the Board in F fl . Woolworth ('Cmtpanv, 90 NL.RB 289 (1950), with interest as prescribed in Flor- ida Steel ('ororaltion. 231 NLRB 651 (1977).' In view of the serious nature of Respondent's un- fair labor practices found herein, we shall recoim- It) t LaiI 1) ( ra .'r. In, , 141 Nl RB 512. 19 (19I ) 3 A' e i.e iur v I ihat i 11 1ril g, 177, Respondeent ent ai letter ti the I inpoioer Inforntiltll Ihat t he I T. on had no Iobjectioni to the emplonmernl of .lacik 1) Perklls Ir lhe rcki ri didoes not indicaite lf It i ai receiled hb the I llploicr - \., tiirisgl, a I l IQ l e tl . the ompail itnce atagte of the pro- ceedin th: dl terii ,iiitl i of the swmhllclianCte o f i til ler See enicr.i As IN t'JI.-,Pi r lia.t m I h ' (. 138 Ni RB 716 i 1962) 236 NLRB No. 19 125 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mend that the Respondent cease and desist from in any other manner infringing on the rights of employ- ees as guaranteed by Section 7 of the Act. As the Board held in Local No. 78, United Brotherhood of Carpenters and Joiners of America, AFL CIO (Mur- rav Walter, Inc.), 223 NLRB 733 (1976), "A 'broad' order is appropriate in situations such as this where Respondent's unfair labor practice is serious in na- ture and strikes at the very heart of rights intended to be protected by the Act. N.L.R.B. v. Entwistle MI/t}. Co., 120 F.2d 532, 536 (C.A. 4, 1941)." AMiENDED CONCLUSIONS OF LAW Delete Conclusion of Law 3 and add the following as Conclusions of Law 3 and 4. "3. By protesting the employment of and causing the discharge of Jack D. Perkins, Jr., because he was not a member of the Union, Respondent violated Section 8(b)(1)(A) and (2) of the Act. "4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act." of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Sign and deliver sufficient copies of said notice to the Regional Director for Region 28 for posting by William Pulice Concrete Construction at all locations where notices to its employees are customarily post- ed, if said employer is willing to so post. (e) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. tIn the event that this Order is enforced by a Judgment of a United States (Court of Appeals. the words in the notice reading "Posted hs Order of the Nationa;l l.abor Relations Board" shall read "Posted Pursuant lo a Judgment of the United Slates Court of Appeals Enforcing an Order of the N;iional Lahbor Relations Board" ORDER Pursuant to Section 10(c) of the National l.abor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Construction, Production & Maintenance Laborers' Union, Local No. 383, affiliated with Laborers' In- ternational Union of North America, AFL ('IO, Phoenix, Arizona, its officers, agents, and representa- tives, shall: I. Cease and desist from: (a) Protesting the employment and causing the discharge of employees because they are not mem- bers of Respondent Union. (b) In any other manner coercing, or restraining employees of William Pulice Concrete Construction in the exercise of rights guaranteed by' Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Send a written notice to Jack D. Perkins, Jr.. with a copy to the Employer, stating that it has no objection to his employment despite his nonmember- ship in the Union. (b) Make Jack D. Perkins, Jr., whole for any loss of earnings suffered by reason of Respondent's un- lawful discrimination against him, in the manner provided above in the section of this Decision enti- tled "The Remedy." (c) Post at its offices at Phoenix, Arizona, copies of the attached notice marked "Appendix." 6 Copies APPENDIX Nolt il To MEMBERS POStED BY ORDER OF IFIE NAIIONAt LABOR RELAIIONS BOARD An Agency of the United States Government WlI wItl NO] protest the employment or de- mand the discharge of employees, because they are not members of the Union. WE WII.l NOI in any other manner restrain or coerce employees of William Pulice Concrete Construction in the exercise of rights guaranteed by Section 7 of the Act. WE WIL. make Jack D. Perkins. Jr., whole for any loss of earnings suffered by reason of our unlawful conduct. CONSTRUCTION, PRODUCTION & MAINTENANCE LABORERS' UNION, LOCAL No. 383 AFFILIATED WITH LABORERS' INIERNAIIONAL UNION OF NORTH AMERICA, AFL-CIO DECISION STATEMENT OF THE CASE GORDON J MvAT, Administrative Law Judge: The charge in this case was filed on February 15, 1977,1 by Jack i Unless otherwise indicated. all dates herein refer t, the scar 1977 126 CONSTRUCTION, PRODUCTION & MAINTENANCE LABORERS UNION, LOCAL NO. 383 D. Perkins, Jr. (hereinafter referred to as the Charging Par- ty or Perkins), against Construction. Production & Mainte- nance Laborers' Union, Local No. 383, affiliated with la- borers' International Union of North America, AFL. CIO (hereinafter referred to as the Respondent Union). On April 1, the Regional Director for Region 28 issued a com- plaint and notice of hearing on behalf of the General Counsel alleging that the Respondent Union engaged in unfair labor practices in violation of Section 8(b)( )(A) and (b)(2) of the National Labor Relations Act. as amended (hereinafter called the Act), 29 U.S.C. 151. et seq. The com- plaint alleged, inter alia, that agents of the Respondent Union threatened to and did picket William Pulice Con- crete Construction (hereinafter called Pulice) at a construc- tion site because the contractor employed Perkins. who was not a member of the Respondent Union. It is further alleged that as a result of this conduct, Pulice terminated the employment of Perkins on January 25. 1977. The Re- spondent Union filed an answer denying certain allega- tions of the complaint and the commission of any unfair labor practices. A hearing was held in Phoenix, Arizona, on June 14. All parties were represented by counsel and afforded full op- portunity to examine and cross-examine witnesses, and to present material and relevant evidence on the issues in- volved. Briefs were submitted by the parties and have been duly considered. Upon the entire record in this case and from my obser- vation of the witnesses and their demeanor. I make the following: FINDINGS OF FACT i. JURISDICTION The pleadings admit, and I find, that William Pulice d/b/a William Pulice Concrete Construction is a sole pro- prietorship engaged in the construction of sidewalks, gut- ters, and curbs. Pulice maintains its principal place of busi- ness at 2035 West Mountain View Road, Phoenix, Arizona. During the past calendar year. Pulice performed services valued in excess of $50,000 for various political subdivi- sions of the State of Arizona. including, but not limited to, the city of Phoenix, the city of Scottsdale, and the city of Glendale. Each of these political subdivisions, during the same period, purchased goods and materials valued in ex- cess of $50,000 directly from points located in States other than the State of Arizona. Accordingly. Pulice is, and has been at all times material herein, an employer as defined in Section 2(2) of the Act, engaged in commerce and in opera- tions affecting commerce, as defined in Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOIVED Concrete, Production & Maintenance Laborers' Union, Local No. 383, affiliated with Laborers' International Union of North America. AFL-CIO. is a labor organiza- tion within the meaning of Section 2(5) of the Act. III TIE ALLEGED I NFAIR LABOR PRACTICES A. Background Facts Pulice is a party to a multiemplover bargaining agree- ment negotiated between the Associated General Contrac- tors of the State of Arizona and a group of unions consist- ing of the l aborers' District Council, a Teamster local. and a local of the Operative Plasterers' and Cement Masons. Under the terms of the contract (Master Labor Agree- ment). all signatory employers are required to requisition workmen from the local hiring hall of the union having area jurisdiction of the particular craft or skill involved.2 Fhe agreement requires the hiring hall to be operated on a nondiscriminators basis, without regard to union member- ship In addition, there is provision for an order of preference for dispatching the registrants from the hiring halls (Resp. Exh. 2. p. 17). The registrants listed in "Group A" are the workmen with the highest order of preference and are dis- patched first. This group consists of all qualified workmen who haive formerly been employed for a period of at least 60 days b) a signatory contractor in a craft covered by the agreement within the immediately preceding 2 years. Con- tractors may ask for a specific workman from this group by name. hut may not do so with the registrants on the de- scending priorit? lists. When group A is exhausted, the re- gistrants are dispatched from the list established for "Group B." This group consists of qualified workmen who were formerly employed by signatory contractors during at least 45 days within the past 5 years. The final list of regis- trants consists of "Group C." This includes all of the quali- fied workmen who are properly registered and available for employment. The registrants on group C are only dis- patched when the lists for groups A and B are exhausted. B. The Circunrstances Invohling Perkins Some time in December 1976, Perkins met with Tons Pulice. general manager of the Employer, in a coffeeshop to discuss the possibility of employment. The meeting had been arranged by Perkins' brother. Pulice told Perkins that he had a job available. He stated that the Employer had purchased a new truck and expected delivery in the near future, so that he was not certain whether Perkins would be employed as a laborer or assigned to drive the truck when it arrived. Pulice informed Perkins that he had to join a union but suggested that until he knew what his duties would be, he simply would work until the truck arrived or a business agent came out to the jobsite to question him. By that time. theN would be able to determine in which craft he would work, and he could decide whether to join the Respondent Union or the Teamsters Union. Approximately 10 days after this meeting, Perkins began working for Pulice. The undisputed testimony indicates that approximately 90 percent of the work he performed were duties normally assigned to laborers. Reap I ,i 2 p 4I- art l .c 1 c 112 127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 12, Perkins was working at a jobsite at 52nd Street and Cactus Road. Raymond Montoya. a business agent for the Respondent Union, drove up and came over to where Perkins and a coworker were standing. HIe identi- fied himself and asked the employees for their referral slips.' According to Perkins' testimony, the coworker pro- duced his copy and the business agent made a notation in his book. When Perkins stated that he did not have a refer- ral slip, the business agent asked to see his book. Perkins stated that he did not have a book but that Tony (Pulice) told him he would get him in the Union. Perkins testified that tfhe business agent then asked for his name and social security number, which he noted down in his book. lie then told Perkins that he understood, but would have to talk to Perkins' foreman about the matter. Montoya then went over to the foreman, Ramon Hernandez. He told Hernandez that Perkins was not a member of the Respon- dent Union, and that he should have been referred [from the hiring hall] in order to work on the job without any trouble. Montoya advised Hernandez that he was putting Pulice on "24-hour notice" to take corrective action. 4 [ler- nandez told the business agent to take the matter up with Pulice's office.5 Montoya testified that he went to the jobsite on January 12 solely for the purpose of checking the referrals of the laborers who were working on the job. He denied asking Perkins for his union book or his social security number when the employee could not produce a referral slip. How- ever, Montoya acknowledged that when another laborer on the job could not produce a referral slip he asked that employee to produce his union book and made a note of its number. He further testified that when he returned to the union offices he checked the records to ascertain whether or not the employee's union dues were current. On cross- examination, Montova stated that when he found a worker who he knew to be a member of the Union on a job uith- out a referral he would notify the "Union Board" that the member was in violation of the union bylaws. On the other hand, if he found the person who he did not know to be a member, he would not advise the Board of a possible viola- tion. Montoya asserted that he had no way of determining whether the person was a member or not, since he never asked to see a worker's union book. After Montoya left the jobsite, he notified union officials that he had put Pulice on "24-hour notice" because Perkins had not been referred from the hiring hall. When Montoya left the jobsite. Perkins went over to Hernandez to find out what had been said by Montosa. According to Perkins. Ilernandez stated that Monto;a threatened to close down the job unless the Employer got Perkins into the Union. Perkins then asked Hernandez to W',hen the t nion dispaltlhled .1 Aorkilan to .it eimplo) er. he wL.a l\ecn two copies of a referral slip O()e cop was retalied hby te workman lilt show thai he had been referred from the hiring hall), and the other w,ai given to Ihe enlplo er. 4 Under the tefnllS Of tllhe greeclent. a COillrittli, r hilad 24 hoturs Ito iiilci hiring hall itla otllS or the "ni strike no lockout" pro'lsiolls ,aistld in Ilonger be pplicabhle (Resl 1t:il 2. Lit ii) sec I()3. iand .itt ii co 11112.71. h Ihe ihbo e testlllnilly iO Ctcerlllt g tIhle sc ll otil .IitlllilT\ I2 i.sl s\iit 1 lt ls of the credited testlinlnl1s of Perkins and Ilernaitnde have Tony Pulice contact him that evening. Pulice did not contact Perkins until 2 days later, when he came out to visit the jobsite. According to Perkins, Pulice remarked, "I heard you got caught." He then asked Perkins what he wanted to do, and Perkins indicated that he wanted to join the Union. Perkins testified that Tony Pulice then told him, "Okay, fine, I'll call the man." Perkins continued to work for the Employer without in- cident until January 24. On that date, Perkins was working at a jobsite located at 35th Avenue and Bell Road. John Moya, Sr., another business agent of the Respondent, came to the jobsite at approximately 2:30 p.m. He called Perkins by name and asked if he'd gotten his card yet. Perkins told him that Tony Pulice was getting him into the Teamsters Union. According to Perkins, Moya then asked about the type of work he was performing on the jobsite. Perkins stated that he was driving the water truck. Moya then indi- cated that was all right, but told Perkins not to perform any of the work normally performed by laborers. Moya's testimony is essentially the same as that of Per- kins' regarding this incident. However, Moya denied in- structing Perkins not to perform any laborer's work. Moya stated that when he left the jobsite he contacted the union office by two-way radio and spoke to William Soltero, Jr., vice president and assistant business manager of the Re- spondent Union. According to Moya, he suggested that Soltero contact a Teamsters representative and visit the jobsite to check on Perkins. The following day, Perkins was working at the same job- site. He and the crew were preparing to pour concrete when Soltero. Jr., and a Teamsters representative came up. Perkins was pulling rods at the time, which is laborers' work. The Teamsters representative asked Perkins if he drove the truck and to see his Teamsters card. Perkins told him that his emplover was getting him in the Teamsters Union. and he didn't have a card as yet. Soltero, Jr., then asked Perkins if he had a referral from the Laborers' hall, and Perkins stated that he did not. During the course of this conversation. Hernandez came up and ordered Perkins back to work since the crew was preparing to pour con- crete. Accurding to testimony of Hernandez, this angered Soltero, Jr., and he stated that he was going to picket and left. Since the job was almost completed, Hernandez instruct- ed Perkins to go to the jobsite at 52d Avenue and Cactus with the understanding that the crew would meet him there later. Approximately an hour after Perkins arrived at the second jobsite, the crew came up. They were followed by Soltero., Jr.. and another representative of the Respondent Union. Soltero, Jr., and the other Laborers representative got out of their car and began to picket the jobsite. They carried signs indicating that Pulice had breached its con- tract with the Respondent Union. Because of the picketing, the Laborers left the jobsite and Hernandez instructed Per- kins to leave also. Hernandez then contacted Tony Pulice, who came out to the jobsite approximately a half hour later. When TIony Pulice arrived at the jobsite, he questioned Soltero, Jr., about the reason for the picketing, although he was aware that it involved the employment of Perkins. The testimony of Tony Pulice was rather limited and terse. He 128 CONSTRUCTION. PRODUCTION & MAINTENANCE LABORERS UNION, LOCAL NO. 383 was an obvious reluctant and deliberately evasive witness, who admitted that he had refused to cooperate with coun- sel for the General Counsel in preparing the case for hear- ing. Therefore, his affidavit, which he stated upon reflec- tion he would not have given, was submitted into evidence in an effort to ascertain the true facts. Based on his reluc- tant testimony and the affidavit, it is apparent that Soltero, Jr., told Pulice that Perkins was not "right" with the Union. He said that Perkins did not belong to the Union and had not been referred out of the Laborers' hiring hall. Pulice then asked what he had to do to get Perkins "straight." and Soltero, Jr., responded that it was out of his hands. He told Pulice he would have to get in touch with William Soltero. Sr., the business manager of the Respondent Union. That afternoon Tony Pulice called Soltero. Sr., to ask how he could get the matter straightened out. He told Soltero, Sr.. that Perkins was willing to pay the initiation fee to join the Union but Soltero. Sr., stated, "Hell no. I don't want him." Pulice subsequently called Perkins and informed him that the Union would not let him in. Approximately a week later, after being reassured by Tony Pulice that he would be rehired if he secured mem- bership in the Union, Perkins went down to the union busi- ness office. He spoke with Soltero. Jr.. and explained the situation to him. He also told Soltero. Jr., that if he could get a union card, Pulice was willing to put him back to work. Soltero, Jr., attempted to contact Pulice. but was un- successful. He then informed Perkins that membership in the Union was more than just a one-man decision. The application had to be approved by the executive board and another committee of the Union. fie asked Perkins if he was willing to picket for the Union as good-faith evidence of his intentions. Perkins agreed and was assigned to walk a picket line for I day. Approximately a week thereafter, Perkins contacted Soltero, Sr., about his request for joining the Union. ie was told that he could not because the Union didn't have "any room for any smart asses." Since his termination on January 25, 1977, Perkins has not worked for Pulice C'on- crete Construction, nor has he been asked to return to work. On April 8. 1977, the attorney for the Respondent Union sent a letter to the employer stating that the Re- spondent Union had no objection to the Employer hiring Perkins, or any other employee not a-member of the Re- spondent Union, to perform laborers' work, provided they were properly referred pursuant to the hiring hall prosi- sions of the collective-bargaining agreement. It should he noted at this point, that at no time during his tenure with Pulice Concrete Construction, or after his termination on January 25, did Perkins ever request that his name he put on the referral list at the Union's hiring hall. Concluding Findings There are several conflicts in testimony to be resolved here before reaching the ultimate issue of whether the Re- spondent Union attempted to cause and did cause Perkins' termination because he lacked membership in that labor organization. The first conflict of testimony relates to the statements made by Montoya at the jobsite on Januar' 12. It is undisputed that Montoya was at the jobsite to check the referrals of all the employees performing laborers' work. It is also undisputed that he asked to see the referral slip of each employee he observed performing laborers' work. Perkins testified that when he could not produce a referral slip. Montoya asked to see his union book. Monto- ya, on the other hand, denied asking to see anything other than the referral slip so he could ascertain whether the employee had been referred from the hiring hall. Montoya also denied telling Hernandez that Perkins was not a mem- her of the Union. I do not credit Montosa's testimony where it conflicts with that of other witnesses. He im- pressed me as tailoring his answers so that his statements were exculpatory rather than being an accurate account of the conversation at the jobsite. Moreover. I find the testi- mon, of llernandez to be forthright, even though he dis- planed an obvious concern about maintaining his emploser's good relationship with the Union. Accordingly. I finl that Montoya did ask to see Perkins' union book. and he did tell Hernandez that he was putting Pulice on "24-hour notice" because Perkins was not a union member and had not been referred from the hiring hall. Similarly, I discredit Mova's denial that he asked Perkins if he had a union card on January 24, or that he told Her- nandez there would be trouble because Perkins was not a member of the Union. Rather, on the basis of the credited testimony of Perkins and Hernandez, I find that Moya did ask if Perkins had a card, and that he told Hernandez there would be trouble because Perkins was not a member of the Union and because he had not been properly referred. I inally. I find that on January 25. Soltero. Jr.. told Tony Pulice that the Respondent Union was picketing the jobsite because Perkins was not "straight" with the Union, as he was not a member and because he had not been referred from the hiring hall. My conclusions in this regard are based on the oral testimony of Tony Pulice and his affida- vit which is in evidence. While this witness was unwilling to divulge the facts and was manifestly concerned about his compans's relationship with the Union, his cryptic state- ments nevertheless revealed the substance of this conversa- tion. Hlaving found that the Union's stated objection to the employment of Perkins was that he was not a member as well as the fact that he had not been referred for employ- ment pursuant to the contractual provisions of the labor agreement, the issue reduces itself to whether the Union discriminatoril) caused Perkins' discharge. Counsel for the General Counsel relies heavil, on the Maynard C. Behoir case ' to support a finding of a violation. In that case the Board held that the union violated Section 8(b)(1)(A) and (2) of the Act b3 causing an employee's discharge because he was not a member of the union; even though under the terms of an exclusive hiring-hall provision in the contract. the union was entitled to ask for the discharge for lawful reasons. At first blush, it would appear that Belvoir is con- trolling in the instant case, but I find there is a significant factual distinction which warrlants a different result. In Bel- mir, the Board specifically found that the union represen- tatilc only complained of a lack of membership and made t II r, t ( i Pe , I ttl \ , III t ( 10 , e, I *r.,tra ( / I...... I1;1 N I RIS 11)'J4 ( 19t~) 129 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no mention of the failure to comply with the hiring-hall procedures albeit the union asserted a claim to the con- trary at the hearing. Thus, the Board held that the "dis- charge was predicated upon discriminatory reasons," and that it was "no defense that the [union] might have been entitled to require [the employee's] discharge pursuant to the hiring-hall provisions." 7 In the instant case, the Union not only was entitled to ask for the discharge of Perkins under the hiring hall provi- sions,s but did in fact articulate his failure to come through the hiring hall as their major objection to his employment. Each business representative of the Respondent Union specifically told the foreman or Tony Pulice that Perkins had not been properly referred by the Union. Furthermore. when Montoya placed the Employer on 24-hour notice, it was pursuant to a provision in the contract allowing such action to be invoked when there was a violation of the hiring-hall agreement. Additionally, when the Union pick- eted on January 25. the legend on the picket sign indicated that the Employer was in breach of the contract with the Respondent Union--thereby indicating that the Union's action was predicated on the violation of the hiring-hall provision contained in the labor agreement. In these circumstances, I find that the Respondent Union was merely enforcing its hiring-hall provisions by demanding and securing Perkins' discharge because he by- passed the exclusive referral system in working for the i m- ployer. Construction and General Laborers Local Ltinion Number 596 of the Laborers International Union of North America (Leo J. tHood Mason Contractors, Inc.), 216 NL RB 778 (1975). The fact that the union representative also stat- ed that Perkins wlas not a member of the Union is not sufficient here, without more, to convert lawful action into that which is unlawful. There is no claim here that the hiring-hall provisions were discriminatory or operated in a discriminatory manner. Nor is there any claim or any evi- dence that referrals were restricted to union members. Consequently, I find that the Union was policing and en- forcing a legitimate contract right when it protested the hiring of Perkins in contradiction to the hiring-hall prosi- Id al 10i97 i r 1 7/ , I nal,, tl al Bothrh /...., otR .l36 t S 6' 'e,5 tie Motor E. c,, ,./ X. N 1, R B. 365 tV.S 667 (19611 sions. Boston C(ement Masons and Asphalt Layers Union No. 534 (Duron Maguire Eastern Corp.), 216 NLRB 568 (1975). The fact that Perkins, on the basis of representations by Tony Pulice, perceived union membership to be the sole entitlement for employment is not material to the decision in this case. Nor does the fact that the Respondent Union. through Soltero, Sr., refused to admit Perkins to member- ship have a bearing on the conclusions herein. Perkins, by his own admission, never attempted to register and get on the referral list at the union hiring hall. His only efforts, and that of his employer, were to attempt to secure union membership on the theory that such status alone would allow him to continue to work on the job. Perkins' miscon- ception in this regard cannot be attributed to the Union in the absence of evidence showing that union membership was a requirement for employment. Accordingly. I find that the actions of the Respondent Union in protesting and causing the termination of the em- ployment of Perkins, because he had been hired in contra- vention to the exclusive hiring-hall provisions, does not constitute a violation of Section 8(b)(1)(A) and (2) of the Act. United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 469 (S. M. McCulloch d/b/a Mc- ('ulloch Plumbing Company), 159 NLRB 1119 (1966). CONCLUSIONS OF LAW 1. Respondent Construction. Production & Mainte- nance Laborers Union. Local No. 383, affiliated with La- borers' International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. William Pulice d/b/a William Pulice Concrete Con- struction is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By protesting the employment and causing the dis- charge of Jack D. Perkins, Jr.. for the reason that he by- passed the exclusive hiring-hall provisions contained in the labor agreement in working for Pulice Concrete Construc- tion, the Respondent Union did not violate Section 8(b)( )(A) and (2) of the Act. ]Recommended Order for dismissal omitted from publi- cation.] 130