Cives Corp.

846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Northeast Constructors, Division of Cives Corp. and Harold Ross. Case 1-CA-7590 August 10, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 24, 1972, Trial Examiner Harry H. Kuskin issued the attached Decision in this proceed- ing. Thereafter, Respondent filed 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 and to adopt his recommended Order.1 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Northeast Constructors, Divi- sion of Cives Corp., Waterville, Maine, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i Nothing in this order shall be construed as interfering with or limiting the obligation of the Respondent to seek to reach some accomodation with Local No 321, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, concerning the amount of worktime discrimmatee Ross shall be permitted in his capacity as a union steward to spend on his union duties TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY H. KusKIN, Tnal Examiner : This case was heard at Waterville, Maine, on December 2, 1971. A complaint, as amended at the hearing, issued herein on June 16, 1971, based on a charge filed on April 5, 1971, by Harold Ross, an individual, herein called Ross; it alleges that Northeast i The term is defined by stipulation to mean "no productive or essentially no productive work," as distinguished from featherbedding, which Respondent does not claim 2 After the close of this hearing, a motion dated December 29, 1971, was filed herein by counsel for Respondent ( 1) to correct the transcript of the record in certain respects, and (2) to strike all the testimony of Harold Ross in accordance with Rule 102 44(c) of the Board's Rules and Regulations, Series 8, as amended, "on the ground that Harold Ross refused to answer a question as shown at page 61 of the transcript" The statement of service attached to the motion asserts that the motion was served on Harold Ross and on the General Counsel by certified mail As to (I), since the Constructors, Division of Cives Corp., herein called Respondent, has violated Section 8(a)(3) and (1) of the Act by refusing on or about March 19 , 1971, and continuing until June 4, 1971, to refuse, to hire Ross for employment at any of its construction sites because of his union activities on behalf of Local No. 321, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, herein called Local 321. Respondent's answer, as amended at the heanng, denies that it violated the Act in any respect alleged herein ; it asserts further as an affirmative defense that it refused to hire Ross because of its failure to receive "work value"' from Ross as an employee on the Woodland, Maine, project. Upon the entire record,2 including my observation of the witnesses , including their demeanor while on the witness stand, and after due consideration of the briefs of the General Counsel and of Respondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint, as amended, alleges, and Respondent admits, that Respondent is a Delaware corporation with its principal office and place of business in Waterville , Maine, where it is engaged in general construction ; and further that it purchases annually in excess of $50 ,000 worth of materials which originate outside Maine . I find, upon the foregoing, as Respondent also admits, that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent further admits , and I find, that Local No. 321, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. An Overview of Harold Ross' Employment With Respondent Respondent first hired Ross in October 1966 to work at its Berlin, New Hampshire, project. After that, in January 1967, Respondent hired him as a journeyman pipefitter at its Woodland, Maine, project, herein called the Woodland project.3 In December 1969, he was appointed union steward of the pipefitters on that project by John McDonald, the business agent of Local 321, of which he was a member. He continued in that capacity until the corrections sought conform to my recollection of the specific portions of the transcript involved, and as no opposition has been filed thereto, I grant the motion in this respect and hereby correct the transcript in the manner indicated by Respondent As to (2). 1 note that Respondent's counsel, in effect, waived an answer to this question. which was posed during cross- examination, by saying, upon receiving no response thereto, "well, let's forget that question and go on to another one. Mr Ross " Accordingly, apart from the fact that the question posed was an argumentative one, and apart from other considerations, I find the motion in this respect to be lacking in merit and it is hereby denied + This is referred to in the record, at times , as the Georgia Pacific project. 198 NLRB No. Ill NORTHEAST CONSTRUCTORS 847 available work at that project was completed on January 22, 1971, and he was laid off. On February 2, 1971, Respondent hired him as a journeyman pipefitter at its Madawaska, Maine, project, hereinafter called the Mada- waska project. He continued to work there until March 16 when there was a labor dispute on that project over the discharge of Dewey Oulette, the pipefitter steward. At that time, Ross and other pipefitters walked off the job. Ross did not return to the Madawaska job thereafter. When the Woodland project was reactivated4 later that month and Respondent asked Local 321 to refer some pipefitters to it, Ross was available for referral. However, he was not referred by McDonald, the business agent of Local 321, because Respondent told McDonald not to refer him. Ross has not worked for Respondent since that time. Although Respondent did thereafter, on June 4, offer, in writing, to employ Ross for about a week as a pipefitter on the Woodland project, Ross did not respond thereto. Respon- dent admits in its answer, as amended, that it refused to rehire Ross during the period from on or about March 19 to June 4, 1971, because of the way in which he functioned on the job while he was the pipefitters' steward. B. The Details of Ross' Employment at the Woodland Project While He Was a Steward 1. The scope of the Woodland project Respondent was engaged on a site in Woodland, Maine, in construction work relating to the pulpmill for the Georgia Pacific Company. In the performance of this work, Respondent utilized the services of employees in 10 or 12 crafts.5 With specific reference to the pipefitters, credible testimony establishes that there were in the neighborhood of 84 pipefitters, including supervision, when Ross became steward in December 1969; that the complement increased to about 110 by June 1970; that the complement continued at over 100 men during June, July, and August, 1970; and that it then tapered off to 70 men in September 1970 and, by October, was reduced to about 25 men.6 On the site were erected, inter aha, a structure for water treatment, sanitary receiving tanks, lime kilns, acid storage tanks, three boiler houses, a brown stock building, stock storage tanks, dry urn baling areas, three separately housed paper machines, wet urns, a flasher building, a grinders building, a garage, a fab shop, and a wood room. Except for a few buildings, the structures were multistory, with one of the boiler houses being the tallest and having nine stones. The overall length of the project, i.e., the distance from one end of the project to the other end, was about three-fifths of a mile according to DeLorme; and about a mile according to Ross and McDonald. I am persuaded, and find, that the estimate of Ross and McDonald more closely approximated the actual distance. 2. The contractual commitment concerning a pipefitter steward The record shows that, at all relevant times, Respondent was a party to a collective-bargaining agreement with the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO,7 which agreement is applicable to Respondent and Local 321 herein. The agreement covers the period from October 14, 1968, to March 31, 1972, and contains, inter aha, a union-security clause, an exclusive hiring hall provision, and a provision as to stewards. As to the latter, article XII provides in paragraph 53 as follows: A steward shall be a working journeyman appointed by the Business Manager or Business Agent of the local union who shall, in addition to his work as journeyman, be permitted to perform during working hours such of his Union duties as cannot be performed at other times which consists of those duties assigned to him by the Business Manager or Business Agent. It is understood and agreed that the steward's duties do not include any matters relating to referral, hiring and termination. The Union agrees that such duties shall be performed as expeditiously as possible and the Employer agrees to allow the steward a reasonable amount of time for the performance of such duties. In addition, the aforesaid agreement requires Respondent to conform to certain terms and conditions of employment as prescribed in the local agreement . The applicable local agreement is between Pipefitting Contractors Association, Inc., of Maine and Local 321, and covers a period from May 1, 1968, to April 30, 1971.8 Section 15 thereof, which relates to stewards, provides, in relevant part, as follows: The Employer recognizes the right of the Union to designate a Job or Shop Steward to take care of immediate grievances that may arise on the job, also to notify the Business Agent and Employers of the same. A Steward shall be a working Journeyman appointed by the Business Agent who shall, in addition to his work as a Journeyman, be permitted to perform during working hours such of his Union duties as cannot be performed at any other time. Appointment of Stewards shall be on the basis of such Employee's tact and diplomacy. The first Journeyman to start work with the tools on the job shall be acting job Steward until one is officially appointed. On jobs where there is a Steward, he shall have jurisdiction of the job to carry full power to examine all men performing work coming under jurisdiction of the U.A. He shall enforce the proper care of all tools, materials, and equipment that are placed on the job by the Employer. He shall be responsible to point out and to have corrected all known unsafe or hazardous working conditions that may exist on the job. He shall 4 Paul DeLorme, Respondent's vice president for construction in Maine and its general superintendent, testified that Respondent started another job on the project involving the replacement of a steam main by one larger in size 5 The total complement of this project at its peak period exceeded 300 employees 6 There was testimony on complement size by McDonald, DeLorme, and Ross McDonald's testimony impressed me as the more accurate and 1 therefore credit him 7 This agreement will hereinafter be referred to as the national agreement 8 Although not a signatory to this agreement, Respondent was a member of the Pipefitting Contractors Association. inc , of Maine at the time of the execution of the agreement In October 1969, Respondent withdrew from this association 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work all overtime in order to carry out the duties of Steward. Stewards shall not be laid off until completion of job or by mutual agreement between the Employer and Business Representative of Local #321. Stewards shall be allowed reasonable time to coverjob. 3. The manner in which Ross spent his 8-hour day during the period that he was a steward Respondent admittedly did not expect any productive work from Ross on Friday of each week. This was so because Harvard Collins, the piping superintendent of Respondent, had arranged with Ross to cash the paychecks on that day for Respondent's employees and to conduct any union business, if time permitted. Collins testified, in this connection, that, "if we had any amount of men he was a busy boy cashing checks" on Friday. As to what occurred on the other days of the week, there is testimony by Ross that the amount of time it would take him to cover all the buildings on all levels and look in upon the pipefitters working in these buildings varied with the number of pipefitters on the job and the area over which they were spread. Also according to Ross, on days when the pipefitters' complement was at or near its peak, he needed a full 8-hour day to attend to checking out the project and, of this time, 3-1/2 to 4 hours were taken up merely in traversing all the buildings9 and the balance was devoted to attending to disputes or problems that arose; to on the other hand, on days when there were 25 pipefitters on the job, the amount of time he spent working with the tools of his trade varied between 3-1/2 and 5 hours. On the basis of the testimony and my findings above as to the size of the pipefitters' complement during the period of Ross' stewardship, I conclude and find that Ross performed very little productive work, if any, during the period from December 1969, when he began his stewardship, until September 1970; and that, from some time in October 1970 until he was laid off in January 1971, the amount of time he spent each day working with his tools vaned between 3- 1/2 and 5 hours per day. I' 4. The resulting complaints by Respondent concerning the time spent by Ross in his steward duties Preliminarily, I note that McDonald testified that, during at least one of the prejob conferences with Respondent with respect to the Woodland project at which he and representatives of numerous crafts were present, Respondent told all those present that it would have no nonworking stewards on the job. Also, according to McDonald, his own response thereto was that the time that 9 McDonald testified that to walk around the project when 100 pipefitters were on the job would take about 2-1/2 hours or so, while Delorme testified that such a trip would take him "an hour or so ," adding that he was a fast walker 10 Such as, seeking to resolve with management , on his own, a jurisdictional dispute which arose at least once a week, or a safety problem, which occurred about once or twice a week, or a grievance which arose two or three times a week , also seeing to it that all pipefitter work was assigned to pipefitters, as well as checking daily on materials delivered to Respondent to see to it that pipefitter materials were handled only by pipefitters, and attending to new hires of pipefitters by receiving them at the plant gate and seeing to it that they got on the payroll and were introduced to the the pipefitters' steward spend in steward duties would depend on the problems on the job. So far as appears, at least one of the crafts on the Woodland job, namely, the Carpenters, had a provision as to nonworking stewards in its governing contract with Respondent. Thereunder, the Carpenters could have a nonworking steward once its complement on the job exceeded 40 men. The record discloses that management complained about the time Ross was spending on steward duties directly to Ross and also to McDonald. Thus, it is undisputed that Collins complained to Ross "a couple or three times" that he was spending too much time as a steward, and that Ross would reply that he felt that it was necessary to spend that much time.12 Similarly, there is testimony by McDonald that he received complaints that Ross was spending more time than was necessary as a steward, once or twice from Collins and once from Don Golding, the general foreman. According to McDonald, his response thereto was to come to the project and walk through the jobsite with Ross, checking as to the size of the job and the area to be covered, and inquiring from Ross whether he felt that he had "any free time" for productive work; and in instances where there was a large amount of pipefitters who were spread over a large area, and a lot of pipefitting material had come into the warehouse, etc., and if he felt that the time spent by Ross was necessary, he would so inform the management representative involved. Although there was testimony that DeLorme, the vice president of the construction and general superintendent, had spoken to Collins, as well as to Frank Bailey, the project manager, and to one, Warren, the immediate foreman of Ross, about Respondent's dissatisfaction with the way Ross was spending his time, there is uncontradicted testimony by Ross that he was never given a written warning or disciplined or threatened with discharge by any representa- tive of Respondent because of the time he was spending as a steward.13 And in those instances when McDonald advised management, in response to specific complaints to him about Ross in this regard, that he felt that the time spent by Ross in steward functions was necessary under the circumstances, nothing further was done as to that specific complaint. In this connection, Collins testifies as follows during cross-examination by counsel for the General Counsel: Q. Why didn't you fire Ross? A. I fired a steward once and I'm lucky I'm here today. You don't fire a steward. Q. You think its better to refuse to hire them? A. I would say yes. It would save a lot of trouble. Q. Is this the only reason that you didn't fire him, that you wanted to avoid trouble? appropriate foreman Business Agent McDonald summed up Ross' duties as follows to "protect the men and protect the contract to see if the men are working under safe conditions and that their work is assigned to them" 11 Collins testified, in this connection, that he was informed by supervision that from the time that Ross became a steward until about 6 weeks before his layoff in January 1971, Ross spent 90 to 95 percent of his time "patrolling the job " 12 Ross could not fix the times of these episodes, nor was he able to recall what precipitated them However, it would appear from Collins' testimony that one such episode occurred early in Ross' stewardship i i Neither Bailey nor Warren testified in this proceeding NORTHEAST CONSTRUCTORS A. No, I had no reason to fire Mr. Ross. I have known him for a long time. He's a good mechanic. I have no hard feelings against him. All I was trying to do was get some work out of this man for the company and I was unable to do it. It is also noteworthy that, although the national and local agreements provided that stewards were to be working journeymen,14 and although Ross' productive work varied from a little to nothing during the first 9 or 10 months of the 13 months during which he was a steward for the pipefitters on the Woodland job, and although Respon- dent's complaints to Ross and McDonald availed it nothing, it filed no grievance with respect thereto under the applicable provisions of the national agreement. C. The Details of Ross' Employment at the Madawaska Job As already noted, Ross was without employment from the time the Woodland project shut down in January 1971 until February 2, 1971. The record shows that Collins notified those who had been affected by the shutdown at the Woodland project that there was a job opening at Respondent's Madawaska, Maine, project for those men who wanted to go there. In response thereto, Ross applied through union channels and obtained such employment as a pipefitter. He held this job from February 2,'1971, until March 16, 1971. On that day, Dewey Oulette, who was Local 321's steward for the pipefitters on the project, was discharged. This termination precipitated a labor dispute and Ross was one of the pipefitters who left thejob on that day. Ross never returned to the Madawaska job thereaf- ter.is Douglas MacArthur, who was Respondent's project manager on the Madawaska job for an 18-month period beginning in December 1969, and who discharged Oulette, testified that, at the inception, i.e., in December 1969, Oulette was a working steward but, as the number of pipefitters on the project increased, Oulette "became less and less a worker, of doing productive work," with the result that during the period from April 1970 until March 16, 1971, there were days when he did no productive work for a good portion of the time and other days when he performed no productive work at all.16 Here, too, accord- ing to MacArthur, complaints were made to McDonald in an effort to get Oulette to spend less time at steward duties and more time at productive work. 849 pipefitters to the Woodland project that week at the request of Collins, but that he had been told by Collins not to dispatch Ross to the job. Ross testified credibly, in this connection, that he would have taken the job at this project at that time and that it would have been up to McDonald as to whether he went back as the pipefitter steward. McDonald testified that Ross was then eighth or ninth on the referral list and would have been the first from the Woodland project area to be referred,17 and that he would have sent Ross to the Woodland project as a steward in keeping with his practice to place a qualified steward on another job to serve in the capacity, especially where the individual had served before as steward on the job involved. That Respondent refused to rehire Ross on the Wood- land project is, as already indicated, admitted by Respon- dent in its answer. The circumstances of such refusal were as follows, according to the uncontradicted and credited testimony of McDonald: On March 19, he received two telephone calls from Collins at the union office. During the first telephone conversation, Collins said that Respondent had a little more work at the Woodland project and needed several welders and pipefitters as part of a crew to do that work; there was also some discussion about the need to follow the referral list, except that Respondent could select the pipefitter foremen without regard to the list. The second telephone call followed within an hour. During that conversation, Collins said that he, Collins, had received a telephone call from DeLorme and DeLorme's message to him was that "under no circumstances . . . [were] Dewey Oulette and Harold Ross to be hired on any Northeast projects." 18 At this, he inquired from Collins as to the reason behind this decision of Respondent, and was told by Collins that "he [Collins] didn't know Dewey Oulette but he did know Harold Ross and he didn't understand the reasoning behind this decision." E. The Subsequent Offer to Ross of a Job at the Woodland Project The record discloses that by separate letters, dated June 4, from Collins and from MacArthur, Ross was offered a job at the Woodland project starting on Monday morning, June 7, and lasting for approximately a week. Ross did nothing about these letters, manifesting thereby , I find, a lack of interest in further employment at the reactivated Woodland project. D. The Refusal To Rehire Ross On Monday, March 22, Ross called McDonald about getting a job. Prior thereto, on March 16, he had called the office of Local 321 and asked to be placed on the union's referral list. McDonald told Ross that he was sending i4 McDonald admitted that neither of these agreements contained a provision authorizing a nonworking steward is it is not contended here by the General Counsel that Ross' participation in the labor dispute was an operative factor in Respondent's subsequent refusal to rehire him at the Woodland project i6 MacArthur explained the situation respecting Oulette's work pattern as follows "He was not a non-working steward a hundred percent of the time, due to the fact that it was a little bit different type of job than a forty- hour week job all the way through We had numerous shut-downs, round F. Respondent's Asserted Reasons for Refusing To Rehire Ross It is apparent from the record that DeLorme made the decision not to rehire Ross; that Collins implemented that decision; and that the decision itself was made in the the clock type operations. so in those situations he did work " i7 McDonald explained that the first five or six on the list were from another area on which a fob was about to materialize, i.e. in Old Town. and that it was his practice, in such circumstances, to refer the men from that local area to that job And he explained further that he referred two men. who were next on the list after Ross, to the Woodland job at the time in question is DeLorme testified that he told Collins that he "didn 't want Ross back on the job" 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD context of a company policy announced to management personnel by Eugene Roderick, the president of Respon- dent, in December 1970, not to have any nonworking stewards. With respect to the new company policy, Roderick testified, in substance, that, in December 1970, negotia- tions were in progress between the Building and Construc- tion Trades Department, AFL-CIO, and the National Constructors Association, a group of "30 constructing and engineer type contractors," of which Respondent was a member; that one of the matters under consideration related to the problems these contractors were having in enforcing the clause in the national agreement with respect to stewards being working journeymen; that since he was of the view that a working agreement would be reached to effectuate the elimination of nonworking stewards from their respective operations, he decided to make this a company policy forthwith; and that he thereupon informed management, including DeLorme, that "we would have no nonworking stewards on all our jobs whether they were here in Maine, or Pennsylvania or New York." 19 While DeLorme did not testify directly that he decided not to hire Ross because, in his view, Ross' past performance on the job had been that of a nonworking steward, his testimony was tantamount to that, at times. Thus, he testified that Ross "didn't produce work other than as a steward," and further that "Ross spent too much time wandering about the job, not pertaining to union duties." However, DeLorme admitted, during cross-exami- nation, that he never asked Ross what Ross was doing when Ross was walking around and, further, that he would not know from the fact that Ross was in conversation with craftsmen other than pipefitters whether Ross was talking about a work jurisdiction problem or about something else.20 Analysis and Conclusions It cannot be gainsaid, in the light of all the foregoing, that Respondent was dissatisfied with the amount of time that Ross was devoting to his steward duties during the period of his stewardship on the Woodland job, i.e., from December 1969 until January 1971, and that its complaints to Ross and McDonald about the matter availed it nothing, in that Respondent was told by each of them that it was necessary to spend that amount of time. Considering that (1) Respondent appeared to acquiesce in the foregoing answers that the amount of working time spent by Ross in union duties was necessary; (2) the absence of any convincing evidence in support of its complaints to Ross 19 The record shows that an agreement entitled "Jurisdictional Agree- ment and Work Rules Agreement" was thereafter entered into by the above association, on behalf of each of its member companies, and by the Building and Construction Trades Department, AFL-CIO, on behalf of its constituent national or international unions , bearing date of February 14, 1971, and becoming effective on April 1, 1971, the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada , AFL-CIO, the parent of Local 321 , as well as Respondent are among the signatories thereto Par G of art II of the Work Rules Agreement provides that "A steward shall be a qualified workman performing work of his craft and shall exercise no supervisory functions There shall be no non-working stewards " Although Respondent places some reliance on this agreement , it is patent that such reliance is misplaced Thus, while the execution date of the Work Rules Agreement and/or McDonald that Ross was spending too much time in steward duties; (3) the expanse of, and the number of employees on, the project; (4) Ross' credible testimony as to the number of disputes he handled per week; (5) the large number of pipefitters on the job during the period from December 1969 until about September of October 1970 (i.e., as high as 110 and as low as 70) when Ross performed little or no productive work; (6) the absence of any contention by Respondent that Ross was performing during working hours union duties that could have been performed at other times; and (7) the provision in Respondent's agreement allowing the Carpenters craft to have a nonworking steward once the complement of carpenters reached over 40 men, whereas the complement of pipefitters was considerably in excess of that number during most of Ross' stewardship, I am satisfied, and find, that Ross performed his duties as a steward in an assiduous manner and that Respondent's complaints about the time spent in such duties away from work derived from his assiduousness. Accordingly, I find lacking in merit Res- pondent's contention in its brief that Ross "utterly failed and refused to perform any appreciable amount of work under the repeated and continued pretext of being engaged in protected activity." I am cognizant of Respondent's contention, in this regard, that it was entitled to secure a reasonable amount of productive work from Ross in accordance with article XII, paragraph 53, of the national agreement set forth in the text heretofore. The Board recently considered a related issue in Cameron Iron Works, Inc., 194 NLRB No. 23, In that case, the respondent required a union steward, because of the time he spent in union duties, either to resign his union position or be demoted from his position of leadman to the lesser job of journeyman electrician. A majority of the Board there stated the applicable law to be that "while, as indicated in Warner Gear [i.e., Warner Gear Division, Borg Warner Corporation, 102 NLRB 1223], the employer surely has a legitimate interest in the effective utilization of working time, the employees also have a legitimate statutory interest in the designation of their representatives for [the] purpose of collective bargaining." In applying this legal principle to the facts at hand, the majority drew a distinction between the situation in Warner Gear, where the contract between the union and the employer expressly provided that union stewards could perform union duties on the employer's time up to a maximum of 5 hours a week without loss of pay, and that prevailing in the case before it for decision where there was no contractual commitment and only a practice of predates Respondent's refusal to rehire Ross in March 1971, the effective date thereof postdates such refusal Accordingly, it follows therefrom, and I find, that the Work Rules Agreement may not be given retroactive effect here And this is so notwithstanding the fact, adverted to by Respondent, that par G of art 11 of the Work Rules Agreement was entered into in the context of the national agreement and its provisions therein concerning stewards 211 Although DeLorme also gave as a reason that Respondent was not getting a full day's work for a full day's pay out of Ross, it is apparent that, given the fact that Ross was a steward, and the absence of any contention that Ross was performing union duties during working hours that could be performed at other times, he (DeLorme) could not have been speaking literally Rather it appears that he was thereby registering his objection to the amount of time being spent by Ross in steward duties, and I so find. NORTHEAST CONSTRUCTORS permitting stewards to utilize working time for the performance of steward functions; it noted that, unlike the former situation where it was found that there was no room for seeking accommodation between these interests, room did exist in the latter situation for accommodation because of the absence of such contractual commitment; and it held further that, failing an effort to seek such accommo- dation, an employer cannot arbitrarily restrict the right of the employees and their union to be represented by the man they desired to represent them. The instant case falls somewhere in between these two situations. While there is a contractual commitment here permitting a steward, "in addition to his work as a journeyman, to perform during working hours such of his union duties as cannot be performed at other times," there is no specific lirmtation, as in Warner Gear, on the amount of time he is permitted to devote to steward duties during working hours, implying thereby that the amount would vary depending, inter alia, upon the area of the project, the number of employees served by the steward, the number of other crafts on the project, and the nature and number of disputes handled by the steward. It would seem, therefore, and I find, that room also existed for accommodation here. Yet, neither Respon- dent nor Local 321 explored between themselves what solutions were available. In all these circumstances, I find that it would effectuate the policies of the Act to make applicable here the holding in the Cameron case. It follows therefor, that had the Respondent discharged Ross during his stewardship because of the amount of working time he spent at union duties, Respondent would have been acting arbitrarily, in contravention of the Act, to restrict the right of the pipefitters in its employ and of Local 321, their union, to be represented by Ross, the one they desired to represent them on the job in union matters. Although Respondent did not discharge Ross, it admittedly refused thereafter to rehire him on the reactivated Woodland project since on or about March 19, 1971, until June 4, 1971, for that very reason. Respondent was thereby, in effect, doing indirectly what it could not have done directly. Stated otherwise, it was retaliating against Ross because of the amount of time he had spent in the assiduous performance of his steward duties when previ- ously employed on the Woodland project. As such, this conduct clearly contravened Section 8(a)(3) and (1) of the Act,21 and I so find. Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 321 is a labor organization within the meaning of Section 2(5) of the Act. 21 See Hyster Company, 195 NLRB No 7 Although, as Respondent contends, the record is devoid of proof of Respondent's antiunion motivation, I find, contrary to Respondent, that a finding of 8(a)(3) is warranted here This is so because the natural and foreseeable consequences of Respondent's unlawful conduct herein would be to discourage active membership by its employees in Local 321, particularly that of serving, upon appointment by Local 321, in the capacity of steward See Radio Officers' Union of Commercial Telegraphers Union, AFL-CIOv NLRB,347US 17 851 3. By refusing from March 19, 1971, until June 4, 1971, to employ or rehire Ross on the reactivated Woodland project because of the amount of working time spent by him at union duties as a steward during a prior period on that project, Respondent discriminated in regard to the hire and tenure of employment of its employees and has engaged in, and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, Respondent also inter- fered with, restrained, and coerced its employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by refusing from March 19, 1971, to June 4, 1971, to rehire Harold Ross because of the amount of time he had spent at union steward duties during a prior period of employment by it, I shall recommend that it cease and desist therefrom and from any like or related conduct hereafter. I shall also recommend affirmatively that Respondent make Harold Ross whole for any loss of earnings he may have suffered during the aforesaid period as a result of the discrimination against him, less his net earnings during that period, with backpay and interest to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. However, as I have also found that Harold Ross manifested a lack of interest in further employment at the Woodland project, I shall not provide for the contingency that Respondent is still engaged in construction work at that project and still requires the services of pipefitters,22 by recommending that Respondent, in such event, offer Ross employment on the project as a pipefitter, without prejudice to his right and privilege to serve as steward for the pipefitters on that project when so designated. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I hereby issue the following recommended: 23 ORDER Respondent, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to employ or rehire Ross, a member of Local No. 321, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of 'the United States and Canada, AFL-CIO , which labor 22 The record is devoid of any evidence as to the status of Respondent's work on the Woodland project at the time of the hearing 21 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall , as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization is the bargaining representative of its pipefit- ters, because of the amount of working time theretofore spent by him at union duties as a steward of the pipefitters while in its employ. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Make whole Harold Ross, in the manner set forth in the section hereof entitled "The Remedy," for any loss of earnings suffered by him by reason of its unlawful conduct found herein. (b) Preserve and, upon request, make available to the National Labor Relations Board or its agent, for examina- tion and copying, all payroll records, social security records, timecards, personnel records and reports, and all other records necessary or useful to determine or compute the amounts of backpay due, as herein provided. (c) Post at all of its construction projects within the State of Maine, copies of the notice marked "Appendix." 24 Copies of said notice, on forms provided by the Regional Director for Region 1, after being signed by a representa- tive of Respondent, shall be posted by Respondent immediately upon receipt thereof and be maintained for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Additional copies of the "Appendix" attached hereto shall be signed by an authorized representative of Respon- dent and shall be returned forthwith to the said Regional Director for posting- by Local No. 321, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, if willing, at its meeting halls and offices, including all places where notices to its members are customarily posted. (e) Notify the said Regional Director, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith.25 24 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 25 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify said Regional Director for Region 1. in writing, 20 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to employ or rehire Harold Ross, a member of Local No. 321, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, which labor organization is the bargaining representative of our pipefitters, because of the amount of working time theretofore spent by him at union duties as the steward of our pipefitters while in our employ. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the Act. WE WILL make Harold Ross whole for any loss of pay by reason of our unlawful conduct of refusing to employ or rehire him. NORTHEAST CONSTRUCTORS, DIVISION OF CIVES CORP. (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 compliance with its provisions may be directed to the Board's Office, Seventh Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300.