Asbestos Workers, Local 53

642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Heat and Frost Insula- tors and Asbestos Workers Local No. 53 (McCarty and Armstrong) and Paul A. Vogler, Jr. Case 15- CB-775 September 18, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, BROWN, AND JENKINS On December 18, 1968, Trial Examiner Marion C. Ladwig issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed insofar as it alleged any viola- tions of the Act not specifically found. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief; the Respondent filed a "Motion to Recuse and Disqualify the Trial Examiner," exceptions to the Trial Examin- er's Decision, and a supporting brief; and the Charging Party filed a brief in opposition to the Respondent's exceptions and a motion to reopen the case and admit new evidence. 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 this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified below. For the reasons stated below, we find merit in the following contentions by the General Counsel in his exceptions. Fullen should be found to be a ' We deny as lacking in merit Respondent 's Motion to Disqualify the Trial Examiner on the ground that he is prejudiced against any individual or organization which allegedly discriminated on a racial or color basis and that he therefore erred in his credibility resolutions and weighing the evidence It is established Board policy not to overrule a Trial Examiner's credibility findings unless , as is not the case here, a clear preponderance of all relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A. 3) ' We deny the motion of the Charging Party to admit additional evidence Even assuming as true the factual matters raised in his motion, we find that they would not affect the determinations herein made discriminatee and should be ordered to be made whole; from January 5 until August 1966, the Union refused to refer Vogler because of his nonunion status and the Trial Examiner should have passed on such allega- tion; as part of the remedy the Trial Examiner should have required Respondent to operate a nondiscrimina- tory hiring hall if it operates any; such remedy should also include provisions requiring Respondent to make the discriminatee permitmen whole for being prevent- ed by discrimination from having sufficient hours to qualify for the welfare fund; the Trial Examiner should have ordered that records be kept of the hiring hall and pension funds with such records being available to the Board for inspection; and the Order and notice should be amended to prohibit the Respondent from causing the Employer to hire union members because a nonmember is on the job if such hire results in the displacement of the nonmember. The Trial Examiner found that the Union illegally induced McCarty to transfer permit men Vogler, Kerr, Horace D. Brown, and Juan B. Galaviz from an overtime job because of their lack of union membership and in order to give preference to union members in the assignment of overtime, but made no findings as to Brooks Fullen, Jr., on the ground that the General Counsel failed to name him as one of the discriminatees. Section 15 of the complaint alleges that from on or about January 2, 1966, to date, and at all times material herein, Respondent attempted to cause McCarty to deny overtime employment to employees Juan Galaviz, Vogler, and others because they were not members of Respondent and/or to provide additional overtime opportunities for members of Respondent. Accordingly, and as the record shows that Fullen was treated in exactly the same manner as Vogler, Kerr, Brown, and Galaviz, who were included in the Trial Examiner's findings, we hereby include Fullen in this finding. On the ground that the remedy for such violation would be cumulative, the Trial Examiner found it unnecessary to pass on the allegation that from Janu- ary 5, 1966, until about August 1966, the Union refused to refer Vogler for employment because of his nonunion status. We disagree with the Trial Exam- iner and make the following findings: The record shows that although Vogler remained available for referral after he was laid off from the International Trade Mart job and, in fact, unsuccess- fully solicited referrals from various employers, Busi- ness Agent O'Brien admitted that he refused to refer Vogler at least until sometime in March 1966. This occurred even though it was stipulated that other referrals were made during this period from January 1, 1966, through March 3, the date Vogler went to work, and also from July 13, 1966, through August 185 NLRB No. 89 ASBESTOS WORKERS, LOCAL 53 643 1966. It is clear that Vogler had notified O'Brien of his availability. In March 1966, O'Brien discovered that Vogler was working at Eagle Asbestos Company, where he had been employed on his own and without O'Brien's knowledge. Vogler worked on the Eagle job until June 9, when he and others were laid off in anticipation of a possible strike. About August 17 or 18, Eagle offered Vogler a job again, but about August 22 told him that under a new policy he would have to obtain a permit from the Union before he could go to work. Vogler then reported to O'Brien that he had been offered a job by Eagle but that he had to obtain a permit from O'Brien. O'Brien refused to send Vogler to the Eagle job but instead referred him to Union Carbide, to which Vogler reported. As it is clear that a card member of the Union could obtain his own job without O'Brien's approval, it was discriminatory for O'Brien to refuse to send nonmember Vogler to the job Vogler had obtained on his own. Moreover, the referral to an employer other than Eagle is clearly a discriminatory referral of Vogler. In these circumstances, we find that Respondent, by refusing to refer Vogler for jobs from January 5 until sometime in March 1966 and by refusing to allow Vogler to obtain his own job in August 1966 while a card member of the Union was permitted to obtain his own job, violated Section 8(b)(2) and (1)(A) of the Act. In accordance with our above findings of violations of the Act not found by the Trial Examiner, we hereby amend his Conclusions of Law as follows: AMENDED CONCLUSIONS OF LAW 1. By causing McCarty, Armstrong, and other employer-members of the Association, through a dis- criminatory oral understanding , arrangement, and practice, to give priority in employment on the basis of union membership, in violation of Section 8(a)(3) of the Act, the Union has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(2) and (1)(A) and Section 2(6) and (7) of the Act. 2. By causing Armstrong discriminatorily to deny overtime to Bill Wonzer and Olan Wonzer on and after November 6, and to lay them off on November 12, because of their nonunion status , the Union violat- ed Section 8(b)(2) and (1)(A) of the Act. 3. By causing McCarty discriminatorily to transfer Kerr and Brown on December 29, and Vogler, Galav- iz, and Fullen on December 31, to deny them overtime thereafter, and to lay off Vogler and Galaviz on January 5, because of their nonunion status, the Union violated Section 8(b)(2) and (1)(A) of the Act. 4. By refusing to refer Vogler for employment from January 5, 1966, until about August 1966, because of his nonunion status, the Union violated Section 8(b)(2) and (1)(A) of the Act. THE REMEDY Although the Trial Examiner found that the Respondent's hiring arrangement was illegal because of discrimination based on union membership, never- theless he made no recommendation as to remedy because of the outstanding injunction by the U. S. District Court affecting the hiring hall. Contrary to the Trial Examiner, we shall provide our usual remedy for operating a hiring hall which is illegal on the ground of union preference. We therefore shall order that the Respondent cease and desist from operating the hiring arrangement herein found to be unlawful and, if it continues to operate a hiring hall, to operate one that is not discriminatory. As we have found that Brooks Fullen, Jr., along with Vogler, Galaviz, Kerr, and Brown, was denied an overtime job because of his nonunion status, we find that Fullen should be made whole for his loss of wages in the same manner provided for by the Trial Examiner in his remedy with respect to Vogler, Galaviz, Kerr, and Brown. In his remedy, the Trial Examiner failed to include any provision requiring Respondent to make whole the discriminatee permitmen, who, because of the discrimination against them, were prevented from acquiring the requisite number of hours to qualify for the joint union and employer welfare fund. The record shows that the Employer, during the critical period herein, made contributions to the welfare fund in an amount of 10 or 15 cents per hour, and an employee qualifies if he works 480 hours in a 6- month period. It is clear in the instant situation that Vogler, Brown, Galaviz, Kerr, and Fullen would have worked on their job until it ended sometime in March 1966 and would have qualified for the fund but for the discriminatory transfers. In these circumstances, we shall order that these employees receive a credit by the Respondent for the welfare fund for the hours that they would have worked if they had not been discriminatorily transferred. We further shall order, if Respondent is required under the welfare plan to make these contributions, that Respondent make the contributions necessary to make, these employees whole for the discrimination against them. We shall also order that the Respondent keep full records of its nondiscriminatory hiring hall and 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its welfare and pension funds, and to make such records available to the Board for periodic inspection. Finally, we find merit in the exception that the Trial Examiner's Order and notice should be amended so that Respondent is prohibited from causing any employer to hire a union member because a nonmem- ber is on the job if such hire results in the displacement of such nonmember. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Inter- national Association of Heat and Frost Insulators and Asbestos Workers Local No. 53, its officers, agents, and representatives shall: 1. Cease and desist from: (a) Causing or attempting to cause McCarty, Inc., and Armstrong Contracting and Supply Corporation, members of the Master Insulators Association, or any other employer, to discriminate against employees or prospective employees by refusing to hire them on the unlawful basis of union membership, or main- taining, performing, or enforcing, by agreement or otherwise, any like or related arrangement in a manner whereby referrals to available jobs are based on the unlawful basis of union membership. (b) Causing or attempting to cause McCarty, Inc., and Armstrong Contracting and Supply Corporation, members of the Master Insulators Association, or any other employer, to deny any employee overtime, to lay off or transfer him, or to discriminate against him in any way because of his nonunion status. (c) Causing any employer to hire a union member because a nonmember is on a job if such hire results in the displacement of such nonmember. (d) Threatening any employer with a strike, or with the withdrawal of skilled labor, for refusing to deny overtime, to lay off, or to otherwise discrimi- nate against a nonunion employee because of his nonunion status. (e) In any like or related manner restraining or coercing nonmembers in the exercise of their rights as employees under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) If Respondent continues to operate a hiring arrangement or hall, to operate one that does not discriminate on the basis of union membership. (b) Make whole Paul A. Vogler, Jr., Juan B. Galav- iz, Leon Kerr, Horace D. Brown, Bill Wonzer, and Olan Wonzer, as provided in the section of the Trial Examiner's Decision entitled "The Remedy," and make whole Brooks Fullen, Jr., as provided herein under "The Remedy." (c) Credit Paul A. Vogler, Jr., Juan B. Galaviz, Leon Kerr, Horace D. Brown, Bill Wonzer, Olan Wonzer, and Brooks Fullen, Jr., for application of the welfare fund, with the number of hours they would have worked if they had not been discriminato- rily laid off and/or transferred; and credit them with any contribution to the fund which Respondent may be required to make and which these employees would have received but for the discrimination against them. (d) Keep full records of its nondiscriminatory hiring hall and its welfare and pension funds and make such records available to the Board for periodic inspec- tion. (e) Post in the Respondent's business offices and meeting halls copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by an authorized representative of the Respondent, shall be posted immediately upon receipt thereof and be maintained for 60 consecutive days thereafter. Copies shall be posted in conspicuous places, within clear view of all persons-seeking referrals by the Respondent, and all persons entering the Respondent's hiring halls. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. Upon request of the Regional Director, Respondent shall supply him with a sufficient number of signed copies for posting by McCarty, Inc., and Armstrong Contracting and Supply Corporation, and members of the Master Insulators Association of New Orleans and Baton Rouge, Louisiana, Inc., if desired by them. (f) Notify the Regional Director of Region 15, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER JENKINS, concurring in part and dissenting in part: I concur in the legal conclusions reached by my colleagues that the Union's conduct, as described by the Board majority, violated Section 8(b)(2) and (1)(A) of the Act for the reasons therein stated. In short, the Board finds, and I agree, that the Charging Parties were discriminated against because they were not union members. I dissent from the Board's unwillingness to find the conduct violative of these same sections of the ' In the event this Order is enforced by a judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ASBESTOS WORKERS, LOCAL 53 Act for the additional reason that the discrimination was based on race and national origin . The central critical fact underlying this litigation is the unlawful attempt of the Union to exclude from jobs under its control all black and Mexican-American employees. The Trial Examiner did not pass on whether the hiring arrangement was discriminatory on the addi- tional ground of race and national origin because he concluded, as a matter of comity between the branches of the Federal Government, it was not proper to rule on these additional matters which were similar to the racial issues before the U. S. District Court. At the time of the Trial Examiner's Decision, the U. S. District Court for the Eastern District of Louisia- na, New Orleans Division, in Civil Actions Nos. 66-749 and 66-833, had issued a temporary injunction enjoining racial discrimination in membership require- ments and referrals by Respondent.4 That injunction was in effect at the time of the trial of the instant case. It is my view that when violations of the National Labor Relations Act are alleged, the Board has the primary responsibility to rule on them and I would resolve any conflict with the court order at the compli- ance level. The instant case is within the Board's jurisdiction. The Board has already held, with court approval, that title 7 of the Civil Rights Act of 1964 in no way limits the Board's powers and duties under the National Labor Relations Act.' Further, it is well established that it is within the jurisdiction of the Board, under the National Labor Relations Act, to rule on alleged violations arising out of hiring practices or arrangements that discriminate on the basis of race or national origin.6 Accordingly, I would rule on whether the Respondent's hiring practices violate the Act for racial reasons. The record shows that Respondent's business agent, O'Brien, testified that since "sometimes along in the '60's" only sons and nephews of members were consid- ered for membership,' and at that time he did not know of any Negro members. It was stipulated that during the months of October, November, and Decem- Paul Vogler, Jr. v McCarty, Inc, 294 F Supp 368 (D.C La.), affd sub nom, Local 53 of the Intl Assn. of Heat & Frost Insulators v Paul Vogler, Jr., 407 F 2d 1047 (C A. 5, 1969), in which an injunction issued against Respondent for discriminating against Negroes and Mexican- Americans in employment on account of their race , color, or national origin ' Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO (The Business League of Gadsden), 150 NLRB 312, 320-322, enfd 368 172d 12 (CA 5), cert denied 389 U S 837 6 Houston Maritime Association , Inc., and Its Member Companies, 168 NLRB No 83 , enforcement denied on other grounds 426 F 2d 584 (C A 5) Cargo Handlers, Inc, 159 NLRB 321, and cases cited therein ' It appears that membership thus was barred to Negroes and Mexican- Amencans 645 ber 1965 and January 1966 there were no Negroes in the membership of Respondent. Moreover, O'Brien further testified that it was the policy of the Union during the winter of 1965 not to admit Negroes into membership; and in the winter of 1965 no Negroes were referred out to work. It was stipulated that Casimere Joseph, a Negro and the first to apply for membership, applied "for the Union" around the end of December 1965. O'Brien testified that the policy of the Union during October, November, and December 1965 and January 1966 was not to refer Negroes out for employment. The first Negroes who applied to the Union for employment were referred on November 19 and 23, 1965, respectively, by the Urban League, and Respondent refused to send them out for employment. It is also alleged by the General Counsel that Respondent discriminated against Mexican-Ameri- cans. While the evidence is clear with respect to the Respondent's policy not to admit Negroes to membership and not to refer them to jobs, it also appears that Respondent had a policy against admit- ting Mexican-Americans to membership. Thus O'Brien testified that Respondent had been working three Mexican brothers from Mobile but that, in effect, there were not enough Mexicans in New Orle- ans to be a problem. O'Brien also stated that "if you were over in San Antonio or El Paso . . . they could probably charge you with discrimination .... In this connection we also note the statement of Union Steward Jimmy Lawrence to Galaviz that "they wanted to keep the Negroes and Mexicans out of the Local." This statement is not denied by Lawrence. It is also noted that Vogler made unsuccess- ful attempts to inquire about getting Galaviz, a Mexi- can-American, into the local.' Based on the facts detailed above, I would, find that the Respondent on the critical dates herein involved maintained a preferential hiring arrangement which discriminated against Negroes and Mexican- Americans because of race and national origin. I would also find that the Respondent, by maintaining a hiring arrangement which gave preference on the basis of race or national origin as well as preference on the basis of union membership, violated Section 8(b)(2) and (1)(A) of the Act. To remedy such viola- tion, I would order that the Respondent cease and desist from operating a hiring arrangement which is unlawful on the basis of race as well as union membership and, if it continues a hiring hall, to See Vogler v McCarty, Inc., supra, in which an injunction issued against Respondent for discriminating against Negroes and Mexican- Americans in employment on account of their race, color, or national origin 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operate one that is not discriminatory on either of these two grounds.' ' Houston Maritime Association, Inc, and Its Member Companies, 168 NLRB No 83, enforcement denied solely on the ground of insufficient evidence to support a finding of racial discrimination during the 10(b) period, 426 F 2d 584 (CA 5), Cargo Handlers, Inc, 159 NLRB 321 Cf Local Union No 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO (The Business League of Gadsden), 150 NLRB 312, enfd 368 F 2d 12 (C A 5), cert denied 389 U S 837, Local1367, International Longshoremen 's Association, AFL-CIO (Galveston Maritime Association, Inc), 148 NLRB 897, enfd 368 F 2d 1010 (C A 5); Independent Metal Workers Union, Local No I (Hughes Tool Compa- ny), 147 NLRB 1573 where the Board held that discrimination based on racial considerations , when engaged in by a statutory bargaining representative, constitutes inherently unfair representation 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 McCarty, Inc., and Armstrong Contracting and Supply Corporation, members of the Master Insu- lators Association, or any other employer, to discriminate against employees or prospective employees by refusing to hire them on the unlaw- ful basis of union membership or maintain, per- form, or enforce, by agreement or otherwise, any like or related arrangement in a manner whereby referrals to available jobs are based on the unlawful basis of union membership. If we continue to operate a hiring hall or arrangement, we will operate one that does not discriminate on the basis of union membership. WE WILL NOT cause or attempt to cause McCarty, Inc., and Armstrong Contracting and Supply Corporation, members of the Master Insu- lators Association, or any other employer, to deny any employee overtime, to lay off or transfer him, or to discriminate against him in any way, because of his nonunion status. WE WILL NOT cause any employer to hire a union member because a nonmember is on a job if such hire results in the displacement of such nonmember. WE WILL NOT threaten any employer with a strike, or with the withdrawal of skilled labor, for refusing to deny overtime, to lay off, or to otherwise discriminate against a nonunion employee because of his nonunion status. WE WILL NOT in any like or related manner restrain or coerce nonmembers in the exercise of their rights as employees under Section 7 of the Act. WE WILL pay to Paul A. Vogler, Jr., Juan B. Galaviz, Leon Kerr, Horace D. Brown, Bill Wonzer, Olan Wonzer, and Brooks Fullen, Jr., all the regular and overtime wages they have lost since 1965 as a result of being replaced on overtime jobs by union members, plus 6 per- cent interest. WE WILL credit Paul A. Vogler, Jr., Juan B. Galaviz, Leon Kerr, Horace D. Brown, Bill Wonzer, Olan Wonzer, and Brooks Fullen, Jr., for application of the welfare fund, with the number of hours they would have worked if they had not been discriminatorily laid off and/ or transferred for applicability of the welfare fund. WE WILL credit Paul A. Vogler, Jr., Juan B. Galaviz, Leon Kerr, Horace D. Brown, Bill Wonzer, Olan Wonzer, and Brooks Fullen, Jr., with any contributions which Respondent may be required to make to the welfare fund and which these employees would have received but for the discrimination against them. WE WILL keep full records of our nondiscrimi- natory hiring hall and our welfare and pension funds and make such records available to the Board for periodic inspection. Dated By INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS LOCAL No. 53 (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADWIG, Trial Examiner: This case was tried at New Orleans, Louisiana, on April 2-5 and 8- 10, 1968, pursuant to a charge filed on January 13, and ASBESTOS WORKERS, LOCAL 53 647 amended February 11, 1966,' by Paul A Vogler, Jr., an employee of McCarty-Branton, Inc., herein called McCarty, against the Respondent , International Association of Heat and Frost Insulators and Asbestos Workers Local No. 53, herein called the Union, and pursuant to a complaint issued June 2, 1967. The Union, with a restricted membership of about 260, was the recognized bargaining representative of about 1,200 insulator mechanics and helpers employed by McCarty, Armstrong Contracting and Supply Corporation, herein called Armstrong, and the other insulation contractors in the Master Insulators Association of New Orleans & Baton Rouge, La., Inc., herein called the Association. The primary issues are whether the Union was a party to an oral understanding, arrangement, and practice which gave priori- ty in employment to union members, and whether the Union caused the contractors discriminatorily to deny over- time employment to Vogler and five other nonmember "permit men," and to transfer and/or lay them off, in violation of Section 8(b)(2) and (1)(A) of the National Labor Relations Act, as amended. Upon the entire record,' including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Union, I make the following: Baton Rouge area, and a critical shortage of qualified insulators. The Union, with restrictive membership policies, then had about 260 members This case arose in January 1966, when insulator mechanic Paul A. Vogler, Jr., filed a charge against the Union, alleging that it was discriminating against nonunion employ- ees. Thereafter, and before issuance of the complaint herein, the U. S. District Court for the Eastern District of Louisiana, New Orleans Division, in Civil Actions No. 66-749 (Paul A. Vogler, Jr., and Casimer Joseph, III v. McCarty, Inc., and the Union), and No. 66-833 (U. S., by Ramsey Clark, Attorney General v. Local 53 of the International Association of Heat and Frost Insulators and Asbestos Workers), held a hearing on January 19-20 and 24, 1967, concerning alleged violations of the Civil Rights Act of 1964. On May 31, 1968, the court issued a temporary injunction (which remained in effect at the time of trial of the present case), enjoining racial discrimination in membership require- ments and referrals. The court did not have before it the unfair labor practices discussed herein and therefore did not rule upon them. (The Union's motions to dismiss and not to rule, filed in the present proceeding, are denied for lack of merit.) B. The Illegal Hiring Procedure FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYERS AND THE LABOR ORGANIZATION INVOLVED McCarty and Armstrong each were Louisiana corpora- tions, with their principal places of business in New Orleans, Louisiana, and were engaged in the insulation contracting business, receiving annually goods and materials valued in excess of $50,000 directly from outside the State. The Union admits, and I find, that McCarty and Armstrong were each engaged in commerce within the meaning of Section 2(6) and(7) of the Act, and that the Union is a labor organization within the meaning of the Act. The Union also admits that McCarty, Inc, has been the successor of McCarty since June 30, 1966, and that the Association, composed of about 12 employers in the New Orleans and Baton Rouge area, represents the employer members in the negotiation and administration of collective-bargaining agreements with the Union. iI. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In 1957, when Gerald W O'Brien was elected business agent, the Union had a membership of "a little over 200" and only 120 jobs. By the fall of 1965, during a boom in industrial construction and following Hurricane Betsy, there were around 1,200 jobs in the New Orleans and ' All dates, unless otherwise indicated , are in the period from October 1965 to January 1966 ' The General Counsel's motion to correct the record, dated October 8, 1968, is granted and the record is corrected accordingly The evidence is undisputed that although there was no mention of a hiring or referral procedure in the Association- Union collective-bargaining agreement during the period in question (the fall and winter of 1965-66), McCarty, Armstrong, and the other employer-members of the Associa- tion followed the practice of securing their insulator mechan- ics and "improvers" (helpers or apprentices) from the Union. Under this practice, "cardmen" (members of the Union) were permitted to solicit their own jobs and to work without union referrals, and were given first preference by the Union in making referrals to the contractors. When a sufficient number of cardmen were unavailable to supply a contractor's request for applicants, the Union gave second preference to "travelers" (members of other locals of the same International) who, like cardmen, paid dues to the Union. When additional employees were needed, the Union would either refer nonmembers, or give referrals to persons sent to the union hall by the contractor. These nonmember "permitmen" paid no dues. There was undisputed testimony that the contractors orally agreed to this longstanding hiring and referral proce- dure in order to have access to qualified insulator mechanics. However, the undisputed evidence also shows that preference was given on the basis of union membership, not on the basis of ability, residence, etc. Even those union members who were considered unsatisfactory as employees were given preference over those nonmembers who were highly skilled, long experienced, and highly regarded as employees-despite their inability to join the Union. It is clear that the Union, in being a party to this oral understanding, arrangement, and practice, of giving preference in referrals and hirings on the basis of union membership, violated Section 8(b)(2) and (1)(A) of the Act 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Discrimination Against Permitmen 1. Overtime denied Bill and Olan Wonzer Under the collective-bargaining agreement, all work out- side the regular 8 hours a day, Monday through Friday, was overtime at double pay. On October 28, when Armstrong's job at the American Cyanamid plant went on an overtime basis, all five of the mechanics on the job were permitmen. They began working 2 hours a day overtime, raising their daily wage from $34.80 (8 hours at $4.35) to $52.20 (8 hours plus 2 hours at $8.70). The next week 11 mechanics were added to the job. These included two cardmen, two travelers, permitmen Bill and Olan Wonzer, and another permitman, hired on Wednesday, November 3. The four others hired later that week were a permitman hired on Thursday, and a permitman and two travelers on Friday. (Concerning these last two persons, the parties agreed that one was a traveler, but questioned whether the other was a traveler or a permitman. From all the evidence, I find that both were travelers.) On Friday, November 5 (their third day on the job), permitmen Bill and Olan Wonzer asked Foreman Charles Feraci if they could work that weekend Feraci (according to the Wonzers' undisputed testimony) answered no, the overtime was reserved for the cardmen only. That weekend, Bill and Olan Wonzer, and the five other permit mechanics then remaining on the job, did not work. (I note that one of these five permitmen, Barney Jordan, worked as a superintendent on this job on December 11-12 and 17- 19.) However, both cardmen and all four of the travelers on the job did work that Saturday, November 6, as did six mechanics who worked elsewhere during the week. These latter six were all cardmen, except permitman Paul McCarthy who was permitted to join the Union shortly thereafter. (In some instances, permit helpers were permitted to work overtime when permit mechanics were not. All travelers were mechanics, and at least 90 percent of the "improvers" in the Union were upgraded to mechanics ) There is no direct evidence that the job steward, cardman Charles Kraemer, participated in this discrimination against the permitmen on the job. However, permitman Vogler (who was then working across the road on the McCarty job at the American Cyanamid plant) credibly testified that one day in the latter part of October, steward Kraemer came to the McCarty job, seeking mechanics to work overtime. Vogler volunteered, but the McCarty job steward, James Lawrence, told Kraemer, "No, no, he is a permit man." Kraemer told Vogler, "Well, I can't use you then." (Vogler believed that this work was to be performed during the evening, but the Armstrong payroll records show that 10 hours of overtime was performed on Saturday, October 29, by 10 mechanics, including General Foreman Michael Marino from the McCarty job. All 10 were cardmen, except Paul McCarthy, mentioned above.) Permitman Vogler also credibly testified that sometime around Thanksgiving he saw some of the mechanics leaving the McCarty job to work overtime on the weekend "up the river" at Little Gypsy. Vogler again volunteered, but Job Steward Lawrence refused, saying, "No, we don't need any men, just cardmen going up there." (I discredit Lawrence's denial that he had anything to do with the assigning of overtime. He did not impress me as a trustworthy witness.) Despite the lack of direct evidence that Job Steward Kraemer participated in the November 6 discrimination against the permitmen in the assignment of weekend over- time, I draw an inference that the job steward did on that occasion, as did he and other union representatives on other occasions (as herein found), carry out the union policy, discussed hereafter, of inducing employers to give preference to cardmen in the assignment of overtime. Accordingly I find that the Union violated Section 8(b)(2) and (1)(A) by causing Armstrong to deny overtime employ- ment to permitmen Bill Wonzer and Olan Wonzer on November 6 and thereafter 2. Layoff of Bill and Olan Wonzer The following week, Armstrong hired two travelers on Monday (November 8), two on Tuesday, and two on Wed- nesday, and a cardman on Thursday-totaling six new travelers and one new cardman on the job. On Friday (November 12) the four permit mechanics on the job were laid off because of "No work." (The payroll records show that the fifth permitman, Barney Jordan, "worked on anoth- er job during week.") The employees were still working 10-hour days. Thus, after 2 weeks of overtime on the job, the 5 permit mechanics had been replaced with 3 cardmen and 10 travelers. The following week, four of the travelers (Tillman, Galloway, Williams, and Lose) were laid off because of "No work," and one (Logan) quit- leaving three cardmen and five travelers on the job, and no permit mechanics. Before considering what permitmen Bill and Olan Wonzer were advised on the day of their layoff, I note this apparent "loading down" of the job with cardmen and travelers, until the permitmen were laid off, was not an isolated occurrence. First, as discussed below in connection with the McCarty job, Union Business Agent O'Brien admitted that he sent two cardmen out to a job, and that the foreman "told me that he never ordered the two men." O'Brien responded, "Well, try and make room for them, because I do understand that you have a couple of permitmen left on that job." O'Brien later testified, "I always request a foreman to give the first consideration to our members; those are the ones I represent and who pay my salary." He admitted that a "lot of times" he would ask the foreman "about using our members for overtime," and that "Most of the time" this was in response to "pressure" from his members. Secondly, a union witness, McCarty Field Superin- tendent Salvadore Genovese, testified that, "It has been a practice that as long as you have a permitman there, a cardman can come on that job," and that if there are extra cardmen on the job, the permit men "are the first ones to get laid off." "That has always been the practice," because cardmen " are dues paying members of the Local." Thirdly, Association President James Poche credibly testi- fied that during his company's job at the American Cyanam- id ammonia plant, Business Agent O'Brien on occasions would tell him, "Jim, you know you have got some permit- ASBESTOS WORKERS, LOCAL 53 men on the job and I have got a couple of cardmen." Poche would refuse to replace the permitmen with cardmen, but later would find that, contrary to company policy, the job steward and the foreman (both cardmen), had replaced the permitmen with cardmen. Poche added that "this is a practice that we know of, we don't take part in it; it is strictly a union function." Returning to the Armstrong job, on the morning of the Wonzers' November 12 layoff (according to their undis- puted testimony), the Union's job steward, Charles Kraemer, told them "that he had had a call from the business agent [O'Brien] about all permit men and not to go to work until he had a chance to call him back." A few minutes later, Steward Kraemer told them, "you all go ahead and go to work, that it will be around 8:30 o'clock before I can get ahold of the business agent." Later that morning, the steward told them that they would be laid off that afternoon, but that they could finish the day. They were laid off that afternoon. Their work was satisfac- tory-the foreman having complimented them for doing "real good" work. After considering all the evidence and the circumstances, including the job steward's actions on the morning of the layoffs, I find that the General Counsel has proved by a preponderance of the evidence that the Union caused the discriminatory layoff of these two permitmen-even if the union steward had not been an agent of the Union and his statements are not considered for their truthfulness. This finding is supported by the fact that, as argued by the General Counsel, the Union "introduced no testimony to rebut General Counsel's prima facie case." Moreover, the evidence establishes that the job steward was the Union's agent. In Business Agent O'Brien's words, the job steward "is my policeman on the job." In view of all the circumstances, I find that the statements made by Steward Kraemer are properly considered as admissions against the Union's interest, and that the Union induced the contractor to lay off the permitmen because of their nonunion status. Accordingly, I find that the Union caused Armstrong on November 12 to lay off Bill and Olan Wonzer discrimina- torily, in violation of Section 8(b)(2) and (1)(A) of the Act. 3. Transfer of permitmen from overtime job Another overtime job was the McCarty job at the Ameri- can Cyanamid plant. There the employees were usually working 10 hours a day, Monday through Friday, until late December, when weekend overtime began. a. Implied threat of work stoppage Sometime in December, Business Agent O'Brien went to the McCarty jobsite and talked to Vice President Tom Branton, Field Superintendent Salvador Genovese, and Engi- neer Bill Cobb concerning the employment of cardmen on the job and the distribution of overtime (Although Branton remembered the visit having occurred earlier in December, I find that it occurred sometime after December 14, when the last permit mechanic, Leon Kerr, was referred 649 by the Union and hired on the job) According to Branton's credited testimony, O'Brien told them that "his membership would be given preference on that job" over permitmen and travelers "as long as there was overtime available . . . The gist of the conversation was either that the Union was assured that the membership would be given preference to the overtime on the job, or that we would not have men on any job. My answer was that if this be the case, we ask only for one consideration and that was that we be advised as soon as possible the intent to send any men to that particular job, so that we might prepare, as best we could, for that membership " (Emphasis supplied.) When called as a union witness, Superintendent Genovese denied being present when Vice President Branton and Business Agent O'Brien discussed overtime on the job, but later admitted that he was present when "Mr. O'Brien told Mr. Branton, as long as we had permit men on this job, any time a cardman showed up at the gate, we would have to put him to work." As indicated above, Genovese also testified that when there are extra men on the job, the permitmen are "the first ones to get laid off " (I discredit O'Brien's denial that he threatened to shut down the job if his members did not make the overtime, and his claim that it was months earlier, before the overtime began, when he met with Branton and Genovese and said that "when this job goes overtime, I would like to see Local 53 members making the overtime.") b Transfer ofpermitmen On Monday, December 27, the permit mechanics on the job were Vogler, Kerr, Horace D Brown, and Brooks Fullen, Jr. (plus Juan B. Galaviz, who had been granted a leave of absence). On Tuesday, two travelers were sent to the job. On Wednesday, one cardman was sent, and on Thursday, two additional cardmen. In the meantime, on that Wednesday, December 29, McCarty transferred permitmen Kerr and Brown to a straight-time job. That left Vogler and Fullen as the only permit mechanics then working on the overtime job. On Friday, December 31, McCarty transferred Fullen to a straight- time job, and transferred Vogler (with Galaviz) to the International Trade Mart, another straight-time job. Business Agent O'Brien admitted that sometime that month, "I believe I sent . . . two cardmen out to the [McCarty] job and [General Foreman Michael Marino] told me that he never ordered the two men, and I said, `Well, try and make room for them, because I do understand that you have a couple of permitmen left on that job ' " He also admitted telling Marino that Marino ought to talk to Field Superintendent Genovese "about the possibili- ty" of transferring the "two permitmen that were on the job." (The payroll records show that the last week in December was the only time during the month when such remarks would have been applicable.) O'Brien testified that it was his normal duties to try to secure the best overtime opportunities for his members, that "I always request a foreman to give the first consideration to our members; those are the ones I represent and who pay my salary," and that "Most of the time," it was in response to some pressure from his members when he spoke to the foreman 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about getting some cardmen on an overtime job. (In his January 10, 1967, deposition given in the district court proceeding, Business Agent O'Brien made further admis- sions He testified, "I sent a pair one day and a couple of days later I sent another pair. Mike [Marino] called and said that he hadn't ordered anybody, and I said, `Mike, as long as you got overtime on that job, they are going to bother me to death, so why don't you transfer two permit men?"' General Foreman Marino finally admitted that there had been such a conversation in which Business Agent O'Brien "said that he had been having complaints that a lot of the cardmen wanted the overtime jobs, and it would save a lot of confusion and trouble, if [the permitmen] would be transferred," and that O'Brien "had sent a few men out . . . so I just assigned the two men or the four men, whatever it was . . . and put them to work." (When claiming that this conversation occurred weeks earli- er, Mario appeared to be attempting to support his prior answers, which I discredit, that in late December, he did not get a telephone call from Business Agent O'Brien con- cerning permitmen on the job, or putting on cardmen, or about overtime, or transferring the permitmen.) On Sunday, January 2 (the first weekend after 2 travelers and 3 cardmen were sent to the job for the overtime, and 5 permitmen were transferred to straight-time jobs), 16 travelers and cardmen on the job, and 6 cardmen trans- ferred in for the 1 day, each worked 10 hours of overtime. No permit mechanic was left on the job. On the two succeeding weekends, the employees worked both Saturday and Sunday. (The overtime wage for a mechanic working 10 hours on Sunday was $87, and for working 10 hours on both Saturday and Sunday was $174-the same pay as for 40 hours a week on a straight-time job. I discredit General Foreman Marino's claim that permit man Vogler "volunteered" to be transferred to the ITM job.) Marino admitted that Vogler, Galaviz, Kerr, and Brown did satisfactory work. Vogler has been an insulator mechanic since 1941; Galaviz has worked in the trade for about 19 years; Kerr has been a mechanic 4 years; and Brown has been an insulator 10 years. Apart from all other evidence, the above demonstrates that the Union induced McCarty to transfer the permit men from the overtime job because of their lack of union membership, and in order to give preference to union members in the assignment of overtime. (Without explana- tion, the General Counsel failed to name Fullen as one of the discriminatees. I therefore make no findings as to him.) c. Corroborating evidence There is much credible evidence corroborating the dis- criminatory inducements. Permitman Kerr, who was transferred on December 29, credibly testified that General Foreman Marino "came around and said that he was going to have to transfer us to another job, that they had to make room for the cardmen." Kerr asked if it was "because of poor work or anything," and Marino answered, "No, I am real satisfied with your work It is something that I have to do . . Similarly permitman Brown, who was also transferred on December 29, credibly testified that Marino "told us . . he was transferring us to another job He said that he had to make room for the cardmen." Marino had told them that there would be more overtime on the job. (I discredit Marino's denial that there was not any way in late December of knowing whether the job "was going on overtime ") Vogler, who was transferred on December 31, credibly testified that both General Foreman Marino and Field Superintendent Genovese told him that Business Agent O'Brien said that they had to get the permitmen off the .job, and that he complained, stating that this was not fair. On Saturday, January 1, the day after Vogler and Galaviz were transferred to the ITM job, Galaviz telephoned Marino who (in Galaviz' words) "told me that they were having trouble with the Local . . that he had to transfer me from the American Cyanamid job to the International Trade Mart job, with Mr. Vogler, because he had been instructed to lay off all of the permitmen." Galaviz also credibly testified that Marino "wanted to know why I had not come back, that they needed me, they wanted me to come back. And he had told Mr. Vogler several times to tell me to come back." (General Foreman Marino had given Galaviz a leave of absence on December 3 to visit his sick father-in-law in Texas. Instead of returning in about a week as planned, Galaviz had worked on an overtime job for a while in Texas before deciding to return. I discredit Marino's denial that he had given Galaviz a leave of absence, and also his testimony-which was contra- ry to McCarty's payroll records-that Galaviz had quit. Marino testified that he "possibly" could have placed Galav- iz back on the job if he had been a cardman.) In his brief, the General Counsel "respectfully submits that Marino's primary allegiance was to his Union, and, in carrying out the general union policy of discriminating against permit men, Marino's actions and comments, made in his agency capacity, are binding on the Union," citing such cases as Local 1016, United Brotherhood of Carpenters (Booher Lumber Co., Inc.), 117 NLRB 1739, 1744 (1957). The evidence shows that Marano is an active member of the Union and a former vice president, and had been a member of the union executive board for 3 years, until November 1964. When testifying about the union obligations of foremen members, Business Agent O'Brien testified that "They have sworn under oath when they become a member to look out for the welfare of their brother members," that they are subject to union charges, and that when the Union sends a man from the hall without a "call- in" for men and there is an excess of men on the job, the foreman is "expected" to "make room for them." Marino admitted that since he became a foreman, he has been directed to appear before the executive board. Also in connection with the control the Union exercises over the foremen members, I note that in the minutes of the March 18, 1966, union membership meeting, a motion was passed "that all foremen send to Union office copy of time sheet." I agree with the General Counsel's conten- tion, and find that General Foreman Marino's statements are properly considered as admissions by the Union. (I ASBESTOS WORKERS, LOCAL 53 651 find it unnecessary to rule on the General Counsel's further contention that Field Superintendent Genovese-a former union official who has a current union membership with- drawal card and who likewise is subject to union discipline- also acted in a dual-agency capacity, representing both McCarty and the Union ) However, with or without this corroborating evidence, I find that the Union induced McCarty to transfer Kerr and Brown on December 29, and Vogler and Galaviz on Decmeber 31, from the overtime job to straighttime jobs because of their nonunion status and in order to provide more overtime for union members, and induced McCarty to deny overtime employment to Kerr and Brown on and after December 30, to Vogler on and after January 2, and to Galaviz after January 2, in violation of Section 8(b)(2) and (1)(A) of the Act. 4. Layoff of Vogler and Galaviz On Monday morning, January 3, permitmen Vogler and Galaviz reported to work on the "inside" ITM job, which was scheduled by McCarty to last several months. However on Wednesday, January 5, McCarty Field Superintendent Genovese laid them off, and Business Agent O'Brien admit- tedly refused to refer them to other jobs. At one point, Business Agent O'Brien testified: Q. In the conversation with Mr. Genovese concerning Vogler and Galaviz, did you say to Mr. Genovese, "Tell them if they are not satisfied with the job, get off of it? A. Right. Yes sir. Q. And, "I told Sal if they ain't satisfied with the job, get rid of them?" A. Right. Yes, sir . . . Similarly in the injunction proceeding, he testified on January 10, 1967: A. . . . Genovese called me and complained about these two never being satisfied with forty hours, that they were mad because they were moved off the over- time job . . . . So . . . when Sal called me, he sounded upset that these guys are never satisfied. All they're looking for is overtime . . . . So I told Sal, "If they ain't satisifed with the job, run them, get rid of them" . . Despite these admissions, which I credit, Business Agent O'Brien denied inducing Genovese to lay off the two permit- men. Concerning what happened that week, O'Brien and other union witnesses gave highly conflicting and implausible versions which, because of their content and because of the demeanor of the witnesses on the stand, I find to have been largely fabrications. After considering all the credible evidence, I find that Business Agent O'Brien instructed Field Superintendent Genovese to lay off the two permitmen, not only because of the above-quoted reason stated by O'Brien, but also because of at least one additional discriminatory reason: cardmen were complaining that they had been "rained out" that week on outside construction jobs while these two permitmen were working on the "inside" ITM job. I also find that neither of them would have been laid off if they had been working as cardmen instead of as permitmen. Accordingly, I find that on January 5, the Union induced McCarty discriminatorily to lay off Vogler and Galaviz, in violation of Section 8(b)(2) and (1)(A) of the Act. D. Other Allegations The complaint alleges that the Union engaged in violations of the Act through racial discrimination. However, under the circumstances of this case, I deem it proper, as a matter of comity between branches of the Federal Govern- ment, not to rule on these additional matters which apparent- ly are similar to the racial issues before the U.S. District Court. The complaint also alleges that from January 5 until about August 1966 the Union refused to refer Vogler because of his nonunion status. However, inasmuch as the remedy for such a violation would be cumulative, I find it unneces- sary to rule on the allegation. CONCLUSIONS OF LAW 1. By causing McCarty, Armstrong, and other employer- members of the Association, through a discriminatory oral understanding, arrangement, and pracitce, to give priority in employment to union members in violation of Section 8(a)(3) of the Act, the Union has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(2) and (1)(A) and Section 2(6) and (7) of the Act. 2. By causing Armstrong discriminatorily to deny over- time to Bill Wonzer and Olan Wonzer on and after Novem- ber 6, and to lay them off on November 12, because of their nonunion status, the Union violated Section 8(b)(2) and (1)(A) of the Act. 3. By causing McCarty discriminatorily to transfer Kerr and Brown on December 29 and Vogler and Galaviz on December 31, to deny them overtime thereafter, and to lay off Vogler and Galaviz on January 5, because of their nonunion status, the Union violated Section 8(b)(2) and (1)(A) of the Act. THE REMEDY :-laving a policy of not charging "permitmen" any dues, the Respondent has openly and flagrantly violated the Section 7 rights of this large group of nonmembers which it represents, by causing the insulation contractors to give preference to dues-paying members in hirings, assignment of overtime, transfers, and layoffs, on the basis of union membership. As a result, permit mechanics Vogler, Galaviz, Kerr, Brown, and Bill and Olan Wonzer were denied over- time (at double pay) and laid off or transferred from overtime jobs because of their nonunion status. This occurred during an employment boom (following Hurricane Betsy, a large influx of industrial work in the area in 1965, and increased commercial work in the area since then), and during a period of a labor shortage, when the contractors were attempting to retain qualified insulators by transferring them from job to job. Consequently, when the Respondent induced the contractors to replace the permit men because of their nonmembership , it deprived the permit men of 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD virtually full-time employment in the area, plus the overtime when required . Because of these circumstances, I find that the mere payment of earnings lost on the particular jobs to which these six employees were assigned at the time of the discrimination would not make them whole for or provide an effectual remedy. In order to vindicate these employees' Section 7 rights, and to make them whole, I find it essential for the Respondent to be ordered to pay them for all regular and overtime wages lost, from the dates of the discrimination to the time the notice required herein is posted, as a result of the discrimination induced by the Respondent, preventing the respective con- tractors from continuing to employ them , and to transfer them from job to job, as needed. Such loss of earnings shall be computed in the manner set forth in F. W. Wool- worth Company, 90 NLRB 289, with interest at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. The Respondent must also be ordered to cease and desist from various unfair labor practices found , and to take other affirmative action, which I also find necessary to remedy and to remove the effect of the unfair labor practices and to effectuate the policies of the Act. Because of the U.S. District Court 's prior injunction regulating the opera- tion of the Respondent 's hiring hall, I shall not make any recommendation concerning a remedy for the discrimi- natory oral understanding , arrangement, and practice, giving priority in employment and referrals on the basis of union membership. [Recommended Order omitted from publication.]