Walter J. Barnes Electrical Co., Inc.

WALTER J. BARNES ELECTRICAL CO. Walter J. Barnes Electrical Co., Inc. and Granville C. Tacke, Jr. Clark, Hutchins, and Reed, Inc., and Willemet and Stouse ' (A Joint Venture) and Antoine J. McGehee International Brotherhood of Electrical Workers, Lo- cal No. 130 and Granville C. Tacke, Jr. and Antoine J. McGehee Westinghouse Electric Corporation and Anthony John Santangelo International Brotherhood of Electrical Workers, Lo- cal No. 130 and Anthony John Santangelo. Cases 15-CA-3405, 15-CA-3422, 15-CB-924, 15-CB- 927, 15-CA-3443, and 15-CB-935 January 29, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On August 28, 1969, Trial Examiner Maurice S. Bush issued his Decision in the above-entitled pro- ceeding attached hereto, and on September 5, 1969, an errata to such Decision, finding that Respondents had engaged in and were engaging in certain labor practices and recommending that they cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondents had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of these allegations. Thereafter, all Respondents filed exceptions to the Trial Examiner's Decision and briefs in support there- of, and the Charging Parties and General Counsel filed briefs in support of the Trial Examiner's Deci- sion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- I The Trial Examiner substituted sua sponte Willemet and Stouse for Re- spondent Joint Venture Respondent Joint Venture filed exceptions to this finding and a motion to reopen the record to adduce additional information concerning , the status of the Joint Venture . General Counsel filed a motion in opposition but agreed with the Joint Venture 's assertion that no issue was raised at the hearing with respect to Respondent Joint Venture 's identity as alleged in the complaint and admitted in the answer We find merit in Respondent Joint Venture's exception and we hereby amend the caption to reflect the correct name of this Respondent. Accordingly, we deny this Respondent's motion to reopen the record. 183 dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in these proceedings, and, finding merit in certain of the exceptions, hereby adopts only those findings,2 conclusions, and recommendations of the Trial Examiner which are consistent with the fol- lowing 1. The Trial Examiner found, and we agree, that Respondent, International Brotherhood of Electrical Workers, Local No. 130, violated Section 8(b)(1XA) of the Act through the conduct of its business agent, Earl J. Sevins, in making threats of physical violence to Sidney H. Lenard on September 7, 1969, and to Herndon Wederstrandt around the middle of August 1969, and in threatening to have Granville C. Tacke, Jr., and Herndon Wederstrandt discharged because of their activities in support of a rival organization. 2. The Trial Examiner also found, and we agree, that Respondent Clark, Hutchins, and Reed, Inc., and Willemet and Stouse (Joint Venture) violated Section 8(a)(1) of the Act when its foreman, Stewart, told both Carl L. McQueen and Roy E. Johnson that McQueen was fired because word for his discharge had come from the union hall; when its foreman, Gallaty, coer- cively interrogated and intimated to Antoine J. Mc- Gehee that he was being discharged because of activities in behalf of a rival organization; and, when its foreman, Tony Larosa, threatened employee Vic- tor Parker, Jr., by intimating that his job would be in jeopardy and he would not be referred if he attended meetings of the rival organization.' 3. As discussed more fully hereinafter, the Trial Examiner found that Respondent Employers discrim- inated against certain of their employees, and that such discrimination was caused by Respondent Un- ion. The employees allegedly discriminated against were members of a so-called "Norco" group, which was seeking to obtain a charter as a local of the IBEW, with jurisdiction encompassing part of the geographic area under the jurisdiction of Respondent Union. The Trial Examiner rested his findings of discrim- ination in part on a finding that a bitter hostility exist- ed between Respondent Local 130 and the rival Norco group over the control of work in Local 130's jurisdiction. This hostility finding was in turn based largely on findings that (1) the exclusive hiring hall agreement administered by Local 130 required it to give first preference to regular members of Local 130 2 After the issuance of the Trial Examiner's Decision, the Union filed a motion, with certificate of service upon counsel of record, to reopen the record for the purpose of receiving into evidence an affidavit concerning the number of new members admitted to Local 130 . There being no opposition to said motion, it is hereby granted and the affidavit is hereby received in evidence. In agreeing with the Trial Examiner that this conduct violated Section 8(axl), we do not rely on his finding of hostility between Respondent Joint Venture and Norco. 188 NLRB No. 11 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who are residents of the geographic area covered by the collective-bargaining agreement, and second pref- erence to members of other IBEW locals; (2) Local 130 has a closed membership, nonmembers having virtually no chance of becoming Local 130 members; (3) members of sister locals deemed it futile to seek to transfer their memberships because Local 130's closed membership policy was common knowledge; and (4) 800 electricians not members of Local 130 petitioned the International Union for a charter for a new local to be carved out of Local 130's geographic territory. The record does not support these findings. With respect to the hiring hall referral system, it is abundantly clear from the contractual language (see Appendix attached to the Trial Examiner's Decision) that, although certain of the preferences contained in the agreement are predicated on union representation and/or the passing of an examination given by any IBEW local, none of the preferences are in any re- spect predicated on union membership. Further, as the Trial Examiner states, the question of discriminatory practices in the operation of the hiring hall was neith- er alleged in the complaint nor litigated at the hearing. In these circumstances we find no warrant in the re- cord for any conclusion that regular members of Re- spondent Union, because of such membership, were either entitled to or received any hiring preference. As to the findings that nonmembers had no chance of becoming members of Local 130, that members of sister locals deemed it futile to seek to transfer, that Local 130 had a closed membership, and that such facts were common knowledge, the record reveals that certain witnesses did not feel they could become members, did not believe they could be members, or were certain they could not become members. How- ever, none of these witnesses had applied for Local 130 membership and none was told by any official of Local 130 that he could not become a member. Fur- ther, no one testified that he had been refused mem- bership in Local 130, or that he knew someone who was refused such membership, or that he knew some- one who was told by Local 130 that he could not become a member. On the other hand, the Union's affidavit (see footnote 2, supra) reflects inter alia an increase in its membership from 983 as of October 28, 1968, to 1,238 as of April 28, 1969. As the Trial Examiner's findings on these issues are thus support- ed only by subjective reactions and not by objective evidence, we find insufficient record support for such findings. As for the petition to the International Union to charter a new local, the parties stipulated at the hear- ing that there were 800 signatures on the petition and that a great proportion of the signers either lived or worked in the jurisdiction in question. This stipula- tion, which did not characterize the signers as electri- cians, or members, or nonmembers of Local 130 or its International, is the only evidence in the record con- cerning the petition; further, counsel for Local 130 stated that he was not stipulating as to the nature of the persons who signed, as to their employment or lack thereof, as to their membership in Local 130 or in any other local, as to their nonmembership in any local union, or whether or not they had or had not worked out of Local 130's hiring hall. Thus, the only finding concerning this matter which the record will support is that 800 persons who work or live in the jurisdiction in question signed a petition for a charter which was sent to the International Union. Based largely on these findings, which we have con- cluded are not supported by the record, the Trial Ex- aminer, as noted above, found bitter hostility between Respondent Union and the Norco group. Indeed, as is abundantly clear from his entire Decision, the Trial Examiner, in the light of these unsupported findings, viewed the matters involved in this proceeding as aris- ing out of a state of all-out warfare in which the entire membership of Respondent Union was fighting to preserve a job-preference monopoly against the on- slaughts of outsiders seeking to destroy that monop- oly. When, however, the record facts are considered without the gloss supplied by these unsupported findings, the remaining evidence is insufficient to jus- tify the Trial Examiner's conclusions; rather, the pic- ture that emerges shows only that Respondent Union opposed the ceding of any of its jurisdiction to a new local, and that one local union official and several supervisors who were union members expressed that opposition in a manner which violated the Act. In sum, the record supports the finding, which we make, that Respondent Union opposed the purposes of the Norco group. The record does not support the Trial Examiner's picture of bitter, virtually no-quarter hostility, and we reject it. Accordingly, in the light of the facts as we have found them, we shall consider the remaining findings and conclusions of the Trial Ex- aminer to which exception has been taken. 4. The Trial Examiner found that Respondent Un- ion caused Respondent Walter J. Barnes Electrical Co., Inc., to transfer and subsequently to discharge Tacke, Lenard, and Wederstrandt because of their activities on behalf of a rival organization, in violation of 8(b)(2) and (1)(A) of the Act, and that Respondent Barnes by acquiescing in said request and by transfer- ring and discharging said employees violated Section 8(a)(3) and (1) of the Act. We do not agree with these findings as in our opinion they are not supported by a preponderance of the evidence. With respect to the transfers, the Trial Examiner found that Lenard first attended a Norco meeting on July 23, and the next day was called by Sevins to the union hall, and accused of attending the Norco meet- WALTER J. BARNES ELECTRICAL CO. ing; Lenard responded by offering to furnish informa- tion concerning the Norco movement, and informed Sevins that Hinchman was the leader of Norco. Thereafter, Sevins requested further information on Norco, and, on September 7, met Lenard on the job- site and demanded he file charges against Hinchman with the Union. When Lenard refused, Sevins threat- ened him with physical violence, conduct which we have found violated Section 8(b)(1)(A). The Trial Ex- aminer found that prior to this incident Lenard had been engaged in work called stress welding, and that a few days after this argument he was transferred to the wire pulling gang, which the Trial Examiner char- acterized as more onerous work. The record reveals that Lenard had been engaged, primarily during the month of June, in work called stress welding. However, from July 1 to September 13 only 4 hours of stress welding was performed on the jobsite, all by Lenard. During this period Lenard was pulling wire and installing conduit. The record shows that Lenard had been doing this type of work regular- ly during the course of his employment, even before his involvement in July with Norco. Therefore, as- suming wire pulling to be more onerous than stress welding, we find that the record does not support the Trial Examiner's conclusion that Lenard was transfer- red to more onerous work in retribution for his activi- ties in support of the Norco movement. The Trial Examiner found that Wederstrandt and Tacke were observed by Sevins attending a Norco meeting on August 21, 1968. The next day, August 22, Sevins spoke to Tacke and Wederstrandt about their involvement in Norco, in a manner which we have found violated Section 8(b)(1)(A). Tacke was trans- ferred later that day to installing pipe, from work which the Trial Examiner characterized as physically less difficult. However, Wederstrandt had been sim- ilarly transferred the day before the altercation with Sevins and before he attended the Norco meeting; the Trial Examiner inferred that Sevins "had notice through the grapevine" prior to the transfer of Wederstrandt's pro-Norco activity. The record re- veals that Wederstrandt and Tacke both had from time to time been assigned work consisting of pulling cables and installing conduit prior to their activities on behalf of the rival Norco organization. Weder- strandt testified that all the electricians on the job were shifted around doing various jobs including bending conduit, pulling wire, checking out, and hooking up. Tacke confirmed this testimony and stat- ed that when he first started to work for Respondent Barnes he was laying cable in ditches, stringing tele- phone lines, setting transformers, and hanging fix- tures. Thus, as in the case of Lenard, there appears to be no substantial record support for any conclusion that Tacke and Wederstrandt were in fact transferred 185 from one regular assignment to another regular as- signment; it would appear, rather, that the changes which occurred at or about the time of their alterca- tions with Sevins followed the past pattern of routine job shifting. Assuming, however, that there were in fact at the times indicated permanent transfers to more onerous work, we would nonetheless still find no violation, as the record in our opinion does not support the Trial Examiner's conclusion that any such transfers were caused by the Union in retribution for their activities on behalf of the Norco movement. The Trial Examin- er rested this conclusion on findings concerning Un- ion Business Agent Sevins' knowledge of the three employees' rival union activity, the asserted all-perva- sive hostility of Local 130 toward the Norco group, the timing of the transfers, and Local 130's asserted power to affect the job rights of Respondent Barnes' employees by virtue of the fact that all of Barnes' foremen were Local 130 members. We have already concluded that the record does not establish the exist- ence of the type of hostility on which the Trial Exam- iner relies; nor does it establish that the Union had the power of retributory discipline which the Trial Exam- iner attributes to it. To the extent that the Trial Examiner's finding concerning union power rests on his finding of pervasive hostility, it must fall with our rejection of that finding. To the extent that this find- ing rests on Sevins' purported assertion of power in connection with the "water throwing" incident, it must be rejected, both because the mere assertion of power by an individual does not establish the posses- sion of the asserted power, and because the Trial Ex- aminer has in our opinion misinterpreted as an assertion of power what was in fact no more than advance acquiescence in Barnes' right to discharge those involved in the incident, should Barnes choose to exercise that right. And to the extent that it rests on the conclusion that, as union members, Barnes' fore- men were subject to union pressures, there is no evi- dence in the record to support such a conclusion, the only record evidence bearing on the issue, Foreman Laurendine's rejection of Sevins' demand that he dis- charge Wederstrandt, pointing to an opposite conclu- sion. Even more fundamental, in our opinion, is the Trial Examiner's failure, in his consideration not only of these alleged discriminatory transfers, but of all the 8(b)(2) allegations involved herein, to give proper weight to the well-established principle that a supervisor's membership in a labor organization does not, of itself, establish union responsibility for his ac- tions, even though his conduct as an employer repre- sentative may well satisfy union objectives.4 Nor has See, e.g., Dougherty Company, Inc, 147 NLRB 1295, 1299. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he given appropriate weight to the principle that a union cannot be found to have caused employer dis- crimination unless, at the very least, the evidence is sufficient to support a reasonable inference of a union request or a union-employer understanding.' In our opinion the record herein will not support a finding that the Union engaged in any conduct designed to secure the transfer of Lenard, Wederstrandt, or Tacke from one type of work to another, or that there was any understanding between the Union and Barnes concerning such transfers. In these circumstances, the Trial Examiner's remaining findings, concerning un- ion knowledge and threats directed by the Union at these employees because of their Norco activity, are insufficient to support his conclusion that the Union caused Barnes to transfer them in violation of Section 8(b)(2) and (IXA), and we shall therefore dismiss such allegations of the complaint. For similar reasons, we must reject the Trial Examiner's conclusion, predicated on essentially the same considerations as his conclusion concerning the transfers, that the Union caused Barnes to discrim- inate in the selection of these employees for layoff. The record shows that, at the time of their layoff, Respondent Barnes' operations were declining and other employees were also being laid off; further, there is no evidence to show that their selection for layoff did not accord with normal seniority or other nondiscriminatory practices utilized by Barnes in se- lecting employees for layoff. And, as in the case of the alleged unlawful transfers, there is, except for Sevins' demand for Wederstrandt's discharge, rejected by Foreman Laurendine, insufficient evidence that the Union engaged in conduct designed to secure the lay- off of these employees, or that it had an understand- ing with Barnes concerning such matters. In this connection, the Trial Examiner misplaces reliance on Tacke's testimony concerning Foreman May's equi- vocal remark at the time of Tacke's layoff that Tacke should not blame Barnes too much; whatever this may mean, it is clearly hearsay with respect to Re- spondent Union, and is in our opinion insufficient to support the inference drawn by the Trial Examiner that Tacke's layoff was in fact caused by the Union. We shall, accordingly, dismiss the allegations of the complaint that Respondent Union caused Respon- dent Barnes to discriminate against Lenard, Weder- strandt, and Tacke in violation of Section 8(b)(2) and (1)(A). However, as Sevins' demand for Wederstrandt's discharge arose out of their alterca- tion concerning Wederstrandt's Norco activities, and as the incident was fully litigated, we find that by such conduct Respondent Union unlawfully attempted to ' See, e.g., Iron Workers Local 433 (Riverside Steel Construction), 169 NLRB No. 87. cause Barnes to discriminate against Wederstrandt in violation of Section 8(b)(2). In view of our findings that Respondent Union did not cause Respondent Barnes to discriminate against Lenard, Wederstrandt, and Tacke, and in the absence of evidence that Barnes engaged in discrimination independently of that allegedly caused by the Union, we shall dismiss in its entirety the complaint against Respondent Barnes. 5. The Trial Examiner found that Respondent Un- ion caused Respondent Clark, Hutchins, and Reed, Inc., and Willemet and Stouse, Joint Venture, to dis- charge Carl L. McQueen and Antoine J. McGehee because of their activities on behalf of a rival organi- zation, in violation of 8(b)(2) and (1)(A) of the Act, and that Respondent Joint Venture by acquiescing and discharging said employees violated Section 8(a)(3) and (1) of the Act. We do not agree with these findings as, in our opinion, they are not supported by a preponderance of the evidence. Carl McQueen began working for Respondent Joint Venture under the supervision of Foreman Stewart on July 16, 1968, and attended a Norco meet- ing on July 23, 1968, where he was observed with McGehee by Sevins. The Trial Examiner inferred that Sevins "quickly learned" McQueen's identity since Sevins knew McGehee. Thereafter, on August 7, Mc- Queen was discharged by Stewart for alleged nonpro- duction, on orders from General Foreman Broussard, which discharge the Trial Examiner concluded was caused by the Union. At that time Stewart told Mc- Queen that the orders for his discharge came from the union hall, which statement we have found to be in violation of Section 8(a)(1) of the Act. Antoine J. McGehee began working for Respon- dent Joint Venture under the supervision of Foreman Gallaty in January 1968, and attended several Norco meetings. About the end of July, the Joint Venture's Project Manager Wiley, who was unhappy with the work progress, inspected the worksite and, thereafter, held a conference with Gallaty, the general foreman, and the superintendent, instructing them to find and correct the cause of the problem. Thereafter, Gallaty divided his crews into new teams and observed their work. Several days later Gallaty questioned McGehee about Norco and told him not "to fool with" them, a statement we have found to be in violation of Section 8(a)(1) of the Act. Two days later McGehee and his partner, as to whom no charge was filed, were dis- charged by Gallaty for alleged nonproduction, and told "you know what's happening," which statement we have also found to be in violation of Section 8(a)(1). The Trial Examiner concluded that the discharges of McQueen and McGehee violated the Act, basing this conclusion on essentially the same type of consid- WALTER J. BARNES ELECTRICAL CO. erations as underlay his conclusions concerning the employees of Respondent Barnes . Thus, he found Sevins had knowledge of McQueen's and McGehee's rival organizational activities; Foreman Broussard, a member of Local 130, was bitterly hostile to the Nor- co group; Project Manager Wiley wanted to avoid friction with Local 130; and Local 130 had the power through member foremen to affect the job rights of Respondent Joint Venture's employees. He also relied on the above-quoted statements by Foremen Stewart and Gallaty. As found, supra, the record does not establish bitter hostility or the Union's power to discharge. Thus, to the extent the Trial Examiner's conclusion rests on such findings, it falls with our prior rejection of them. To the extent it rests on the finding that Wiley wanted to avoid friction with Local 130, the record is devoid of any evidence on this issue. To the extent it rests on the finding that, as a union member, Broussard was subject to union pressure through its referral system, there is no evidence in the record to support such a conclusion, as the only evidence on this issue estab- lishes a valid hiring hall referral system. And to the extent it predicates union liability on inferences drawn from hearsay statements by supervisors and from the union membership of responsible supervi- sors it is, as stated above, equally untenable. Furthermore, the record reveals that, at the time of the discharges, Respondent Joint Venture's opera- tions were declining due to the loss of certain repair work, and other employees were simultaneously dis- charged. And there is no evidence in the record to show that the selection of McQueen and McGehee was not for the reasons stated and in accord with the Joint 'Venture's normal practices. In this connection, the record shows that the Joint Venture in early June was awarded an additional contract to repair damage caused by an explosion on the jobsite; at this time their work force peaked at 250 men, and began to decline when this contract was taken away 2 weeks later. The Trial Examiner's findings with respect to McQueen and McGehee rely in part on his conclusion that union members were "clamoring for jobs" on Joint Venture's repair work project. The record shows, however, that, at the time McQueen and Mc- Gehee were terminated, the Joint Venture did not have this repair work, and Wiley had no connection with the hiring of men for it .6 Thus, there is aside from the hearsay statements of the two foremen, which are insufficient for that pur- pose, no evidence to prove that the Union caused the discharge of these employees, and we shall therefore dismiss the 8(b)(2) and (1)(A) allegations of the com- 6 The Trial Examiner apparently assumed that the contractor which took over the repair work, after the Joint Venture lost the contract for such work, also took over the electrical work which the Joint Venture had been perform- mg. The record shows, however, that the Joint Venture continued to perform this electrical work for some time after the events here in issue 187 plaint. Further, although the record supports the Trial Examiner's findings of unlawful threats and interro- gation by Respondent Joint Venture's foremen, rela- ted to participation in Norco activity, a preponderance of the evidence does not, in our opin- ion, establish that the termination of these employees was motivated by such activity. Consequently, in view of this and our findings that Respondent Union did not cause Respondent Joint Venture unlawfully to discharge McQueen and McGehee, we shall likewise dismiss the allegations that Respondent Joint Venture discriminated against them in violation of the Act. 6. The Trial Examiner found that Respondent Westinghouse violated Section 8(a)(3) by discrimina- torily discharging employee John Santangelo, and vi- olated 8(a)(1) by coercively interrogating him. He further found that Respondent Local 130 violated Section 8(b)(2) of the Act by causing Westinghouse unlawfully to discharge Santangelo. We do not agree. The Trial Examiner's conclusion that Respondent Union caused Westinghouse to discriminate against Santangelo rests wholly on inferences drawn from the fact that a Westinghouse supervisor and an alleged supervisor involved in Santangelo's layoff were mem- bers of Respondent Local 130. For the reasons set forth hereinbefore, we reject such inferences and con- clusion and find insufficient evidence to establish that Respondent Local 130 caused Santangelo's termina- tion. The Trial Examiner's conclusion that Respondent Westinghouse discriminated against Santangelo rests of necessity on his finding that A. R. Kampen is a supervisor for Westinghouse. The record reveals that Kampen is designated as a craft foreman working under the direction of an ad- mitted supervisor, the lead craft foreman, who in turn worked under a salaried Westinghouse supervisor. This supervisor, Heymeyer, has the contractual au- thority to direct journeymen electricians, contrary to the long-established practice in the area that only craft foremen direct journeymen. He alone would de- termine the work assignment of each crew and the number of men in each crew, and was solely respon- sible for effective performance of the work. Each day Kampen received detailed instructions on the kind and amount of work to be done by his crew from Heymeyer. He had no authority to vary these orders even in the slightest detail. If an emergency arose only Heymeyer could change the men's work assignments. Kampen could only assign crew members as Heymey- er instructed him to, and when the work was complet- ed Kampen had to get a new assignment from Heymeyer. Kampen could not transfer men outside of his work area or hire, fire, or recommend such action. He did not determine when a layoff could occur or who would be laid off. He could not grant overtime, 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD order material, or pledge the Company's credit. Al- though he does fill out time reports, this is purely a clerical function and has no effect until Heymeyer approves it. Thus the authority Kampen has over the other elec- tricians is quite limited. While he does assign work to them, these assignments have already been designated by Heymeyer, are largely routine, and do not require the exercise of independent judgment. Upon all of the foregoing, we conclude that Kam- pen is not a supervisor within the meaning of Section 2(11) of the Act. Accordingly, we shall dismiss the 8(aXl) and 8(a)(3) allegations of the complaint, as well as the 8(bX2) allegation. Upon the basis of the foregoing findings of fact and the entire record in this case, the Board rejects the Trial Examiner's Conclusions of Law, Recommended Orders, and notices, and makes the following: CONCLUSIONS OF LAW 1. Respondents Barnes, Westinghouse, and Joint Venture Clark, Hutchins, and Reed, Inc., and Willem- et and Stouse are employers engaged in commerce within the meaning of the Act. 2. Respondent Local 130 is a labor organization within the meaning of the Act. 3. By threatening employees with loss of employ- ment because of lack of membership in Respondent Local 130, and because of their activities on behalf of an organization, herein rival to Respondent Local 130, and by threatening to physically strike an em- ployee because of his activities on behalf of such rival organization, Respondent Local 130 has violated Sec- tion 8(bx1)(A) of the Act. 4. By attempting to cause Respondent Barnes to discharge an employee because of his activity on be- half of a rival organization, Respondent Local 130 has violated Section 8(b)(2) of the Act. 5. By interrogating an employee concerning his ac- tivities on behalf of a rival organization of Respon- dent Local 130 and by stating this was the reason he was being discharged; by stating that an employee would have to be laid off because the word had come from the union hall; and by threatening an employee by stating if he attended any meeting of an organiza- tion attempting to obtain a charter from International Brotherhood of Electrical Workers, his job would be jeopardized and he may not receive any further refer- rals from International Brotherhood of Electrical Workers, Local No, 130, Respondent Joint Venture has violated Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 7. Respondents have not engaged in any of the other alleged unfair labor practices. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders: A. That the Respondent International Brotherhood of Electrical Workers, Local No. 130, New Orleans, Louisiana, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Attempting to cause Walter J. Barnes Electrical Co., Inc., or any other employer over whom the Board would assent jurisdiction to discriminate against em- ployees because of their activities on behalf of an organization rival to Respondent Local 130. (b) Threatening employees with loss of employment because of their lack of membership in Respondent Local 130, or because of their activities on behalf of an organization, herein rival to Respondent Local 130. (c) Threatening employees with physical attack be- cause of their activities on behalf of an organization, herein rival to Respondent Local 130. (d) In any like or related manner restraining or coercing employees in violation of their rights guaran- teed by Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Post at its office, wherever maintained, and at its meeting hall, copies of the attached notice marked "Appendix A."' Copies of said notice, on forms pro- vided by the Regional Director for Region 15, after being duly signed by Respondent Local 130's author- ized representative, shall be posted by Respondent Local 130 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. These notices shall be posted by Walter J. Barnes Electrical Co., Inc., if willing at places where notices to its employees are customarily posted. Reasonable steps shall be tak- en by Respondent Local 130 to insure that said no- tices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 7 In the event that this 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 LABAR RELATIONS BOARD" WALTER J. BARNES ELECTRICAL CO. B. That the Respondent Joint Venture Clark, Hutchins, and Reed, Inc., and Willemet and Stouse, New Orleans, Louisiana, its officers, agents, succes- sors, and assigns , shall: 1. Cease and desist from: (a) Interrogating employees concerning their activi- ties on behalf of an organization, herein rival to Re- spondent Local 130. (b) Informing employees they will be discharged because of their activities on behalf of an organiza- tion, herein rival to Respondent Local 130. (c) Interfering with, restraining, and coercing em- ployees by intimating that if they attend any meetings of an organization attempting to obtain a charter from International Brotherhood of Electrical Work- ers, Local 130, their jobs would be jeopardized and they may not be referred by International Brother- hood of Electrical Workers, Local No. 130. (d) In any like or related manner , interfering with, restraining, or coercing employees or applicants for employment in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act, as amended. 2. Take the following action which is deemed neces- sary to effectuate the policies of the Act: (a) Post at its office, wherever maintained, copies of the attached notice marked "Appendix B."8 Copies of said notice, on forms provided by the Regional Direc- tor for Region 15 , after being duly signed by its repre- sentative, shall be posted by Respondent Joint Venture Clark, Hutchins, and Reed, Inc., and Willem- et and Stouse immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted . Reasona- ble steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other ma- terial. (b) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps Respondent Joint Venture Clark, Hutch- ins, and Reed, Inc., and Willemet and Stouse have taken to comply herewith. IT IS FURTHER ORDERED that the complaints be, and they hereby are, dismissed insofar as they allege un- fair labor practices not specifically found herein. 8 See In 7, supra APPENDIX A NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 189 We hereby notify you that: WE WILL NOT threaten employees by stating they are not entitled to work because of their lack of membership in International Brotherhood of Electrical Workers, Local No. 130. WE WILL NOT threaten to.physically strike em- ployees because of their activities on behalf of an organization rival to International Brotherhood of Electrical Workers, Local No. 130. WE WILL NOT threaten employees with dis- charge because of their activities on behalf of an organization rival to International Brotherhood of Electrical Workers, Local No. 130. WE WILL NOT threaten employees with physical attacks if they fail to file union charges against another employee because of that employee's ac- tivities on behalf of an organization rival to Inter- national Brotherhood of Electrical Workers, Local No. 130. WE WILL NOT attempt to cause Walter J. Barnes Electrical Co., Inc., or any other employer en- gaged in commerce to discharge any employee because of his activities on behalf of an organiza- tion rival to International Brotherhood of Elec- trical Workers, Local No. 130. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in vio- lation of their rights guaranteed by Section 7 of the above-described Act. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL No. 130 (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. q 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 compli- ance 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. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We hereby notify our employees that: WE WILL NOT interrogate our employees con- cerning their activities on -behalf of an organiza- tion rival to International Brotherhood of Electrical Workers, Local No. 130. WE WILL NOT coerce our employees by stating that they are being discharged because of their activities on behalf of an organization rival to International Brotherhood of Electrical Workers, Local No. 130. WE WILL NOT threaten our employees by inti- mating that if they attended any meeting of an organization rival to International Brotherhood of Electrical Workers, Local No. 130, their jobs would be jeopardized and they would never be referred by International Brotherhood of Elec- trical Workers, Local No. 130. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the above-described Act. JOINT VENTURE CLARK, HUTCHINS, AND REED, INC., AND WILLEMET AND STOUSE (Employer) Dated By (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 compli- ance with its provisions may be directed to the Board's Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Lq iisiana 70113, Telephone 504-527-6361. TRIAL EXAMINER'S DECISION MAURICE S. BUSH, Trial Examiner : Respondent Local No. 130, International Brotherhood of Electrical Workers (IBEW), under its collective-bargaining agreement with the South Louisiana Chapter of the National Electrical Con- tractors Association, has exclusive hiring hall rights for many major electrical contractors, including Respondent Employers ' herein,2 operating within Local No. 130's ex- ' For reasons stated infra, Willemette and Stouse Electric Co, has been substituted for the Respondent Employer originally named in Case 15-CA- 3422; to wit, the Joint Venture known as Clark, Hutchins, and Reed and clusive chartered jurisdictional territory of 10 parishes (counties) and portions of two other parishes in southern Louisiana. The years 1967 and 1968 were boom electrical construc- tion years in southern Louisiana. Respondent Local No. 130, being unable to supply the industry's demand for elec- tncians from the ranks of its own membership, placed in employment large numbers of nonmember electricians through its exclusive hiring hall . In the latter part of 1968 more than 800 of such nonmember electricians who stood virtually no chance of being accepted into membership of Local 130 and who received jobs through Local 130's exclu- sive hiring hall only when that Union had more jobs to offer than it could fill through its own regular membership, peti- tioned the IBEW for a charter for a new local of their own to be carved out of Local 130's chartered ge11 aphical tem- tory so that they might have a better chance securingjobs ng hall. than through Local 130's member-favoring hiri started a bitter feud between Local 130 and the nascent rival labor organization which is the background of this consol- idated proceeding. The prinicpal dual issues in this consolidated proceeding are whether Respondent 130 caused the layoff or discharge of a number of nonmember electrical employees of Respon- dent Employers in violation of Section 8(b)(2) of the Na- tional Labor Relations Act because of their activities in supporting the organization of a rival labor organization,3 and whether the Respondent Employers discharged or laid off the same employees in violation of Section 8(aX3) of the Act because of their interest or activities in organizing the same rival labor organization. Other issues with respect to Respondent Local No. 130 are as follows. In consolidated Cases 15-CB-924 and 15- CB-927 there is a further issue as to whether Respondent 130 is also in violation of Section 8 (b)(1XA) by the alleged acts and conduct of its business agent, Earl Sevins, in (a) threatening an employee of a Respondent Employer by telling him that he was not entitled to work because of his lack of membership in Respondent 130, (b) threatening to physically strike an employee of a Respondent Employer because of his activities on behalf of the rival labor organi- zation, (c) threatening employees of a Respondent Employ- er with discharge because of their activities on behalf of the rival labor organization, (d) threatening an employee of a Respondent Employer with a physical attack if he failed to file union charges against another employee because of that employee's activities on behalf of the rival labor organiza- tion. In the same case, there is still a further issue as to whether Respondent 130 is also in violation of Section 8(b)(2) of the Act by causing Respondent Walter J. Barnes Electrical Co., Inc., to transfer its employees Granville C. Tacke, Jr., Sidney H. Lenard, and Herndon Wederstrandt (all of whom were later discharged or laid off) to more onerous work than they had been doing because of their activities in behalf of the rival labor organization. With respect to the individual Respondent Employers herein there are additional issues, aside from the discrimina- tory discharge issues, as follows. With respect to Walter J. Willemette and Stouse . Respondent Westinghouse Electric Corporation was erroneously named in the complaint in Case 15-CA-3443 as Westinghouse Engineered Maintenance Co. This was corrected at the hearing by amendment to read Westinghouse Electric Corporation. 2 Although Respondent Westinghouse is not a party to Local 130 's collec- tive bargaining agreement, it operates for all practical purposes, such as wage scales and the use of Local 130's exclusive hiring hall, under that agreement as will appear more fully below 3 Cases I5-CB-924, 15-CB-927, 15-CB-935. Cases 15-CA-3405, I 5-CA-3422, 15-CA-3443. WALTER J. BARNES ELECTRICAL CO. Barnes Electrical Co., hereafter called Respondent Barnes, there is also an issue in Case 15-CA-3405 as to whether the said Employer is further in violation of Section 8(a)(3) of the Act by transferring the aforementioned employees, Tacke, Lenard, and Wederstrandt, to more onerous jobs than they had been doing because of their activities in behalf of the rival union organization. The remaining issue in the same case number is whether Respondent Barnes is also in viola- tion of Section 8(a)(1) of the Act through the alleged acts and conduct of one of its supervisors and agents by which on one occasion the said supervisor and agent imphedly threatened one of its employees by his failure to disavow a threat made in his presence by a business agent of Respon- dent 130 to the employee that he should be discharged because of his activities on behalf of the rival labor organi- zation, and by the alleged acts and conduct of its employee by his failure to disavow an oral threat made to the said employee by the same business agent to physically strike the employee if he failed to file union charges against a fellow employee for his activities on behalf of the rival labor organ- ization. Another of the Respondent Employers herein is Clark, Hutchins, and Reed and Willemette and Stouse (A Joint Venture), hereafter called Respondent Clark. Aside from the above-noted discriminatory discharge issue with respect to this Employer in Case 15A-3422, a further issue in the same case is whether Respondent Clark is also in violation of Section 8(a)(l) of the Act through the acts and conduct of its supervisors and agents in (a) interrogating an employ- ee concerning his activities on behalf of the rival labor or- ganization, (b) informing an employee that he was being discharged because of activities on behalf of the rival labor organization, (c) mforming an employee that he would have to be laid off because word had come from the (Respondent 130's) union hall to discharge him, and (d) threatening an employee by telling him that if he attended any meetings of the rival labor organization attempting to obtain a charter from the International Brotherhood of Electrical Workers his job would be jeopardized and he may never be referred out again by Respondent 130. The last-named Respondent Employer herein is Westing- house Electric Corporation, hereafter called Respondent Westinghouse. Aside from the above-noted discriminatory discharge issue with respect to this Employer in Case 15- CA-3443, another issue in the same case is whether Res on- dent Westinghouse is also in violation of Section 8(a)(l) of the Act through the acts and conduct of one of its supervi- sors and agents in interrogating an employee (i.e., A. S. Santa ngelo later allegedly discriminately discharged) con- cerning his activities on behalf of the rival labor organiza- tion and by informing him that he would be discharged because of his activities in behalf of the same rival labor organization. In the related case involving Respondent Lo- cal 1:30 that Union is charged with the violation of both Section 8(b)(1)(A) and (2). The Union and the Respondent Employers deny all un- fair labor practices charged to them in the complaints herein as reflected in the issue set forth above. The complaint in Case 15-CA-3405 was issued on Janu- ary 17, 1969, pursuant to a charge filed on October 1, 1968, a copy of which was served on Respondent Barnes on Octo- ber 2, 1968. The complaint in Case 15-CA-3422 was also issued on January 17, 1969, pursuant to a charge filed on October 15, 1968, a copy of which was served on Respon- dent Clark on October 16, 1968. The complaint in Cases 15-C B-924 and 15-CB-927 together with the order consol- idating said cases, was likewise issued on January 17, 1969; the complaint in Case 15-CB-924 was issued pursuant to a 191 charge filed on October 1, 1968, a copy of which was served on Respondent 130 on October 2, 1968, the complaint in Case 15-CB-927 was issued pursuant to a charge filed on October 15, 1968, a copy of which was served on Respon- dent 130 on October 16, 1968. The complaint in Case 15- CA-3443 was issued on February 7, 1969, pursuant to a charge filed on November 21, 1968, a copy of which was dui served on Respondent Westinghouse on November 22, 1968. An order consolidating the above noted cases for trials was issued on February 7, 1969. This consolidated proceeding was heard at New Orleans, Louisiana, over a period of 8 days between April 1 and 10, 1969. Briefs have been filed in behalf of all parties herein. These have been carefully reviewed and considered.5 Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT EMPLOYERS Jurisdiction From the pleadings, the Examiner finds that Respondent Barnes is a Louisiana corporation, that Respondent Clark (A Joint Venture) is authorized to do business in the State of Louisiana and that Respondent Westinghouse is a Penn- sylvania corporation with office and principal place of bus- iness at Pittsburgh, Pennsylvania, and also doing business in the State of Louisiana. The Trial Examiner further finds from the admissions in the pleadings that the business of the three Respondent Employers and the extent of their bus- inesses in interstate commerce are as set forth in the re- spective complaints. A more detailed description of the businesses of each of the Respondent Employers as they relate to the issues herein will be set forth below. It is further found from the admissions in the pleadings that each of the Respondent Employers are employers engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION International Brotherhood of Electrical Workers, Local No. 130, is a labor organization within the meaning of Sec- tion 2(5) of the Act. III GENERAL BACKGROUND FINDINGS RE LOCAL NO. 130'S MASTER COLLECTIVE-BARGAINING AGREEMENT AND EXCLUSIVE HIRING HALL RIGHTS THEREUNDER During the period here involved, Respondent Local No. 130 and the South Louisiana Chapter of the National Elec- trical Contractors Association of -New Orleans, Louisiana, and vicinity, hereafter called the Chapter, have been under a 3-year master collective-bargaining agreement terminat- ing on June 30, 196). The contract was executed by the Chapter in behalf of its Electrical Contractor members numbering approximately 12 or 13 and including Respon- 5 Pursuant to the request of the Examiner to counsel for all parties herein, only counsel for the General Counsel, for the Charging Parties, and for Respondent Westinghouse have filed proposed findings of fact in the form of paragraphs of the various complaints annotated to the record to show testimony and exhibits in support of or contrary to the allegations therein contained. The Trial Examiner has found this of material assistance in the preparation of this Decision 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent Barnes and Respondent Clark here involved .6 All con- tractor members of the Chapter are bound by the terms of the master collective-bargaining agreement. The agreement is applicable to all electrical contract work performed by contractor members of the Chapter within Respondent 130's geographical jurisdiction under its char- ter from the International Brotherhood of Electrical Work- ers. This consists of New Orleans, Louisiana, and vicinity, consisting of the parishes of Assumption, Jefferson, Orle- ans, Placquemines, St. Bernard, St. Charles, St. James, and St. John the Baptist, and also of Houma, Louisiana, and vicinity, consisting of the Parishes of LaFourche, Terrebon- ne, and the southern segment of St. Martin, and that portion of St. Mary northeast of Atchafalaya River. In all the con- tract covers electrical work performed in 10 full parishes and portions of 2 other parishes in southern Louisiana. The master agreement provides that Respondent 130 "shall be the sole and exclusive source of referrals of appli- cants for employment." The contract further provides that Respondent 130 is required to select and refer applicants for employment without discrimination by reason of member- ship or nonmembership in Respondent 130 within four sep- arate group classifications or categories of employees designated as Group I, Group II, Group III, and Group IV. The Appendix attached hereto sets forth the detailed consti- tuency of each of the four groups and related matter as defined in the collective-barggaining agreement. The con- tract further provides that thelJnion is required to maintain registers or out of work lists of applicants for work estab- lished on the basis of the four mentioned groups or classifi- cations employees. However, for all practical purposes here involved under the issues of the case, reference will be made to only 3 registers kept by the Union for work applicants and their Si atures. The first register consists of regular members of Respondent 130 who are residents of the ge- ographical area covered by the collective-bargaining agree- ment. Under the contract Respondent 130 is required to give the highest priority to this register in assignn gobs. The second register consists of members of locals of the Interna- tional Brotherhood of Electrical Workers, hereafter called IBEW, from other parts of the United States. The applicants for employment on this second register are commonly refer- red to as "travelers," as they consist of members of the IBEW who move from one part of the country to another where work may be found. Under the contract, the Union is permitted to select workers for work assignments from the second register only after it has exhausted the first register. The third register consists of electricians who are not mem- bers of any register of the IBEW. They are commonly referred to as "temporary" or "permit" electrical workers. Under the contract the Union is permitted to select electricians from the third register for work assignment only after the first and second re sters have been exhausted. These three classifi- cations of employees will hereafter be referred to as Local 130 members, travelers, and permittees, respectively. The record as a whole establishes that Respondent 130 has had for all practical purposes a closed membership. Membership may be obtained either through transfer from other locals of the IBEW or through Local 130's apprentice- ship program. Membership in Respondent 130 by transfer from other locals has been practically nil in recent years. Assistant Business Manager of Respondent 130 Earl J. Sev- ins testified that there has been so few applications for transfer from other locals to Local 130 in the past several 6 Respondent Westinghouse has a direct contractual relationship with IBEW but for all practical purposes operates under Local 130's collective bargaining agreement as will be shown in a latter part of this Decision. years that he could not recall the last application for such a transfer. The testimony of some of the alleged discrimina- tees herein, who are not members of Respondent 130 but received employment through its exclusive hiring hall, shows that electricians of other locals deemed it futile to apply for membership in Local 130 by transfer from their own locals because it was common knowledge that Local No. 130 was not accepting applications for transfer.? The fact that Respondent 130 has essentially a closed member- ship is further attested by the attempt described below of hundreds of electricians to set up a rump rival labor organi- zation to Respondent 130. The record further shows that the only avenue in many years to membership in Respondent 130 has been through its apprenticeship program. However, Respondent's appprenticeshi program is restrictive in that it is open only to high schoolp aduates between the ages of 18 and 24 who are selected for training at the discretion of a joint committee representing both Respondent 130 and industry. The years 1967 and 1968 were boom construction years for heavy industry in southern Louisiana, with resultant greater demand for electricians than Local 130 could supply from its own membership of about 1,100 members. Under these circumstances, Local 130 through its exclusive hiring hall placed in employment scores of travelers and permit- tees; that is, electricians who were members of other locals in the IBEW or had no union affiliations whatever. The complaints in this proceeding do not allege any dis- criminatory practices by Respondent 130 in connection with its referral system. There is accordingly no issue herein under the pleadings challeng . per se the fairness of Local 130's operation of its hiring hall practices , nor has that issue been litigated by the consent of the parties.8 IV ADVENT OF A RIVAL LABOR ORGANIZATION TO RESPONDENT 130 Information came to Respondent 130 early in July 1968 that a rival labor organization was being organized by non- member electrical workers who received work through Re- spondent 130's hiring hall. The movement to organize the rival labor organization became known as "Norco move- ment" because its early organizational meetins were held at Norco, Louisiana. Norco (pop. 6,800) is within 5 miles of Taft, Louisiana (pop. 260), the jobsite of Respondent Clark, and of Moritz, Louisiana (pop. 350), the jobsite of Respon- dent Barnes. Norco, Taft, and Montz are in the Parish of St. Charles; the towns are about 30 miles west of the City of New Orleans. The Parish of St. Charles is one of the 10 full parishes within the jurisdiction of Respondent 130. The aforementioned Earl J. Sevins, assistant business manager of Respondent 130, received word through the "grapevine" one Wednesda afternoon in the forepart of July 1968 that a meeting of the Norco group was to take place that night at Norco. He repaired to Norco that eve- ning to learn what he could about the movement but was unable to ascertain where the meeting was taking place and received no information on that occasion. The above meeting of the Norco group appears to have been one of the first. Thereafter, according to the informa- tion received by Sevins, the Norco group met "pretty reg- T Peter J. Dorsey, Jr., an electrician without any union affiliations but who received employment through Respondent 130's referral system for some 2 or 3 years, also testified that he refrained from seeking membership in Re- spondent 130 because of common knowledge that such applications were not being accepted. 8 At the prehearing conference herein, counsel for General Counsel stated that a precomplaint investigation of the hiring hall practices of Respondent 130 had faded to disclose any discriminatory practices by Local 130 in the operation of its hiring hall. WALTER J. BARNES ELECTRICAL CO. ularly." The record shows that these regular meetings of the Norco group continued throughout the months of July, Au- gust, and September. After his first unsuccessful attempt, Sevins observed a number of subsequent meetings of the Norco group from the outside by sitting in his car near the door of the meeting places , The first meeting Sevms observed in this fashion appears to have been the first lar, a organizational meeting of the Norco group held on July 23, 1968,9 at an elenyentary school in Norco. Sevins' purpose in attending that meeting and others is best expressed in his own testimony as follows: "My purpose, I was there as a Member of Local 130 and as representing the Membership of Local 130, and I was to find out how many people were at this Movement, how big it was and what we should do about it to report it back to the officers of our Local, so we could work this internally through our office and through the IBEW." From this testi- mony, it is found that Sevins kept the Norco meeting under surveillance for the additional purpose of learning the identities of those attending the meeting. At or around the time of this meeting, Sevms learned that the leaders of the Norco movement were Marshall Hinch- man and Charles Spurgeon, journeymen electricians who were not members of Local 130 but were members of IBEW through other locals, commonly referred to, as heretofore noted, as "travelers." On August 7, 1968, Sevins preferred charges against "Brother M. Hmchmail" and "Brother C. Spurgeon with the recording secretary of Respondent 130, charging them with violations under article 27, section 1, subsections 8 and 14, of the IBEW constitution, as follows: "Trying to organize a new Local Union without notifying proper Local Union and International Union Officers. Or- ganizing and attending a meeting where I.B.E.W. business was discussed with persons not entitled to such knowledge." The IBEW constitution (C. P. Exh. 6) in the indicated or- tions thereof reads : "Any member may be penalized for committing any one or more of the following offen- ses:... Creating or attempting to create dissatisfaction or dissension among any of the members or among L.U.'s [Local Unions] of the I.B.E.W.... Making known the business of a L.U. to persons not entitled to such knowl- edge." Respondent 130 found Henchman and Spurgeon guilty under the charges preferred by Sevins, but this decision was reversed on appeal by the IBEW. Notwithstanding the charges preferred against them by Sevins., Henchman and Spurgeon sent Sevins a written invi- tation to attend a public meeting of the Norco group to be held on December 6, 1968, at Gonzales, Louisiana. Sevins accepted the invitation and attended the meeting. Sevins, however, rejected two oral invitations from Joel T. Chais- son, attorney for the Norco Group, to attend Norco meet- ings. Mr. Chaisson appeared for and represented the Charging Parties at the trial of these proceedings at New Orleans. It should be noted that, although Hinchman and Spurgeon were leaders in the Norco movement, they are not named in any of the complaints herein and are not in anyway directly involved in the issues in this proceeding. Neither Henchman nor Spurgeon appeared as witnesses in the proceeding. Although Sevins himself attended only one meeting of the Norco group, the record shows that other members of Re- spondent 130 attended the Norco meetings with more fre- quency in order to find out what was going on and how well supported the movement was and to report their findings to officials of Local 130. 9 This date is determined from C. P Exhs 4 and 5 193 The testimony of Sevins shows that the Norco movement was a matter of serious discussion and grave concern for the officers and board of directors of Respondent 130 because of its threat to Local 130's geographical jurisdiction and resulting loss of employment to its members. There is indirect evidence in the case that the Norco movement was also a matter of deep concern to the rank- and-file members of Respondent 130. This was expressed in "water throwing" incidents at Respondent Barnes' "Little Gypsy" steam powerplant jobsite at Montz, Louisiana, where Barnes employed about 80 electricians and supervi- sors in the midsummer of 1968. The Little Gypsy power- plant is a multistory industrial plant of apparently irregular levels and heights. Some of the construction materials are delivered to the site in bags, frequently made of plastics. Electricians and other craftsmen on jobs such as the Little Gypsy jobsite sometimes engage in the prank of filling these discarded bags and other containers with drinking water and dropping them on employees on the floor or floors below. Such pranks are potentially very dangerous as they may cause the employee on whom the water is thrown to fall off his floor to his death. Water throwing by electricians at the Little Gypsy jobsite became widespread and rampant during the summer months of 1968 when the Norco Group was most active in organizing it's rival labor organization to Respondent 130. The situation became so serious that Re- spondent Barnes' Little Gypsy jobsite General Foreman N. S. Paratore complained bitterly about it to Sevins and told him that the practice had to be stopped. Sevins thereupon instructed the Little Gypsy jobsite Shop Steward Harry Schwartz to tell the electricians on the jobsite to stop the water throwing and to fire the first electrician caught in any water throwing incident. The directive was relayed by Schwartz to some 70 or 80 electricians on September 10, 1968. Schwartz issued a similar warning to the electricians on September 16, 1968. From the background set forth above and testimony of three of the alleged discriminatees (Tacke, Lenard, and Wederstrandt) herein who worked at the Little Gypsy job- site, it is found that the water throwing was directed at them because they were suspected of being actively involved in the Norco movement. The Norco movement culminated in the filing of a peti- tion by its participants in August 1968 with the President of the International Brotherhood of Electrical Workers for a charter for a new local to be carved out of the geographical jurisdiction of Respondent 130 under the provisions of arti- cle XV, section 2, of the IBEW Constitution which gives the International President " ... the right and power to divide or change the territory or jurisdiction covered by an y L.U. [Local Union] .. The petition, as supplemented, con- tamed the signatures of over 800 electricians. Local 130, as heretofore noted, has a membership of approximately 1,100. The petition of the Norco group sought a spin off to the proposed new local of all but 4 of the 10 full parishes and all of the 2 partial parishes held by Respondent 130 as its jurisdictional territory under its charter from the Interna- tional. The 4 full parishes within the jurisdiction of 130 that the Norco Group did not ask for were the more densely industrial Parishes of Orleans, Jefferson, Placquemines, and St. Bernard. Official notice is taken from a Rand McNally Road Atlas for 1960 that the population of these 4 parishes is approximately 3 times larger than Respondent 130's other 6 full and 2 partial parishes which the Norco group sought to take away from Local 130 by its petition to the Interna- tional president. The testimony of Sevens shows that al- though the Norco group sought substantially more than one-half of Respondent's geographical territory only about 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a third of the work Respondent 130 had in the summer of 1968 originated in the portion of Local 130's territorial juris- diction which the Norco group petitioned for; the remain- ing two-thirds of the work originated in the four more industrial parishes within Respondent 130's jurisdiction that the Norco group did not ask for. (Tr. 1207, 1323) By admission of counselfor Respondent 130, it is further estab- lished that the vast majority of the signers of the Norco petition for a charter resided or worked in the parishes sought by the petition, that a large number of these had received employment through the hiring hall of Respondent 130, and that scores of these numbers were members of other local unions of the IBEW. Except as otherwise noted, the findings in this paragraph are based on the stipulations of the parties as reflected in the record. The International in the early part of 1969 denied the petition of the Norco group for a charter for a new rival local union. The record as a whole reflects a bitter but understandable hostility between Respondent 130 and the Norco group over the control of work for electricians within the parishes here involved, with Local 130 fighting to retain its entire chartered territorial 'urisdiction and the Norco group fi t- ing to take some of that territory away from Local 130. The essential issue with respect to Respondent 130 is whether this hostility spilled over into unlawful conduct under the Act, such as causing the discriminatory discharge of 6 elec- tricians because of their activities in behalf of the Norco movement. V. ALLEGED UNFAIR LABOR PRACTICES BY RESPONDENT BARNES AND RESPONDENT 130 RE EMPLOYEES TACKE, LENARD, AND WEDER- STRANDT At the times here pertinent Respondent Barnes, an elec- trical contractor, had a subcontract for the construction of the electrical work on an addition to a new power plant being built for Louisiana Power & Light Company at Montz, Louisiana, known as the Little Gypsy project. At the peak of its electrical construction in the summer of 1968, Barnes employed 78 electricians on the Little Gypsy jobsite. Among the electricians em to ed by Barnes on that 'obsite were Granville C. Tacke, Jp., Sidney HI Lenard, and Hem- don B. Wederstrandt. Although these three employees are IBEW members, they are members of other locals, and not of Respondent 130, but received their employment with Respondent Barnes through Respondent 13V s exclusive hiring hall rights under the Union s aforementioned collec- tive-bargaining agreement with Respondent Barnes. With respect to Respondent 130, the pleadings raise an issue as to whether Respondent 130 first discriminatorily caused Respondent Barnes to transfer Tacke, Lenard, and Wederstrandt to more onerous work and then to discharge them because of their interest or activities in behalf of the aforementioned rival labor organization, the Norco group. In addition there are other issues as to whether Respondent 130 is in further violation of the Act by various threats by its Assistant Business activities in behalf of the Norco grow . With respect to Respondent Barnes, the pleadings raise issues as to whether Respondent Barnes first discriminatori- ly transferred Tacke, Lenard, and Wederstrandt to more onerous work and then discriminatorily discharged them because of their activities in behalf of the rival Norco labor organization. In addition there are issues as to whether Re- spondent Barnes' Foreman Jack Laurendine impliedly threatened Lenard and Wederstrandt because of their activ- ities in behalf of the rival Norco group. At the times here pertinent Laurendine was a member of Respondent 130. Tacke, Lenard, and Wederstrandt are members of the International Brotherhood of Electrical workers, sometimes referred to as IBEW, through locals other than Respondent 130. Tacke has been a member of Local 2149, IBEW, out of an unspecified city for 17 years ; Lenard has been a member of Local 796, IBEW, out of Eufala, Alabama, for 16 years; Wederstrandt has been a member of Local 587, IBEW,,out of New Orleans, Louisiana, for approximately 29 years, with some interruptions in the early years. The three men have resided for many years within the territorial jurisdiction of Respondent 130. Tacke received his first em- ployment through Respondent 130's hiring hall in August 1966: Lenard received his first employment through Re- spondent 130 sometime in 1966 : Wederstrandt received his first employment through Respondent 130 some time in 1966. The three men were simultaneously discharged or laid off by Respondent Barnes on September 20, 1968 . Tacke, Lenard, and Wederstrandt have never filed applications for transfer from their own locals to Respondent 130 because of common knowledge that Respondent 130 was not accept- ing applications for transfers from other locals. Lenard was the first of the 3 alleged discriminatees to become involved in the rival Norco movement. He began his activities in behalf of the Norco movement on July 22, 1968, and attended his first meeting of the group the next day. At Lenard's solicitation, Wederstrandt also became involved in the Norco movement sometime during the month of July 1968 ; his enthusiasm for movement was such that he contributed $20 to the rival labor organization the instant he was told about it b Lenard . He attended his first Norco meeting in August 7968 . Tacke received his first information about the Norco movement in July 1968 and also attended his first meeting of the Norco group in Au- gust. Tacke, Lenard, and Wederstrandt became prominent in the Norco movement by virtue of their appointment by Norco leader Hinchman to serve on a select committee of 10 electricians formed to contact and confer with officers of the International Union in connection with the Norco group's application for a charter as a rival local to Respon- dent 130. The committee, with Tacke, Lenard, and Weder- strandt present, met on September 6, 1968, with a representative of the International at New Orleans, to dis- cuss the application which had been filed the previous month and was then under the consideration of the Interna- tional. Word of the Norco movement and the activities of Tacke, Lenard, and Wederstrandt in its behalf reached Respondent 130's Assistant Business Agent Sevins almost immediately through the grapevine . Lenard was the first of these employ- ees to come under Sevins' suspicions as a pro-Norco advo- cate. Lenard attended the above-noted Norco meeting of July 23, 1968, at the Norco elementary school . As heretofore noted, Sevins observed the electricians attending the meet- ing from his parked car near the school house . Sevins' testi- mony shows that the next day he called the Little Gypsy jobsite and left word for Lenard to call him. When Lenard returned the call, Sevins asked him to meet him at the Union hall that night. At the hall that evening Sevins asked Lenard if he had heard anything about the Norco movement. Le- nard told Sevins he had no knowledge about the movement, but volunteered out of his professed gratitude for the work he had been receiving through Respondent 130's referral system to pass on to Sevens any information he received about the Norco movement. During his interview with Le- nard, Sevens was called out of the office where they were meeting. When he returned, he found that Lenard had re- WALTER J. BARNES ELECTRICAL CO. moved from the desk in the room and was reading a bulletin put out by the Norco group which called for the signatures of all electricians interested in starting a new rival IBEW local. (G. C. Exh. 2) The room in which Sevins met with Lenard was that of Sevins' superior, Senior Business Agent Joseph. Sevins asked if he had seen the bulletin before. Lenard denied that he had but again offered to help Sevens find out anything he could about the incipient rival labor organization. As the executive board of Respondent 130 was meeting that night, Sevins introduced him to the mem- bers of the board and informed the members of the board about the talk he had just had with Lenard. Lenard there- upon also told the board members how grateful he was for the work he had been receiving through Respondent 130 and repeated his promise to pass on promptly any informa- tion he received about the Norco movement at Sevins. The above findings on the meeting of Sevins and Lenard at the union hall on July 24 at Sevins' request are based on Sevins' own testimony. Lenard's account of the meeting differs in material detail. Lenard testified that when he got to the union hall Sevins accosted him with the accusation that he had seen him at the Norco meeting the preceding night, that he now had him by a strategic part of his anato- my and threatened him with the loss of job, his car, and his union card, if he supported the Norco movement. Lenard testified that he responded to Sevins' remarks by declaring his deep appreciation for the employment he was receiving through Respondent 130 and by offering to help Sevins in any way he could by furnishing Sevins with any information he acquired about the Norco movement, except that he would not furnish Sevins or Respondent 130 with the names of any of the electricians who have signed up with the Norco group. Lenard, however, did tell Sevins that Hinchman was the reader of the Norco movement. Lenard also testified that Sevins thereafter introduced him to the executive board of Local 130 then in session; that he similarly expressed his gratitude to the executive board for the work he had been receiving through Local 130 and volunteered to do ev- erything in his power to keep Local 130 informed about the Norco movement (which the board was then discussing), short of informing on the membership of the movement. From Lenard's demeanor and other factors, the Trial Ex- aminer credits his testimony as to the remarks made to him by Sevins as set forth above in this paragraph and discredits Sevens' denials. On the witness stand, Sevins gave the im- pression of being a rough and tough, direct and plain speak- in g, no-nonsense individual, deeply loyal to his employer Respondent 130, and entirely capable of the rough forth- right language attributed to him by Lenard, especially on a matter that threatened to take away one-third of the work controlled by Respondent 130. The Examiner finds the at- tributed remarks to be in character with Sevins. Later con- duct by Sevins towards the other alleged discriminatees here involved, as hereinafter found, furnishes further corrobora- tive evidence that the remarks attributed to Sevins by Le- nard were actually made. Of the two versions of the meeting, the Examiner credits the version given by Lenard and credits Sevins' version only to the extent that it does not conflict with Lenard's. A week later Sevins saw Lenard at his jobsite and asked if he had received any further information about the Norco movement. Lenard reported that he had nothing new to report. Sevins again contacted Lenard at the jobsite on Septem- ber 7, 1969, with the demand that he file charges against Marshall Hinchman, the leader of the Norco movement, for violating certain provisions of the IBEW constitution. When Lenard declined, Sevins threatened him with physical 195 violence. This threat of physical violence by Sevins against Lenard was made in the presence of Lenard 's foreman, Laurendine. Laurendine by his silence did not disavow the threat. Sevins in his testimony admitted that he contacted Lenard for his signature to a charge against Hinchman with the IBEW, but stated that he did this only because Lenard had promised to help him fight the Norco movement. An angry argument ensued between the two men because of Lenard's refusal to file the charge against Hinchman. Dur- ing the course of the violent argument Lenard drew a screw- driver from his pocket and held it in his outstretched arm while talking to Sevins . Sevins knocked the screwdriver from Lenard's hand. The record supports the conclusion that Lenard put the screwdriver in hish and as a protection against the physical violence Sevins threatened him with for his refusal to sign the charge against Hinchman . Sevins appeared to be a much younger and physically more power- fulPman than Lenard. The above incident took place as noted, in the presence of Foreman Jack Laurendme, a member of Respondent 130, and also of Harry Schwartz , the shop steward for Local 130. Before the meeting between Sevins and Lenard ended, Lenard was instructed by Sevins to let Laurendine and Schwartz know the next morning whether he would sign the charge against Hinchman. Upon advice from an IBEW rep- resentative, Lenard the next morning advised Senior Bus- iness Agent Joseph, Foreman Laurendine, and Shop Steward Schwartz that he would not lodge a complaint with the IBEW against Hinchman. As heretofore noted, Sevins himself filed the charge against Hinchman for violating the IBEW constitutuion,-but failed to follow through with his threat to file a similar charge aginst Lenard. While Laurendine readily admitted that he heard Sevins demand Lenard to sign the described charge against Hinch- man, he denied hearing Sevins threaten Lenard with phys- ical violence if he did not sign the charge . This denial is not credited . Laurendine has been a member of Respondent 130 for 22 years and was still in the employment of Respondent Barnes at its Little Gypsy jobsite at the time of the trial of this matter. Prior to the above incident, Lenard had been engaged for the most part in light but delicate work at the jobsite known as stress welding due to his long experience and special ability in the work. Within a few days after the argument between Sevins and Lenard over Lenard 's refusal to file charges with the IBEW against Henchman, Lenard was transferred to much heavier work under Foreman Lauren- dine, known as wire pulling. The electricians assigned to this work are called the bull gang. The new assignment called for work in manholes and required a good deal of climbing on shelves called trays where conduits are laid , more suitable for a younger man than Lenard. Two weeks later, on September 20, Lenard was laid off by Foreman Laurendine without explanation . Later Lenard contacted Shop Steward Schwartz for a termination slip but Schwartz declined to give him one on the ground that there was no need for the slip. Lenard's testimony shows that it is customary for the shop steward to both receive a new man on a job and to hand him his termination notice when his services are terminated. An electrician cannot start a job without first handing his referral slip to the union shop steward on the jobsite. Tacke and Wederstrandt were also contacted by Sevins in connection with their suspected involvement with the Norco movement. Tacke's accredited testimony shows that his first warning about being involved in the Norco move- ment came from Shop Steward Schwartz . Schwartz sum- moned Tacke to his station at the Little Gypsy worksite on 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or about August 7 where he expressed strong feelings against the Norco movement and declared the movement to be in violation of the IBEW constitution . He then instructed Tacke to inform him of any electricians attending Norco meetings and told him that his failure to do so would make him "liable to the constitution of the IBEW." Schwartz' flat denials that he made such statement to Tacke are not cred- ited. Schwartz, a man 68 years of age, has been a member of Respondent 130 for 52 years. Notwithstanding Schwartz' warning, Tacke, in company with Wederstrandt, attended the August 21, 1968, Norco meeting at the Norco elementary school . Tacke's testimony shows that he saw Sevins standing beside his car at a strate- c point where he could observe all who entered the school rr the meeting. The credited testimony of Tacke further shows that Sevins the next morning in the company of Schwartz approached him at his work station at the Little Gypsy jobsite and after asking for and inspecting his IBEW membership receipt, accused him of attending the "illegal" meeting of the Norco group and asked him if he was an authorized IBEW organizer. During the course of the con- versation, Sevins derogated Tacke's IBEW classification as a railroad electrician and called his attention to the fact that he owed his present employment to Respondent 130 and accused him in effect of being disloyal to Respondent 130 through his interest in the Norco movement. Sevins in his testimony admitted the conversation and that he had ac- cused Tacke of illegally acting as an IBEW organizer with- out appropriate authority or credentials from IBEW. Later that day Tacke by order of his foreman, Roger May, was transferred from his then assignment of checking out and terminating cables , generally regarded as the light- est and most interesting electrical work at the jobsite, to the physically difficult job of installing conduit (pipe) which requires a great deal of bending and sawing and cutting. The credited testimony of Tacke shows that at the time of his transfer he commented to May that he was being sent to Siberia and that May's reply was, "Yeah , to the salt mine." May admitted making this repl to Tacke , but said it was just ajoke. The Trial Examiner finds that behind this "yoke" there was full recognition by May of the fact that he was reassigning Tacke to more onerous work than he was then doing. Approximately a month later, on September 20, 1968, May told Tacke he was being laid off and handed him his check. At the time of the layoff, May asked Tacke for a contribution to the United [Givers] Fund . Tacke told May that he was not adverse to making a contribution , but would not do so because he didn't want his employer Respondent Barnes to receive credit for his contribution . May replied that Tacke should not "blame Walter J. Barnes for it too much." The Examiner construes this remark by Foreman May to mean that Respondent Barnes was not to be blamed for Tacke's layoff and infers from the remark that Tacke's layoff was due to Local 130's demand. This conversation is based on the credited testimony of Tacke . Foreman May in his testimony said that he couldn't remember telling Tacke not to blame Walter J. Barnes "too much" for his layoff. The Examiner does not find this denial convincing. Tacke was laid off on the same day as Lenard was laid off. Wederstrandt was also laid off on the same date. There are two versions of events between Sevins and Weder- strandt prior to the latter's layoff, Sevins' and Wederstrandt's. Under Sevins' account, he admits that he initiated a conversation with Wederstrandt at the latter's work station over Wederstrandt's involvement in the Norco movement. At this meeting according to Sevins ' version, Sevins asked Wederstrandt what he had against Local 130 and then accused him of improperly acting as an organizer for the rival Norco movement without credentials from the IBEW. The encounter created a tense situation. Sevins testi- fied that Wederstrandt responded by telling him that what he was accusing him of was none of Sevins' business . Sevins also testified that Wederstrandt became so angry during the conversation that he told him that if they were off the prem- ises he (Wederstrandt) would whip him (Sevins). Sevms is 42 years of age and quite athletic and vigorous of appear- ance; Wederstrandt appeared to be a man in his midsixties and corpulent. Wederstrandt's version of his meeting with Sevins is quite different. Wederstrandt testified that around the middle of August 1968 Sevins opened the conversation by telling him that he had been observed attending the Norco meeting of the night before and by rebuking him for having proposed at that meeting that Norco followers file a charter request with the IBEW not only for the parishes they then had in mind but also for the Parish of Jefferson which was the second most populous parish within Local 130's geographi- cal jurisdiction. (The Norco petition as thereafter filed in- cluded a request for Jefferson Parish.) Wederstrandt further testified that when he defended his right to make this pro- posal to the Norco followers, Sevins became very angry and excited and during the course of the conversation said to him that he would take him outside and beat him and then take on his son and whip him. Wederstrandt interpreted this as an attempt by Sevins to provoke him into striking Sevins. It is inferred from the record, that both men were by then shouting at each other. It is further inferred and found from the record that Sevins' threat of physical violence to the person of Wederstrandt, was overheard by Foreman Lau- rendine who was standing some 70 to 75 feet away. Weder- strandt testified that Sevins then strode over to Laurendine, and ordered him "to fire this man [Wederstrandt], to get him off this job." Laurendine replied, "I can't fire him." The day of this altercation between Sevins and Wederstrandt was Wederstrandt's first day of work under Foreman Lau- rendine as part of a bull gang engaged in the work of pulling cables which required a great deal of climbing more suited to a young man than for a man of Wederstrandt's age who as noted appears to be in his sixties. Prior to the day here involved Wederstrandt had been working at an easy job in the control room terminating wires into switches. Wederstrandt's transfer to Laurendine's bull gang had been ordered only the day before the events of the day here in question. Sevins' testimony under cross-examination sup- ports the inference and conclusion that he had notice through the grapevine of Wederstrandt's involvement in the Norco movement for some time prior to the day Weder- strandt was transferred from his work in the control room to the heavier work on the bull gang. Of the two versions of the events of the day of the alterca- tion between Sevins and Wederstrandt, the Trial Examiner credits Wederstrandt's version but notes that even Sevins' version clearly and unambiguously shows Sevins' and through him Local Union 130 s deep animosity to the Nor- co movement and to Wederstrandt personally because of his activity in its behalf. The Trial Examiner does not credit Sevins' denial that he ordered Laurendine to fire Weder- strandt and his denials of all other remarks attributed to him (Sevins) by Wederstrandt in his testimony as set forth in the above aragraph. Some by Wederstrandt in his testimony as set forte in the above ara aph. Some 3 weeks after the day here in question, Foreman Laurendine, on September 20, laid Wederstrandt off. Wederstrandt's layoff was simulta- neous with that of Lenard. The two men had been working together as a pair or team. WALTER J. BARNES ELECTRICAL CO. Wederstrandt, Lenard, and Tacke, during their employ- ment by Respondent Barnes were the victims of the "water throwing" incidents described above . Water was thrown on them from upper levels of the Little Gypsy jobsite. The testimony of the three employees leaves no doubt that the dowsings they received were not accidental, but were inten- tional and deliberate. Their testimony further shows that the water throwing commenced about the time they became active in organizing the rival Norco union movement. As the intensity of the water throwing increased, the three em- ployees took special precaution, wherever possible, to avoid being hit by a bag of water . Lenard and Wederstrandt worked together on the jobsite ; when they worked on a job that especially ex osed them to water throwing , one would watch the upper levels as the other completed the work on hand as quickly as possible . When dowsed the victim would never be able to see the water thrower as he always stepped back out of sight after directing his missile. At one time Lenard had a bag of warm oil thrown on thim which could have caused serious injury if it had been hot. While as heretofore indicated there is always a certain amount of horseplay by way of water throwing on jobs such as the Little Gypsy jobsite , it is apparent from the record that the water throwinggs here involved were not mere pranks for pranks' sake.'The situation became so bad that Respondent Barnes ' General Foreman Paratore com- Klained about it to Assistant Business Agent Sevens and told im that it had to stop . Sevins in turn directed Shop Steward Schwartz to tell all the electricians on the job that the water throwing must be stopped and that the first man caught water throwing would be fired . Schwartz issued the warning to the assembled electricians on September 10, 1968. A week later complaints again reached Schwartz and Sevins from Paratore that the water throwing had not stopped and Sev- ins again emphatically directed Schwartz , after having "ate [him I out, for not having stopped the practice, to put a stop to it instantly . At his second meeting with the electricians on the subject, Schwartz again warned them that the prac- tice was extremely dangerous and had to be stopped imme- diately. By his own admission, Schwartz also told the electricians, "Now, if you fellows must throw something, why don't you get a few two -by-fours [lumber] and throw them at one another." Wederstrandt's version of what Schwartz said about throwing boards instead of water is substantially different and far more ominous. According to Wederstrandt, Schwartz told the men not only to throw boards but rather to "throw and kill them ." Tacke and Lenard also testified that Schwartz used the phrase "and kill them ." The testimo- ny of the three employees that Schwartz used the full phrase "throw boards and kill them" is credited and Schwartz' denial that he used this phrase is rejected . The Trial Exam- iner finds by inference that Schwartz in his use of the word "them" was referring to nonmembers of Respondent 130 who were active in the rival Norco union movement. The Trial Examiner, however, finds that Schwartz was not in any real sense urging the members of Local 130 to do phys- ical harm to advocates of the Norco movement , but was only using the phrase "throw boards and kill them" as an expression of his open hostility and personal bitterness to- wards the Norco followers who were seeking as heretofore shown to take away part of Respondent 130's jurisdiction and jobs by their petition to IBEW for a charter. The meeting at which Schwartz warned the electricians for the second time against water throwin g took place out- side the toolroom of which Schwartz hag charge. As the meeting broke up, Schwartz told the electricians who had not yet departed that he didn't want them to talk to "those 197 three rats," referring to Tacke, Wederstrandt, and Lenard. This finding is based on the creditied testimony of Peter J. Dorsey, Jr., an electrician who was working in the toolroom at the time and also on the credited testimony of Weder- strandt and Tacke. Shortly after their layoffs , Tacke, Wederstrandt, and Le- nard reported in person a number of times to Respondent 130's hiring hall and signed the register for employment but were never referred out for employment and finally gave up in discouragement trying to get work through Respondent 130. On March 5 , 1969, about a month prior to the trial herein, Respondent 130 sent to Tacke , Wederstrandt, and Lenard unsolicited letters in which they were each advised " . . . that this Union has no objection to your being employed by the Walter J . Barnes Electric Company , Inc., or by any other employer under contract to this Union so long that such hiring or employment is in accordance with our contract with the Electrical Employers." The letter further stated, "If you are interested in employment, we suggest that you reg- ister at the Hiring Hall. If you do register , you will be referred out in accordance with the contractual provisions and in accordance with your groupings." On or about March 18, 1969, Respondent Barnes also sent separate letters to Tacke, Wederstrandt, and Lenard in which they were advised " . . . that if you are referred to us by Local Union 130, I.B .E.W. in response to our request for the referral of journeymen in accordance with our contract with Local Union # 130, we would have no objection to employing you.,, Respondent 130's above-described letter of March 5 was prepared by the attorney who represented Respondent 130 at the trial herein. Similarly, Respondent Barnes' letter of March 18 was prepared by the attorney who represented Barnes at the trial. These letters originally rejected as exhib- its in the case upon objection as self-serving documents, were ultimately received in evidence upon the consent of all parties. Although Tacke , Wederstrandt, and Lenard pursuant to the invitations in these letters called at Respondent 130's hiring hall and registered for employment, they had not up to the time of the trial herein been referred out for work by Respondent 130. The record shows that Respondent 130 in actual practice has the power to discharge an electrician from a job to which it has referred him although it has no express power to do so under its collective-bargaining a eement with the Employers. This appears from that part ofthe testimony of Assistant Business Agent Sevins in which he told of his directions to Shop Steward Schwartz to warn the men against anymore water throwing on penalty of being fired for infraction of the directive. All foremen mentioned above, including General Fore- man (over electrical work) Paratore, are members of Re- spondent 130. Paratore and some 20 other Local 130 electricians have worked for Respondent Barnes for many years without the necessity of being referred out by Local 130 when they are shifted from one job to another. The collective-bargaining agreement has no provision governing layoffs whether by seniority or by an other fixed plan. Layoffs are administered by Respondent Barnes' fore- men who are both agents of Respondent Barnes and perma- nent members of Respondent 130 in good standing. Final authority for layoffs generally rests with General Foreman Paratore . His testimony shows that in making layoffs he takes into consideration the union status of the affected employees. Selections for layoffs are generally made first from electricians who have no union affiliations 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (permit or temporary employees), next from electricians who are IBEW members but belong to other locals (travel- ers), and lastly from regular members of Respondent 130 who are subject to layoffs only after all permit men and travelers have been laid off. Paratore testified that he and General Superintendent Conner Ellis decided that a layoff of 6 electricians was desirable as of September 20, 1968, and that to this end he requested recommendations of names for the layoffs from the foremen then on the scene at the Little Gypsy obsite. They submitted eight names but only six men were laid off. Included in this group were the names of Tacke, Lenard, and Wederstrandt. Foreman Laurendine recommended Le- nard and Wederstrandt for layoffs for the stated reason that they were less agile for the climbing then required on their jobs than other electricians, presumably because they are over 50 years of age. Foreman Roger l^ta recommended Tacke for layoff for the stated reason that Ellis believed that Tacke had taken excessive time running some conduit up a column. Paratore testified that pursuant to the recommen- dations of Laurendine and May, he directed the layoffs of Tacke, Lenard, and Wederstrandt. He admits knowledge of the rival Norco union movement at the time of their layoffs but denies knowledge of the involvement of the three men in the movement. His denials are not credited. Respondent Barnes' Exhibit 6 shows that as of the week ending on Tuesday 10 May 7, 1968, Respondent Barnes had 55 electricians on the Little Gypsy project. Thereafter the number of electricians on the Little Gypsy jobsite rose sharply, with some fluctuations, for a period of about 90 days and then began to decline. The peak employ- ment periods were the weeks ending June 11 and 18 when 78 electricians were employed on the project. Thereafter a gradual decline occurred which became more pronounced on the week ending Tuesday, September 24, when the num- ber of electricians employed by Barnes declined to 49 from 61 for the preceding Tuesday. By the end of October, Barnes' employment of electricians was down to 33; by the end of November, the number had declined to 22; and by the end of December, it went down to 14. At the time of the trial herein in April 1969, Barnes still had some 12 electri- cians on the Little Gypsy jobsite. Respondent Barnes' Exhibit 5(a), (b), and (c) reflects the job assignments of Lenard, Tacke, and Wederstrandt, re- spectively, from June 5, 1968, through September 20, 1968, when they were laid off. This exhibit shows that Lenard and Wederstrandt were transferred about the middle of August 1968 from various other jobs they had been performing to pulling cable and kept on the 'ob of pulling cable until their termination on September 20 The exhibit also shows that Tacke was transferred on August 23, 1968, from various other jobs he had been performing to installing conduit and kept on the job of installing conduit until his termination on September 20. Although the exhibit shows that the three men had at times been assigned to pulling cable or installing conduit prior to August It, the exhibit shows that this was generally only for a day or two at a time and that the great bulk of their work and time was devoted to terminating cable, checking out finished work, and similar jobs and in the case of Lenard, to stress welding whenever that kind of work was available . From the testimony of record the Ex- aminer finds that the jobs to which the three electricians were assigned prior to about the middle of August 1968, were physically lighter and easier and more interesting than 10 Respondent Barnes determines some time during the weeks beginning with Tuesday what layoffs should be made on the following Friday. Fridays are both paydays and layoff days for Barnes' electricians the jobs of pulling cable or installing conduit to which they were transferred after the middle of August and kept at until their layoffs a month later. Conversely it is found that from about the middle of August until their termination on Sep- tember 20, the three electricians were transferred to more consistently onerous work than they had been performing prior to the middle of August 1968. William C. Ellis, president of Respondent Barnes, be- came president of the South Louisiana Chapter of the Na- tional Electrical Contractors Association, in July 1968 when Respondent Barnes had its peak employment of electricians on the Little Gypsy pro ect. As heretofore noted, the South Louisiana Chapter is the signatory "for the Employer" in the master collective-bargaining agreement with Respon- dent 130. Respondent Barnes has been a party for decades to such collective-bargaining agreements with Respondent 130 through the South Louisiana Chapter. Ellis' son, the aforementioned William Conner Ellis, Jr., has been Re- spondent Barnes' general superintendent of the electrical construction on the Little Gypsy project at all times here pertinent. From the testimony of the elder Ellis and his son Conner and from the record as a whole it is found that each had knowledge of the rival Norco union movement at the time of the discharge of Tacke, Lenard, and Wederstrandt. The rate of pay for journeyman electricians at the times here pertinent under Respondent's collective-bargaining agreement was $5.30 per hour with double pay for time over 40 hours and for holidays. Because of this pay rate, electri- cians consider work under Respondent's referral system highly desirable, provided the referred jobs are within reasonable commuting distances from their homes. Discussion and Conclusions The decisions herein as to whether both Respondent Un- ion 130 and Respondent Employer Barnes are in violation of the Act by reason of their conduct with respect to em- ployees Tacke, Lenard, and Wederstrandt must necessarily apse from the conclusions to be derived from the entire complex of facts as found and set forth above. Based on the entire record, the Examiner finds and con- cludes that Respondent Union 130 first caused the discrim- inatory transfer of the three mentioned employees to more onerous work, and then within 30 days thereafter caused their discriminatory discharge because of their activities in organizing a new rival labor organization to Respondent 130, in violation of Section 8(b)(2) of the Act. Incidental to these conclusionary findings, the Examiner further finds that Respondent 130 is also in violation of Section 8(b)(1)(A) of the Act by reason of various threats by its Assistant Business Agent Sevins against the same three em- ployees as alleged in the pleadings because of their activities in behalf of the rival labor organization. Similarly, the Examiner finds and concludes from the entire record that Respondent Barnes first discriminatorily transferred and then discriminatorily discharged the same three employees because of their activities in behalf of the rival labor organization, in violation of Section 8(aX3) of the Act. But for reasons hereinafter stated, it is found that Re- T ondent Barnes is not in violation of Section 8(a)(1) of the ct by reason of the alleged implied threats of Foreman Laurendine against Lenard and Wederstrandt because of their activities in behalf of the rival local. The record is undisputed that Respondent 130 heard about the new rival Norco labor organization almost from its inception and set out immediately not only to learn all it could about it and its adherents but also to destroy the WALTER J. BARNES ELECTRICAL CO. movement which threatened to take away more than half of its jurisdictional geographical territory and about a third of the 'yl'Iobs it controls. The testimony of Local 130 Assistant Business Agent Sevins by itself shows that he had information through the grapevine some time in early July 1968 of the Norco move- ment, that on a number of occasions he personally observed those attending the Norco meetings from his parked car and actually attended one of the Norco meetings, and that he soon had information leading him to believe that employees Tacke, Lenard, and Wederstrandt were in the thick of the Norco labor movement for a separatist rival local. Thereaft- er Sevins' own testimony shows that he sought to make an informer out of Lenard with respect to supporters of the Norco group and that when this effort and a related effort failed to make Lenard file a complaint against Hinchman, the leader of the Norco movement, with the International Union for starting up a rival local in alleged violation of the constitution of the International, Sevins threatened to file a similar charge against Lenard with the International. In addition, the credited testimony of Lenard shows that Sev- ins told him the day after the Norco meeting of July 24, 1968, that he had seen him there and now had him where he could cost him not only his job, but also the loss of his car and union card, obviously because of his activities in behalf of the rival labor organization, and that thereafter Sevins threatened him with physical violence because of his refusal to file charges with the International Union against Hinchman. Similarly Sevins' own testimony shows that he not only learned about Tacke's and Wederstrandt's activities in be- half of the rival Norco labor organization but actually looked them up on their jobsites and berated them for en- gaging in organizational activities for the Norco local, in alleged violation of the IBEW constitution. In addition the credited testimony of the three discharged employees shows that Sevins engaged in a number of threats against the three em loyees in addition to the one noted above against Lenardpbecause of their activities in behalf of the rival Norco group, which included such conduct on the part of Sevins as his remark to Tacke that he was not enti- tled to work because of his lack of membership in Respon- dent 130, and his threat to Wederstrandt to whip him and his order to Foreman Laurendine to fire Wederstrandt be- cause of his activities for the Norco group. It is thus abundantly clear that the official agents of Local 130 were extremely hostile to Tacke, Lenard, and Weder- strandt because of their activities in sponsoring the rival Norco labor organization. This hostility was also expressed by the rank and file of Respondent 130's members working on the Little Gypsy .obsite as reflected in the fact that the three men became the victims of bags of water heaved at them from above which even continued after a warning was issued by the job steward on instructions from Sevins that the practice of water throwing had to be stopped on penalty of discharge for anyone caught engaging in the practice. It is also quite clear that Respondent 130 had the power to exercise retribution on any nonmember electrician who engaged in activities in behalf of the rival labor organization and could cause such retribution by getting an offending nonmember electrician reassigned to more onerous work or, more seriously, by getting him fired. Respondent 130 had this power by virtue of the fact that all foremen on the Little Gypsy jobsite, including General Foreman Paratore, were members in good standing of Local 130, and subject to pressure, direct or indirect, to protect the interests of their Union. The record shows that the foreman on the job did not need any encouragement to find a pretext for making I99 it tough, even to the point of discharge, for any nonmember who threatened their own jobs by sponsoring a rival local. The mere fact that Sevins, as he himself admits, ordered any electrician to be fired who was caught water throwing shows that the Union has the power to fire a man although no such power is expressly given to Local 130 in its collective-bar- gaming agreement, but only the power to hire which is in itself a very great power. The record compels the conclusion that Respondent 130 used its power of retribution first to get the three involved electricians discriminatorily transferred by its own foreman members to the bull gang calling for hard physical work better suited for men half their age with the objective of forcing them to quit voluntarily and then to have them discriminatorily discharged by one of their own members, General Foreman Paratore, all because of their activities in support of the rival labor organization. Respondent Barnes' asserted defense that there was no discrimination in the assignment of the three employees to the bull gang at the times here pertinent as they had worked on the bull gang at prior times is without ment because the earlier transfer to the bull gang had been only for short periods of a day or two and because the transfers here under discussion were seemingly permanent and followed on the heel of the discovery that the three men were actively en- gaged in promoting the organization of the rival local. The very timing of the transfers were acts of retribution against the three employees because of such activities. The layoff of the three employees occurred approximate- ly 3 weeks after they had met as part of a committee of Norco representatives with a representative of the Interna- tional Union to discuss with him the Norco petition for a charter seeking to take away more than half of Respondent 130's jurisdiction. The strongest common defense of both Respondent 130 and Respondent Barnes to the layoffs of the three men is that the electrical work on the Little Gypsy worksite was nearing completion and that layoffs were required because of this. An exhibit of record (Res. Barnes Exh. 6) does show that a sharp decline in the number of electricians employed on the jobsite did begin with the layoff of 6 electricians on September 20 which included Tacke, Lenard, and Weder- strandt. The record as a whole, however, compels the con- clusion that Tacke, Lenard, and Wederstrandt were discriminatorily selected for layoff because of their then well-known activities in organizing a competing rival local. Their layoffs which were simultaneous occurred shortly af- ter Assistant Business Agent Sevins had had serious alterca- tions with them concerning their Norco activities. Sevins had, indeed, even ordered Foreman Laurendine to fire Wederstrandt not too many days before Wederstrandt's actual layoff occurred. Sevins violent arguments with Le- nard over the latter's refusal to file charges with the IBEW of violations of the IBEW constitution against Hinchman, the leader of the Norco movement, was also well known to Laurendine at the time he recommended Lenard's layoff. It is inferred and found that Foreman May was also well aware that Tacke was being laid off at the insistence of Respondent 130 from May's remark to Tacke at the time he laid him off that Respondent Barnes was not to be blamed for his layoff, the clear inference being that the responsibili- ty for Tacke's layoff was that of Local 130. As stated by counsel for Respondent Barnes, "The question is not wheth- er there was a necessity for a layoff, but whether there was discriminatory selection for layoff." It is the Trial Examiner's ultimate finding that the layoffs of Tacke, Le- nard, and Wederstrandt were discriminatorily motivated. Respondent Barnes' final defense is that if a discriminato- 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ry discharge of the three electricians is found it should be charged exclusively to Respondent 130 and not to Respon- dent Barnes. In support of this contention, Res ondent Barnes' brief states, "The foreman and the general foreman (Paratore) were members of Local Union 130, and if they did discriminate, they were acting not in the interest of their employers, but in the interest of Local Union 130." The brief goes on to state , "It is to be noted that Wederstrandt testified, `Walter Barnes did not fire me - Local 130 fired me."' The difficulty with this contention is twofold . The first is that although the foreman and general foreman were mem- bers in good standing with Local 130 at the time of the layoffs, the record is clear that they were functioning as agents and supervisors of Respondent Barnes , whatever their private motives may have been , when they laid off the three electricians, and accordingly under the Act Respon- dent Barnes must be held liable for any of their actions in violation of the Act. There is no showing in the record that the involved foremen were officers of Local 130 or were serving the Union in any official capacity whatever from which an inference could be drawn under the cases cited by Respondent Barnes that in the layoffs of the three men they were acting primarily as agents of the Union rather than of their Employer. The other difficulty with Respondent Barnes ' contention that it should not be held liable for the discriminatory ac- tions of its agents is that the record as a whole shows that all of the Respondent Employers herein, including Barnes, sought to work in close harmony and expeditiously and with as little friction as possible with the Union and that Respon- dent Barnes would not deliberately antagonize Local 13-0 by opposing the discharge of employees that Local 130 consid- ered inimical to its best welfare , such as the rival Norco labor organization. It is noteworthy that the president of Respondent Barnes is also president of the Louisiana Chap- ter of the National Electrical Contractors Association, the multiple Employer signatory to the master collective-bar- gaming agreement with Local 130. Remaining questions arise from the allegations of the complaint in Case 15-CA-3405 charging, Respondent Barnes with two violations of Section 8(a)(1) of the Act by reason of implied threats by Foreman Laurendine alleged against Lenard and Wederstrandt because of Laurendine's failure to disavow threats made in his presence by Assistant Business Agent Sevins against Lenard and Wederstrandt because of their Norco activities. The findings above show that Sevins in early September 1968 threatened Lenard with physical violence because of Lenard's refusal to bring Norco leader Hinchman before the International Union for discipline on charges that Hinchman was violating the constitutuion of the Interna- tional by sponsoring a rival local to Respondent 130. The findings further show that although this threat by Sevins against Lenard was made in the presence of Lenard 's fore- man, Laurendine, he remained silent and did not disavow the threat. The above findings also show that Sevins in about the middle of September 1968, also in the presence of Foreman Laurendine, threatened to beat up Wederstrandt for having proposed to a meeting of Norco followers that their pro- posed petition to the International for a charter should be enlarged to include a request for the inclusion of Jefferson Parish which aroused the special ire of Sevins because Jef- ferson Parish is the second largest parish within the jurisdic- tion of Respondent 130 under its charter from the International . The findings further show that Sevins during the course of his argument with Wederstrandt called to Foreman Laurendine "to fire this man" and that Lauren- dine replied, according to Wederstrandt's own testimony, "I can't fire him." With reference to the last related incident, it is imme- diately apparent that there was no implied threat by Fore- man Laurendine as alleged in the complaint by his presence and failure to disavow" the oral threat made by Sevins against Wederstrandt that he should be fired because of his Norco activities because, as found, Laurendine did in fact disavow Sevins' threat by telling Sevins in the presence of Wederstrandt that he couldn't fire Wederstrandt. It will accordingly be recommended that the allegations of the complaint here under consideration be dismissed. The incident of Sevins' threat of physical violence aginst Lenard presents a closer question. Counsel for General Counsel has not briefed this question. Respondent Barnes' brief states, "Just what is difficult to envisage. There is no testimony that Laurendine participated in the conversation in any way. It is submitted that in taking all of Lenard's testimony as to this incident as true, no unfair labor practice is made out against Respondent Barnes. Sevins did not say that Laurendine would participate in the assault and, there- fore there was no duty to disavow anything." The Trial Examiner agrees with Respondent Barnes' contention that no unfair labor practice has been made out against Barnes. The quarrel between Sevins and Lenard was essentially a private quarrel between the two over Lenard's failure to cooperate with Sevins in the latter's request for IBEW ac- tion against Hinchman. Laurendine did not participate in the quarrel; the quarrel had no direct or indirect relation- ship to Lenard's work or to Laurendine's duties as a fore- man over Lenard. It should be noted that Laurendine in the aforementioned separate incident between Sevins and Wed- erstrandt did not hesitate to tell Sevins that he would not fire Wederstrandt as directed by Sevins because in that incident Laurendine's authority as a foreman was directly chal- lenged. In the present incident he was essentially a private bystander and the better part of valor called for the discre- tion of silence as any intervention on the part of Laurendine either on the side ofLenard or the side of Sevins could have led to a fist fight, there and then. It will also be recommend- ed that the allegation of the complaint here under discussion be dismissed as in the opinion of the Trial Examiner the incident adduced under the allegation does not constitute a violation of Section 8(a)(1) of the Act. VI. ALLEGED UNFAIR LABOR PRACTICES BY RESPONDENT CLARK (JOINT VENTURE) AND RESPONDENT 130 RE EMPLOYEES MCQUEEN, MCGEHEE, AND PARKER The Respondent Employer here (Case 15-CA-3422 and related Cases 15-CB-924 and 15-CB-927) under discussion is a Joint Venture consisting of two electrical contractors, Clark, Hutchins and Reed, Inc., of Texas, and Willemette and Stouse Electric Co., Inc., of Louisiana. The Joint Venture, hereinafter chiefly called Respondent Clark, at the times here pertinent, had a subcontract for the construction of electrical work on a massive multi petrochemical plant being built for the Union Carbide Corporation at Taft, Louisiana. For its labor supply, the Joint Venture operated under the terms of the above-described master collective-bargaining agreement between Respondent Local 130 and the South Louisiana Chapter of the National Contractors Association of New Orleans. Pursuant to the agreement, all electricians employed by the Joint Venture at the Taft jobsite were referred to their jobs by Respondent 130's hirmg hall. WALTER J. BARNES ELECTRICAL CO. The project manager of the electrical workers on the project was James A. Wiley. Although not a member of Local 130, Wiley has been an IBEW member through an- other local for the past 21 years . He is both a journeyman electrician and a college graduate. Respondent Clark commenced the electrical work on the Taft jobsite in September 1967 and completed the job on February 28, 1969. Its normal peak employment of electri- cians on the project occurred in June 1968 when it employed about 150 employees . In the latter part of May there was an explosion on eaobsite which damaged or destroyed a good deal of the electrical work and necessitated the employment of an additional 50 to 60 electricians to repair the damage. This gave Respondent Clark a new crisis peak of 207 electri- cians on the jobsite. Prior to the explosion about 80 percent of the electricians referred to the project by Respondent 130 were permit men (that is , electricians without affiliations with the IBEW). After the explosion, most of the electri- cians referred by Respondent 130 to the project were either regular members of Local 130 or travelers ; this was because these applicants for referrals anticipated a great deal of overtime at double pay and were given priority in the refer- rals by reason of their membership in the Respondent Local 130. A gradual decline in the number of electricians employed on the project began in August ; by September it was down to 130; by January it went down to 80 ; and on February 28, 1969, when the electrical work came to an end , the remain- ing 35 electricians on the job were terminated. The rate of turnover of electricians during the course of the project was high ; in all the Respondent Clark processed . 541 electri- cians; practically all of this turnover was due to voluntary quits. In the month of June 1968 alone some 50 electricians quit. Because of his high turnover, Project Manager Wiley had a standing order with Respondent Local 130 to send him 10 to 15 electricians each day. In July and August Wiley had approximately 15 crews, generally referred to as "bull gangs,' 11 on the project en- gaged in pulling wire or installing conduit . Howard L. Broussard, working under Wiley, was General Foreman of the 15 crews. Each crew, consisting of about 10 men, had a crew foreman. Two of the electrical workers employed in the bull gangs were Carl L. McQueen and Antoni J . McGehee. The complaints here under consideration (Cases 15-CA- 3422 and 15-CB-927) charge that Respondent Local No. 130 discriminatorily caused the discharge of McQueen and McGehee and that Respondent Clark (the Joint Venture) discharged them because of their activities in behalf of the rival Norco labor organization. The complaint against Respondent Clark further charges that Respondent Clark through its supervisors and agents engaged in a number of Section 8(a)(1) violations as here- tofore set forth in the forepart of this Decision dealing with the issues in this proceeding. Carl L. McQueen McQueen is 29 years of age and has been an electrician for 5 years. Although not an IBEW member, he had been receiving work, off and on, for a period of about 2 years through Respondent 130's hiring hall prior to his discharge by Respondent Clark. n Wiley's testimony corroborates earlier testimony in the cases involving employees Tacke, Lenard, and Wederstrandt that wire pulling and installing conduit is physically more difficult and less interesting than virtually all other electrical work. 201 McQueen and McGehee are friends. Both were hired upon referral from Local 130 by Respondent Clark on July 16 1968, and both were discharged on August 7, 1968. McQueen in his brief 3-week period of employment worked on a bull gang or crew under the supervision of Foreman Arville Stewart who had been made crew foreman only the day before McQueen was hired. Stewart, who owed his employment to Respondent 130, was not a member of Local 130, but was a member of IBEW through another local. Stewart's ultimate supervisor was the aforementioned General Foreman Broussard who has been a member of Local 130 for 23 years. Stewart testified that he fired McQueen upon the direc- tive of Broussard. The record shows that McQueen attended a Norco meet- ing for the first time shortly after he started work for Re- spondent Clark at the Union Carbide jobsite. He was accompanied by his friend McGehee, the other alleged dis- criminatee, who worked under a different foreman, and by Roy E. Johnson, another friend, who worked with him on the same crew under Foreman Stewart. At this meeting, attended by 15 to 20 electricians, McQueen added his signa- ture to a petition to the IBEW for a charter as a local for the Norco followers. Thereafter, until the date of his dis- charge, McQueen and his two friends and fellow employees on the jobsite attended a number of additional closely paced Norco meetings, including the meeting held at the Norco elementary school on July 23, 1968. McQueen and his two companions were observed at the Norco elementary school meeting by Local 130's aforementioned Assistant Business Agent Sevins from his car as they approached the school and after the meeting broke up. McQueen knew Sevins by si t from having seen him at the union hall and at various o sites but had never been introduced to him. McGehee, however, knew Sevins personally from having had conver- sations with him at a prior jobsite. As heretofore shown, Sevins admits that he observed the attendance of the Norco elementary school from his car. The prior findings further show that Local 130 had member-observers in actual atten- dance at Norco meetings. On August 7 McQueen received word from another em- ployee that he had seen his name on a list of employees to be discharged that day.12 With the receipt of this news, McQueen sought out Foreman Stewart and asked if it was true that he was to be fired that day. Stewart, who himself had been seeking McQueen to speak to him, indirectly con- firmed the report that he was to be fired by asking McQueen if he knew the reason for his forthcoming discharge. Mc- Queen replied with the first thought that came to his mind, that his discharge was "probably for signing the petition to start the new [rival] Norco local. ' Stewart, answered that he did not personally have anything to do with the discharge, but that the word for his discharge had come from union hall. When pressed by McQueen for a more specific reason for his discharge, Stewart gave him the monosyllabic reply, "Non-production"; that is, failure to produce the expected amount of work. 12 At the trial, McQueen testified that on the day here in question he received word from another employee that his name was on a list from the union hall for discharge that day Objection to this testimony on the ground of hearsay was sustained The Trial Examiner's ruling was intended to apply to only that part of the testimony which indicated that the list came from union hall. The ruling, insofar as it excludes from the record McQueens's testimony that he had merely heard from another employee that he was to be discharged, is reversed. That testimony, restricted as stated and not of- fered by counsel for General Counsel for the truthfulness of the information received by McQueen from a fellow employee but only as an event of the day, is in the opinion of the Trial Examiner legitimately admissible in evi- dence 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The above is based on the credited testimony of Mc- Queen. It is an undisputed fact that Roy Johnson, Mc- Queen's working mate on the crew, was present at the time Stewart was informing McQueen about his discharge. John- son corroborated McQueen's testimony that Stewart told McQueen that word for his termination had come from union hall (Local 130) and that he was not personally re- sponsible for the discharge . Johnson's testimony further shows that a few days after McQueen's discharge Stewart asked him if McQueen had found a job and that Stewart then went on to say again that the word for McQueen's discharge had come from union hall and that "it wasn't from me." The detail and obvious honesty of both Mc- Queen and Johnson concerning the reason Stewart gave for McQueen's discharge compel creditation of their testimony. Foreman Stewart's account for the factors that led to McQueen's discharge' are quite different. He testified that General Foreman Broussard some 10 days before Mc- Queen's discharge had complained to him that he had ob- served McQueen drinking coffee on the job when he should have been working and asked him to "straighten" him out about that. Stewart testified that he relayed the warning to both McQueen and Johnson the following working day and told them in this connection that if they desired to drink coffee while on the job to do it in less conspicuous places so that they would not be observed by upper level supervi- sors. Stewart further testified that at a safety meeting with his crew held 2 days before McQueen's discharge, he issued the same warning against coffee drinking at conspicuous places while at work . Stewart testified that the next day McQueen "kind of held the job up" he was doing by stop- ping to get some coffee. He reported the incident to Brous- sard and on Broussard's instructions he fired McQueen the next day, August 7. Broussard's version of the reasons for McQueen's dis- charge is about the same as Stewart's. Broussard was quite new on the job when he ordered McQueen's discharge. The record is undisputed that there was no shop rule against drinking coffee at the jobsite here under considera- tion. McQueen testified that he was never warned not to drink coffee while on the job. During his short period of employment with Respondent Clark, McQueen never received any complaints about his work from Foreman Stewart. Broussard had knowledge of the rival Norco labor organ- ization prior to McQueen 's discharge. His testimony shows that he personally acquired knowledge about the Norco movement at some unidentified time in the month of Mc- Queen's discharge. As the Norco rival movement became generally well known after its largely attended meeting at the Norco elementary school of July 23, it is found that Stewart had knowledge of the movement at the time of McQueen's discharge. Both Broussard and Stewart have known Assistant Business Agent Sevins for many years who, as on the attendance of electricians at Norco meetings almost from the inception of the Norco movement. After his discharge, McQueen together with McGehee, the other alleged discriminatee who was also discharged on August 7, 1969, sought work over a period of 3 weeks through Local 130's exclusive hiring hall, but without suc- cess. In this 3-week period they frequently met at the hiring hall John P. Dugas, another permit employee-supporter of the Norco movement, at the hiring hall also applying for work. As permit (nonunion) electricians they sat in a section in back of the hall reserved for permit electricians . The joint testimony of McQueen, McGehee, and Dugas shows that at least on one occasion there were some 15 or 20 permit men waiting for referrals at the hall and that all were referred out for work except for McQueen, McGehee, and Dougas, de- spite the fact that they had reported to the hall earlier than some of the other permit electricians who were successful in getting job referrals. On this occasion they complained to the then assistant business agent in charge of the luring hall of their frustration over the weeks in not getting work, who in turn referred them to another assistant business agent who in turn referred them to Assistant Business Agent Sev- ins for the "reasons" they were not being sent out. As Sevins was not present at that time, they did not pursue their in- quiry further and thereafter no longer sought work through Local 130's hiring hall. In March of 1969, McQueen received unsolicited letters from Respondent Union 130 and Respondent Clark, pre- pared by their respective counsel herein, identical in content with the letters received by employees Tacke, Lenard, and Wederstrandt from Local 130 and Respondent Employer Barnes, informing him that there would be no objection to his being referred out by Local 130 and no objection by Respondent Clark to his reemployment by the two constitu- ent electrical contracting firms to that Joint Venture, by then dissolved. Discussion and Conclusions re McQueen's Discharge The above findings compel the conclusion that the Union caused the discriminatory discharge of McQueen and the Respondent Clark discharged McQueen because of his un- ion activities in behalf of the rival Norco labor organiza- tion. It is undisputed that McQueen became an active support- er of the rival Norco labor organization shortly after he took up employment with Respondent Clark. This is evidenced by the fact that the very first Norco meeting McQueen attended he added his signature to a petition to the IBEW for a charter to the Norco followers as a new local which, if granted, would have caused Local 130 with the loss of about one-third of the jobs it controls. Thereafter he reg- ularly attended a number of closely paced Norco meetings, including its large meeting of July 23, 1969, at the Norco elementary school. Knowledge of McQueen's involvement in the Norco movement is clearly imputable to Respondent Local 130 from the admitted fact that Local 130's Assistant Business Agent Sevins personally monitored most of the Norco meet- ings for all electricians entering such meetings. The credited testimony of McQueen who knew Sevins by sight shows that he was seen and scrutinized at close range by Sevins near the entrance of one of these meetings. Although Sevins had never been introduced to McQueen, the record leaves little doubt that Sevens quickly learned of McQueen's identity, as he knew McGehee who was walking with McQueen at the time and as he had observer-members of Local 130 at Norco meetings whose business it was to identify all electricians in attendance. Knowledge of McQueen's Norco activities is also clearly imputable to Respondent Clark through its foremen, in- cluding General Foreman Broussard, himself a member of Local 130, who owed their jobs to Local 130's referral sys- tem and were generally bitterly hostile to the Norco move- ment because it threatened them with the loss of job opportunities. From the record as a whole it is inferred and found that Assistant Business Agent Sevins or other bus- iness agents of Local 130 kept all foremen informed of electricians known or suspected of being supporters of the rival Norco movement. The record leaves no basis for doubt that McQueeen was discharged because of his Norco activities as the credited WALTER J. BARNES ELECTRICAL CO. testimony of McQueen and Johnson, his working partner, shows that McQueen's foreman, Stewart, told McQueen that word had come from the union hall for his discharge and that he (Stewart) had nothing to do with it. The above findings also show that that some days after McQueen's discharge, Stewart, in a conversation he initiated with John- son about McQueen, again disclaimed responsibility for McQueen's discharge had come from Respondent Union 130. The finding that Stewart told McQueen that the order for his discharge came from the union hall is further support of the earlier finding that Sevins learned of McQueen's Norco activities early in McQueen's brief employment with Respondent Clark and that this information was in turn rela yed to Respondent's General Foreman Broussard. From these facts it follows that Respondent Local 130 caused McQueen's discharge as alleged in the complaint. Stewart's stated reason of "non-production" for Mc- Queen's discharge is clearly pretextual. This is the reason he gave McQueen for his discharge when McQueen pressed him for an official reason for his termination related to his work after being told that the word for his discharge had come from the union hall. No evidence was presented to show that McQueen's production was inferior to that of his coworkers in his crew. Although there is evidence that Mc- Queen drank coffee on the job, the record is clear that there was no shop rule against this and there is no evidence that in his brief period of employment with Respondent Clark he engaged in excessive coffee drinking on the job. Stewart's own testimony shows that he never criticized McQueen for drinking coffee on the job but only cautioned him and the other crew members to avoid drinking coffee at conspicuous places on the jobsite in order to avoid the possible ire of upper level supervisors to whom it might presumably seem from casual observation that they were idling. Even the fact of this asserted admonition against drinking coffee in con- spicuous places is in doubt as McQueen in his testimony could not recall that Stewart made any remarks to him on the subject of coffee drinking. The Trial Examiner resolves this conflict of testimony in favor of McQueen whose testi- mony appeared to be uniformly sincere, but finds that even if the admonition against coffee drinking in the open public view had been made to him by Stewart, the coffee incident discussed above was not the real cause for discharge. The excuse for McQueen's discharge was triggered by an incident which occurred the day before he was terminated. According to Stewart, McQueen had taken a longer than usual coffeebreak at a time when it held up the work of another man and Stewart had to go looking for McQueen to get the work started up again and completed. Stewart, who had been told by General Foreman Broussard to "straighten" McQueen out on his coffee drinking, reported the incident to Broussard. Broussard thereupon promptly ordered Stewart to fire McQueen. The Trial Examiner finds under all the circumstances of this case that Broussard seized on the incident as a pretext to fire McQueen for his activities in behalf of the rival labor organization. Broussard at the time he ordered McQueen's discharge was fully aware of the Norco movement to organize a rival local to Respon- dent 130. Broussard had himself been a member of Local 130 for 23 years. His interest in seeing what the rival Norco movement was up to was such that he personally attended one of its meetings which he placed as occurring in August but subsequent to McQueen's discharge. Stewart, of course, had to follow his superior's order to fire McQueen, but it is obvious that his heart was not in it as he told McQueen that the termination was not of his doing but that of Local 130. Accordingly, it is found that Respondent 130 is in viola- 203 tion of Section 8(b)(2) of the Act for causing the discrimina- tory discharge of McQueen because of his activities in be- half of the rival Norco labor organization and that Respon- dent Clark is in violation of Section 8(a)(3) of the Act because of its discriminatory discharge of McQueen for the same reason. One of the complaints (15-CA-3422) here under consid- eration alleges that Respondent Clark by its supervisor and agent, the aforementioned Foreman Stewart, "interfered with, restrained, and coerced an employee, stating that said employee would have to be laid off because the word had come from the union hall to discharge the employees." In its brief, Respondent Clark states that, "It is difficult to see how such a remark in the context of a discharge could constitute a threat upon the part of Respondent, Clark." It is evident that this contention by Respondent Clark is made on the assumption that the quoted allegation of the com- plaint relates to Stewart's remark to McQueen that this contention by Respondent Clark is made on the assumption that the quoted allegation of the complaint relates to Stewart's remark to McQueen that he was being fired be- cause of instructions from the union hall. However , counsel for General Counsel in his annotated (to the record) com- plaint shows that he is relying, not on the testimony of McQueen in this connection , but exclusively on the testimo- ny of Johnson . As heretofore noted the findings above show that Stewart a few days after McQueen's discharge told employee Johnson, McQueen's former working partner, that McQueen had been discharged because word for his termination had come down from the union hall. Such a statement made to an employee by a supervisor other than the employee who was discharged is in obvious violation of Section 8(a)( 1) of the Act because it had the tendency to "interfere with, restrain, or coerce" employee Johnson in the exercise of rights guaranteed to employees in Section 7. While the allegation of the complaint here under considera- tion is misleading in that it relates Stewart's remark to a discharged employee (McQueen) and not to another em- ployee (Johnson), it nevertheless put Respondent Clark on notice that a violation of Section 8(a)(l) was asserted by reason of such remark. As there was no objection to Johnson's testimony by Respondent Clark as being beyond the scope of the complaint the allegation under considera- tion is deemed amended to show that Stewart's said remark was made to an employee other than the discharged em- ployee and it is found that the issue thereunder was tried by consent of Respondent Clark. However , even if the testimo- ny in support of the quoted allegation of the complaint is related solely to Stewart's remark to McQueen that he was being fired because word for his discharge had come from the union hall, the Trial Examiner finds and concludes that this would have a deterring affect on the union activities of other employees in violation of Section 8(axl) because word of the reason for an employee's charge usually spreads rapidly to other employees . This would be especially true if there were other employees present and within hearing as Johnson in fact was when Stewart told McQueen that word had come from the Union to terminate him. Johnson's cred- ited testimony shows that Stewart not only told him this after McQueen's discharge but that he also heard Stewart tell McQueen at the time he was being discharged that he was being terminated because of word from the Union. In conclusion, it is found that the remark in question by Stew- art whether deemed to be made exclusively to McQueen, or separately to Johnson, or to both McQueen and Johnson, is a violation of Section 8(a)(1) of the Act. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Antoine J . McGehee McGehee is 36 years' of age and has been an electrician for 10 years, but is not a IBEW member . Like McQueen, he has been receiving work through Respondent 130's hiring hall for the past 2 years. By referral from Local 130, he was hired by Respondent Clark in January 1968 for work at its Union Carbide jobsite at Taft . Like McQueen he was dis- charged from his job on August 7 , 1968. For most of the 7 or 8 months he was employed by Respondent Clark, he worked in a bull gang installing conduit under Foreman David Gallaty.13 Sometime in the latter half of July 1969 McGehee attend- ed his first Norco meeting in the company of McQueen and the aforementioned Roy Johnson . There he signed a Norco petition to the IBEW for the creation of a new rival local to Respondent 130. (As heretofore noted , McQueen also signed the petition.) Thereafter he attended a number of additional Norco meetings in the company of McQueen and Johnson. At one of the meetings held at the Norco elementary school, McGehee and his two companions were observed at close range by Local 130's Assistant Business Agent Sevins from the latter's car, both as they were enter- mg and departing from the meeting. In the 6 months or so McGehee worked under Foreman Gallaty there was a pleasant relationship between the two men. They would occasionally have a beer together at a tavern after work . At one time when Gallaty had to take the place of his own supervisor for a couple of hours who was late for work that day, he designated McGehee to take his place for the 2 hours as crew foreman at premium foreman pay. In his first 2 months of work for Respondent Clark, McGehee received a compliment on his work from an as- sistant superintendent . In the 6 months McGehee worked for Gallaty he never received a single criticism of his work from Gallaty. The record, including Gallaty's grudging ad- missions under cross-examination, shows that McGehee and Gallaty were good friends during the 6-month period that McGehee worked under Gallaty. On August 5, or 2 days before McGehee was fired, Galla- ty, who has been a member of Local 130 for 13 years , looked McGehee up at his work spot and asked if he had heard anything about the rival Norco labor organization. When McGehee responded that he had, Gallaty admonished him "Don't fool with that there ." To McGehee's retort that the admonishment was too late as he had already signed a Norco petition for a rival charter to the IBEW, Gallaty commented that, "You shouldn't have did that." Two days later on August 7 Gallaty again approached McGehee and told him, I've got to fire yyou." When Mc- Gehee showed surprise and disbelief , Gallaty repeated the statement that he was going to fire him, adding that he was also discharging Harrington, his working partner.14 Still sur- prised, McGehee asked, "What was going on?" Gallaty rep- Iied, "You know what's going on," and as McGehee said he Kdidn't know, Gallaty answered, "Well, I've got to fire you for non-production. ' Puzzled by this, McGehee asked what Gallaty meant by "non-production" and was told, "you're not putting out enough work." Harrington who was in- censed about his discharge, left the scene at about this junc- ture. When they were alone, McGehee, still puzzled, addressed Gallaty by his first name and said , "David, I]just wonder if it's my work or what?" Gallaty answered , "Well, 13 Erroneously name in the complaint in Case 15-CA-3422 as Gallager, the name was corrected by oral amendment at the trial to read Gallaty 14 Hamngton is not involved in this proceeding as an alleged discriminatee and did not appear as a witness you know what's happening. I'd rather fire some of my own kinfolks than have to fire you but I've got to do it." Later as McGehee and Harrington were checking out, they ran into the shop steward and sought to talk to him about their discharge, but he declined to talk to them. The findings in the above two paragraphs are based on the credited testimony of McGehee. Gallaty in his testimo- ny denied that he made the statements attributed to him by McGehee as shown above, particularly the statement to McGehee, "I'd rather fire some of my own kinfolk than to have to fire you, but I've got to do it." Gallaty admitted, however, that during the termination interview McGehee had said to him, "Dave, I know it wasn't you." Aside from demeanor factors favoring McGehee's testimony, this is a clear indication that Gallaty did in fact have a conversation with McGehee on the deeper causes of McGehee's dis- charge as reported by McGehee which contains the strong hint that McGehee's discharge was not for nonproduction but because of his activities in behalf of the rival Norco labor organization. Gallaty's denials of the statements at- tributed to him by McGehee as reported above are not credited. The ultimate conclusions (as to the real reason for McGehee's discharge) to be drawn from Gallaty's state- ments to McGehee as reported in the above-two paragraphs in the light of all the circumstances of the case is reserved for consideration below under "Discussion and Conclu- sions re McGehee." Respondent Clark's defense is that McGehee was termi- nated because of nonproduction. For support of this de- fense the Joint Venture relies on the testimony of its aforementioned Project Manager Wiley, an IBEW member for 21 years. Wiley testified that towards the end of July while on an inspection tour of the various crews of electri- cians in a certain section of the jobsite which included Gallaty's crew, he became "unhappy" with the progress of the Gallaty crew, but did not specify or explain just what he found wrong with the crew's performance. Wiley went on to say in his testimony that because of his dissatisfaction with the work of that crew he held a joint conference with Gallaty, the general foreman, and the superintendent; that at the conference he instructed the three supervisors to find the cause of the lack of progress of the Gallaty crew and threatened to fire any one of them found to be personally at fault; and that he concluded the conference by telling the three supervisors that if he found they were not personally at fault for the lack of progress of the crew, that in that event he wanted Gallaty to check his crew to see if the problem was with the members of his crew.15 Gallaty's testimony establishes that he was totally un- aware of any deficiencies in the work of his crew of electri- cians when he and the general foreman and superintendent were called on the carpet by Wiley for the lack of progress of his crew. Nonetheless, after Wiley's criticism, he testified that he began to divide his crew up into new pairs of work- ing partners to see if he could improve its work. Among the changes he made was to pair up McGehee, who had had frequent changes of partners, with another electrician by the name of Harrington. Gallaty testified that after watching McGehee and Harrington work as a new pair for a few days from their work perch at an elevated spot on the jobsite that 15 The verbatim text of Wiley's testimony summarized above is as follows: I called a meeting of the Superintendent, the General Foreman and the foreman And I was very much concerned about the progress of this crew I told them I wanted to know whether it was the [fault of the] General Foreman or the Foreman or the Superintendent. Now if any of them three was the cause of the progress of this crew , then one of them WALTER J. BARNES ELECTRICAL CO. he saw McGehee "quite a few times" gazing over an adja- cent handrail at a parking lot below instead of working and that he also observed him talking too much with Harring- ton. Gallaty further testified that after a few days of such observation he ascended to where the two men were work- ing and told them they were being fired for "non-prod- uction." As heretofore reported, the discharge was such a surprise to McGehee that he engaged Gallaty into a conver- sation concerning the cause of discharge. In this conversa- tion as heretofore found, McGehee asked Gallaty with puzzlement whether his discharge was due to "my work or what," and that Gallaty responded, "Well, you know what's happening. I'd rather fire some of m' own kinfolks than have to fire you but I've got to do it.' The discharge took place on August 7, 1968.11Gallaty under cross- examination admits that he never had occasion to critize McGehee's work in the 6 months McGehee worked under him prior to his discharge. Although Gallaty denies any knowledge of the Norco movement prior to McGehee's discharge, his denial is not credited as the credited testimony McGehee shows, as found above, that Gallaty himself only 2 days before Mc- Gehee's discharge had asked him whether he had heard anything about the rival Norco labor organization. Aside from this, the Norco movement had been so widely publi- cized from and after its large public meeting of July 23, 1968, at the Norco elementary school that it must also be inferred that Gallaty, who is a member of Local 130, must have heard of it prior to McGehee's discharge, especially since Project Manager Wiley had knowledge of the Norco movement prior to August 7. After his discharge, McGehee together with the discrim- inatorily discharged McQueen, who as seen was also termi- nated on the same day, sought work over a period of 3 weeks through Local 130's exclusive hiring hall, but without suc- cess. In this 3-week period they frequently met John P. Dugas, another permit employee and supporter of the Nor- co movement, at the hiring hall also applying for work. As permit (nonunion) electricians they sat in a section in the back of the hall reserved for permit electricians. The joint testimony of McGehee, McQueen, and Dugas shows that at least on one occasion there were some 15 or 20 permit men waiting for referrals at the hall and that all were referred out for work except McGehee, McQueen, and Dugas, despite the fact that they had reported to the hall earlier than some of the other permit electricians who were successful in get- ting job referrals. On this occasion they complained to the then assistant business agent in charge of the hiring hall of their frustration over the weeks in not getting work, who in turn referred them to Assistant Business Agent Sevins for the "reasons" they were not being sent out. As Sevins was not )resent at that time, they did not pursue their inquiry further and thereafter no longer sought work through Local 130's hiring hall. In March of 1969, McGehee like McQueen, received an unsolicited letter from Respondent Union 130 and Respon- dent Clark, prepared by their respective counsel herein, identical in content with the letters received by employees Tacke, Lenard, and Wederstrandt from Local 130 and Re- spondent Employer Barnes, informing him that there would be no objection to his reemployment by the two constituent electrical contracting firms to that Joint Venture, by then dissolved. was going to get fired If it wasn't that, then I wanted the foreman to look at the crew and find out what his problem was there 16 Although Harrington was also discharged at the same time as McGehee, only McGehee's case is before the Trial Examiner 205 Discussion and Conclusions re Mc Gehee's Discharge The record leaves no doubt that Respondent Clark's dis- charge of McGehee for nonproduction was pretextual and that the real reason for his discharge was his activities in behalf of the rival Norco labor organization. That "non- production" was not the real cause for McGehee's discharge is evidenced by the fact that in the 6 months he worked under Foreman Gallaty he never received a word of criti- cism of his work, but on the contrary his work appeared so satisfactory that on one occasion when Gallaty found it necessary to be absent for a couple of hours he asked Galla- ty to take his place as temporary foreman. The Examiner finds that McGehee became a marked man from the time he was observed by Local 130's Assistant Business Agent Sevins attending the July 23, 1968 meeting of the rival Norco labor organization. Shortly thereafter Project Manager Wiley, himself an IBEW member, found something mysteriously wrong with the progress of the work of the electrical crew in which McGehee worked under Foreman Gallaty and ordered Gallaty and other supervi- sors to do something about it. About 2 days later Gallaty questioned McGehee as to whether he had heard anything about the Norco movement and when McGehee said that he had, he admonished him not "to fool with" the Norco group. When McGehee's reply showed that he had already actually signed up with the Norco group, Gallaty instantly reproved him by saying, "You shouldn t have did that." Two days later Gallaty fired McGehee. To surprised Mc- Gehee's inquiry whether his discharge was due to his "work or what" allaty indirectly told him the discharge was due to his Norco involvement, by telling him, "Well, you know what's happeimng. I'd rather fire some of m' own kinfolks than have to fire you but I've got to do it.' The record supports the inference that McGehee's dis- charge was directed by Project Manager Wiley against the wishes of Gallaty. Wiley's chief concern on the jobsite was to get the electrical work called for in the Joint Venture's subcontract completed as expeditiously as possible. For this Wiley was utterly dependent on the cooperation of Local 130 in furnishing electricians. As an able manager it was part of Wiley's job to avoid anything which would cause friction with Local 130 because this could hamper his con- struction timetable and it was equally part of his job to keep the good will of Local 130. The record shows that he had knowledge of the Norco movement at the time of Mc- Gehee's discharge. The record supports the inference that Wiley at the direct or indirect request of Local 130 created the set up for McGehee's discharge by his sudden discovery that there was something wrong with the crew on which McGehee worked under Foreman Gallaty much to Gallaty's mystification. The discharge took place following a period in which the regular members of Local 130 had been clamoring for jobs on the Taft project largely held by permit (nonunion) electricians because of the anticipated Iarge amount of overtime at double pay to make up the damage to electrical work created by a bad explosion on the jobsite. The Trial Examiner finds and concludes from the eviden- tiary facts of record that Respondent Local 130 caused the discriminatory discharge of McGehee because of his activi- ties in behalf of the rival Norco labor organization in viola- tion of Section 8(b)(2) of the Act and that Respondent Clark discriminatorily discharged McGehee for the same reason in violation of Section 8(a)(3) of the Act. The Examiner further finds Respondent Clark in viola- tion of Section 8(a)(1) of the Act by reason of Foreman Gallaty's coercive interrogation of McGehee concerning his 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities on behalf of the rival Norco movement and by Gallaty's intimation to McGehee that he was being dis- charged because of his Norco activities as summarized above and reported in more detail in the findings above. Victor L. Parker, Jr. The complaint (Case 15-CA-3422) here under considera- tion charges Respondent Clark with an independent viola- tion of Section 8(a)(1) by the conduct of its supervisor and agent, Tony Larosa, in threatening an employee of Respon- dent Clark "that if he attended any meetings of a labor organization attempting to obtain a charter from Interna- tional Brotherhood of Electrical Workers, his job would be jeopardized and he may never be referred out by the Inter- national Brotherhood of Electrical Workers, Local 130." The record identifies the employee involved as electri- cian, Victor L. Parker, Jr., and the labor organization "at- tempting to obtain a charter" from the IBEW as the rival Norco labor organization. Parker worked for Respondent Clark at its Taft jobsite from about the last week in June to about the first week in August 1968 when he quit because the jobsite was too far from his home. During this period he worked as part of a crew under Respondent Clark's foreman, Tony Larosa, and his job was pulling conduit. Parker is a young man and his testimony and that of Larosa shows that they were friends, got along well on the job, and that Larosa took a fatherly interest in Parker. Parker's credited testimony shows that toward the end of July he had occasion to go to the tool shack for a tool where he noted that Larosa and other foremen were engaged in a lively discussion which they stopped when they saw him. Later that day when Larosa was making a routine inspec- tion of the work Parker and his partner were doing, Parker asked him what the conversation he had come upon in the toolroom was all about and whether somebody was "getting chewed out." Larosa replied, "No," but said that word hag reached him about the rival Norco labor movement and he advised Parker and his working partner that "it would be a good thing to stay away from." This admonition came about 2 weeks before McQueen and McGehee were dis- criminatorily discharged because of their activities in behalf of the rival Norco movement. Considered in the light of the hostility thus shown by Respondent Clark to the rival Norco movement, the Trial Examiner finds and concludes that the admonition, although in itself seemingly merely a bit of friendly, paternal advice, constituted a threat to Parker that his job and the chances of further referrals from Local 130 would be jeopardized if he was found attending Norco meetings. The Trial Examiner does not credit the denials of Foreman Larosa, who has been a member of Local 130 for 15 years, that he made the statements attributed to him by Parker as shown above. It is noted, and found, that the Joint Venture, referred to above as Respondent Clark, lost its subcontract for the construction of electrical work on the new construction being built for Union Carbide at Taft in May or June of 1968. With the termination of the Joint Venture's subcon- tract, the prime contractor relet the electrical work subcon- tract to one of the two former constituents of the Joint Venture; namely, Willemette and Stouse Electric Co., Inc., of Louisiana, which completed the job on February 28, 1969. All persons named in the finings above, although orilly hired by the Joint Venture, became employees of Willemette and Stouse Electric Co., Inc., without break in employment service when that company became successor subcontractor to the Joint Venture. McQueen and McGe- hee at the time of their discriminatory discharge were em- ployees of Willemette and Stouse Electric Co ., inc., and not of the Joint Venture. All other illegal conduct shown in the findings above occurred after Willemette and Stouse Elec- tric Company, Inc., took over the involved electrical work from the Joint Venture . For these reasons the Trial Examin- er finds and concludes that Willemette and Stouse Electric Co., Inc., is solely responsible for the illegal conduct found above ; that the same company should be substituted as Respondent Employer for the Respondent Joint Venture named in the complaint; and that the proceeding should be dismissed as to the Joint Venture. The Examiner makes the findings in the above paragraph sus s once as the record compels the substitution of Willem- ette firm for the Joint Venture as the involved Respondent Employer. Because of this substitution , all references to Respondent Clark , the Joint Venture, in connection with the findings with respect to McQueen , McGehee, and Par- ker, above, shall be deemed references to Respondent Wil- lemette and Stouse Electrical Co., Inc. VII ALLEGED UNFAIR LABOR PRACTICES BY RESPONDENT WESTINGHOUSE AND RESPONDENT 130 RE EMPLOYEE SANTANGELO The last of the discharged employees herein involved is Anthony John Santangelo. The complaint in Case 15-CA- 3443 charges his employer, Respondent Westinghouse Elec- tric Corporation, with Santan elo's discriminatory dis- char a in violation of Section 8(a)(3), as well as with Section 8(a)(1) violations by its supervisor, A. R. Kampen, which the evidence shows relates to Santangelo. Respondent Westinghouse asserts two principal defenses. Its first plea is an elaborate defense that its employee, Kam- pen, upon whose conduct the General Counsel relies to show violations of both Section 8(a) (3) and (1), was not a "supervisor" within the meaning of the Act at the times here pertinent and that therefore Westinghouse cannot be held responsible for his acts and conduct. Its other principal defense is that in any event the testimony of Santangelo, on which General Counsel relies to establish the violations of the Act, is so lacking in credibility that the complaint should be dismissed. The complaint in the related case, Case 15-CB-935, charges Respondent Local 130 with causing the discrimina- tory discharge of Santangelo and also that it restrained and coerced Santangelo in the exercise of rights guaranteed in Section 7 in violation of Section 8(b)(1)(A) and (2) of the Act. Local 130 denies the charges. The jobsite here involved is also Union Carbide's afore- mentioned huge multipetrochemical plant at Taft, Louisia- na. Westinghouse's connection with the plant is that it has had at all times here pertinent a contract with Union Car- bide for the maintenance, repair, and renovation of Carbide's completed, operating, and producing multiplant units, known as "hot plants," at the Taft location.17 This is the only contract of its kind Westinghouse has. For its main- tenance work at Union Carbide's Taft facilities, Respon- dent Westinghouse employs an average of about 46 men n The above-described contract, not of record herein, is between a division of Respondent Westinghouse , known as Westinghouse Engineered Mainte- nance Co., and a division of the Union Carbide Corporation, known as its Chemical-Plastics Division. This contract having to do with the maintenance of operating plants and involving many different crafts is quite different than the subcontract Respondent Clark, the Joint Venture, had at Taft jobsite The latter called only for the construction of new electrical work in new plants under construction and involved only the electrical trade. WALTER J. BARNES ELECTRICAL CO. from 13 different crafts which include , to mention only a few, such workmen as boilermakers , bricklayers, carpenters, ironworkers, and electricians. These craftsmen are hired by Westinghouse through vari- ous craft unions, but, uniquely, Westinghouse has no con- tracts with any of the involved area Locals but only with the presidents of 13 International Unions with which the Locals are affiliated, in a single master agreement called "Project Agreement For Maintenance by Contract," hereafter refer- red to as th e "Project Agreement."" The President of the International Brotherhood of Elec- trical Workers, generally heretofore referred to as IBEW, is one of the signatories to the Project Agreement with West- in ouse. The Project Agreement provides that employment by Westinghouse for maintenance work at the Union Carbide plant shall be only by referrals from the signatory Unions. The agreement further requires the signatory Unions, obvi- ously referring to their affiliated area Locals , to submit "their area hiring plans" to Westinghouse for review and acceptance. Notwithstanding this requirement , the record shows that Respondent Local 130 never submitted its exclu- sive hiring hall referral system to Westinghouse for review and acceptance, but that Westinghouse nevertheless in actu- al practice accepted and abided by that system . 19 All electri- cians hired by Westinghouse for maintenance work at Union Carbide's Taft plant have been referred to Westing- house by Local 130 through its exclusive hiring hall pur- suant to the referral pprocedures set forth in its aforementioned collective-bargainin agreement with the South Louisiana Chapter, Inc., of the National Electrical Contractors of New Orleans , Louisiana. Although the Project Agreement calls for an attached schedule of wage rates, the copy of the Project Agreement received in evidence as Respondent Westinghouse's Exhibit 3 does not have wage schedules attached to it. Testimony, however, shows that the rates paid by Westinghouse to its electricians and foremen are the same as that called for in Local 130's master collective-bargaining agreement (Res. Barnes Exh. 3) which is $5.30 per hour for journeymen electricians, 11 percent more for foremen in charge of crews of 6 to 12 journeymen, and 15 percent more for foremen in charge of larger crews. Westinghouse employs two categories of supervisors for its electrical maintenance work at the Union Carbide plant. One category embraces Westinghouse salaried, "non-repre- sented" supervisory personnewhose sole allegiance is to Westinghouse . However, contrary to the general rule, Westinghouse's head electrical supervisor, C. H. Scott, al- though a salaried employee, is not technically a nonrepre- sented supervisor inasmuch as he is a IBEW member although of a local other than Local 130 . As electrical super- visor, Scott has charge of all electrical maintenance for all three multiplant complexes of the Carbide plant, one of which consists of five plants. The only complex we are here directly concerned with is complex 3 as that is the complex 18 The Project agreement is signed by Respondent Westinghouse by its division Westinghouse Engineering Maintenance Company under the sign a- ture or a Vice President of the latter for the "Company" and by the 13 presidents of 13 International Unions "for the Unions." 19 In this connection, Westinghouse's Director of Industrial Relations, I A. Retterer, testified, "It says in the contract that we follow the area [referral] practice." 20 The phrase "non-represented," picked up from Westinghouse 's brief, is used, as believed intended, in the sense of meaning that such "non-repre- sented" personnel have no union affiliation However, as shown in the next sentence above , Westinghouse's chief electrical supervisor Scott is an IBEW member through membership in a Texas IBEW local. 207 in which alleged discnminatee Santangelo worked. C. H. Heymeyer who in turn works under Scott has been at all times here material electrical supervisor of complex 3. As Heymeyer did not testify, the record does not disclose whether he is a IBEW member. The other classification of electrical supervisors em- ployed by Westinghouse at the Carbide plant are electrical craft foremen ; that is, foremen who are members of IBEW, are paid on an hourly basis, and received their employment by referrals from Local 130. They consist of a sin a lead craft foreman and two craft foremen who work under him. Although Westinghouse admits that its lead craft foreman is a statutory supervisor, it contends that the craft foremen who work under the lead craft foreman, although officially designated as such by Westinghouse, are not "supervisors' within the meaning of the Act. Westinghouse deems these union-affiliated craft foreman to have a double loyalty, one to Westinghouse and the other to Local 130. The Project Agreement has a provision which "reserves" to Westinghouse "the right to send into the area of work as many supervisors and engineers as it deems necessary to carry out the work covered" by the agreement. Under this provision of the agreement (art. XX), Westinghouse claims =asserted asserted the right of direct supervision over journey- men electricians by its salaried supervisors , such as Scott and Heymeyer, contrary to the long and well established practice in the area that orders to journeymen electricians must come to them from craft foremen who owe their refer- rals to Local 130. This area practice and tradition is also well established for all other craft unions such as the unions for boilermakers, bricklayers, and carpenters, among oth- ers. Westinghouse's insistence on direct supervision by its sal- aned supervisors over electrician journeymen and the insis- tence of Local 130 that orders to journeymen should come only from referred craft foremen has caused friction and trouble between Westinghouse and Local 130 which has at times erupted into work stopppage. The record shows that the job steward at the Carbide plant instructed alleged discrimi- natee Santangelo to go to his craft foreman for a new work assignment when he had completed a job and not to a Westinghouse salaried superintendent or to a Union Car- bide supervisor for such instructions. Westinghouse's lead craft foreman at the Carbide plant is Michael O'Brien, a member of Local 130. As lead fore- man, he has charge of two craft foremen in the three com- plexes of the plant who in turn are in charge of crews of journeymen electricians under circumstances which West- inghouse contends do not qualify them as statutory supervi- sors. Although O'Brien's jurisdiction, like that of Electric Supervisor Scott, extends over all three of the complexes of the Carbide plant, he works under the joint supervision of Scott and the salaried supervisors of each of the three com- plexes, including the aforementioned C. H. Heymeyer who is in charge of complex 3. One of the craft foremen who worked under O'Brien was the heretofore mentioned A. R. Kampen . Kampen at all times here pertinent was craft foreman of a crew of 8 to 10 journeymen working in complex 3. Santangelo, age 24, for some 3 or 4 or months prior to his termination, worked in complex 3 under Kampen as a jour- neyman electrician. Santangelo had employment with Westinghouse for a period of a little short of a year at the time of his discharge . His employment, including that with Westinghouse, in the 2 years prior to his discharge had been by referrals from Local 130 as a permit electrician. To ob- tain official union status as a certified journeymen electri- 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cian, Santangelo, about November 1, 1967,21 applied to the New Orleans Electrical Joint Aprenticeship Committee, consisting of representatives of -both business and Local 130, for acceptance into its apprentice program which is open only to hi school graduates between the ages of 18 and 24. The program involves a training period of about 4 years. The committee by letter dated June 19, 1968, in- formed Santangelo that he met "the minimum requirements for our apprentice program" and instructed him to report in person for an evaluation interview and "rating of your qualifications by the Committee." After his personal inter- view, the committee under letter dated July 23, 1968, noti- fied Santangelo that he was "not among those reached for selection at this time," but advised that if he desired further consideration by the committee he should file a new appli- cation. In the early part of the week of August 19, 1968 , Santan- gelo sought and received permission from Foreman Kam- pen and Job Steward Freeman to take the following Friday, the 23rd, off from work to reapply at the union hall in New Orleans for acceptance in the apprentice progam and again cleared the matter with them some time during the work day of the 22nd. In the week preceding August 19, Santangelo was con- tacted at his home 22 by the aforementioned ITerdon Weder- strandt who at that time, as heretofore noted, was working as a journeyman electrician for Respondent Barnes on some new electrical construction for the Louisiana Power & Light Company at Montz, Louisiana. Wederstrandt, a man in his sixties and an old friend of Santangelo's family, had been instrumental in getting young Santangelo his first referral out of Local 130 by introducing his to Assistant Business Agent Sevins. Wederstrandt spoke to Santangelo about the new rival Norco labor union which was being organized and elicited his participation and support of the new movement. Santangelo signified his interest by signing a Norco bulletin stating his interest and "requesting more information on same. On the night of August 21, Santangelo attended his first Norco meeting at the Norco elementary school with Weder- strandt, his son, the aforementioned discriminatee Tacke, and two other employees. On approaching the meeting he passed within 50 feet of Assistant Business Agent Sevins whose testimony shows , as heretofore noted, that he made it a practice to station himself just outside such Norco meet- ing places to note and observe all electricians who attend the meetings. Santangelo knew Sevins not only because of his introduction to Sevins by Wederstrandt some 2 years ago, but also from having seen him from time to time at the Union Carbide plant . In the assembly of the meeting in the school house Santangelo noted the presence of a regular member of Local 130 whom he knew by name. Prior find- ings show that Sevins had members of Local 130 attend Norco meetings to observe who attended and what was going on. Santangelo reported for work as usual the next day, Au- 21 Although Santangelo testified that he filed his apprenticeship applica- tion in November 1968, the record shows that he obviously meant November 1967 because the committee's letter of notification to Santangelo that he was not picked for selection is dated July 23, 1968 . The record is corrected to show that the original date of Santangelo's application for acceptance into the apprentice program was in November of 1967. u Santangelo testified that his meeting with Wederstrandt had been at his mother's home and not at his own house as shown above , but his pretrial affidavit of some 4 months prior to the trial shows that the meeting had been at Santangelo's own home . The Examiner finds that the meeting took place at Santangelo's home and that the noted discrepancy was simply an honest mistake of fact due to the lapse of time and perhaps also due in part to the tendency of young persons recently emancipated from their parents to relate events to the parental home. gust 22. At the close of the work day as he was walking out of the complex, Foreman Kampen caught up with him and said, "I heard that you attended the [Norco]meetin 23 last night." When Santangelo acknowledged that he had, Kam- pen told him, "Well , you're on your way out. You've lost everything." Santangelo replied that he was not goin g to be intimidated and that he was nevertheless goin g through with his plan to take the next day off to reapply for admission to the apprentice program. During the course of the conver- sation, Kampen told Santangelo that he would "never make it in the union now." The reported conversation is based on the unrefuted and credited testimony of Santangelo . The testimony of Westinghouse's Electrical Supervisor Scott establishes that Foreman Kampen was still in the employment of the Com- ppany at the time of the trial herein. Westinghouse nonethe- Iessfailed to call Kampen as a witness to refute Santangelo's testimony nor was any explanation offered for the Coin any's failure to call Kampen as a witness in its behalf. After his above-described conversation with Kampen, Santangelo drove home with his father Leon Santangelo in a truck owned by his father who was also working at the Union Carbide plant as a journeyman electrician but not for Westinghouse . They traversed the same highway and in the same direction as Lead Craft Foreman O'Brien and his car pool travel every night on their way home from work. O'Brien's car pool for about a year and at the time here involved consisted of Craft Foreman Kampen and another electrical craft foreman by the name of Joe Plaideau who also had a job with Westinghouse identical with Kampen's. Both Kampen and Plaideau worked under the supervision of O'Brien. The younger Santangelo testified that, as he was driving his father's truck, he noted O'Brien's station wagon, with O'Brien as driver and Plaideau sitting besides him, draw up alongside the truck, and then observed Plaideau shouting and waving at him in an unfriendly manner which the re- cord suggests and the Trial Examiner finds were indicative of repeated gestures of "bye-bye." Kampen was also a pas- senger in O'Brien's car at the time. O'Brien's car passed, dropped behind, and then caught up with the Santangelo truck several times. Each time the O'Brien car came along- side the truck, Plaideau repeated his shouting and bye-bye gestures. Santangelo was unable to hear the words Plaideau was shouting as the windows of his vehicle were up due to air conditioning. He interpreted the shouting and -bye-bye waving to mean that he could no longer expect any favors from Local 130. Santangelo's father who was in the truck with his son offered testimony in corroboration of the O'Brien car pass- ing incident but identified O'Brien as the bye-bye hand waver and O'Brien's passengers as his son's foreman (Kam- pen) and job steward (Freeman) which thus conflicts in some respects with his son's testimony as set forth above. Some of this variance may be due to the fact that the elder Santangelo was not familiar with Westinghouse's electrical personnel by sight or name, except for O'Brien, as he worked for an entirely different contractor although at the same Union Carbide plant. Some of the conflict may be due to age or bad memory on the part of the elder Santangelo. In any event the Trial Examiner finds the senior Santangelo's testimony too vague and lacking in certainty to be entitled to credibility as corroborative testimon'. The credibility of the young Santangelo's version of the 0 Brien car passing incident will be determined independently of his father's testimony thereon. 23 The record by inference and more directly by Santangelo' s testimony under cross-examinahnu st:uws that the reference was to a Norco meeting. WALTER J. BARNES ELECTRICAL CO. O'Brien, while admitting that he and his car pool of Kam- pen and Plaideau drove home every night after work over the same highway route the Santangelos took to their homes, testified that he had "no knowledge" and "no recol- lection" of the car passing, bye-b'e waving incidents de- scribed by young Santangelo. His no recollection" denials are not convincing. Plaideau, who did the bye-bye gestur- ing, according to young Santaigelo, was not called by West- inghouse to testify in the case. Similarly, Kampen who the record shows is still in Westinghouse's employment was not called upon to testify with respect to the bye-bye hand waving incidents from the O'Brien car, dust as he was not called on to refute Santangelo's testimony that Kampen had told him on August 22 when Santangelo had confirmed that he had been at a Norco meeting that Santangelo was on his wa out and that he had lost everything. 7he Trial Examiner credits young Santangelo's testimony fully concerning the bye-bye gesturing he had experienced from O'Brien's passing car both from the straightforward mariner in which the incident was described and from Santangelo's demeanor, as well as from the fact that West- inghouse did not produce Plaideau or Kampen to deny the incident. The incident as described in detail by Santangelo is not one that lends itself to fabrication out of whole cloth. Santangelo took the next day, Friday, August 23, off from work in accordance with prior permission from Kampen but did not use the day to drive into New Orleans to reapply for admission to the apprentice program because he had by then come to the conclusion that it would be futile to do so in the light of the double impact of Kampen's remark of the day before that he could no longer expect any favors from the Union and from the bye-bye gestures he had expe- rienced from O'Brien's passing car that same night. He utilized the day instead with personal business he had orig- inally planned to combine with reapplication for the ap- prentice program. That night, August 23, Santangelo received a telephone call from Shop Steward John Freeman that he was being laid off by Westinghouse as of that date in a reduction in force. In the discussion that ensued, Freeman admits that Santangelo told him that the real reason for his layoff was that he was seen attending a Norco meeting. What followed this in the telephone conversation is in dispute. Santangelo testified that Freeman became upset and angry and accused Santangelo and the Norco followers of "trying to take our jobs and of depriving Freeman of work in the area he was then working in if the Norco group got the charter it was seeking." Although Freeman denies that he made this re- mark, the Trial Examiner credits Santangelo's testimony not only because of demeanor factors but also because Freeman's testimony shows that it was part of his job as a union job steward ` to get around" by speaking to journey- men on the job and attending union meetings from which it must be inferred that he found fear among members of Local 130 that the new rival Norco movement threatened their jobs. In view of this admission, Freeman's flat denial that he told Santangelo that "you're trying to take our )jobs" and his asserted lack of concern about the rival Norco group is not credited. The next morning, August 24, Santangelo received a printed "Termination Slip from Westinghouse with filled in blanks. It informed him that he was terminated as of 7:30 a.m.25 of the preceding day which he had taken off by per- 24 There was no showing at the trial that Plaideau was not then still in the emlayment of Westinghouse at the Union Carbide plant Although Santangelo's termination slip shows he was terminated as of 7.30 a in on August 23, the Trial Examiner does not deem it in conflict with 209 mission of Foreman Kampen. The slip was signed by Kam- pen as foreman as follows: Authorized by: A. R. Kampen (handwritten signature) (Foreman) Electrical Superintendent Scott testified that Santangelo's termination was part of a five-man reduction of force that he had determined was necessary and that he reached this decision on his own judgment without prior consultation with Heymeyer, his salaried assistant in charge of complex 3 where Santangelo was employed, or with Lead Craft Fore- man O'Brien who was lead craft foreman of all three com- plexes in the Carbide plant, or with Craft Foreman Kampen who worked under both Heymeyer and O'Brien. Having reached this decision, Scott testified that in accordance with his practice he did not personally select the individual elec- tricians for the layoff, but transmitted his direction for the layoff of five electricians to O'Brien and following usual practice required O'Brien to select the individuals for sep- aration. Scott stated that as the matter was finally worked out, O'Brien selected and put into force a five -man reduc- tion in force by firing four electricians for cause (two for excessive absences and two for leaving the plant without permission) and by laying off Santangelo. Santangelo and two other electricians terminated for cause were part of Foreman Kampen's crew. Although Westinghouse strenuously contends that Craft Foreman Kampen is devoid of any authority to fire or layoff or select for termination any of the electricians in his crew, Scott's unequivocable testimony under cross-exam- ination shows that the reasons for Santangelo's selection for layoff must be attributed to either Kampen or his superior, O Brien. Scott admitted that he had knowledge of the rival Norco labor organization movement for 2 or 3 weeks prior to Santangelo's layoff and that he discussed the Norco movement with Westinghouse's Plant Manager at the Un- ion Carbide plant who was in charge of all maintenance work performed at the Carbide plant by Westinghouse. Lead Craft Foreman O'Brien testified to his part in select- ing Santangelo for layoff. The gist of his testimony is that on receiving orders from Scott in the morning of August 23 for the layoff of three electricians (the other two had been laid off earlier) he decided that, besides the two men he was going to fire for cause, to select Santangelo for layoff as the most expendable of the 45 or so electricians employed by Westinghouse because of information he had that Santan- gelo was taking that day off to reapply for acceptance in the apprenticeship program and by reason thereof, in O'Brien's words, "he [Santangelo], being accepted into this program, would necessarily have of leave the plant site and work for the duration of four or five years as an apprentice, so we would have lost Mr. Santangelo, in effect, when he was accepted, so that being the reason, I decided there was no sense in losing another member of the crew that would possibly stay and be a permanent member with us." O'Brien testified that just prior to placing Santangelo on layoff status he called Local 130's hall to verify if he "was on record to appear there and he was." O'Brien s testimony that he made such a call is not credited as Santangelo, after the hostile events of the day before, had abandoned his plan testimony that Santangelo's termination was not decided on until later in the morning of the same day because once the termination was decided on it could be related back to 7 30 a.m as Santangelo was not at work that day. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to reapply for admission into the apprenticeship program and did not in fact file a reapplication form. The union office would, therefore, have had no information about a reapplication by Santangelo to give O'Brien unless Santan- gelohad called the union offices in advance for an appoint- ment, but the record is barren of any evidence that he had. The rejection letter Santangelo had received from the ap- prenticeship committee in connection with his first applica- tion did not ask him to call for an appointment if he wanted further consideration by the committee, but merely instruct- ed him that "you must come by the application of- fice 26 ... and fill out a new application ." It was thus not necessary for Santangelo to call in for an appointment. At the time O'Brien selected Santangelo for layoff for the stated reason that he was about to lose him in any event to the apprenticeship program , O'Brien knew that Santangelo had waited for months before he got his first rejection notice from the apprenticeship committee on his original applica- tion and that the committee could possibly take more months before it reached a decision on his reapplication. O'Brien also knew that Santangelo's reapplication in itself had little meaning as he himself as a young man had waited 3 years before his own application for apprenticeship was accepted as, indeed, he had told Santangelo when the latter had concernedly discussed his rejection with O'Brien. Moreover, there was a great deal of talk at the plant about the possible reasons for Santangelo's rejection which indica- ted that his eventual acceptance was conjectural . By reason of these facts, the Examiner does not credit O'Brien 's testi- mony that he selected Santangelo for layoff because he expected his imminent acceptance into the apprenticeship program. It should be noted that although Santan gelo made appli- cation for acceptance as an apprentice, the parties have stipulated that Santangelo was already a qualified journey- man electrician. O'Brien testified that he had no knowledge of Santangelo's involvement in the Norco movement at the time he ordered his layoff . In view of the previous findin s that O'Brien drove to and from work every day with Craft Foreman Kampen and that Kampen had knowledge of Santangelo's interest in the Norco movement, the Trial Ex- aminer does not credit O'Brien's denial and finds that O'Brien had knowledge of Santangelo's Norco involvement at the time he ordered his layoff . In view of this same close relationship between O'Brien and Kampen, the Trial Exam- iner likewise does not credit O'Brien's testimony that he did not consult with Kampen about Santangelo's termination prior to ordering the termination. It would be most unnatu- ral for a general foreman like O'Brien not to consult with a foreman under him as to who should be laid off under the subordinate foreman's supervision, especially as they rode to and from work together every day. As noted above, Mr. Scott, O'Brien's supervisor, himself admitted that the reason for Santangelo's layoff could be attributed to Kampen. It will be recalled that the unrebutted testimony of San- tangelo established that Foreman Kampen, upon receiving confirmation from Santangelo on August 22 that he had attended a Norco meeting the previous night, had told him, "Your on your way out. You've lost everything." Respon- dent seeks to avoid responsibility for this patently illegal 26 The record shows that the apprenticeship committee application office has a different street address (G. C. Exh. 4) than that of Local 130's hall (C. P. Exh. 5) This is a further indication that Local 130's hall would have had no information to give O'Brien, if indeed as claimed he had called the hall for information concerning Santangelo's reapplication for acceptance into the apprenticeship program. conduct on the part of Kampen by an effort to show Kam- pen did not have the requisite statutory authority over his crew members to qualify him as a supervisor within the meaning of the Act for which Westinghouse would have legal responsibility. The record shows that Kampen has no authority to hire or fire and that even the termination slip he prepared for Santangelo was outside the scope of his authority. The record further shows that Kampen had no part in determin- ing the amount and kind of work to be done each day by his crew as a crew as this was done for him in greatly detailed order he received each day from Mr. Heymeyer, Westinghouse's salaried electrical supervisor for complex 3, and that Kampen had no authority to vary or change these orders in even the slightest particulars. It is admitted, however, that within the scope of the work orders Kampen received each day from Heymeyer he had the authority and the responsibility of assigning the various jobs to be done to the )ourneymen electricians who worked in his crew and that the selection of the journeymen to do these various jobs was wholly within Kam 's discretion. Santangelo's undisputed testimony shows that Kampen told him what jobs to do and that Kampen during the course of the day when an emergency arose would take him off an unfinished job to work on another more urgent job. Kam- pen bore the title of foreman by designation of Respondent Westinghouse ; he received foreman s pay as specificed in Local 130's collective-bargaining agreement; he headed up a crew of 8 to 10 journeymen electricians; he did no elec- trical work himself except as required to show other less experienced journeymen how a job was to be done; he checked the completed work of the men in his crew; he had authority to grant time off from work up to 2 days; and he kept time records on the electricians in his crew. The record also shows that Plaideau, the foreman who waved bye-bye to Santangelo from O'Brien's passing car the day before Santangelo's termination, had the same kind of job as Kampen's but in one of the other complexes of the Union Carbide plant. In the month following his layoff Santangelo called in person several times at Local 130's hiring hall for referrals but being unsuccessful gave it up in discouragement. In December, Santangelo, being in need of funds, requested Local 130 for his accumulated vacation pay of 15 cents ppeer hour which he had earned during his referrals and which 7us Employers had paid directly to Local 130 under its collec- tive-bargaining agreement in trust for Santangelo. Informed that his vacation pay could be reimbursed at that time only by his complete withdrawal from all relationships with Lo- cal 130, Santangelo took the required steps to withdraw and received his vacation pay. In February and March of 1969 , Santangelo received unsolicited letters from Respondent 130 and Respondent Westinghouse, prepared by their respective counsel, identi- cal in content with the letters received by the other discrimi- natees herein from Local 130 and their respective Employers, informing him that there would be no objection to his,being referred out by Local 130 and no objection by Respondent Westinghouse to his reemployment. In re- sponse to these letters, Santangelo within a week called at Respondent Local 130's hiring hall and registered for work but had not up to the time of the trial received any referrals from the Local. Discussion and Conclusions The detailed findings above can leave no doubt that Respondent Local 130 caused Santangelo's discriminatory WALTER J. BARNES ELECTRICAL CO. discharge and that Respondent Westinghouse discharged him because of his activities on behalf of the rival Norco labor organization in violation of the sections of the Act as set forth in the opening paragraphs of this Decision. Santangelo's trouble started when he was observed at a Norco meeting on August 21, 1968, by Local 130's ever vigilant Assistant Business Agent Sevins. The very next day, Foreman Kampen, on confronting Santangelo and receiv- ing a confirmation from him that he had been at the meet- ing, told Santangelo that he had lost everything by his attendance at the Norco meeting and was on his way out of Local 130 with respect to favors. Although the two involved Respondents sharply attack Santange o's credibility, the fact remains that Westinghouse did not see fit to call Foreman Kampen as a witness to deny that he had told Santangelo that he was on his way out of Local 130 despite the fact that Kampen was still in Westinghouse's employment at the time ofthe trial. As there is nothing inherently incredible in the statements attributed by Santangelo to Kampen, the fact that Kampen was not produced to deny that he made such statements requires that they be fullcredited. All other specific credibility issues involving Santangelo's testimony have been resolved in the findings above in favor of such testimony. However, as both Westinghouse and Local 130 in their briefs attack the general credibility of Santangelo's testimony under such descriptions as "unre- sponsive," "evasive," and "smart aleck," and contend that none of his testimony should be believed, the Trial Examin- er notes his disagreement for the following reasons. The Trial Examiner found Santangelo a tense and some- what high strung young man not without some psychologi- cal quirks of personality which probably more than anything else accounts for the rejection of his apprentice- ship application. An illustration of such a quirk was his repeated refusals to make an outright acknowledgement of his signature on a pretrial affidavit; his only answer to the persistent question "Is that your signature?' even when the Trial Examiner put the question to him, was, "It seems to be." But a lawsuit is not a contest for charm and grace but only a forum for the ascertainment of the truthfulness of testimo- ny. The Examiner's impression of Santangelo as he was testifying was that he was telling the truth meticulously and in such precise detail and manner as not to allow any doubt. The reading of his testimony many weeks after the trial in the cold transcript confirms this impression. Santangelo's response to some of the questions on cross-examination which Respondents characterized as evasive or nonrespon- sive simply reflect Santangelo's wariness of inexact or load- ed questions. Respondent Westinghouse tries to make much of the fact that Santangelo's father's account of the bye-bye gestures he observed from Lead Craft Foreman O'Brien's car to young Santangelo was different in important detail from that given by the junior Santangelo. The Trial Examiner finds that the elder Saantangelo's version of the incident insofar as it differs from his son s was due primarily to the fact that the older man who did not work for Westinghouse was not as familiar with the visages of the Westinghouse electricians in O'Brien's car as his son was. Due to this factor and age factor on the part of the elder Santangelo, the Trial Examin- er credits young Santangelo's version of the episode. The important thing to note about the two versions of the inci- dent ,is that both father and son agree that there were bye- bye gestures from the O'Brien car to the younger Santange- lo. 7 211 Respondent Westinghouse seeks to avoid the impact of a finding that Kampen told Santangelo that he was on his way out because of his Norco activities by advancing arguments that Kampen at the time in question was not a `supervisor" within the meaning of the Act and that therefore the re- marks in question cannot be attributed to Westinghouse, and accordingly it cannot be held legally responsible for them. As there are many statutory criteria for the determination of whether an individual has supervisory status 28 and since the presence of any single one of such criteria is sufficient to establish supervisory status, the key issue here is whether Kampen at the times here pertinent had one of these crite- ria; namely, the authority to "assign" work of such statutory character as "requires the use of independent judgment.' In this connection Westinghouse in its brief concedes "the admitted fact that Kampen can select one of the mem- bers [of his crew of 8 or 10 electricians] to do a particular job." More graphically the testimony of Westinghouse's di- rector of industrial relations, Mr. Retterer, under question- ing by the Trial Examiner, shows that Kampen had the authority to select the electricians in his crew to do various jobs and that he could shift an electrician from one job to another wherever needed to anywhere in complex 3 consist- ing of five plants. The undisputed testimony of Santangelo further shows that he got his work orders or assignments from Kampen each morning and that when emergencies arose he was subject to instant reassignment by Kampen to work which was more urgent. In addition the record shows that Kampen had such ancillary indicia of supervisory sta- tus as the Company conferred title of "foreman," foreman's pay, responsibility for keeping work time records, and au- thority to allow excused absences. The record thus compels the conclusion that Kampen not only had the admitted authority to assign work to the men in his crew but also that the exercise of such authority involved and required the "use of [his] independent judgement." The whole thrust of Westinghouse's defense that Kampen was not a statutory supervisor is that Kampen himself did not determine the kind and amount of work to be done each day by his crew but received detailed instructions each morning for the day's work in complex 3 from Mr. Heymey- er, Westinghouse's salaried electrical supervisor for com- 27 Respondent Westinghouse in its brief accuses young Santangelo with the "flagrant coaching" of his father from the rear of the hearing room while his father was testifying with respect to the bye-bye incident when the older man's testimony began to vary in detail from the version thereof given by the son. The Westinghouse brief further states that this alleged coaching by the son of his father was "sternly condemned by the Trial Examiner during the hearing." While the Trial Examiner did caution young Santangelo against any coaching of his father from the rear of the court room, the record will show that the Examiner stated that he had not personally noted such miscon- duct on the part of Santangelo junior. The record also shows that although the Examiner cautioned young Santangelo against the conduct of which he was accused, he did not "condemn" Santangelo, sternly or otherwise, against the complained conduct as stated in the Westinghouse brief . If young San- tangelo engaged in disapproving gestures to his father from the rear of the court room, the Examiner finds that it does not indicate as claimed by Westinghouse that young Santangelo was not telling the truth in his version of the bye-bye incident, but more likely indicates the impatience young people sometimes express about the memories of their parents. 2 Section 2(11) of the Act reads: The term "supervisor" means any individual having authority in the interest of the employer, to hire, transfer, suspend, lay off, recall, pro- mote, discharge, assign, reward, or discipline other employees or respon- sibly to direct them, or to adjust their grievances, or effectively to recommend such action , if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plex 3. Another aspect of same defense is that Heymeyer also supervised the work of Kam en "to make sure the work was progressing, as per scheduled] time, and whether or not it was being done in the order he wanted," as testified by Retterer and that Heymeyer had the authority to change the work assignment of Kampen's men if an emergency arose which required immediate action. While it is true that Heymeyer had this authority, it does not change the fact that Kampen exercised the initial daily authori ty to responsibly assign his crew members to various jobs as he saw fit according to their ability and to reassign them from one job to another as the occasion for such reassignments in his judgment arose. The Trial Examiner finds and concludes that by reason of Kampen's described authority to assign work to the men in his crew he was at all times here pertinent a supervisor within the meaning of the Act. Under the same facts the Trial Examiner further concludes that Kampen also qual- ifies as a supervisor under the catch-all provision of Section 2(11) of the Act which includes in the definition of "supervi- sor" all individuals who have authority over employees to "responsibly direct them." By virtue of the finding that Kampen was a supervisor within the meaning of the Act, Kampen's knowledge about Santangelo's activities in behalf of the rival Norco move- ment became that of Westinghouse and by the same token Westinghouse must be held responsible for Kam en's an- nouncement to Santangelo that he had lost every thing and was on his way out because of his activities in behalf of the rival Norco labor organization. Wholly aside from this legal conclusion, the Trial Exam- iner finds and concludes that Respondent Westinghouse also acquired actual knowledge of Santangelo's activities in behalf of the Norco labor organization through its admitted supervisor, Lead Craft Foreman O'Brien, who in turn ac- quired his knowledge of Santangelo's Norco activities from his subordinate, Foreman Kampen, as shown in the find- ings above. It will be recalled that O'Brien rode to and from work every day with Kampen, as well as having daily associ- ations with Kampen as Kampen's supervisor. As Westinghouse's salaried electrical supervisor for all three of the complexes at the Union Carbide plant, Mr. Scott, himself admitted that the reasons for an employee's termination could be attributed to Foreman Kampen, the Trial Examiner also finds that the news of Santangelo's involvement in the Norco movement flowed not only from Kampen to O'Brien but also from O'Brien to Scott under whose supervision O'Brien in turn worked. Scott knew of the existence of the Norco movement at least 2 weeks before Santangelo was discharged and had discussed the movement with Westinghouse's overall main- tenance manager for the entire Union Carbide plant. Al- though Scott denied discussing the Norco movement with O'Brien, the Trial Examiner does not credit Scott's denial. Since Scott saw fit to discuss the Norco movement with Westinghouse's top supervisor, it is virtually inconceivable that Scott did not discuss the matter with O'Brien who being closer to the journeymen was bound to have information about the rival labor organization. The circumstances and timing of Santangelo's discharge requires the further finding that Westinghouse discharged Santangelo because of his activities in behalf of the rival labor organization. The discharge came within a day after Kampen s curt prediction to Santangelo that he was on his way out in view of the discovery that he had attended a Norco meeting. O'Brien the very next day terminated San- tangelo in his absence and without notice for the asserted reason that it was a virtual certainty that Santangelo would be lost to Westinghouse merely because he had taken the day off to reapply for admission into the apprenticeship program although O'Brien knew that Santangelo after many months of waiting had been turned down on his original application and although he knew that he himself as a young man had waited 3 years before he had been accepted for the apprenticeship training . Any reasonable man in O'Brien's place would have telephoned Santangelo or wait- ed until he came in the next day to find out if anything favorable had happened on his reapplication before ternu- nating an employee who had been with the Com any nearly a year. For these reasons, the excuse given for Santangelo s termination is obviously pretextual . The asserted reason for Santangelo's discharge is doubly suspect because O'Brien testified that before terminating Santangelo he called the union hall to find out if Santangelo had filed a reapplication and received an affirmative reply since the record shows that Santangelo did not in fact file his planned reapplication and that consequently O'Brien's asserted telephone call to the union hall and the purported answer he received thereto must be characterized as fictitious. It is further found that Westinghouse's delicate relation- ship with Local 130 was a contributing factor in Westinghouse's discharge of Santangelo . The Company as noted has had great difficulties with Local 130 because it asserts the right to give work orders through its salaried supervisors to journeymen electricians rather than to trans- mit such orders through the union-affiliated craft foreman which is the established and traditional way of passing on work orders to journeymen . Westinghouse's assertion of the right of direct supervision over journeymen electricians has met with such outright opposition from Local 130 that it has caused work stoppages . The Trial Examiner is of the opin- ion that Westinghouse's discharge of Santangelo was in part motivated by its desire to patch up past unpleasantnesses with Local 130 over its direct supervision of journeymen electricians and to make Local 130 more amenable to such direct supervision. Although there is no evidence to contradict Scott's testi- mony that business considerations required a layoff of five journeymen electricians in the week that Santangelo was laid off, the Trial Examiner finds that Westinghouse through its agents Kampen and O'Brien for the reasons heretofore stated discriminatorily selected Santangelo for layoff. The Trial Examiner also finds that Respondent Local 130 caused Santangelo's discriminatory discharge because of his activities in behalf of the rival Norco movement. Assistant Business Agent Sevins spotted Santangelo attending a Nor- co meeting on August 20. The reaction thereafter was al- most immediate. The next day Foreman Kampen accused Santangelo of having attended the Norco meeting the previ- ous night and told him he had lost everything and was on his way out . The very next day O'Brien fired Santangelo for the pretextual reason shown above . Both Kampen and O'Brien are regular members in good standing of Respon- dent Local 130, an IBEW local. Scott, Westinghouse's elec- trical supervisor for the entire huge Union Carbide plant, is also an IBEW member, although not of Local 130 but of a Texas local . These facts all lead to the inference and conclu- sion that Local 130 caused and was responsible for Santangelo's discharge through Kampen and O'Brien. Finally the Examiner finds and concludes that Respon- dent Westinghouse is in violation of Section 8(axl) of the Act by reason of the acts and conduct of its Foreman Kam- pen in interrogating Santangelo as to whether he had at- tended a meeting of the rival Norco labor organization and by Kampen's assertion to Santangelo that he would be dis- WALTER J. BARNES ELECTRICAL CO. charged (i.e. "You have lost everything. You are on your way out.") because of his Norco activities. VIII . GENERAL CONSIDERATIONS Some weeks prior to the trial of this consolidated matter, counsel for Respondent Local 130 filed a motion to sever each of the cases here involved and further moved for sep- arate trials in each of the cases and for trial in each case before a different Trial Examiner on separate and different dates. The grounds for the motion to sever were that each case involved different employers and a different set of facts, that it. would be impossible to separate the testimony, and that this would be prejudicial to Respondent Local 130 and deny it the right to a fair trial. The motion was opposed by counsel for General Counsel. The motion was assigned for disposition to a Trial Exam- iner other than the present Trial Examiner some weeks be- fore the case was assigned to the undersigned for trial. On March 6, 1969, Associate Chief Trial Examiner Charles W. Schneider denied the motion for the following reasons: It appears from the complaints and the General Counsel's Opposition that though the Charging Parties and employers are different in the various cases, all cases involve the same general background and an al- leged pattern of discrimination by Respondent Local 130 and each of the employers by acts occurring in August and September 1968. Indeed , a comparison of the complaints disclose that the basic incidents of vio- lation alleged the CA complaints (discriminatory dis- charges o employees), were pursuant to Union conduct directed to securing such discharges alleged as violations by the Union in the CB complaints. Notwithstanding this denial of the motion to sever all cases, Respondent Westinghouse at the opening of the trial made an oral motion before the present Trial Examiner for the severance of its case from all others for reasons similar to that advanced in the severance motion of Respondent Local 130. The present Trial Examiner denied the motion for the same reasons given by Associate Chief Trial Examin- er Schneider in his denial of the earlier motion for sev- erance. It is evident from the motions to sever that the objective was not to sever the CA cases from their com anion or related CB cases but only to obtain severance oTeach em- ployer case and related union case from all other employer and related union cases. The actual trial of these consolidated cases confirms Trial Examiner Schneider's pretrial evaluation of the consolidat- ed proceeding as being one involving "the same general background and an alleged pattern of discrimination by Respondent Local 130 and each of the em loyers by acts occurring in August and September 1968." (Emphasis sup- plied.) Despite this common background of the cases , each CA case and related CB cases were presented separately by the involved counsel and each such combined 9A and CB case has been decided on the individual facts developed therein except for the testimony of Local 130's Assistant Business Agent Sevins from which finding was made that he kept nearly all of the rival Norco labor organization meetings under personal surveillance for persons attending such meetings. Although the indicated testimony of Sevins was not specifically made a part of each case , it is evident that if each CA case and related CB case had been tried sep- arately Sevins' described testimony would have been du li- cated in each case. It is noted that counsel for Respondent Local 1.30 in presenting Sevins for direct examination in- 213 formed all other counsel and the Trial Examiner that Sevins' "general testimony ... will go to all of the cases" which, of course, would include Sevins' testimony under cross-exam- ination. Although as stated, the Examiner's decision in each CA case and related CB case stands virtually its own devel- oped facts, the Trial Examiner finds andconcludes that the findings in each such combined proceeding are reinforced by the findings of fact in the other cases because each case reveals the same general background and pattern of dis- crimination by Respondent Local 130 and each of the Re- spondent Employers by acts occurring in August and Sep- tember 1968. IX THE REMEDIES This proceeding poses many difficult questions of reme- dy. Foremost among these is the question of whether rein- statement of five of the six involved discriminatees to their former or nearly equivalent positions should be ordered in view of the fact that the construction jobs on which they were employed have been completed or are so nearly com- pleted that their jobs in all probability no lon ger exist. Thus the standard type of order requiring the Employers to offer the discriminatees "immediate and full reinstatement to their former or substantially equivalent positions " could be wholly unrealistic and ineffectual unless the Employers had other jobsites at which they could offer the discriminatees W obs. This and related questions were raised by the Trial Examiner at the hearing and discussed at length with coun- sel for all parties. (Tr. 1064-1065, 1280-1282, 1320-1321, 1324-136 Unfortunately, counsel have not as requested briefed these questions. In the oral arguments before the Trial Examiner at the close of testimony in the case government counsel stated that "General Counsel would seek reinstatement for all six of these people [discriminatees] if the job they were discharged from are still in existence or if the jobs they were discharged from went out of existence and the Employer transferred certain employees to other jobs within this area . Now, I certainly don't have enough facts at my disposal to know exactly what the situation would be, but the basic tenor of my pposition would be that these employees never lost their employee status with these companies because of the illegality of their discharge. " [Emphasis supplied.] Notwithstanding General Counsel 's position at the hear- ing that reinstatement would be sought for all six discrimi- natees here involved, General Counsel in his proposed recommended orders does not contain any provisions for the reinstatement of the discriminatees to their former or substantially equivalent position. No explanation is given by General Counsel in his brief for this omission , but pre- sumably the omission is based on his conclusions from the record herein and information in his files that the jobs which the discriminatees once held at specific 'obsites are no long- er in existence and that accordingly there are no jobs or positions to which the Respondent Employers could rein- state the discriminatees . This presumption fits in with gov- ernment counsel's oral argument at the hearing that he would seek reinstatement for the discriminatees, "if the job[s] ... are still in existence" either at the original jobsite or at other work sites of the Employer. It is apparently General Counsel's position that in lieu of reinstatements full justice would be done to the discrimina- tees by the simple requirement that they be made "whole for any loss of earnings which they may have suffered by reason 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the discrimination against them," as this is the only af- firmative relief sought by General Counsel in his proposed Recommended Order. However, it appears from General Counsel's proposed remedy section of his brief that General Counsel is seeking much more than is sought in the standard "make whole" order inasmuch as he seeks a "make whole" order, not fr'm the date of discharge to the date of the Employer's uifer of reinstatement as is normally the case, but from the date of discharge of each dischargee "until his employment at Respondent [Employer] would have been termi- nated for lawful reasons." (Emphasis supplied.) In all cases of discriminatory discharges, the rationale behind the standard order "to make whole" and "to rein- state" is the restoration of the status quo. But here, to sum- marize what was said above, General Counsel seeks the restoration of the status quo solely by way of money pay- ments by the Employers to discharged employees for total earnings lost by reason of their discriminatory terminations without reinstatement to their former jobs because such jobs no longer exist or may have disappeared in the normal course of events due to legitimate layoffs in reduction in force. While General Counsel's proposed money-only order seems fair 29 to the discharged employees, it is not certain that such an order would be fair to the Employers' financial advantage as compared with the traditional dual orders "to make whole" and "to reinstate." As this is not a supplementary backpay proceeding, we do not have the facts to determine whether the money-only order proposal of General Counsel or the traditional "make-whole" order plus reinstatement would work out to Respondents' Employer's best pecuniary interests. On the basis of the present record the possibility that Respondents could offer the discriminatees employment at jobsites other than the ones from which they were terminated cannot be precluded. It is thus conceivable that the traditional remedy might be in the best financial interests of some of the in- volved Respondent Employers.3o Due to these considerations and doubts as to the wisdom of departing from normal procedures in the absence of briefing, the Examiner is of the opinion that the traditional "make whole" order lus "reinstatement" order should be issued in this proceeding as against General Counsel's pro- posed nonconventional money-only order. It is possible that General Counsel has proposed a money-only order because of the belief that such an order would be easier to translate into the specifics of a compliance order, but the Trial Exam- 29 Even this is not clear from doubt as it is possible that some of the discnmmatees may prefer to return to the employment of their former re- spective Respondent Employers if work is still available at the old worksite or at some new worksite that the Employer may have in what the employee maa regard as a favorable location with references to his residence It is conceivable that one of the discrimmatees herein was able to start a new job the very next day after his discharge with another employer at the same rate of pay It is also conceivable that he might be employed on such new job until the very day the recommended orders herein "to make him whole" and "to reinstate him" become effective, but on that very day he lost his second job. Under these facts as of that day there would be no liability on the part of the discriminatee's Employer herein for backpay because the discnminatee has of that day had no lost earnings by reason of his discnm- inatory discharge But let us suppose that on the very day the discnminatee lost his second job, his present Employer was in the position to offer him reinstatement to his former position on anotherjobsite . It would obviously be to the Employer's financial advantage to do so rather than to take on a possible future financial liability for backpay under the "make whole" prov- ision of the order in the event the discriminatee was unable to find new employment. This hypothetical situation is subject to many variations under which it could be to the Employer's best financial interest to reinstate a discnminatee rather than to make him whole finer is of the opinion that the traditional order would not be any more difficult in that respect. Under either type of order, the common problem would be the determination of a cut-off date for backpay in view of the fact that the em- ployment here involved was by its nature temporary. This in turn involves the to some degree speculative problem of determining how long a period of employment with the Respondent Employers each of the discriminatory dischar- gees could have reasonably had under normal circum- stances in the absence of their unlawful discharges. This is a matter for investigation and determination in the compli- ance stage of this proceeding and is in any event not proper- ly before the Trial Examiner under the pleadings herein. Respondent Barnes and Respondent Clark, Hutchins and Reed, Inc., are companies engaged in the business of elec- trical construction work in new industrial plants under con- struction. When such electrical construction is completed, all jobs thereon end automatically. At the height of its elec- trical work at the Little gypsy jobsite in 196 9, Respondent Barnes employed some 78 journeymen electricians; at the time of the trial herein in April 1969 when its work appears to have been nearing completion, Barnes had only 12 elec- tricians on the Little Gypsy jobsite. On the other hand, Respondent Clark, Hutchins and Reed, Inc., had completed its electrical subcontract for Union Carbide at Taft on Feb- ruary 28, 1969, and all of its remaining employees were terminated at that time. Although the Trial Examiner is not in agreement, it is understandable why General Counsel does not seek reinstatement for the discriminatory dischar- gees of these two Employers as their jobs have obviously disappeared with the completion or near completion of the involved electrical work, but seeks only money compensa- tion to make up for lost earnings. However, the situation with Respondent Westinghouse is quite different. It is not engaged in the construction of new electrical work but only in the maintenance of existing elec- trical work at the Union Carbide plant under a 3-year con- tract which at the time of the trial herein was under or about to be under negotiation for renewal . It maintains a more or less permanent staff of, journeymen electricians at the Un- ion Carbide plant subject only to normal layoffs due to normal fluctuations of the workload therein from week to week. It was found above that it discriminatorily discharged Journeymen Electrician Santangelo. As Westinghouse maintains a permanent staff of electricians at the union Carbide plant, an order for the reinstatement of Santangelo to his old or substantially equivalent position with Westing- house does not pose the problems involved in ordering reinstatement of the discnminatory dischargees of Respon- dent Barnes and Respondent Clark, Hutchins and Reed, Inc., to jobs that have become nonexistent unless those employers could offer jobs at other worksites. Notwith- standing this difference between Respondent Westinghouse and the other two Employer Respondents, General Counsel without any explanation seeks only money compensation for Santangelo without reinstatement. The Examiner will recommend that a standard order be entered in the West- inghouse case requiring Westinghouse to both make San- tangelo whole for loss of earnings and to reinstate him. The problem of remedy is even more difficult in the case of Respondent Local 130 than in the case of the Respondent Employers. Although the findings show that Local 130 caused the discharge of the six discriminatees here involved, it is ob- vious that Local 130 cannot be ordered to reinstate them to their former positions as Local 130 has never been their employer. The term "reinstatement" as it relates to Local 130 can have meaning only as it relates to Local 130's exclu- WALTER J. BARNES ELECTRICAL CO. sive right of job referrals under its collective-bargaining agreement . In the opinion of the Examiner this exclusive power of job referrals gives rise to correlative duty on the part of Local 130 to find new employment for the discrinii- natees through its referral system to right its wrongs against them if the Respondent Employers are unable to affect their reinstatement. But as in the cases of the Respondent Em- ployers, General Counsel does not seek such redress from Local 130 but only a "make whole" order for loss of earn- ings . On the subject of a "make whole " order the Examiner is in agreement with counsel for General Counsel and Charging Parties that it should be made thejoint and several liability of Respondent Local 130 and the involved Employ- er Respondents. For the reasons indicated , an order will be recommended requiring Local 130 to find employment through its job referral system for the discriminatees if the Respondent Employers are unable to reinstate the discriminatees to their positions either at their original jobsites or new jobsites. However, the execution of this objective presents difficulties which are two-fold. The first of these grows out of the fact that Local 130 under its collective -bargaining contract maintains for present purposes three registers for referrals of applicants for employment with varying degrees of prior- ity; to wit, one of the highest priority for members of Local 130; another register for "travelers ' who are members of IBEW but through locals other than Local 130; and a third register for "permit" men who are not members of any IBEW local . Under Local 130's priority system , "travelers' get job referrals only if there are no regular members of Local 130 available to take referrals and "permit" men get referrals only if there are no regular members of Local I30 or "travelers" available to take referrals. Thus the first problem that comes up in writing an order which requires Local 130 to place the discriminatees on its referral registers is the determination of which of the three described registers they should be allowed to sign. Counsel for the Charging Parties requests that the three travelers among the six discriminatees here involved be allowed to sign the top referral register reserved exclusively for regular members of Local 130 . The Trial Examiner is of the opinion that this would be unfair to the 1 , 100 regular rank-and-file members of Local 130 who obviously had no part in the unlawful action of Local 130 in causing the discharges of the discriminatees herein . For this reason, the Trial Examiner concludes that the discriminatees shall be allowed to place their names only on the referral registers reserved for their classification as either "travelers" or "permit" men. The second problem arises from the alternative request of the Charging Parties that they should be placed at the head of their respective registers so as to be entitled to the first referrals that are made from their registers . The Trial Exam- iner is of the opinion that this request is meritorious and would not be unfair to other travelers and permit men as the requested remedy would be merely a redress of wrongs com- mitted' by Local 130 to others of their classification and would represent the kind of redress they themselves would want for themselves if they had been the victims of discrim- inatory discharge. A recommended order will be entered below requiring Respondent Local No. 130 to place the names of discrimi- natees Tacke, Lenard, and Wederstrandt at the head of its referral register for "travelers" and the names of discrimina- tees McQuee, McGehee, and Santangelo at the head of its referral register for "permit" men under the directive that they should be offered referrals to jobs ahead of and before any other applicants on the same registers are offered refer- rals for jobs . It will be further ordered that Respondent 215 Local No. 130 keep the said discriminatees at the head of their respective referral registers for a period at least equiva- lent to the period of employment they would have had with Respondent Barnes in the absence of their discriminatory discharges unless it comes to Local 130's attention that the said discriminatees have obtained reinstatement from Re- spondent Barnes for approximately the same period of time. As Local 130 has job stewards on all jobs within its jurisdic- tion, information that the discriminatees have been reinstat- ed should reach them practically from the moment the reinstatements occur. Local 130 will be required without further order to place the names of the 6 discriminatees on the registers of their respective classifications without any necessity on their part to call at Local 130's hall for the purpose of signing such registers in order that they may not be obliged to lose time from any employment they may have by the necessity to sign such registers in person. For similar reasons Local 130 will be required to notify the discriminatees by telegraph or letter or by telephone, confirmed by written notice, that they are being offered job referrals whenever such job referrals become available to them. Local 130 shall be job required to hold such refer- rals open for the discriminatees until the starting time of the morning after the day on which such notices are received by them. It will be further required that the job referrals be offered alphabetically to the discriminatees ; that is, for ex- ample in the case of Tacke, Lenard, and Wederstrandt, the first such referral shall be to Lenard , the second to Tacke, and the third to Wederstrandt. It will be recognized that all possible contingencies can- not be provided for in the recommended orders below. The Trial Examiner anticipates, however, that in the compliance stage reasonable accommodation will be made by all parties to the basic purpose of the recommended orders herein to place the discriminatees as nearly as possible in their pre- discharge status quo. Counsel for the Charging Parties in his brief has addition- ally requested an order directing Respondent Local 130 to offer the "permit" discriminatees herein "membership in the union [Local 130] if they are able to meet the necessary qualifications," and for a further order directing Local 130 'to offer" Santangelo "membership in the union or appren- tice program if he is able to meet the necessary qualifica- tions." These requests are denied because they are not within the issues of this consolidated proceeding and in any event present matters which appear to be beyond the jurisdiction of the National Labor Relations Board. In line with the finding that Respondent Barnes discrim- inatorily discharged Tacke , Lenard, and Wederstrandt in violation of Section 8(a)(3) of the Act, it will be recommend- ed that Respondent Barnes offer to each of said discrimina- tees immediate and full reinstatement to their former or substantially equivalent positions at any jobsites Respon- dent Barnes may have at the time this order becomes effec- tive, without prejudice to their seniority or other rights and privileges. An identical order will be recommended in the case of Respondent Clark , Hutchins and Reed , Inc., with respect to its employees and discriminatees, McQueen and McGehee. In the case of Respondent Westinghouse a standard reinstatement and make whole order will be recommended with respect to its employee and discriminatee Santangelo. The Respondent Employers shall make the above-de- scribed offers of reinstatement directly to their above- named employees independently of Local 130's exclusive referral system and without the necessity for said employees 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to obtain referrals from Local 130 to Respondent Employer. Similarly, in line with the finding that Respondent Local 130 caused Respondent Barnes to discharge Tacke , Lenard, and Wederstrandt because of their activities on behalf of a labor organization, herein rival to Respondent Local 130, it is recommended that Respondent Barnes and Respondent Local 130 be ordered, jointly and severally, to make Tacke, Lenard, and Wederstrandt whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to each of a sum of money equal to the amount each would have earned from the date of the discrimination against him until such discrimination has been fully eradicated, less the net earnings of each during the discriminatory period . Backpay with interest at the rate of 6 percent per annum, shall be computed in the manner set forth in K W. Woolworth Company, 90 NLRB 289, 291- 294, and Isis Plumbing & Heating Co., 138 NLRB 716. Identical joint and several liability orders "to make whole" will be recommended against Respondent Clark, Hutchins and Reed, Inc., and Respondent-Local 130 with respect to discriminatees McQueen and McGehee. Likewise an identical joint and several liability order "to make whole" will be recommended against Respondent Westinghouse and Respondent Local 00 with respect to discriminatee Santangelo. Having found that the Respondent Employers and Re- spondent Local 130 have also engaged in certain other un- fair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. [Conclusions of Law and Recommended Order omitted from publication.]- APPENDIX The following is excerpted from the collective-bargaining agreement between Respondent 130 and South Louisiana Cha ter, Inc., National Electrical Contractors Association of New Orleans, Louisiana (Res. Barnes' Exh. 4). ARTICLE V Hiring Procedure Section 5. The Union shall maintain registers (or out of work lists) of applicants for employment established on the basis of the groups listed below . Each applicant for employ- ment shall be registered in the highest priority group for which he qualifies. Registration lists shall be available for inspection by parties to this Agreement and applicants be- tween the hours of 8 o'clock A.M. and 9 o'clock A.M. each day, Monday through Friday, inclusive. The dispatcher shall be on duty 7 : 30 o'clock A.M. to accept calls for appli- cants. The Union agrees to accept calls for applicants from 7:30 o'clock A.M. until 4 o'clock P.M. the day prior to their employment. The ours are as follows for each geographi- cal area provided for hereunder: Section 6. Group 1: All applicants for employment who have five (5) or more years experience in the electrical con- struction industry in any one or more of the classifications listed herein, are residents of the respective geographical areas constituting the normal construction Labor Market, have passed a Journeyman's examination in their respective classification given by a duly constituted Local Union of the I.B.E.W., and whose employment for a period of at least two (2) years in the last five (5) years has been subject to, or covered by a collective Bargaining Agreement to which Local # 130 has been or is a party. Section 7. Group II : All applicants for employment who have five (5) or more years experience in the electrical construction industry in any one or more of the classifica- tions listed herein, and who have passed a Journeyman's examination in their respective classification , given by a duly constituted Local Union of the I.B.E.W. Section 8. Group III. All applicants for employment who have two (2) or more years experience in the electrical con- struction industry in any one or more of the classifications listed herein, are residents of the respective geographical area constituting the normal construction Labor Market and whose employment for a period df at least six (6) months in the last three (3) years has been subject to, or covered by a collective Bargaining Agreement to which Lo- cal # 130 has been, or is a party. Section 9. Group IV : All applicants for employment who have worked in the Electrical construction industry for more than one (1) year continuously. Section 10. Definitions: Two separate and distinct areas shall constitute the normal construction Labor Market: The two (2) areas are designed as follows : ( 1) New Orleans, Louisiana and vicinity, consisting of the Parishes of As- sumption, Jefferson, Orleans, Plaquemines, St. Bernard, St. Charles, St. James and St. John the Baptist. (2) Houma, Louisiana and vicinity, consisting of the Parishes of La- fourche, Terrebonne, and the Southern segment of St. Mar- tin, and that portion of St. Mary northeast of the Atchafalaya River. Section 11 . The above geographical area is agreed upon by the parties to include the areas defined by the Secretary of Labor to be the appropriate prevailing wage areas under the Davis-Bacon Act to which this agreement applies, plus the commuting distance adjacent thereto, which includes the area from which the normal labor supply is secured. Section 12. Resident means a person who has maintained his permanent home in one of the above defined geographi- cal areas for a period of not less than one (1) year or who, having had a permanent home in such area, has temporarily left with the intention of returning to this area as his perma- nent home. Section 13 . Examinations : An "examination" shall in- clude experience rating tests , if such examination shall have been given prior to November 1, 1958 , but from and after November I, 1958 shall include only written and/or practi- cal examinations given by this Local Union or any other duly constituted Local Union of the I.B.E.W. Reasonable intervals of time for examinations are specified as not over six (6) months, except that if an applicant has failed twice he must wait one (I ) year before being afforded another examination. An applicant shall be eligible for examination if he has five (5) years' experience at the trade. Section 14 . The Registers (or out of work lists) main- tained by the Union all list the applicants within each group in chronological order of the dates they register their availability for employment. Section 15. The on shall set up a separate list for (1) Industrial-Commercial-Residential-Marine Construc- tion, (2) Industrial--Commercial-Marine Motor Shop re- pairs, (3) Industrial--Commercial Line Construction and shall restrict men to registration on the list on which they have been primarily employed in their respective geographi- cal areas. Each applicant shall be permitted to place his name on only one appropriate employment list. WALTER J. BARNES ELECTRICAL CO. Section 16. The Employer shall advise the Business Man- ager of the Local Union of the number of applicants needed in either (1) Industrial--Commercial-Residential-Ma- rine Construction, (2) Industrial-Commercial-Marine Motor Shop Repair or, (3) Industrial-Commercial Line Construction and the geographical area in which the job is being performed. Section 17. The Business Manager shall refer applicants to the Employer by first referring Industrial-Commer- cial--Residential--Marine Labor applicants in Group I from the geographical area where thejob is to be performed, unless the request is specifically for Line Construction La- bor applicants to be used on Indutrial-Commercial-Line Construction. Section 18. After the list of Industrial-Commercial- Residential-Marine Labor applicants in Group I is ex- hausted, the Business Manager shall then refer applicants form the Industrial-Commercial-Marine Motor Shop re- pair ap licants list in Group I. When the two above Group I list ofpapplicants has been exhausted the Business Manag- er shall then refer applicants from the Industrial-Commer- cial Line Construction applicant list in Group I. Section 19. When the Group I list for a designated ge- ographical area has been exhausted the Business Manager shalldispatch (1) Industrial-Commercial-Residential- Marine Construction (2) Industrial-Commercial Marine Motor Shop Repair, or (3) Industrial-Commercial Line Construction Labor applicants in chronological order from the Group II and Group III lists in the particular geographi- cal area in,which the job is being performed. Section 20. When all applicants in Groups I, II and II in the area in which the job is being performed have been exhausted, the Business Manager shall then dispatch appli- cants from each of the other geographical area in chrono- logical order from Groups I, II acid III in their respective order. Section 21 . When Groups I, II and III applicants in all georgraphical area have been exhausted, then Group IV applicants from the geographical area in which the job is being performed shall be referred and then after this list of applicants is exhausted the Group IV applicants from each of the other geographical areas shall be referred in chrono- log^'cal order. section 22. If the registration list is exhausted and the 217 Union is unable to refer applicants for employment to the Employer within forty-eight (48) hours from the time of receiving the Employer's request, Saturdays, Sundays, and holidays excepted the Employer shall be free to secure ap- plicants without using the referral procedure, but such ap- plicants, if hired, shall have the status of "temporary employees." The Employer shall notify the Business Man- ager promptly of the names and Social Security numbers of such temporary employees, and shall replace such tempo- rary employees as soon as registered applicants for employ- ment are available under the referral procedure. Provided that the Emplo er's right to reject as above provided shall not be affectedyby this provision. Section 23. Each applicant shall be available for employ- ment 8 o'clock A.M. to 9 o'clock A.M., Monday through Friday, inclusive. Every applicant shall re-register every ninety (90) days in order to retain his appropriate place in his group. Failure of an applicant to re-register shall cause said applicant's name to be removed from the out-of-work list. Ifowever, in the case of bona fide sickness , substantiat- ed by a doctor's certificate, or services in the armed services, the applicant shall maintain his original position on the list of his group. Section 24. The Employer shall advise the Business Man- ager of the Local Union of the number of applicants need- ed. The Business Manager shall refer applicants to the Employer in the order and on the basis set forth herein. Any applicant who is rejected by the Employer shall then be returned to his appropriate place within his Group and shall be referred to other employment in accordance with the position of his Group and his place within the Group. Section 25. The only exceptions which shall be allowed in the order of referral are as follows: (Sect. 26-28) Section 26. When the Employer states bona fide require- ments for special skills and abilities in his request for appli- cants, the Business Manager shall refer the first applicant on the register possessing such skills and abilities. Section 27. Any applicant employed by an Employer for less than fifty (50) hours (actual hours worked) and then terminated by said Employer shall retain his original posi- tion on the list of his Group. Any applicant uittin a job after having worked less than fifty (50) hoursactual hours worked) shall be placed at the bottom of the list of his Group.