Local 1098, Carpenters

LOCAL 1098, CARPENTERS 385 Local 1098, United Brotherhood of Carpenters and Joiners of America AFL-CIO and John L. Hodges, its Agent (Chauncey Construction Company, Inc.) and Wilson A. Watts. Case 15-CB-1042 refusal to refer Watts and Giamalva was unlawful because motivated by "other reasons unconnected with their failure to pay the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the Respondent Union," as we find it unnecessary to consider or decide that issue November 5, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On June 12, 1970, Trial Examiner Anne F. Schlez- inger issued her Decision in the above-entitled proceeding, finding that the Respondents had en- gaged in and were engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegat- ed 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 recommendations of the Trial Examiner, except as modified below.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that Respondents, Local 1098, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Baton Rouge, Louisiana, and its agent John L. Hodges, its officers, other agents, and representatives, shall take the action set forth in the Trial Examiner's Recom- mended Order. i These findings are based, in part, upon credibility determinations of the Trial Examiner to which the Respondents have excepted After careful review of the record, we conclude that these credibility findings are not contrary to the clear preponderance of all relevant evidence Accordingly, we find no basis for disturbing these findings Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F 2d 362 (C A 3). 2 We agree with the Trial Examiner's finding that Respondent Union violated Section 8(bx2) and 8(b)(l)(A) by discnmmatorily refusing to refer Watts and Giamalva for rehire by Chauncey on December 3, because they had not supported President Hodges in the union election campaign However, we do not rely on the Trial Examiner's alternate fording that the 186 NLRB No. 59 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Trial Examiner: Upon a charge filed on December 4, 1969, by Wilson A. Watts, the Regional Director for Region 15 issued a complaint dated February 4, 1970. The complaint alleges in substance that Local 1098, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and John L. Hodges, Its Agent, referred to herein respectively as the Union and Hodges and collectively as the Respondents, attempted to and did cause Chauncey Construction Company, Inc., referred to herein as Chauncey or the Company, to fail and refuse to hire Wilson A. Watts and Joe S. Giamalva by discriminato- nly refusing to refer them for employment, in violation of Section 8(b)(l)(A) and (2) of the National Labor Relations Act, as amended. The Respondents' answer, amended at the hearing, admits certain allegations of the complaint, including the allegation that Respondent Hodges and E. J. Ardoin, financial secretary, are authorized agents of the Respondent Union within the meaning of Section 2(13) of the Act, but denies the commission of any unfair labor practice. Pursuant to notice, a hearing was held before me in Baton Rouge, Louisiana, on March 26 and 27, 1970, at which the parties appeared and were afforded full opportunity to be heard, to present evidence, and to examine and cross- examine witnesses. Subsequent to the hearing the General Counsel and the Respondents filed beefs which have been fully considered. Upon the entire record in this case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Chauncey Construction Company, Inc., a Delaware corporation with its principal office and place of business located at Dobbs Ferry, New York, is primarily engaged in the building construction business. Its construction of the Stauffer Chemical Plant at St. Gabriel, Louisiana, is the only operation of the Company involved in this proceeding. During the past year, which period is representative of all times material herein, Chauncey, in the course and conduct of its business operations, purchased materials and supplies, valued at over $50,000, from points outside the State of Louisiana, which it caused to be transported directly to its Stauffer Chemical Plant location. I find that Chauncey is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that Local 1098, United Brotherhood of Carpenters 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Respondents' Hiring Hall Procedures The issue in this case is whether the Respondents, in the operation of an exclusive hiring hall , discriminatorily refused to refer Watts and Giamalva for rehire, when Chauncey requested them by name in accord with the contractual and customary referral procedures , because of internal union politics or for other reasons unrelated to their failure to pay periodic dues and initiation fees, and by such conduct attempted to and did cause Chauncey to discriminate against these two individuals in violation of Section 8(a)(3) of the Act, and thereby violated Section 8(b)(l)(A) and, (2) of the Act. The record shows that Chauncey began work on the Stauffer project in November 1968. On or about October 15, 1969, it entered into an agreement with the United Brotherhood of Carpenters and Joiners of America which contains the following provisions: In consideration of the foregoing the United Brotherhood of Carpenters and Joiners of America agrees to furnish competent journeymen selected for reference to jobs upon a non-discriminatory basis, such furnishing to be made upon request of the Company and with the Company retaining the right to reject or accept the applicants for employment. The United Brotherhood of Carpenters and Joiners of America agrees that the District Councils or, Local Unions having jurisdiction in the respective areas of the performance of work will maintain appropriate nondis- criminatory facilities for the registration and referral of persons possessing the skills required for the perform- ance of work by the Company. The Company agrees to use said facilities in filling job vacancies on all projects. On or about November 21, 1969, Chauncey became party to an agreement which had previously been entered into between the Respondent Union and the Associated General Contractors of America, Inc., Baton Rouge, Louisiana, Chapter, and which contains the following provisions: XIV. HIRING AND TRANSFERRING A. The Employer shall have the right to determine the competency, desirability and qualifications of his employees, and shall have the right to employ and discharge accordingly. s s : s D. Requests by the Employer for employees previous- ly employed by the Contractor shall be given preference of rehire and shall be referred to the Contractor. Respondent Hodges, who executed this agreement with Chauncey on behalf of the Respondent Union, testified that it was the standard form in the area. The Union has operated the hiring hall, through which Chauncey agreed to and did obtain its carpenters, for a number of years. The hiring hall has not maintained any out-of-work list for several years . Carpenters in the area looking for work either (1) went to the hiring hall and threw their cards on a table when jobs in which they were interested were called out by the business agent, who made referrals on the basis of the first cards to hit the table, or (2) applied directly to a project supervisor who, when he hired them, notified the hall and had them pick up referrals there before going to work. Many carpenters have obtained all their jobs for years by this second method, and some construction projects in the area, including the Stauffer project, have hired most of their carpenters by this method. Watts and Giamalva, the complainants herein, had been members of the Respondent Union for about 8 and 13 years respectively. No question has been raised with regard to their status as paid-up members in good standing. Watts and Giamalva worked as partners, a practice among many carpenters in the area . They had obtained their jobs for about 5 or 6 years prior to the events here in issue by direct application at the projects. They obtained their original jobs at the Stauffer project by direct application to General Foreman Smith, with whom they had worked on other jobs. B. The Union Election In the union election held in June 1969, Respondent Hodges defeated the incumbent business agent, Adams, and took office on July 1 . During the preelection campaign, Watts and Giamalva attended an open house party given by Adams, and both told Adams prior to the election they were going to vote for him. In the course of his campaign for election, Hodges went to the Stauffer parking lot one morning and solicited support from the men as they were going to work . According to Watts and Giamalva, who rode in the same carpool , Hodges approached them, shook hands, and asked for their support. Watts , who testified that he understood Hodges was addressing his remarks principally to Giamalva, walked away to talk with someone else. Giamalva testified that he told Hodges he had promised his vote to Adams but would vote for a number of the men on Hodges' slate of candidates , and that Hodges responded, "You are either for me or you are against me." Hodges denied that he made this remark. When asked by counsel for the Respondents to relate his conversation with Giamalva, he replied: Well, I went on the parking lot before work time and I asked every man out there-I wanted to make a point out there to ask every man out there, no matter who it was, every man that was eligible to vote. I shook hands with him and asked him for support. I didn't wait for a commitment. I just asked him, if he could, I would like to have him vote for me and support me. When asked if Giamalva said he would not vote for him but would for some of the men on his slate, Hodges replied: "The only man I can remember telling me they wouldn't vote for me on that job-because I did not press them for a commitment- was Mr. Lard and he volunteered." Hodges also testified that he did not specifically recall speaking to Giamalva, that "I didn't have time to talk to everybody because these men were going in the gate and I wanted to see each and every one of them and I didn't spend much time with anybody," and that he did not know how Watts and Giamalva or any others voted . I found Giamalva a LOCAL 1098, CARPENTERS more candid, direct, and convincing witness than Hodges, and credit Giamalva's version of this conversation. Hodges testified that he similarly approached Smith, the general foreman on the Stauffer project, asked Smith to vote for him and moved on, and did not know who Smith supported in the election. Smith's recollection was that Hodges spoke to him on the parking lot and also at the hall on election day, that Hodges asked for his support, and that he told Hodges he would think about it. Hodges sought the support of Jones, the job steward at the Stauffer project, at a party given by Hodges. Jones testified that Hodges called and asked hum to attend the party as Hodges wanted to talk to him about the election, that he went and listened to the speeches, that when Hodges asked about his support in the election he said he was not yet prepared to give a reply, and that Hodges' parting remarks as he walked Jones to the door were as follows: he says, "I want to tell you something." He says, "I'm going to tell you how it is." He says, "It's the cold, hard facts of life." He said, "People that vote for me and support me in this next election are the people that are going to work for the next two years." He said, "I'm going to win." Jones testified further that Hodges spoke to him several times between then and the election, and that he told Hodges on the morning of the election, when Hodges asked if Jones had decided to vote for him, that he would not. Hodges testified that he assumed "Jones was on the other side of the fence . . . in politics prior to" the election, that he did not recall what was said at the party except that he asked Jones to vote for him and Jones "wouldn't commit himself one way or the other," and that he did not make the remarks about the "facts of life" attributed to him by Jones. I was more favorably impressed by the demeanor and testimony of Jones than of Hodges, and credit Jones' testimony that Hodges made the remarks set forth above. C. The Stauffer Project After Chauncey began construction work at the Stauffer project in November 1968, it hired a total of more than 60 carpenters, all of them through the hiring hall. Field, who was in charge of labor relations at the Stauffer project, and Anthos,i the general superintendent, determined from time to time the number of men to be employed in the various categories at the project. When they decided that additional men were needed, they approved written requisitions indicating the category and the number of men to be hired, but they took no part in selecting the men. When carpenters were to be hired, General Foreman Smith, after consulting the carpenter supervisors, decided whether to call the hall for the number of men requisitioned or for referrals for that number of named individuals whom he had already selected. Field, who impressed me as a completely reliable witness, testified that this authority to request men by numbers or by name had been delegated to the general I The name appears in the record as "Antose " but, although no motion was made to correct the record , both of the briefs filed herein and the signature on a contract that is in evidence indicate that the name is spelled "Anthos " 2 Watts and Giamalva each testified that Assistant Superintendent Johnson told hum at the time of the October layoff that he would be 387 foreman because he was a member of the Union and familiar with the local contract, and that the only limitation placed on his choice of men was that he comply with the local contract. Watts and Giamalva, who began working on the Stauffer project in January 1969, obtained theirjobs by direct application to Smith, with whom they had worked on other jobs. All the carpenters hired on the Stauffer project were given consecutive numbers in the order of their hire, the lower numbers indicating those with greater seniority. Watts and Giamalva were numbers 23 and 24. There was a layoff of carpenters in June or July 1969 which did not include Watts and Giamalva, but they were among the more than 20 carpenters laid off in October 1969.2 Although the general practice in the area was to select men for layoff on the basis of such factors as ability, General Foreman Smith decided voluntarily to select carpenters for the October layoff by the number system, retaining those with the lower numbers and greater seniority, in order to discourage the practice of some foremen to select men on the basis of personal friendship. Hodges testified that he was at the Stauffer jobsite some time prior to the October layoff when Smith told him men were to be selected for layoff by the number system. Hodges testified further: I said that while I never heard of this system being used, in other words, not considering the man's capabilities at all, I said, it is not an ordinary thing. I said, however, you are the general foreman and it is your prerogative however you lay off. That is your business . . . I told him that I always felt like the general foreman looked to the foremen to get the work, the foremen looked to the men and he should have the prerogative of keeping the men he wanted . . . Hodges also discussed layoff by numbers with Jones, the job steward. He testified that he did not recall any discussion with Jones, Smith, or anyone else at the Stauffer project, as to how men would be recalled. Smith and Jones maintained in their testimony, which I credit, that there was no discussion with Hodges or any other Union agent about recalling men by the numbers, and no agreement or practice to do so.3 D. The Refusal To Refer Watts and Giamalva Early in December 1969, Company officials authorized the hire of one carpenter to replace a man who left. At about that time the Company learned that certain equipment, expected at the jobsite in January, was being shipped early. As the foundation needed for this equipment was not ready, it would be necessary to store the equipment and move it again when the foundation was ready. Field, the labor relations director at the Stauffer project, and Anthos, the general superintendent, discussed with Super- intendent Owens the economic advantages of being able to set the equipment on the foundation immediately upon its arrival. Field testified as to this discussion that Owens said recalled in a few weeks 3 On the basis of the entire record, I do not credit the testimony of the laid-off employees who testified, as witnesses for the Respondents, that they were told by Smith or Jones at various times that men would be recalled by the numbers 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he could schedule the additional work if he had a few more carpenters; that he and Anthos pointed out that the work in question would take only 2 or 3 days, "we did not want to add carpenters to the job for such a short time . . . and we, at that time, told Mr. Owens that unless he could justify keeping the men for at least two weeks, we would just forego this attempt"; that Owens "assured us then that he would be able to keep these men employed for at least two weeks" ; that he and Anthos thereupon "authorized him [Owens ] to hire the additional carpenters"; and that Anthos "approved this requisition and gave it to the general foreman to add the additional carpenters to the payroll." On December 2, when Smith was authorized to hire the one carpenter replacement, he told Jones he wanted that one to be his son, who had not previously worked at the Stauffer project. Smith's son obtained a referral on December 2, with Hodges' name signed by Ardoin, the Union's financial secretary, and went to work at the Stauffer project on December 3. Hodges learned of this referral on December 2 and raised no question about it. Smith learned late in the day on December 2 that the requisition would authorize the hire of a total of three carpenters. Jones had already left work. Smith that evening told Watts' father, who was employed at the Stauffer project, to notify Watts and Giamalva to stop the next morning at the hiring hall for referrals, and he, Smith, would have them called there by name to go back to work that morning. On the morning of December 3, Smith directed Jones to call the hall for Watts and Giamalva. Watts and Giamalva arrived at the hall about 7 a.m. on December 3. Jones telephoned the hall about 7:30, told Hodges that Watts and Giamalva had been notified to be at the hall, and asked Hodges to send them out to the project. Hodges refused. I credit Jones' testimony that Hodges continued to refuse after he told Hodges that Smith had selected Watts and Giamalva,4 and that they had been instructed to stop at the hall expecting to go back to work. Both Jones and Hodges testified that Hodges asked Jones about the six carpenters who had been laid off by the Company at the same time as Watts and Giamalva and who had lower numbers. Hodges testified further that he told Jones, "I understood that this layoff was going by numbers and I assumed that it would go back by numbers," although he admitted that, other than the references to the six men, there was no discussion of the number system in general and no "talk about an obligation to recall men by the numbers." Jones explained to Hodges that certain ones of the six had indicated they wanted time off to hunt or because they did not work during the winter, that others had indicated they had jobs, and that the remaining ones were considered unsatisfactory workers .5 None of the six 4 I discredit Hodges' denial that Jones said Smith had selected Watts and Giamalva, and his assertions that Jones repeatedly stated that he, Jones, was calling for them. As stated above, I found Jones a more credible witness than Hodges. Moreover, Smith had directed Jones to call for Watts and Giamalva, it was the general practice for Jones to call on behalf of Smith, and the evidence indicates no reason for Jones to tell Hodges otherwise. Smith's status as a Company representative is undisputed. 5 Smith on another occasion made the same explanation about these men to Hodges, and some of the laid-off men who testified as witnesses for the Respondents in large part corroborated this explanation. 6 Jones testified that Hodges referred specifically to Anthos and Assistant Superintendent Borden. Watts, who was called to the telephone men were in the hall on December 3, and Hodges admitted in his testimony that he did not know if any of them had other jobs at the time. He also testified that he demanded nevertheless that Jones make a current check with each of the six men, and stated that he would refer Watts and Giamalva if all six rejected the jobs, or if a Company official called for them by names Hodges testified further that he said he would throw the jobs "on the floor" before he would discriminate against the six men, and that he did not know what Jones replied to this or how their conversation ended. Jones finally asked Hodges to call Watts or Giamalva to the telephone, and told Watts, who took the call, that Hodges refused to refer them, that he would talk to Smith, and that Watts and Giamalva should wait at the hall until he called again. Watts asked if Jones would back him up in the event he went to the Board with this matter, and Jones replied that he would tell what happened. After this telephone conversation, Watts and Giamalva protested to Hodges about his refusal to refer them, but Hodges maintained that he would refer them only if, as Watts and Giamalva credibly testified, Field or Anthos called the hall and requested them. Hodges left the office shortly after this. He did not throw the jobs on the floor, but told Ardoin that, if a Company representative called for Watts and Giamalva, Ardoin should give them referrals, and otherwise he was to hold the jobs. Anthos and Field were both away from the project for a few days at this time. Jones reported what had occurred to Smith, Owens, and Borden, and they discussed what action they might take. It was evidently understood by these Company representatives that a call from Smith would not satisfy Hodges' demand, and Borden refused to assume the responsibility of calling the hall for Watts and Giamalva as that was not part of his function and he did not know the two men. Smith finally decided, with Owens' approval, that he would cancel the request for two additional carpenters if he could not get the men he wanted. Jones accordingly called the hall again and spoke to Ardoin, who said he would send the two men out if, pursuant to Hodges' instructions, a Company representative called, but Jones canceled the request, and notified Watts and Giamalva of this by telephone. Field telephoned the Stauffer jobsite a day or two after December 3 and was told by Borden that the Union had referred only one of the three men requested, and that the other two would not be referred unless Field or Anthos called the hall. Field, who testified that he and Anthos never requested specific people, and that it was too late then to get the foundation in on time, told Borden to keep the man who had been sent out and to cancel the request for the other two. He was apparently not informed that this by Hodges to speak to Jones, testified that Hodges said at that time he would refer the two men if Field or Anthos called. Smith testified that Jones reported to him after the telephone call that Hodges would not refer the two men unless Field, Anthos, or Borden called for them. When cross- examined by the General Counsel about this , Hodges testified he did not recall mentioning any company men by name, evaded answering a question whether it was possible he did so, and finally denied he named Field or Anthos because "I usually refer to them people as company." He also testified that he did not mention Smith's name in this conversation. I find, on the basis of the credited testimony and all the relevant circumstances, that Hodges named Field, Anthos, and Borden as the company men whose request for the two referrals he would honor. LOCAL 1098, CARPENTERS request had been canceled. Smith's son worked for about 4 or 5 weeks, and was laid off in January in the first layoff of carpenters after December 3. Watts and Gtamalva have gone to the hall a few times since December 3, but the only jobs that were available to them on those occasions were not in the "line of work" they perform. It appears from the record that the December 3 incident was the only time such a request that the hall refer named individuals had been rejected. Hodges admitted that he could not remember any other instance. He also testified that he considered the system of employers calling for men by name to be generally unfair as it resulted in some individuals being almost continuously employed while others had no work for substantial periods, and that after he became business agent he explored possible changes in this system with Ardoin and other union officers. Ardoin testified that he told Hodges he did not see how they could work out an impartial system "because we have it in the contract where the contractor can call by name . . . If he's on the bottom of the list and the contractor calls for him, you have to send him." Hodges changed the cards-on-the- table procedure whereby, instead of a race to the table with the jobs going to the fleetest, cards of all those interested are placed on the table, shuffled, and a number drawn based on the number of jobs available. He did not, however, change the system of employers calling for carpenters by name. Moreover, Hodges did not during the election campaign indicate that he intended to change this practice nor, after he took office, announce that he had made such a change. Ardoin testified that he has referred men for whom a steward called by name and Hodges never said anything to him about this, and Hodges admitted that Milton, the steward on a project adjoining the Stauffer job, had called for carpenters by name after December 3, and that he issued referrals pursuant to these calls. Hodges testified that he requested some employers not to call for men by name, but he admitted that he never made such a request of Chauncey representatives Field, Anthos, or Smith. He likewise admitted that he never made such a request of Steward Jones; of McKinney, the steward with whom Hodges testified he replaced Jones approximately "two days after this incident" of December 3; or of Milton, the steward at the project adjoining the Stauffer job. He also admitted that he never instructed any job steward that he would not be allowed to call for men by name. CONCLUDING FINDINGS The General Counsel maintains that when Jones called for the referral of Watts and Giamalva for rehire on the Stauffer project, Hodges was required by the controlling contract provisions and the established referral practices to refer these men, and that his refusal to do so was motivated by reasons unrelated to their failure to tender periodic dues and initiation fees and was therefore violative of Section 8(b)(1)(A) and (2) of the Act. The Respondents argue that Hodges' refusal to refer these two men was warranted by legitimate hiring hall practices on the grounds that (1) Jones, the steward, was not a representative of the 7 See United Brotherhood of Carpenters & Joiners of America, Local 1281, AFL-CIO (Raber-Kief Inc), 152 NLRB 629, 630, in which the Board pointed out, on the basis of the agreement and practice in that case, that 389 Company authorized by contract to call for carpenters by name, and (2) there were six men laid off by the Company in October who had lower numbers than Watts and Gtamalva, and who should therefore have been offered rehire before Watts and Giamalva. As noted above, the Respondent Union was bound by agreements providing that "The Employer shall have the right to determine the competency, desirability and qualifications of his employees, and shall have the right to employ and discharge accordingly," and, further, that "Requests by the Employer for employees previously employed by the Contractor shall be given preference of rehire and shall be referred to the Contractor." In addition, there was a long-established practice for employers to call the hall and request carpenters by name for original hire as well as for rehire. It was likewise a customary procedure, at the Stauffer job and other projects in the area, for the steward to make these calls to the hiring hall. While Field and Anthos determined the number of men the Company needed, they took no part in selecting the individuals to be hired or in calling the hall for the men selected. Smith, after discussion with carpenter supervision, decided whether to call named individuals and who they should be, but it was the job steward, Jones, who made the calls to the hiring hall. Hodges was no doubt aware from past practice that Jones made these calls on behalf of Smith and, as I have found above, Jones expressly told Hodges in their telephone conversation on December 3 that the two men had been selected by Smith. Hodges' demand that a Company official call for the two men has not been shown to be warranted by any contract provision or hiring hall practice. The Respondents in fact have admitted that no call by a steward has been rejected on the ground that the steward was not authorized to make the call. They have admitted also that named individuals have been referred pursuant to calls by stewards before and since December 3. On the basis of all the relevant evidence, therefore, I find no merit in the Respondents' contention that the refusal to refer Watts and Giamalva was justified because the call for them was made by the job steward.? I likewise find no merit in the contention that the Chauncey jobs had to be offered first to the six laid-off men with lower numbers than Watts and Giamalva. Smith had voluntarily selected men for the October layoff on the basis of their hiring numbers. Hodges admitted that use of this number system was not area practice; that he was given no indication by Smith, Jones, or anyone else on the Stauffer project, that men would be rehired by this number system; and that, when he insisted to Jones that the jobs had to be offered to the six laid-off men before he would refer Watts and Giamalva, it was not on the basis of any general "talk about an obligation to recall men by the numbers." It is clear from the entire record, and I find, that there was no contract provision or customary procedure which required the Company to rehire men by the number system, or which warranted Hodges' refusal to refer the men selected by the Company for rehire unless the laid-off men with lower numbers were given a priority for these jobs. "A request by an employer for a particular carpenter can be made through the employee himself " 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find further, on the basis of the foregoing and the entire record, that the tenuous reasons advanced by the Respondents for not referring Watts and Giamalva were in fact pretexts to conceal Hodges' true motivation. The only plausible explanation indicated by the evidence for Hodges' departure from contractual and customary procedures is that he was carrying out his threat, found above, to discourage employment of men who did not support him in the election campaign. Hodges' first opportunity to do so as to Watts and Giamalva came when they sought the rehire referrals on December 3. It is clear in any event that Hodges' refusal to issue the rehire referrals to Watts and Giamalva was unrelated to any failure by them to pay periodic dues or initiation fees. As the Respondent Union had undertaken to operate an exclusive hiring hall, it had a statutory duty to give effect to the hiring hall contracts and established procedures without discrimination based on union or protected concerted activities .8 There is no question that support of the losing candidate in a union election is a protected concerted activity, and that discrimination in job referral by the winning candidate based on such considerations is unlawful .9 I am convinced, therefore, that the evidence amply demonstrates, as the General Counsel contends, that Respondent Hodges discriminatorily refused to refer Watts and Giamalva for rehire by Chauncey on December 3, contrary to the contract provisions and hiring hall procedures observed prior to and since December 3, because they had not supported him in the election campaign or for other reasons unconnected with their failure to pay the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the Respondent Union. Accordingly, I find that the Respondents attempted to and did cause Chauncey Construction Company, Inc., to fail and refuse to rehire Watts and Giamalva in violation of Section 8(a)(3), and thereby restrained and coerced Watts and Giamalva in the exercise of rights guaranteed by Section 7 of the Act, and that the Respondents by such conduct violated Section 8(b)(1)(A) and (2) of the Act.10 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in Section III above and found to constitute unfair labor practices, occurring in connection with the business operations of the Company set forth in Section I above, have a close, substantial, and intimate relation to trade, traffic, and commerce among the several States and tend to lead to E Local Union 136, Carpenters (Frank Vlack Co.), 165 NLRB 1040; United Brotherhood of Carpenters & Joiners of America, Local 1281, AFL-CIO (Raber-Kief Inc.), supra. 9 International Brotherhood of Teamsters, etc., Local 38 (Al Jolson Construction Co.), 146 NLRB 1627; Local Union No. 18, International Union of Operating Engineers, AFL-CIO, etc. (Earl D. Creager, Inc.), 141 NLRB 512, 518. 10 Local Union 136, Carpenters (Frank Vlack Co.), supra; United Brotherhood of Carpenters and Joiners of America, Local 1281, AFL-CIO (Raber-Kief, Inc.), supra. 11 The General Counsel's brief urges that both Respondents in this case should be made jointly and severally liable for backpay. In accordance with the Board's usual practice, however, I shall not recommend imposition labor disputes burdening and obstructing such commerce and the free flow thereof. V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act. As I have found that the Respondents attempted to and did cause Chauncey Construction Company, Inc., to fail and refuse to rehire Wilson A. Watts and Joe S. Giamalva by discriminatorily refusing to refer them for employment at the request of the Company, I shall further recommend that the Respondents be ordered to refer Watts and Giamalva for employment on a nondiscriminatory basis, and to notify the Company and other employers using the hiring hall that Watts and Giamalva will have full use of the hiring hall facilities without discrimination in connection with referrals for employment. I shall also recommend that the Respondent Union be required to make whole Watts and Giamalva from December 3, 1969, for any loss of earnings suffered by each of them as a result of the discrimination practiced against them.1' Such payments shall be equal to the amount of wages each of them would have earned but for the discrimination practiced against them by the Respondents, as computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum, as provided in Isis Plumbing & Heating Co., 138 NLRB 716.12 On the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Chauncey Construction Company, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1098, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. John L. Hodges is an agent of Respondent Local 1098, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. 4. By attempting to cause and causing Chauncey Construction Company, Inc., to fail and refuse to rehire Wilson A. Watts and Joe S. Giamalva in violation of Section 8(a)(3) of the Act by discriminatorily denying them job referrals, because they engaged in the exercise of rights of any personal backpay liability upon Respondent Hodges, business agent of the Respondent Union. See, e.g., Local Union 136, Carpenters (Frank Vlack Co.), supra, In. 5. 12 The Respondents maintain in their brief that "in the event the Board finds Watts and Giamalva were discriminated against , no back pay award should be granted or in the alternative , it should be limited to 2 weeks." The brief refers to Field's testimony regarding the agreement by Company officials that the carpenters in question would be "employed for at least two weeks." The brief also contends that Watts and Giamalva were offered appropriate jobs at the hiring hall after December 3 which they rejected on the ground that the jobs were not in their "line of work." The issues as to the amounts of backpay due are deferred, however, as they can best be determined at the compliance stage of this proceeding. LOCAL 1098, CARPENTERS 391 guaranteed by Section 7 of the Act or for other reasons unconnected with their failure to pay the periodic dues and initiation fees uniformly required as a condition of acquiring or maintaining membership in the Respondent Union, the Respondents have violated Section 8(b)(1)(A) and (2) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director for Region 15 signed copies of said notice for posting by Chauncey Construction Company, Inc., if willing, at its business offices and construction sites where notices to its employees are customarily posted. (f) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.14 On the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the Respondents, Local 1098, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Baton Rouge, Louisiana, and its agent John L. Hodges, its officers, other agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Chauncey Construc- tion Company, Inc., or any other employer, to discriminate against Wilson A. Watts and Joe S. Giamalva, or any other employee or applicant for employment, in violation of Section 8(a)(3) of the Act, by discriminatorily denying them job referrals because they engaged in the exercise of rights guaranteed by Section 7 of the Act or for other reasons unconnected with their failure to pay the periodic dues and initiation fees uniformly required as a condition of acquiring or maintaining membership in the Respondent Union. (b) In any other manner restraining or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes of the Act: (a) Make whole Wilson A. Watts and Joe S. Giamalva for any loss of earnings suffered by each of them as a result of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and upon request make available to the Board or its agents, for examination and copying, all referral records and any other records relevant and necessary for the determination of the amounts of backpay due. (c) Notify Chauncey Construction Company, Inc., and other employers who use the Respondents' hiring hall as an exclusive primary source for securing carpenters, and mail copies of such notice to Wilson A. Watts and Joe S. Giamalva, that Wilson A. Watts and Joe S. Giamalva will have full use of the hiring hall facilities without discrimina- tion in connection with referrals for employment. (d) Post at the Respondent Union's offices, meeting halls, and hiring halls, copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent Hodges as a representative of the Respondent Union, be posted 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 13 In the event no exceptions are filed as provided by Section 102.46 of 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 NATIONAL 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." 14 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents have 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 Chauncey Construction Company, Inc., or any other employer, to discriminate against Wilson A. Watts and Joe S. Giamalva, or any other employee or applicant for employment, in violation of Section 8(a)(3) of the Act, by discriminatorily denying them job referrals because they engaged in the exercise of rights guaranteed by Section 7 of the Act or for other reasons unconnected with their failure to pay the periodic dues and initiation fees uniformly required as a condition of acquiring or maintaining membership in the Respondent Union. WE WILL NOT in any other manner restrain or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL make whole Wilson A. Watts and Joe S. Giamalva for any loss of earnings suffered by each of them as a result of the discrimination against them. WE WILL notify Chauncey Construction Company, Inc., and the employer members of Associated General Contractors of America, Inc., Baton Rouge, Louisiana, Chapter, who use our hiring hall, and mail copies of such notice to Wilson A. Watts and Joe S. Giamalva, that Wilson A. Watts and Joe S. Giamalva will have full use of the hiring hall facilities without discrimination in connection with referrals for employment. 392 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD LOCAL 1098, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, AND ITS AGENT JOHN L. HODGES (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, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361.