Local 40, Boilermakers

738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Lodge No. 40, International Brotherhood of Boilermakers, Iron Shipbuilders,Blacksmiths, Forg- ers and Helpers, AFL-CIO; International Broth- erhood of Boilermakers, Iron Shipbuilders, Black- smiths, Forgers and Helpers, AFL-CIO (Riley- Stoker Construction Co.) and Gary B. Dorris. Case 9-CB-2036-1-2 June 20, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On March 7, 1972, Trial Examiner John G. Gregg issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions and a supporting brief, the Charging Party filed "Excep- tions and Acquiescence," and the General Counsel filed limited exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions, except as modified herein.' AMENDED CONCLUSION OF LAW Add the following to the Trial Examiner's Conclu- sion of Law 5: ... and by causing and attempting to cause employers who are parties to an exclusive hiring arrangement with Respondents to refuse to hire Gary Dorris for available jobs by refusing to refer him for employment because he filed unfair labor practice charges with the Board, the Respondents have violated Section 8(b)(2) and (1)(A) of the Act. i The Trial Examiner credited Dorris' testimony that after his layoff at Riley-Stoker, he regularly called Quisenberry for work referral, but Quisenberry not only kept telling him that he had no work for him but "also told him that the reason he couldn't work Doms was because he had filed charges" and that Quisenberry had been instructed by Business Manager Hall "not to work" Dorris. The Trial Examiner found an 8(b)(l)(A) violation, viewing this as interference with Doms' right to Board process, a violation not specifically alleged but litigated No exceptions have been filed concerning it The quoted testimony, however, also supports an 8(b)(2) violation based on causing and attempting to cause other employers who were parties to the exclusive hiring contract to refuse to hire Dorris by refusing to refer him, though the complaint states "because Doms was a nonmember of Respondent Local " The Trial Examiner recommended dismissal of that allegation , apparently consistent with his not finding a discriminatory hiring practice with respect to nonmembers . Inasmuch as refusal to refer an employee for having filed charges is clearly discnminato- ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Local Lodge No. 40, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, and International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, their officers, agents, and representatives, shall: 2 1. Cease and desist from: (a) Attempting to cause Riley-Stoker Construction Company to discharge employees in violation of Section 8(a)(3) of the Act because of nonmembership in the Local Lodge or otherwise discriminate against any employee in regard to his hire or tenure of employment or terms or conditions of employment. (b) Causing and attempting to cause employers who are parties to an exclusive hiring arrangement with Respondents to refuse to hire Gary Dorris for available jobs by refusing to refer him for employ- ment because he filed unfair labor practice charges with the Board. (c) Restraining and coercing employees of Riley- Stoker Construction Company by statements or threats that if nonmember employees failed to quit or volunteer for layoff so that they could be replaced by members of the Local Lodge they would never work again in the jurisdiction of the Local Lodge. (d) In any like or related manner restraining or coercing employees of Riley-Stoker Construction Company, or any other employer, in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment in accordance with Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Notify Riley-Stoker Construction Company that the Respondents have no objection to the ry and was litigated at the hearing as part of the explanation for the refusal to refer Doms to unspecified employers in the geographic area covered by the exclusive hiring arrangement, we find 8(bX2) and derivative 8(b)(1)(A) violations, as well as the 8(b)(l)(A) violation found by the Trial Examiner To remedy this additional 8(b)(2) violation we shall include a make-whole provision in the Order, leaving the computation of the actual loss, if any, to the compliance stage of this case. 2 The Trial Examiner ordered the Respondents to take the steps provided in the "appropriate Constitution and Bylaws" to consider without delay Doms' request for membership in Local Lodge 40. We find ment in the Respondents' exception requesting that this provision be eliminated from the remedy . Discrimination in employment on the basis of union membership is, of course, forbidden by the Act This the Board will remedy, but it does not undertake to rectify internal union action of the sort here present with respect to union membership. 197 NLRB No. 115 LOCAL 40, BOILERMAKERS reemployment of Gary Dorris and furnish Gary Dorris a copy of such notification. (b) Make whole Gary Dorris for any loss of pay he may have suffered because of the discrimination against him incident to the refusal to refer him to jobs because he filed unfair labor practice charges with the Board. (c) Post at its offices and its meeting places where members who are employed by the Employer meet, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondents' representatives, shall be posted by Respondents immediately upon receipt thereof, and be maintained by Respondents for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Upon receipt from said Regional Director of additional copies of said notice, sign them and mail them to the Regional Director for Region 9 for posting at the construction site of the Employer at Hawesville, Kentucky, the Employer being willing to so do. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. 3. Violations alleged in the complaint and not found herein are hereby dismissed. 3 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 read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT attempt to cause Riley-Stoker Construction Company to discharge employees or otherwise discriminate against them in regard to hire or tenure of employment or terms or conditions of employment in violation of Section 8(a)(3) of the Act. WE WILL NOT attempt to cause said Employer to discriminate in regard to the hire or tenure of employment of any employee except to the extent authorized by an agreement made in accordance with Section 8(a)(3) of the Act. This means we will not request the discharge of any employee 739 because he is not a member of Local Lodge No. 40. WE WILL notify said Employer, in writing, that we withdraw our request for the termination of employment of Gary Dorris and we will notify Gary Dorris in writing, that we are withdrawing our request for termination of his employment and any objection to his reemployment when appropriate. WE WILL NOT inform or threaten employees of Riley-Stoker who are not members of Local Lodge No. 40 that if they fail to quit or volunteer for layoff so that they could be replaced by members of Local Lodge No. 40 they would never work in the jurisdiction of Local Lodge No. 40 again. WE WILL NOT inform employees that they would not be referred to employment because they filed charges with the National Labor Relations Board. WE WILL NOT cause or attempt to cause employers who are parties to an exclusive hiring arrangement with us to refuse to hire Gary Dorris for available jobs by our refusal to refer him for such employment because he filed unfair labor practice charges with the Board. WE WILL make whole Gary Dorris for loss of pay suffered by refusal to refer him to jobs because he filed unfair labor practice charges with the Board. LOCAL LODGE No. 40, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO (Labor Organization) By Dated ,(Representative) (Title) INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS , FORGERS AND HELPERS, AFL-CIO (Labor Organization) By Dated (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN G. GREGG, Trial Examiner : This trial under Section 10(b) of the National Labor Relations Act was conducted at Owensboro, Kentucky, on November 18, 1971, pursuant to a complaint and notice of hearing dated September 10,-1971, based on charges duly filed. The complaint alleges essentially that the Respondents by certain conduct as alleged therein engaged in unfair labor practices proscribed by Section 8(b)(1)(A) and (2) of the Act. The Respondents deny the commission' of any unfair labor practices . In their brief submitted subsequent to the trial herein , the Respondents renewed a motion to dismiss the complaint herein against the Respondent International, on the basis that the individuals committing the acts allegedly violative of the Act were not agents of the Respondent International. This issue is disposed of by the decision hereinafter, as is the Respondents' renewal of its motion to dismiss based on the alleged failure of the General Counsel to prove that preference was given to members of Local 40 in the maintenance and operation of the referral system. Upon the entire record in this case , and from my observation of the demeanor of the witnesses as they testified and careful consideration of the briefs filed by the parties, I hereby make the following findings and conclu- sions: FINDINGS OF FACT 1. JURISDICTION Riley-Stoker Construction Co., herein called the Em- ployer, is a Massachusetts corporation with its main offices located in Worcester, Massachusetts. The Employer is engaged in the building and construction industry as a general contractor throughout the United States. During the past 12 months, which is a representative period, the Employer had a direct inflow of goods and materials in interstate commerce valued in excess of $50,000 which it purchased and caused to be shipped to it in Kentucky directly from points outside the State of Kentucky. At all times material herein, the Employer is and has been an "employer" as defined in Section 2(2) of the Act, engaged in "commerce" and in operations "affecting commerce" as defined in Section 2(6) and (7) of the Act, respectively. II. THE LABOR ORGANIZATIONS INVOLVED Local Lodge No. 40, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, are now, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges essentially that the Respondents restrained and coerced employees of the Employer in the exercise of the rights guaranteed them in Section 7 of the Act by (a) the conduct of Daniel Quisenberry on or about June 20, 1971, in informing an employee that Elmer Hall, the Respondents' business manager, announced that if the Employer's employees at the Big Rivers power plant construction site who were not members of the Respondent Local failed to quit their employment at the jobsite or volunteer for layoff so that they could be replaced by members of the Respondent Local, such employees would never work in the jurisdiction of the Respondent Local again; (b) the conduct of Moses Johnson on or about June 21, 1971, in threatening an employee of the Employer, that he would never again work within the jurisdiction of the Respondent Local if he failed to volunteer for layoff so that he could be replaced by a member of the Respondent Local. The complaint also alleges essentially that on or about June 23, 1971, pursuant to an agreement, under- standing, or arrangement with employers within the geographical jurisdiction of the Respondent Local requir- ing membership in, clearance, or referral from, or approval of the Respondents as a condition for employment, or which accords preference in employment to members of the Respondent Local in a manner violative of Section 8(a)(3) and 8(b)(2) of the Act, the Respondents attempted and caused the Employer to discharge Gary B. Dorris, a nonmember of the Respondent Local because of his lack of membership in or approval by the Respondent Local for continued employment at the Employer's.jobsite at the Big Rivers power plant at Hawesville , Kentucky. Additionally, the complaint alleges that on June 23, 1971, and at all times thereafter, the Respondents have caused and attempted to cause other employers whose jobsites are located within the geographical jurisdiction of the Respon- dent Local to refuse to hire Gary B. Dorris for available jobs by refusing to refer him for employment by said employers, although the said Dorris registered for referral by the Respondent Local to said jobs in accordance with the agreement referred to above , and all because he was a nonmember of the Respondent Local and all in violation of Section 8(b)(1)(A) and (2) of the Act. In its answer, the Respondents denied the commission of any unfair labor practices, and in their brief, the Respon- dents, while conceding the agency status of Business Manager Elmer Hall, Assistant Business Manager Darnel Quisenberry, and Steward Moses Johnson as far as the Respondent Local 40 was concerned, denied the agency status of these individuals as far as the Respondent International is concerned. The record discloses that Gary B. Dorris became a member of the Respondent International in 1964 and has been a member since that date in what is known as the National Transient Member unit members of which may LOCAL 40, BOILERMAKERS deposit their cards in any of the local lodges by complying with certain requirements of both the International constitution and the local lodge bylaws. Robert Metcalf, a boilermaker and member of the Respondent International for almost 5 years, currently employed at TVA within the jurisdiction of Local Lodge No. 40, testified that he had worked out of Local Lodge 40 since 1966, has known Dorris, the Charging Party herein, for about 12 years, and was employed with Dorris on the Big Rivers job in 1968 . Metcalf testified that Dorris possessed an NTM card, referred to as a travel card, which he mailed to Elmer Hall , the business agent for Local Lodge 40. Metcalf testified that in June 1971 he and Dorris were laid off the job. According to Metcalf , he was asked to "drag up" by the union steward, Moses Johnson, a few days before he was laid off . Metcalf stated that he and Quisnell were welding when Johnson came up , called them to the side, and asked them to "drag up." Metcalf stated that he refused to do so. According to Metcalf , Johnson then said that he didn't blame Metcalf and that the suggestion did not come from him but was passed on down from Elmer Hall in Louisville , "That all out of Local men would either drag up, or they wouldn't work in the local anymore." According to Metcalf, Johnson sympathized with him and stated that Quisenberry, the assistant business agent in the area, didn't have anything to do with it, that it all came from the Louisville office from Elmer Hall and that Mr. Simms had called Mr . Pentecost, who was the erector on thejob for Riley-Stoker and told him to get nd of all of the out-of-Local men on the job as he wanted to replace them with Local 40 men . Metcalf stated that later that day Johnson again came around and asked him and Quisnell if they wanted to volunteer for the layoff and they refused again. According to Metcalf , a day or 2 later he was laid off . He recalled that about 12 men were laid off. According to Metcalf, subsequently, some time in July, he was contacted by Quisenberry and as a result of that call went to work the next morning . Later he called Simms to obtain employment at TVA, the job he presently holds. Metcalf testified that after his layoff on June 23 he did not go in and sign the out-of-work list of Local 40 because as he stated "they don't have any out of work lists for you to sign." Metcalf testified that the men ordinarily called in and ask to have their names put on the list, but that after his layoff on June 23 he did not call in to ask to have his name put on the list. Metcalf testified that , even though he did not call in, he was referred to the TVA job . Metcalf continued his testimony, stating that on June 23, twelve workers were laid off the job. He thought that only 1 of these 12 was a member of Local 40 and he did not believe that any NTM cardholders or workers other than those carrying Local 40 cards were retained. According to Metcalf, he had made an application for work on the TVA project and although men were being sent to that job everyday, there was no action on his application until he called Simms at Local 40 . According to Metcalf, he told Simms that he knew that Simms was sending men to the TVA job from all over the country, that Metcalf's name was on the list, and that he couldn't understand why he 741 couldn't get a job. According to Metcalf, he told Simms "I was either going back to make the job or I was going to file charges, that I had a family to support myself, and I was tired of making 8, or 6, or 7 thousand dollars a year when everybody else was 18 or 20." According to Metcalf, Dorris had also called Simms and threatened to file charges "before he got on the job." According to Metcalf, Simms told him to be there at 8:30 the next morning to pick up a referral. Metcalf testified that when he arrived at the jobsite at TVA there were men there from out of State. Gary Dorris testified that he was employed at the Three Rivers plant in July 1968 and remained there for a little over 2 years. According to Dorris, in August 1970, he left the Big Rivers job and went to Babcock and Wilcox at Central City, Kentucky. He then returned to the Big Rivers project and remained on the job until June 23, 1971. Dorris stated that he is a welder possessing special skills for welding and has passed every test that the Local has to offer. Dorris stated he had been a member of the Boilermakers Union since 1964 and has held continuous membership. Dorris stated that he holds a National Transient Member card and has held that card for approximately 7 years. Dorris testified that he had attempted to transfer his NTM card into the Local Lodge and made his first attempt to do so after release from the penitentiary in 1968. He was refused by the business agent of Local 40. According to Dorris, while Local 40 refused to take his withdrawal card they instructed him to go on a tank job for 1 day and to have his card reinstated in the NTM unit instead of taking him into Local 40. According to Dorris, at the time he was instructed to take a tank job for 1 day by the Local, he was employed with Wilhoite Steel Erectors at Louisville, Kentucky, and was still on the payroll while being sent to another job. After working for 1 day on the tank job, according to Dorris, he went back to work on the job at Big Rivers. According to Dorris, after his travel card was sent to him at his request, he had witnesses verify that he mailed it to Elmer Hall, the business agent of Local 40. Dorris stated that a day before the layoff at Big Rivers on June 23, 1971, Quisenberry summoned him to Quisen- berry's residence where Quisenberry told him that Business Agent Hall of Local 40 claimed that Dorris' travel card was not in Local 40 and he did not know where it was. According to Dorris, Quisenberry added that Hall wanted every man to "drag up" on the job at Louisville, Kentucky, and make room for Local 40 men or "they will never work in this Local again." Dorris stated that he refused to do so. According to Dorris, the next morning after a discussion with Tom Keuwan they asked Moses Johnson, the union steward, not to lay them off because it might involve charges. According to Dorris, Johnson said he was only acting on orders from Quisenberry that came from Hall, "and he told me the same thing, to drag up and make room for Local 40 men or I'd never work for this Local again." According to Dorris, later that evening Johnson asked him to sign a voluntary layoff slip which Dorris refused to do. According to Dorris, after the layoff at Louisville, Quisenberry sent numerous people out to different jobs. Doms testified that after he was laid off, Quisenberry called him one night at which time he asked Quisenberry 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD why he had sent Spalding out on two or three different jobs while Dorns was still unemployed and, according to Dorris, Quisenberry said that he had heard that Dorris was out of town and added, according to Dorris, "I heard that you was out of town and also, that you filed charges, and Mr. Hall says not to work you anymore in this Local." According to Dorris, between the time he was laid off on June 23 and he was again employed on September 4 he believed that other men were referred to jobs while he was not. Dorris testified that concerning his layoff from Riley- Stoker on June 22, the day before he was laid off, there were about 25 and 30 men on the Riley-Stoker job. According to Dorns, about 12 men were laid off, and of the 12 only 1 man carried a card in Local Lodge 40. According to Dorris, practically all of the men laid off were either NTM cardholders or shop men , and that no NTM card members were left on the job but that those retained were Local 40 members except for apprentices. In his testimony, Dorris stated that after his release from the penitentiary in 1968, he was referred to a job by Quisenberry where he worked for a year and a half to 2 years, including overtime. According to Dorns, he was laid off this job at the end of the work and he was then again referred out to a job by Quisenberry early in 1970. Subsequently, according to Dorris, he was again referred to a job by Quisenberry and then to the Riley-Stoker job by Quisenberry . Dorris testified further that although there had been layoffs on the job prior to June 23, 1971, he had not been laid off. Dorris stated that after his layoff on June 23, he called Quisenberry every 2 weeks and was offered a job at Shawnee on the day that Dorris went to Paradise. According to Dorns, at the tunes that he regularly called Quisenberry after his layoff, Quisenberry told him that he didn't have anything, that he would have to keep calling in. According to Dorris, in his conversations with Quisenberry when he would regularly call after the layoff Quisenberry kept telling him that he had no work for him , and he also told him that the reason he couldn 't work Dorris was because Dorris had filed charges and Hall had instructed Quisenberry not to work him. Dorris did have trouble remembering when the discussion with Quisenberry, in which Quisenberry told him that Hall had instructed him not to work Dorris because of the filing of charges, had taken place . Dorris believed that the conversation took place in July. Dan Quisenberry , assistant business agent for Local 40, testified that Elmer Hall was the business agent and had been the business agent for roughly 16 years , while he, Quisenberry, had been the assistant for about the same time. Quisenberry stated that he and Simms were assistant business agents and that Simms was stationed in the Louisville office when not in the field . Quisenberry stated that he himself worked out of his home . For the most part, Quisenberry's testimony has to do with his understanding of the International constitution, Local Union bylaws, and the Ohio Valley Agreement , relating to the matter of the authority of locals, issuance of travel cards , and transfer of membership. Raymond Napper, general foreman for Riley-Stoker on the Big Rivers project, testified that the decision to have a layoff on June 23, 1971 , was made by the Company a week before the layoff because "we were catching up with our work that was to be done ." Napper stated that he and Job Superintendent Pentecost decided it would take 13 to 15 layoffs with Pentecost indicating those to go. In the selection for layoff , according to Napper, Pentecost took into account "a bunch of people that he keeps with him if he can on his jobs that he can send to other plants and other States to do their work ." Napper stated that qualifications were considered , that there were no other considerations in the selection of individuals for layoff, and that there was no discussion of union membership of the individuals involved. Napper stated that after the layoff about 13 men were retained on the job . According to Napper, when the decision to achieve the layoff was made a week prior to June 23, 1971, he did not advise Union Steward Johnson of the impending action . He did not know whether Pentecost had done so. Napper testified that in the company layoff of 30 men in December 1970 some members of Local 40 were laid off while permit men and other men were retained. In February 1971, when 15 men were laid off , some members of Local 40 were laid off and others retained, and in March 1971 when 6 men were laid off, the Company selected for layoff those men "we thought we could do without." According to Napper, in all these layoffs the procedure was followed of the preparation of a list by Pentecost and consultation between Napper and Pentecost, with Pente- cost having the right to select those for layoff. According to Napper, all of the five men laid off in March were members of Local 40. Analysis, Discussion, Findings, and Conclusions Turning to the threshhold of the agency status of Hall, Quisenberry, and Johnson, it was stipulated that they were agents within the meaning of the Act insofar as the Respondent Local 40 was concerned. The Respondent International denies the existence of such relationship with respect to the Respondent International. There was testimony of record indicating generally that among other things the International constitution is the supreme law of the Brotherhood, that the International has authority to impose trusteeship over local lodges under certain conditions and the right to suspend officers of the local lodges under certain conditions. The constitution itself refers to local lodges and their duties and it is apparent that the International reserves the right of prior approval for such items as combining of offices and appointing assistant business managers . It also provides significantly for the carrying out by the president of the local lodge of all instructions received by him from the International president and numerous other items indicating a closely interwoven relationship between the International and the local lodges. However the International constitution also provides "that except to the extent necessary to accomplish such purposes, the subordinate bodies of the Brotherhood shall have autonomy in the conduct of their affairs . . . and provided, further, that the International Brotherhood shall not be responsible for any actions , activities or omissions of any of its subordinate bodies or their representatives LOCAL 40, BOILERMAKERS 743 unless the same were authorized or directed by the International Brotherhood...." As contended by the Respondents on this record, it has not been established that any International representative was at any time connected with the events material to this case or aware of their occurrence and that the events herein were in effect an administration of its own affairs by the Local. An examination of the relationship between the International and Local reveals close interweaving and the significant existence of potential areas of control of the Local which can be exercised by the details and operations of the Local which can be exercised by the International. The Respondent Local, despite the language of the International constitution, is not an autonomous body but a subdivision of the International and subject to its control. International Brotherhood of Teamsters, etc. v. United States, 275 F.2d 610. The record also discloses that the collective- bargaining agreement between the Respondents and the Employer controlling herein was negotiated by a commit- tee which included Hall, the Respondent Local's agent, in the name of the International Brotherhood and executed by the president of the International Brotherhood and the business manager of the Local Lodge, in effect creating the existence of a joint enterprise between the Respondent Local and the Respondent International affecting the employment of the employees of Riley-Stoker. Under these circumstances, I find that the acts of Johnson, Quisenber- ry, and Hall herein were taken as those of agents of both the Respondent Local and the Respondent International and that both Respondents are chargeable with the consequence of such acts. N.L.R.B. v. International Longshoremen's & Warehousemen's Union, 283 F.2d 558, 565. Accordingly, the Respondents renewed motion to dismiss as to the Respondent International is denied. Turning to the testimony of record, based on my observation of the demeanor of Metcalf as he testified, I credit Metcalf's testimony as to his discussion with Moses Johnson and I find that Johnson requested Metcalf to "drag up" and stated that the request had been passed on down from Elmer Hall. Johnson's statement to Metcalf, which I find was made by Johnson, transmitted to Metcalf an alleged threat by Hall that the out-of-local men would either "drag up or they wouldn't work in the local any more." This testimony is uncontroverted on the record. Although it does not appear from the record that Johnson had heard this alleged threat directly from Hall, or had actual knowledge of what, if anything, was said by Hall, I am convinced that regardless of whether or not Hall in fact made this statement the fact that Johnson, the union steward, passed it on to Metcalf on the job and under the circumstances herein, attributing the statement to Hall, the business manager of the Local, clearly amounts to a threat in violation of Section 8(b)(1)(A) of the Act. International Association of Heat & Frost Insulators, Local 84, 146 NLRB 660. Based on my observation of the demeanor of the witness, Doors, as he testified, I credit his testimony concerning his conversation with Dan Quisenberry at Quisenberry's residence in which, according to Dorris, Quisenberry stated that Hall, the business agent of Local 40, claimed that Doors' travel card was not in Local 40 and Hall did not know where it was and that additionally Hall wanted every man to drag up on the job at Hawesville, Kentucky, and make room for Local 40 men "or they would never work in this local again." Although I find it significant that Quisenberry testified at this trial, he did not deny making this remark nor did he deny making the statement to Doors that Hall had instructed him not to work Dorris because of the filing of charges. Accordingly, I credit Dorris' testimony that the statements were made by Quisenberry to Dorris and that, under the circumstances herein, they clearly amounted to a threat and that thereby the Respondent restrained and coerced employees of the Employer in violation of Section 8(b)(1)(A) of the Act. Additionally, I find that Dorris' right to Board process was interfered with, in violation of Section 8(b)(1)(A), when Quisenberry told him that Hall had stated that Dorris was not to be referred because he had filed a charge with the Board. Amalgamated Meatcutters Local 590, 181 NLRB 773. Turning to the allegation of the complaint alleging that the Respondents attempted to cause and caused the Employer to discharge Dorris, a nonmember of the Respondent Local, because of his lack of membership in or approval by the Respondent Local for continued employ- ment at the Employer's jobsite, based on my observation of the demeanor of the witness, Metcalf, as he testified, I credit his testimony concerning his conversation with Steward Johnson and I find that Johnson did in fact tell Metcalf that Simms, the assistant business agent of the Respondent Local, had telephoned Superintendent Pente- cost and told Pentecost to get rid of all the out-of-local men on the job and that Pentecost had told Simms that he did not want to lay off the out-of-local men because he was satisfied with the men he had, and he still had work for them, and that Pentecost had told Simms that if he did lay anybody off he was not going to replace them. It is significant to me that Johnson was not called to deny this statement nor was Simms called to deny it nor was Pentecost called to deny it. Under these circumstances, an inference is raised that, if called, these individuals would have corroborated Metcalf and, accordingly, I am persuad- ed and I find that the statement was made by Johnson and that, uncontroverted, it has probative value as evidence that the conversations between Simms and Pentecost had taken place as indicated in the statement and accordingly there has been established on this record an attempt by the Respondents to cause Riley-Stoker to discriminate against employees in violation of Section 8(a)(3) of the Act and, accordingly, a violation of Section 8(b)(1)(A) and (2) of the Act. While it is clear to me that the record sustains a finding that the Respondent attempted to cause Riley-Stoker to discharge Dorris, a nonmember of the Respondent Local, because of his lack of membership in the Local, I am unable, in the posture of this case and on the record, to find that the Respondents did in fact cause Riley-Stoker to discharge Doors, a nonmember of the Respondent Local, because of his lack of membership in or approval by the Respondent Local for continued employment at the Employer's jobsite at the Big Rivers project. I am unable to find on this record the evidence necessary 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to bridge the gap between the attempt and the achieve- ment. Based on my observation of the demeanor of the witness, Napper, as he testified, I credit his version of the economic rationale for the June 23 layoff, bearing in mind Dorris' testimony that the layoff took place "at the end of the work" and Napper's statement, uncontroverted on this record, that union membership or nonmembership of those selected for layoff was not considered. This is consistent with the testimony of record indicating a mixed pattern in layoffs in which both union members and nonmembers were selected for layoff. While I am convinced that Simms in fact sought to have Pentecost lay off nonunion members, I am unable to find on this record that Pentecost actually selected individuals for layoff on this basis nor, for that matter, that Dorris specifically was selected for layoff on this basis. Even though Hall and Quisenberry requested Dorris to take a voluntary layoff and may have desired that he do so and transmitted this to Pentecost, there is insufficient evidence on this record to establish that Pentecost acceded to this request or that the layoff of Dorris was not in consonance with the bona fide layoff plan of Riley-Stoker, without regard to the union membership or nonmember- ship of the individuals involved. Accordingly, I shall recommend dismissal of that portion of the complaint alleging that the Respondent caused the layoff of Dorris. The complaint herein alleges additionally that, by refusing on and after June 23, 1971, to refer Dorris for employment with unspecified employers, Respondents have caused such employers to refuse to hire the Charging Party in violation of Section 8(b)(1)(A) and (2) of the Act. It is settled law that a union violates Section 8 (b)(2) and (1)(A) of the Act if, acting under an arrangement with an employer requiring exclusive referral of all employees through a hiring hall, it refuses to refer an applicant for employment because of his lack of union membership. N. L. N.L.R.B. v. United Assn. of Journeymen & Apprentices of the Plumbing & Pipefitting Industry, 424 F.2d 390, 391-392 (C.A. 6, 1970); N.L.R.B. v. IBEW, Local 340, 301 F.2d 824, 827-828 (C.A. 9, 1962). I am unable to find on this record that by refusal to refer Dorris the Respondents caused or attempted to cause other employers to refuse to hire Dorris. The General Counsel urges that it is not necessary that refusal to refer to a specific employer be shown, nor that a job was available, since discrimination may be inferred where the existence of a discriminatory hiring practice is shown, citing Local 450, International Union of Operating Engineers, 122 NLRB 564. However, in the case at hand, the existence of a discriminatory hiring practice has not been established on the record and I do not find such a discriminatory practice to exist. The record, on the contrary, establishes that union nonmembers, including Doors, were regularly referred and hired on projects along with union members, worked regularly, and were sometimes retained when union members were laid off. Nor is there sufficient evidence on this record to substantiate a finding that the failure of the Respondents to refer Metcalf and Dorris to the TVA or any other project at any particular time occurred under circumstances, which would have required the Respondents to refer these individuals in lieu of the individuals who were actually referred. Assuming, arguendo, that it had been found that the Respondents actually caused the discharge of Dorris herein because of his union nonmem- bership, it is questionable whether under such isolated circumstances a finding could be made of the existence of a practice. In any event, the discriminatory practice has not been established on this record and I do not feel compelled to infer the existence of such discriminatory practice on the part of the Respondents herein. Finally, the General Counsel argues that the bylaws of Local 40 plainly set forth procedures for an NTM cardholder to become a member in the Local Lodge. As they are not automatically members of local lodges, in order for them to become a member of the local lodge they would have to go through the procedures and bylaws of the local lodge by depositing their cards and meeting certain other prerequisites . General Counsel urges that, inasmuch as Dorris had attempted to comply with these bylaws and was in compliance with them, the fact that Local Lodge 40 had not admitted him to membership over a considerable period of time is some indication as to their motivation in dealing with Dorris. I am not persuaded by this argument for the basic reason that it has not been established on this record that Dorris was in compliance with all of the requirements for achieving membership in the Local. Accordingly, I will recommend dismissal of those portions of the complaint alleging the existence of a discriminatory practice of according preference in employ- ment to members of the Respondent Local. I shall also recommend dismissal of those portions of the complaint alleging that the Respondents have caused and attempted to cause other unspecified employers to refuse to hire Doors for available jobs by refusing to refer him for employment by said employers because he was a nonmem- ber of the Respondent Local. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents, set forth in section III, above, occurring in connection with the business opera- tions of Riley-Stoker Construction Company, have a close, intimate, and substantial relation to trade, traffic and commerce, among the several States, and such of them as have been found to be unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, I shall recommend that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondents unlawfully sought to obtain the discharge of Gary Dorris on June 23, 1971. However, I have also found that Gary Dorris was laid off by Riley- Stoker in a lawful layoff. Therefore, I shall recommend that the Respondents be ordered to notify the Employer that they have no objection to the reemployment of Gary Dorris at such time as work is available and Doors is reached for referral. LOCAL 40, BOILERMAKERS Although the General Counsel urges a unique remedy requiring the Respondent Local to accept Dorris as a member, I am unable on this record to clearly establish Dorris' right to such membership and the fact of his compliance with all prerequisites for such membership and I will not provide for such a remedy. I will, however, order the Respondents to take such steps as are provided for in the appropriate constitution and bylaws to consider without delay Dorris' request for membership in Local Lodge 40. CONCLUSIONS OF LAW 1. Riley-Stoker Construction Company is an employer within the meaning of Section 2 (2), engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent, Local Lodge No. 40, International Brotherhood of Boilermakers , Iron Shipbuilders, Black- smiths, Forgers and Helpers, AFL-CIO, and the Respon- dent, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers,AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By attempting to cause Riley-Stoker Construction Company to discharge Gary Dorris on June 23, 1971, thereby attempting to cause the Employer to discriminate in regard to the hire or tenure of employment, or terms or conditions of employment of said employee, in violation of 745 Section 8(a)(3) of the Act, Respondents have engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 4. By informing an employee that if employees who were not members of the Respondent Local failed to quit or volunteer for layoff so they could be replaced by members of the Respondent Local such employees would never work again in the jurisdiction of the Respondent Local, and by threatening an employee that he would never again work in the jurisdiction of the Respondent Local if he failed to volunteer for layoff, the Respondent Local restrained and coerced employees of the Employer in the exercise of rights guaranteed them in Section 7 of the Act thereby violating Section ' 8(b)(1)(A) ,of the Act. 5. By informing an employee that he was not to be referred to employment because he had filed a charge with the Board, the Respondents restrained and coerced employees of the employer in violation of Section 8(b)(1)(A) of the Act. 6. With the exception of the foregoing violations, the Respondents herein have not engaged in any other unfair labor practice as alleged in the complaint. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. [Recommended Order omitted, from publication.]