Local 294, Teamsters

1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica (August Bohl Contracting Co., Inc. and Cooley Contracting Co., Inc ., a Joint Venture) and Jack Sharac Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica (August Bohl Contracting Co., Inc. and Cooley Contracting Co., Inc ., a Joint Venture) and Elroy Levernois. Cases 3-CB-1268-1 and 3-CB-1268-2 June 24, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On February 27, 1970, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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 briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent Union, Local 294, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Albany, New York, its officers, agents, and representatives, shall take the action set forth in the Trial Ex- aminer's Recommended Order. ' Respondent 's exceptions directed to the credibility resolutions of the Trial Examiner are without merit The Board will not overrule the Trial Ex- aminer's resolutions as to credibility unless a clear preponderance of all relevant evidence convinces us that they are incorrect On the entire record , such a conclusion is not warranted herein Standard Dry Wall Products , inc , 91 NLRB 544 , enfd 188 F 2d 362 (C A 3) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Trial Examiner: This proceed- ing, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Albany, New York, on November 3, 1969. The order consolidat- ing the cases, complaint, and notice of hearing, dated September 30, 1969, was issued by the Re- gional Director for Region 3 (Buffalo, New York) on behalf of the General Counsel of the National Labor Relations Board (herein called the General Counsel and the Board) and was based on charges filed and served in both cases on May 6, 1969. In substance the complaint alleged that Respon- dent, pursuant to an exclusive job referral practice and arrangement with Bohl-Cooley, a joint venture, caused Bohl-Cooley to refuse employment to Elroy Levernois and Jack Sharac because of their activi- ties "in supporting candidates for election as of- ficers of Respondent Union in opposition to a slate of candidates nominated by Respondent Union" thus dscriminating against them within the meaning of Section 8(a)(3) of the Act and thereby violating Section 8(b)(1)(A) and (2) of the Act. In its duly filed answer Respondent denied the commision of any unfair labor practices and alleged certain affirmative defenses as will be shown. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE EMPLOYER'S BUSINESS August Bohl Contracting Company, Inc., and Cooley Contracting Company, Inc., are, and have been at all times material herein, corporations duly organized under and existing by virtue of the laws of the State of New York, and are engaged in the construction industry as August Bohl Contracting Company, Inc., and Cooley Contracting Company, Inc., a Joint Venture herein called Bohl-Cooley. At all times material Bohl-Cooley, which maintains its office and principal place of business at Albany, New York, has been engaged in excavation work at projects at or related to the South Mall, Albany, New York, as well as other projects in the Albany, New York, area. During the 12 months preceding issuance of the complaint Bohl-Cooley, in the course of its business operations, received in New York State directly 183 NLRB No. 104 LOCAL 294, TEAMSTERS from other States goods and materials valued in ex- cess of $50,000. At all times material Bohl-Cooley has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION Local 294, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, at all times material has been a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES In October 1967 an organization called United Teamsters Association was formed in the Albany, New York, area. It was composed of and limited to members of Teamsters Local 294. As described by Jack Sharac (one of the alleged discriminatees herein) United Teamsters Association "had a two- fold purpose. One was as a social organization and the second was to recruit men that were diligent in their beliefs ... that ... wanted to help their own union out as well as themselves." Both Sharac and Leroy Levernois (the other alleged discriminatee herein) were active in the formulation of this or- ganization-Sharac becoming its president and Levernois its treasurer. In December 1967 the newly formed association (then about 300 members strong out of some 6,000 Local 294 members) put up a slate of candidates for union office in opposition to union incumbents as well as others who were also running for union office. Besides a candidate for president of the Union, the Association was running one Leo Lester as candidate for one of the five business agent posi- tions to be chosen. Among the candidates for busi- ness agent were Anthony J. Carusone, an organizer for the Union, and Billy Germain, an incumbent business agent, whom Carusone had on occasion assisted in his business agent duties. Both Sharac and Levernois became very active on behalf of the Association's slate of candidates, putting up campaign posters, making telephone calls, and talking to Local 294 members wherever they could be found. Just prior to the union elec- tion in December 1967, a news item appeared in a local paper headed "300-Member `Social' Unit Backs Insurgent Teamsters." The article stated in part: Teamster Local 294 election campaigns in nine area cities rolled into high sear today as a new 300-member-strong "social organization" within the union announced its support of four local insurgents. Jack Sharac of Hudson, president of the new United Teamsters group, said: We're primarily a social organization, but 1041 we found ourselves in the political end of it after several of our members decided to run for office. It's our opinion that a real two party system within our local would add a spark of vitality to what has become a dormant rank-and-file membership group within the local. Out moto is "U- nited we stand for old-fashion honesty." We're not out to form our own union. We're for Local 294. We're out to better Local 294 and to represent all the mem- bers all the time no matter who they know. In addition to the foregoing, the article contained a picture of Sharac and Levernois (together with the Association's recording secretary, George Kakely) holding up to view a large banner or poster headed in heavy block letters "KEEP OUT WHEELERS AND DEALERS!" under which in heavier block lettering appeared the words, "VOTE UNITED." The poster also named the Association's four candidates and the offices for which they were running. In the election only one of the Associa- tion's candidates was successful, being elected to a position of trustee. Carusone was elected to a busi- ness agent position as was incumbent Germain. At the time of the hearing the Association (now called United Men's Club) had grown to about 400 mem- bers and had monthly meetings. Sharac was no longer president but Levernois was still treasurer. Sharac testified that some time in late January or early February 1968 he asked Union Steward An- drew Cavanaugh if he wanted to buy a ticket for a raffle being conducted by the United Teamsters As- sociation. Cavanaugh looked at the ticket, "Just laughed and walked away." Somewhat prior to this incident, according to Sharac's further testimony, Sharac had circulated a petition among the drivers to have an election to replace Cavanaugh as steward. Business Agent Carusone came down to the job and wanted to know what the problem was. Sharac indicated that he did not think the men were getting proper representation from Cavanaugh. Carusone said that Cavanaugh would remain on the job as steward, and Sharac pointed out that Cavanaugh was originally elected by the men to the position and argued that if the job was filled once by election why could it not be done again if the man was not performing. Carusone's reply was that "he was running the job and that was it; If (the man) didn't like it to quit." The discus- sion became somewhat personal. According to Sharac's undenied and credited testimony, substan- tially corroborated by Levernois, Carusone told Sharac, "When the job is finished you may as well move because it's the last one you're going to get. "I ' According to Levernois' testimony, Carusone told Sharac on this occa- sion that , "When he is done on the job he is possibly dead in the area as far as work " 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sharac replied, according to his testimony, "That shows how silly you are, you just intimidated me in front of about 25 witnesses." As of the beginning of 1969, the Bohl-Cooley joint venture had been engaged in intermittent ex- cavation work in Albany for some 4 years on what is known as the South Mall project. In addition to this project Bohl-Cooley was also engaged in work at several other locations in the Albany area, all under separate contracts, including work at a loca- tion known as the Walsh job. Originally Bohl- Cooley had some 25 truckdrivers working in- terchangeably from the South Mall project (all working under a seniorty roster established at the start of the South Mall project)' with other of the Bohl-Cooley jobs3 without any change in the payroll records-the drivers staying on the Bohl- Cooley payroll but the cost being billed against the particular jobs upon which they worked. Local 294 represented the drivers at the South Mall project and the Walsh job, and Andrew Cavanaugh was the union steward for both jobs. In February 1969, because of a problem arising with respect to the size of the trucks being operated by Bohl-Cooley on the South Mall project, it was necessary to eliminate all but four of them on that project. By this time 9 of the original 25 drivers had already left Bohl-Cooley employment leaving 16 drivers facing the then necessary reduction in force. Of these 16, the top four men in seniority were kept on the South Mall project, and the remaining 12 told by the Employer that there was no longer any work at the South Mall project but that they could go to work on the Albany High School job which Bohl-Cooley "just started."4 As will appear, 10 of the 12 transferred to the high school job at this time. As to how the Union deals with the contractors who are signatories to collective-bargaining agree- ments with it5 Business Agent Carusone testified as follows: Well, any time a contractor gets a new job they bid a job and they are awarded it. Then we usually sit down. The formal procedure is to sit down and have a prejob conference to deter- mine how many men it is going to involve, who their subcontractors are going to be, and then tell them who our steward is going to be. This happened with respect to the Albany High I Sharac was number I I in seniority on this list and Levernois was number 20 8 From the testimony of Calvin Bohl, who was master mechanic for the South Mall project , it appears that the Bohl-Cooley drivers were thus used between the South Mall project and the Walsh job From the credited testimony of Sharac and Levernois , both South Mall drivers, it appears that the interchange of drivers extended to other Bohl-Cooley projects as well ' The Walsh job at this time had apparently closed down for the winter It would appear from Calvin Bohl's direct examination that Bohl -Cooley did not get the Albany High School job until about a week after the South Mall cutback occurred From his cross-examination , however, it would appear that the high school job was ready at the time the South Mail layoff oc- curred ' Bohl-Cooley belongs to a contractors association which represents it in negotiations with the Union School job. At the prejob conference in Carusone's office with two representatives of Bohl-Cooley, a steward was appointed and the question of a seniority list for the job was discussed.' A few days after the men began transferring to the Albany High School job, Carusone told the steward "to get all the men and make sure they were at (his) office in the morning, that (they) were going to have a meeting."' According to Carusone's testimony he had the meeting because he "wanted to make sure that the guys that were going to get laid off, that some of [them] would get a shot at going up there." About 10 drivers attended the meeting-among them Levernois but not Sharac. Carusone at this time told the men that "there would be separate seniority on this job" for the reason that this "was a separate job,.separate contract." He also told them that by taking a layoff slip from the Company they could retain their seniority on the South Mall pro- ject and would thus be the first recalled, and con- versely that if they did not take a layoff slip on the South Mall project but went to work on the Albany High School job they would lose their seniority. From Levernois' testimony it appears that none of the drivers agreed with Carusone's edict on seniority but that "every driver argued against it." On the other hand, Union Steward Cavanaugh, who also attended the meeting,' was asked on direct ex- amination in effect whether the men agreed with Carusone's edict and answered, "That's right. " I credit Levernois' testimony here and find that no voluntary agreement to establish a new seniority roster on the high school job was made by the em- ployees.' The only agreement that occurred on the part of-the men apparently was that two of them decided to forego employment at the Albany High School job and agreed to take layoff slips as ap- pears from Carusone's testimony: When Carusone was asked on direct examination if agreement was reached with the men at this meeting, the respon- sive part of his answer was,10 "Yes. Two of the men said that they were going to take layoff slips." There is a further implication in Carusone's testimony that the men did not agree with the new seniority list. Thus, he testified that when the layoff occurred on the high school job, the men com- plained that "their seniority was violated." Both Sharac and Levernois were among the 10 What was said about seniority does not appear in the evidence From Jack Sharac's undenied and credited testimony, it appears that he had worked on the Albany High School job for 3 days before this meeting took place ' At the time of this meeting Cavanaugh was on leave recuperating from surgery, but nevertheless was present at the meeting which took place at the union hall on a Sunday " Respondent attempts to bolster its version by testimony of both Calvin and Herbert Bohl to the effect that they had heard that the men "thrashed it out themselves " Since neither of the Bohls attended the meeting in question, their hearsay account is hardly of probative value-particularly on the face of contrary testimony of someone who attended the meeting " In his testimony Carusone repeatedly launched into rambling, often unintelligible dissertations that had no conceivable connection with the questions being posed to him LOCAL 294, TEAMSTERS drivers who transferred from the South Mall job to the Albany High School job. According to Sharac's undenied and credited testimony, the steward on the high school job showed him a seniority list for that job that had been made up by Carusone. It was a continuation of the South Mall seniority list with the exception that Sharac was now last in seniority instead of number 11 as he had been on the South Mall project. Had there been no change in seniority imposed by the Union, Sharac would have been number 3 in seniority at the start of the Albany High School job and Levernois number 10.11 The work at the Albany High School job had been expected to last 4 or 5 months but was essen- tially completed in about half that time, and by mid-April the men were laid off. According to Cal- vin Bohl's testimony, the men that left the South Mall job to work on the Albany High School job were still on the Bohl-Cooley payroll when the high school job finished. At that time the Walsh job was still in a winter shutdown. However, about 2 weeks later, work began again on the Walsh job and several trucks were needed for it. According to Bohl's testimony, he left it up to Union Steward Cavanaugh to get the men for the job as the work requirements dictated. He had no understanding how Cavanaugh would do this and left it completely up to Cavanaugh.12 The ultimate result of this ar- rangement between Bohl and Cavanaugh was that, except for Sharac and Levernois, all the Bohl- Cooley drivers who had transferred to the Albany High School job from the South Mall job when the layoff occurred there were rehired at the Wals job when it reopened plus Ray Eaton and Jack Max- well, the two who had elected to take layoff slips from the South Mall job so as to retain their seniority. As to what happened to Sharac in this connec- tion , he testified that about 2 weeks after he had been laid off the Albany High School job, he learned from Lee Bridenbech, one of the other laid- off drivers, that Bridenbech and some of the other drivers had been called back for work on the Walsh job. On the basis of this information, Sharac went to see Calvin Bohl. He told Bohl, "I understand you've got some men back to work?" and asked what his chances were of going back to work. Bohl replied, "Jack, I haven't got a job for you. "13 Sharac did not talk to Cavanaugh because he was not around. He did go to see Business Agent Carusone in his office. As to what took place there, Sharac credibly testified as follows: First I asked him why he had ignored a letter that I sent by registered mail to the executive " This result is arrived at by eliminating the 9 drivers from the original seniority list of 25 who had already left Bohl -Cooley employment by this time, and including the 2 who took layoff slips when the transfer to the Al- bany High School job occurred 12 Cavanaugh 's testimony that he submitted a list of names to Bohl and called men to come to work on the Walsh job when it reopened , only after he had been instructed by Bohl specifically who to call, is not credited 13 Bohl testified to this effect On direct examination Sharac testified that 1043 board of the Local and a formal complaint my seniority was violated on the Albany High School job. He gave no reply that I can re- member. When I asked why I was placed on the bottom of the list on the high school job. His reply was I wasn't there at that meeting that Sunday they held. Then I asked him about if it wasn't true we were suppose to get three days notice according to the contract before layoff or pay. And he said that we were not en- titled to it.... I asked the same question in re- gard to vacation pay. He also said I wasn't enti- tled to that. I said, "Jack Maxwell was junior to me on the list. He took a lay off before he came to the Albany High School job and he received vacation pay." To that he didn't reply also. I also asked him about getting back down on the Mall. He said, "I'll make it perfectly clear that no one for Bohl-Cooley will go back to the Mall. Any hiring done will be done through me. I am in control of the whole area. Like Sharac, Levernois learned from Bridenbech that "they were calling men back" to the Walsh job. The next morning Levernois called Cavanaugh at 7:30 at the jobsite about which he testified as fol- lows: I told him, I said, "I understand some of the men are back working. I was talking to some. And there's quite a few hired back." And he said yes there was. So, he mentioned-I asked him who. He mentioned a few names and I mentioned a few names. He said, "Yes, they are working." I said, "How come these guys got called back and I ain 't called back and these other guys hired after I was, practically close to a year after I was?" And he said, "You know what the assumption was at the meeting. When you went up to the high school you lost your rights." I said, "Nobody agrees to that, no drivers. It was never agreed on." And he said, "Well," you know, he said, "that's the way it is. We can hire back who we want at any time." In the end he said, "We're getting more trucks, and shortly you should be called back." Prior to this time Levernois had gone to Calvin and Jack Bohl and sought reemployment through them without success. About the same time that Levernois had the above conversation with Cavanaugh, he attended a union meeting about which he testified credibly and without denial as follows: I tried to go up on the floor with the microphone and have Mr. Carusone speak to when he asked Bohl what his chances were of going back to work Bohl replied, "I haven't got anything for you Andy Cavanaugh is doing all the hiring " On cross-examination Sharac testified that when he asked Bohl for work the latter told him that he had no work for him and that he would have to see Cavanaugh Sharac then admitted that the part of Bohl's state- ment about seeing Cavanaugh was Sharac 's own addition as to what Bohl told him I credit Bohl 427-258 O-LT - 74 - 67 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD me on the floor and president Robert Oswell wouldn't allow it. He said that the only way I could talk to Mr. Carusone was to go into his office. I said it ain't of my choosing to go into the office because you get the same procedure when you go in there as any other time. They said no, that's done. But I had to go into the of- fice. [Carusone] said, "What's your bitch now?" I said, "It's the same bitch as before. Why can't we get back to work? Everybody else was called back, men hired after us. Why can't we go back?" He said, "You know when you went up to that job you lost all your rights as you lost everything around here. You're through. If we don't want to hire, we don't have to hire." He just kept saying flatly, "No, that's it." He said, "When you went up to that job, there was a new seniority." They claim there was a list made. But I have never seen a list. I never seen one on the high school job all the while I was there. I seen one. There was never one up. I said as far as seniority nobody agreed to that seniority. At the meeting we had, every driver argued against it. He was only one man. He de- mended that's the way it was going to be. Every driver didn't want it at this time. Bill Bruce tried to tell him how other jobs were do- ing. He said, "I don't care about other jobs. I'm telling you that's the way it's going to be." * It kept getting a little hotter. I told him about my vacation pay. He said, "don't think you have vacation pay." I reminded Mr. Cavanaugh when I started. He agreed, "Yes, • you do. In February you should have one com- ing. Mr. Carusone told Mr. Cavanaugh to look into it which he did. Mr. Cavanaugh did look into it. He said, "That's all there is to it. You're through. You ain't going to go to work." He opened the door and said, "Get out. You're done. And you're dead. Get out." I went out of his office. As for who went to the Albany High School job, Carusone testified, "Well, I left it up-which I do all the time after the steward is appointed. Take 'a In addition, Sharac's attempt to replace Cavanaugh as steward obvi- ously did nothing to ingratiate himself with Cavanaugh or Carusone for that matter The affront to Cavanaugh is obvious And the attempt to accom- this up with the steward.... It didn't make any dif- ference to me. As long as the jobsite was covered and the Teamsters were doing the job that was all I was interested in." Carusone also testified that when the men began getting laid off the high school job "then they said their seniority was violated. It wasn't violated. At that time they were having a party getting all those hours." According to Carusone's further testimony, when Levernois came into the office to see him Levernois had been drinking. He told Levernois, "Look, don't you come in here when you've got false courage. I told you this before and I will tell you again this is the way the thing is. Now, get out." Opening the door to his office Carusone then said, "When you are sober come back again." The following day Carusone had to appear in court to defend himself in connection with a warrant sworn out by Lever- nois. The charges were dismissed. Contentions and Conclusions In its brief Respondent correctly states the issues as being: 1. That there was an arrangement, un- derstanding, or practice that Respondent Union had the sole responsibility and discre- tion for the selection and referral of em- ployees. 2. That the Union caused Bohl-Cooley to refuse to employ Sharac and Levernois on the South Mall project. 3. The Union caused Bohl-Cooley to refuse to employ Sharac and Levernois because they supported candidates in opposition to a slate of candidates nominated by the Union. Respondent contends that there was no arrange- ment , understanding, or practice relegating to the Union the sole responsibility and discretion for the selection and referral of employees to Bohl-Cooley. I disagree and find the contrary. Not only does Cal- vin Bohl's testimony clearly show the exclusive ar- rangement with the Union, but so do undenied statements by union officials. Thus, Carusone told Sharac when the latter was trying to be reemployed by Bohl-Cooley, "Any hiring done will be done through me. I am in control of the whole area." In a similar vein , it will be recalled, Cavanaugh told Levernois, "We can hire back who we want at any time." I also find against Respondent on the other two issues . I believe that the preponderance of the evidence shows that Sharac and Levernois were refused employment at the Walsh job after the Al- bany High School job ended essentially because of their support of the United Teamsters Association and the activities it was engaged in," and that this refusal was the result of action taken by the Union. plish his purpose by an election clearly impinged on Carusone's preroga- tives as business agent to appoint the steward LOCAL 294, TEAMSTERS 1045 The crux of the whole matter is the Union's uni- lateral change in the seniority of the Bohl-Cooley drivers when they began work on the Albany High School job. Respondent argues strenuously in sup- port of its action claiming in effect (1) that the men "thrashed out ... themselses" the matter of the new seniority list on the Albany High School job and (2) that this was done in accordance with the established construction site seniority rule that all "construction sites have a separate seniority." As already shown, the evidence does not support Respondent in (1), above. As for (2), apart from the bald statement by Carusone that each construc- tion site has a separate seniority, there is nothing in the record to support such a finding. Indeed, what evidence there is tends to show the opposite. Thus as shown by Levernois' testimony the men took ex- ception when Carusone claimed that such was the practice on construction projects. Moreover, if such was the practice it had not been followed for some 4 years by Bohl-Cooley in the assignment of its drivers to various of its other jobs from the South Mall project. It appears from the foregoing that the Union had the sole responsibility and discretion for the hiring of Bohl-Cooley drivers on all its Albany area pro- jects. It also appears that, had the Union recalled the men to the Walsh job on the basis of their previously established seniority, Sharac would have been number 3 to be recalled and Levernois number 10. As it was, a total of 10 men were called back, 7 with seniority less than Sharac and 2 with seniority less then Levernois. Considering the part played by Sharac and Levernois in the organization and administration of the United Teamsters As- sociation and its political activities,15 it requires no effort to draw the inference (which I do) that the Union's failure to recall these two men was because of such activity on their part. There is no doubt that the existence and activi- ties of the United Teamsters Association and those responsible for its organization and direction, par- ticularly as pertains to the union election of December 1967, were well noted by the incumbent union officials as well as by Carusone16 and Cavanaugh. In this connection Cavanaugh testified that he knew that Sharac and Levernois were mem- bers of the United Teamsters organization, alluding to the fact that he had seen their pictures in the paper. Respondent claims that the Union's actions on behalf of Sharac and Levernois as well as other United Teamsters members after the union election and prior to the reopening of the Walsh job shows that it had no discriminatory attitude toward mem- bers of the United Teamsters Association. Thus Respondent points to (1) the fact that sometime in 1968 Carusone processed a grievance for Sharac with the Employer saving his seniority standing, (2) that Cavanaugh at Carusone's instructions saw to it that Levernois was paid for vacation that he had earned, and (3) that the Union represented Frank Severino, a United Teamsters member, in a grievance before a state-appointed arbitrator that Severino had filed against the Company for his discharge. About his discharge Severino testified that on August 6, 1968, Union Steward Cavanaugh stopped Severino's truck at 8:30 a.m. and accused him of intimidating a couple of men by having tried to make them sign a petition for a new steward. Cavanaugh told Severino at this time that "you ... United Teamsters are going down the road one by one. In fact, you are going to go right now because I have the right to fire you ... take that truck back to the yard. You're all done." According to Cavanaugh's testimony, the matter was as follows: There was a couple of fellows getting-they had a coffee shack they all use to stop at. Mr. Severino and this fellow name Faye Johnsbn, he was another truckdriver, he was there. And this man kept harping on him that he should do this and he was not doing this and not doing that and so on and so forth. So this Faye John- son went to Cal Bohl. And then he started on another man that was there, Harold Ward. And he told him he was no good and so on and so forth. And he went to Cal Bohl. This was when they had that case on him. Then Cal Bohl came to me. He said, "You'd better do something about that fellow." So, they had been warned to have no riders in the trucks whatsoever. So, he goes right out, pulls right out of the yard. And he picks up a man and had this man riding around in the truck with him..... At this point Cavanaugh was asked by Respon- dent's counsel in effect if Severino was discharged because he had a man riding in the truck with him to which he testified as follows: ... that ... and several other things. Cal Bohl said to me, "come on, Eddie, get in the truck with me." He said, "that fellow there, he is violating every law and everything. If I tell him to do something he just doesn't do it." So, we go over to the Mall. And Cal Bohl told him to take the truck back to the garage, that he was through. He said, "You got a man in that truck and you were told not to have anybody in this truck whatsoever." i5 Respondent contends that the General Counsel failed to prove that the people against whom the United Teamsters candidates were running in the December 1967 union election were "candidates nominated by Respon- dent Union " It is true that Carusone was not an incumbent business agent nor was he shown to have been nominated by the Union as such But it is also shown that candidate Germane, an incumbent business agent, had been on occasion assisted in his business agent duties by Carusone, thus showing some amicable connection between Carusone and the governing hierarchy of the Union 'S Carusone 's testimony that he "didn 't know anything about the United Teamsters" opposition to the Union incumbents and that he did not know that Campbell, United Teamsters candidate who was elected a trustee, was member of that organization is rejected as patently incredible 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Whatever the exact facts about the matter I credit Severino's testimony here. (The arbitrator's award was against Severino.) This conduct on the part of the Union normally would be of some significance in weighing the charge of discrimination on the part of the Union against Sharac and Levernois. But the circum- stances here are not ordinary and there are coun- tervailing factors that should be considered. For in- stance, it should be noted that Respondent Union is, and has been for a long time, a sophisticated union very ably represented by counsel and quite experienced in the ramifications of charges involv- ing Section 8(b)(1)(A) and (2), and other sections of the Act." Thus the Union could very well have been wary in 1968 about inviting a charge of restraint and coercion of Sharac in the exercise of his rights under the Act by a discriminatory refusal to process a grievance for him-particularly so soon after his publicly having told Carusone how stupid he was to have threatened him with loss of employment in front of some 25 witnesses. By 1969, the deterrent effect of such a remark may have diminished. Nor would it have been in keeping with the Union's knowledge to have invited similar charges by Levernois on anything so open and shut as vaca- tion benefits to which he was entitled. As for the ar- bitration on Severino's discharge, apart from the fact that there was nowhere near the incentive for union resentment of Severino as there was with respect to Sharac and Levernois,18 the truth is that many an arbitration has been processed by a union knowing full well that it would be lost and being quite content in that knowledge. On the record as a whole, I am convinced and find that when the Union failed to recall or to rehire Levernois and Sharac'9 on the Walsh job in the exercise of its exclusive hiring arrangement with Bohl-Cooley, it can be said to have caused dis- crimination against them by Bohl-Cooley within the meaning of Section 8(a)(3) of the Act, and thus violates Section 8(b)(1)(A) and 8(b)(2) of the Act. International Union of Operating Engineers, Local 624 A-B (D. S. McClanahan & Son), 141 NLRB 615; Carpenters Union Local 180 (Golden State Runway and Engineering Company), 162 NLRB 950. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with 17 See Conway's Express, 87 NLRB 972, Western Express Company, Inc , 91 NLRB 340, The Great Atlantic and Pacific Tea Company, Inc., 116 NLRB 943, Valetta Trucking Company, 116 NLRB 842, Bonded Freightways, Inc, 121 NLRB 924, Grand Union Company, 122 NLRB 589, K-C Refrigeration Transport Co, Inc, 124 NLRB 1245, Valletta Motor Trucking, Inc, 137 NLRB 1023, Island Dock Lumber, Inc, 145 NLRB 484, and The Great Atlantic and Pacific Tea Company, Inc, 173 NLRB 1492 18 So far as the record shows, Severino was merely a member of the the Employer's operations set forth in section 1, above, have a close, intimate, and substantial rela- tionship 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 Respondent Union violated the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Hav- ing found that Respondent Union caused Bohl- Cooley to discriminate against Jack Sharac and Leroy Levernois by refusing them employment con- trary to requirements of Section 8(a)(3) of the Act, I shall recommend that Respondent make them whole for any loss of pay suffered by reason of the discrimination against them , by paying to them a sum of money equal to that which they normally would have earned from the date of the discrimina- tion against them (which was the date they would have been recalled to the Walsh job in the spring of 1969, had the recall been made on the basis of the seniority they were entitled to carry with them to the Albany High School job from the South Mall project) to the time that they would have been laid off on the Walsh job or the South Mall project as their seniority would have dictated , absent any dis- criminatory motive. Upon the foregoing findings of fact and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. August Bohl Contracting Company, Inc., and Cooley Contracting Company, Inc., a Joint Ven- ture , are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By causing or attempting to cause August Bohl Contracting Company, Inc., and Cooley Con- tracting Company, Inc., a Joint Venture, to refuse employment to Jack Sharac and Leroy Levernois because of their supporting candidates for election as officers of Respondent Union in opposition to a slate of candidates backed by the Union, Respon- dent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and 8(b)(2) of the Act. United Teamsters Association and played no part in its formation or ad- ministraction Parenthetically, one wonders how Carusone would have known of Severino's membership in the United Teamsters Association if he did not (as he claimed) know about its publicized members who were in- volved in the same election campaign as he was 19 Contrary to Respondent the evidence shows that Sharac did seek reemplpyment through the Union-not through Cavanaugh but through Carusone-the one who controlled hiring in the whole area LOCAL 294, TEAMSTERS 4. The said unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclu- sions of law and upon the entire record in the case, I recommend that Respondent Union, Local 294, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause August Bohl Contracting Company, Inc., and Cooley Contract- ing Company, Inc., a Joint Venture, to discriminate against Jack Sharac and Leroy Levernois or any other employee contrary to the requirements of Section 8(a)(3) of the Act. (b) In any other manner restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Make whole Jack Sharac and Leroy Lever- nois for any loss of earnings they may have suffered because of the discrimination against them in the manner set forth in the section entitled "The Remedy." (b) Post at Respondent Union's business offices and meeting halls copies of the attached notice marked "Appendix. "2 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's authorized representative, shall be posted by 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 are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for Region 3 signed copies of the attached notice marked "Ap- pendix" for posting at the premises of the two named contracting firms and the Walsh and South Mall project sites in places where notices to the Company's employees are customarily posted, the said Companies willing. (d) Notify the Regional Director for Region 3, in writing , within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.21 IT IS FURTHER RECOMMENDED that, unless on or before 20 days from the date of receipt of this Decision Respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring it to take the aforesaid action. 20 In the event no exceptions are filed as provided by Section 102 46 of 1047 the Rules and Regulations of the National Labor Relations Board, the findings , conclusions , recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board " shall be changed to read " Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 2i In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 3 , in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Au- gust Bohl Contracting Company, Inc., and Cooley Contracting Company, Inc., a Joint Venture, to discriminate against Jack Sharac or Leroy Levernois or any other employee or applicant for employment in violation of Sec- tion 8(a)(3) of the Act. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL make Jack Sharac and Leroy Levernois whole for any loss of earnings they may have suffered because of the discrimina- tion against them. LOCAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) By Dated (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 716-842-3100.