Plumbers Local Union 521

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union 521, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL- CIO (Huntington Piping, Inc.) and Arnold Glass- burn and Herbert Lewis. Cases 9-CB-2126-1 and 9-CB-2126-2 September 14, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On May 15, 1972, Trial Examiner Anne F. Schlezinger issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed limited exceptions and supporting brief. The Respondent did not file exceptions or a brief. 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 au- thority 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 brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Respondent, Local Union 521, United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, its officers, agents, and represent- atives, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Trial Examiner : Upon charges and amended charges filed respectively on December 30, 1971, and February 7, 1972, by Arnold Glassburn and Her- bert Lewis, individuals, the General Counsel, by the Re- gional Director for Region 9 (Cincinnati , Ohio), issued a complaint on February 15, 1972 , and an order amending complaint on March 20 , 1972. The complaint, as amended, alleges in substance that Local Union 521, United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, referred to herein as the Respondent or the Un- ion, attempted to cause and caused Huntington Piping, Inc., referred to herein as the Employer, to discriminate against its employees Glassburn and Lewis by discharging them in violation of Section 8(a)(3) of the Act, and thereby has engaged in and is engaging in unfair labor practices as defined in Section 8(b)(I)(A) and 8(b)(2) of the National Labor Relations Act, as amended. In its answer, duly filed, the Respondent admits certain allegations of the complaint but denies the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me at Huntington, West Virginia, on April 6 and 7, 1972. All parties appeared at the hearing and were afforded full op- portunity to be heard, to examine and cross-examine wit- nesses, and to introduce relevant evidence. Subsequent to the hearing, a brief was filed by the General Counsel which has been duly considered. The Respondent in a telegram stated that it "does not desire to file brief ... and renews motions made during hearing .... "I Upon the entire record in this case and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER Huntington Piping, Inc., is a West Virginia corpora- tion engaged in the erection of piping systems and allied equipment at Huntington, West Virginia, and other cities, with its principal place of business located in Huntington. During the past 12 months, which was a representative peri- od, Huntington performed services valued in excess of $50,000 for customers located outside the State of West Virginia, and purchased goods valued in excess of $50,000 which it caused to be shipped directly from points outside the State of West Virginia to its Huntington location. I find, as the complaint alleges, and the Respondent' s answer as amended at the hearing admits, that at all times material herein the Employer has been an employer engaged in com- merce and in operations affecting commerce as defined in Section 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent's answer ad- mits, and I find that Local Union 521, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Issues The General Counsel contends that the Respondent on certain dates threatened to and did instigate work stop- 1 The Respondent moved, at the close of the General Counsel's case in chief and at the conclusion of the hearing , that the complaint be dismissed on the ground of failure to establish a prima facie case These motions were denied at the hearing The motion to dismiss renewed in the Respondent's telegram is hereby denied for the reasons set forth below. 199 NLRB No. 16 PLUMBERS LOCAL UNION 521 pages on projects where employees of the Employer were working, and thereby attempted to cause and caused the Employer to discharge Glassburn and Lewis in violation of Section 8(a)(3) of the Act, thereby violating Section 8(b)(1)(A) and 8(b)(2) of the Act.2 The Respondent, by the testimony adduced at the hearing, apparently maintains that the Respondent's actions were warranted by the failure of Glassburn and Lewis to complete the membership re- quirements established by its constitution and bylaws. B. The Facts The facts herein, established by credible and in large part unrefuted testimony, show that the Employer is a me- chanical contractor engaged in installing piping systems and allied equipment, and that Marshall Hood is president of the Employer and has been for many years a member of the Respondent. They also show, as the complaint alleges, that Burton, the Respondent's business agent, Wright, or- ganizer and International trustee, and Kitchen, Snodgrass, and Collins, shop stewards, are agents of the Respondent within the meaning of Section 2(13) of the Act. The Respondent's answer admits this allegation of the com- plaint "subject however, to the proof of acts either done or omitted by prior business agents and shop stewards." 1. Employment history of Glassburn and Lewis The Employer first hired Glassburn in June 1966. Glassburn did some pipefitting but worked primarily on welding. Lewis, who had been employed by the Employer for about 15 years, began working as a laborer, and was a member of a laborers union. He worked with pipefitters and welders and learned to do this work, particularly the weld- ing, and began working as a welder for the Employer in about June 1966. Both men had been referred by the Re- spondent, Glassburn by Prince, the business agent at the time, and Lewis by Frye, who was the business agent before Prince. Both Glassbum and Lewis took and passed tests given by the Employer and others on whose projects they worked, and both were certified as welders on the basis of these tests. In 1966 Hood needed welders on a Goodyear Tire project. He called the Respondent but was told all the welders were working. He then obtained permission to put Glassburn and Lewis to work as welders on permits, and permits were issued to both by Prince, at that time the business agent. A month or two after obtaining these per- mits, Glassburn and Lewis made repeated applications for membership in the Respondent. Some of these applications were submitted directly to Prince. The applications in some 2 The Act provides in Section 8 that- (b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7- Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein, . (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership 85 instances were rejected and as to others there was no re- sponse. Glassburn worked for the Employer until October 1966 when he was laid off for lack of work. He went to the union hall a few times to see Prince, who referred him to a job in Middletown, Ohio. His referral slip, dated November 7, 1966, and signed by Prince, shows his occupation as "Weld- er" and contains a handwritten note that "This Boy has been working as a welder for us on application. I called you about this Boy." Glassburn worked in Middletown until about June 1967, when he was told by an uncle, who had recommended him for membership in the Respondent, that his application was coming before the Respondent's board and Glassbum should be present. Glassburn quit his job in Middletown and returned to Huntington. He did not appear before any board of the Respondent, however, as this appli- cation was rejected. No reason was given him for this action, and he made no inquiries of the Respondent about the matter. About 6 months later Glassburn went to see Prince who referred him again to the Employer. He returned to work for the Employer about December 1967 or January 1968. After that he reapplied for membership in the Respon- dent but received no response. Thereafter Hood, president of the Employer, brought Glassburn another application, which he filled out and, with Hood as his reference, gave to Prince at the union hall. Lewis had also continued to seek membership in the Respondent. Shortly after Glassburn and Lewis filed their latest applications for membership, Hood told each of them that he had been advised their applications were about to be accepted and that each of them was to make certain payments to the Respondent. Accordingly, each of them on or about July 13, 1970, paid to the Respondent $194.10, and received a receipt dated July 17, signed by P. M. Ginger, who at that time was the union secretary, showing receipt of payments covering: July dues $8, insurance premium $9.10, building trades card $3, initiation fee $150, and examination fee $24, totaling $194.10. Thereafter, both Glassburn and Lewis paid quar- terly dues at the rate of $8 a month and, in some quarters, insurance premiums, by handing checks in person to a sec- retary at the union office. They received receipts as well as the stamps which members affix to their books to show dues payments are current. Neither Glassburn nor Lewis had ever received one of these books so they attached their stamps to the receipts. Both received receipts signed by Ginger showing payments through April 1971. During this period of paying dues but not having books, Glassburn and Lewis continued to work for the Em- ployer with no objection by fellow employees, who knew they did not have books, or by representatives of the Re- spondent. Glassburn and Lewis questioned union repre- sentatives from time to time about their books. They were told by Prince that the books would come through eventual- ly but sometimes took a year or two, and by Ginger that they should not worry about it as long as they were work- ing.3 Neither Glassburn nor Lewis attended union meetings 3 Hood testified that during the time Prince was business agent, Wright, organizer and International representative , came to Huntington to discuss with him the status of Glassburn, Lewis, and two other employees, that Continued : 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as Prince said they had to be members and have books to do so. The situation changed when Burton became business agent in March 1971. When Glassbum thereafter tendered his dues, the secretary at the union hall told him she could not find a record of his book and therefore could not accept his money. Lewis went to the union hall in late July 1971 and tendered his dues, but the secretary said she could not accept his dues as Burton was out of town, could not be reached, and had not given her permission to accept Lewis's dues. Lewis asked if he could leave the money there until she got in touch with Burton so he would not be in arrears as that was his last day to pay his dues. She refused, and told him that he should return the following evening and she would get in touch with Burton in the meantime. When he said it was almost impossible for him to get there from his job by 5 o'clock, she said she would stay 10 or 15 minutes later. He arrived the next evening at 5 but she had already left. Glassburn and Lewis have not paid any dues since the dues they tendered were rejected by the secretary, who was acting in accord with instructions given her by Burton. On about August 26, Glassbum was working on a Goodyear Tire project of the Employer when he was called to the office and told by the project superintendent that it was necessary to lay him off until his book situation was straightened out. On this same date, Lewis was told by the superintendent to report to the field office, and there told to report to Hood's office, where Hood, as Lewis testified, said "he was laying me off on account of union problems .... He said that he had been pressured so hard by the union that he had no other alternative he said but to lay me off." Both Glassbum and Lewis went back to work for the Employer on the Goodyear Tire project a week or two later. When that project was nearing completion, both were trans- ferred about September 20 to the Employer's International Nickel project in Huntington. After they had worked a short time at this project, Collins, shop steward, about September 20 asked if Glassburn.had received his book yet, and Glass- bum replied that he had not. At Collins' request, they went to the office trailer where Collins telephoned Burton, the Respondent's business agent at that time. At the conclusion of this conversation, Glassburn testified, Collins said that "Mr. Burton said to go fishing"; Glassburn asked if Collins wanted him to put up his tools and Collins assented; and Collins told the other men on the project of Burton's re- marks. Lewis testified that he heard Collins say that "Mr. Burton said let's go fishing. He said otherwise that means you put the tools up and go home and he said I'm going home you can do what you want to." All the members of the Respondent, including those working for other employ- ers, left the jobsite. Collins was not called as a witness. Burton's testimony on this matter was self-contradictory and evasive. He testi- fied that his conversation with Collins was in person on a Thursday when Collins came into his office after the men had walked off the International Nickel job. He also testi- fied at different points that the expression "go fishing" was Wright told Prince to put all four on the cash sheet, and that later the other two men were given books. used, that it was "just an expression we use" like "Philadel- phia lawyer," that he did not know who used it, that he used it, and that he did not use it. I discredit this testimony of Burton. In any event, I find, on the basis of the credited and undenied testimony of Glassburn and Lewis, that Collins, an admitted agent of the Respondent, told them and other men on the project that Burton "said to go fishing."4 After the walkout Lewis went to see Hood, who told him he was laid off "until it was straightened out." He telephoned Hood the following Monday when he heard the other men had returned to work. As Lewis testified, Hood said "We didn't have union books and he said we would have to get straightened up with the union before we went back." Hood told Glassburn on or about September 23 that he had had to terminate Glassburn because of pressure by the Respondent, and that Glassbum was discharged. About 2 weeks after their discharges Lewis telephoned Burton and arranged a meeting at a doughnut shop. Glass- bum was also present. Burton told them that he was sorry to see anyone out of work and he would do all he could to help them, but that his hands were tied and he could do nothing until he got approval from national headquarters. Lewis telephoned Burton in about January from his attorney's office to ask if there was any word about the books. He testified that Burton "said he went to Washing- ton and he said I almost had you boys books through and you went and filed suit against the union and ... He said if you would drop the case I could probably get your books." Burton never thereafter called Lewis or Glassbum about the books. Neither of them received a book or was admitted to membership in the Respondent. And neither of them has since September 20 been reemployed by the Em- ployer. 2. The Respondent's conduct Ginger and Prince, who no longer held office in the Respondent at the time of the hearing, were not called as witnesses.5 Burton, who did testify, was elected business agent of the Respondent on March 6, 1971, and was ap- pointed acting financial secretary and treasurer on April 13, 1971. As the Respondent has been in trusteeship since April 13, 1971, Burton, the chief local official, operates under the supervision of an International representative located in Washington, D.C. After Burton became acting financial secretary and treasurer, he checked the Respondent's cash sheets and other records and found funds missing, as well as records in a state of confusion 6 He found Lewis' applica- tion for membership among the documents on hand but was unable to find one by Glassburn.7 He also found that both Glassburn and Lewis had paid their initiation fees and dues up to the time he assumed office. 4 See Laborers' International Union of North America (F F Mengel Con- struction Company), 196 NLRB No. 62. 5 According to Burton, both were working in West Virginia in the jurisdic- tion of another local 6 Burton testified that when the Respondent's books were audited after he took office, over $18,000 appeared to be missing , and that the bonding company later "paid off $15,000, on Mr Ginger, Mr Prince and Mr De- Hart " 7 Scott Webb and Clyde Kitchen, members of the Respondent's executive board, testified as witnesses for the Respondent that they had passed upon, and rejected, an application of Lewis but had never seen one by Glassburn Webb also testified that he did not know Glassburn and Lewis had paid initiation fees and dues PLUMBERS LOCAL UNION 521 Burton's check of the records disclosed, and Glassburn and Lewis admitted, that they had not complied with all of the Respondent's procedures for the acquisition of member- ship. They had not served apprenticeships. They failed to present affidavits showing work in the trade for the required length of time. Their applications had not been approved by the membership, the executive board, or the examining board. They had not been given oral or written examina- tions or personal interviews. They had never been assigned card numbers, and their dues payments had never been recorded on the cash sheets and could not be thus recorded without numbers.8 And they had never taken the oath as members . Burton testified that they were not admitted to membership because they had not complied with the Respondent's prescribed procedures. Burton 'admitted that the refusal of the secretary to accept dues from Glassburn and Lewis was in accord with instructions he gave her, and that he also told Hood to discontinue payments Hood had been making for their fringe benefits. He maintained that while he did everything he could to clear up this unprece- dented situation, he was not authorized to grant member- ship to Glassburn and Lewis as they had not complied with the requirements for admission, nor to refund their initia- tion fees or dues while the Respondent was in trusteeship. In April or May Burton had several discussions with Hood about the Glassburn and Lewis situation. He testified that he told Hood he was trying to work something out with the International representatives, but warned that if Hood worked Glassburn and Lewis with other men "it would probably cause trouble and the men would walk off the jobs." Burton admitted that at least some of the members knew for a long time that Glassburn and Lewis did not have books, and that no member had ever refused to work with Glassburn or Lewis or was threatening to do so to his knowledge, but he assumed their lack of books would cause trouble. On about August 26 Burton had another meeting with Hood in which he admittedly indicated that some of the labor problems Hood was having would probably stop if Hood removed Glassburn and Lewis. On August 26 Hood sent Burton a telegram which stated in part: WHEREAS THE MEMBERSHIP OF L.U. * 521 HAS SEEN FIT TO HARASS ME AND MY COMPANY BY MAKING THREATS OF STRIKES , REVOK- ING OF LOCAL WORKING AGREEMENTS, REVOKING OF U.A. AGREEMENT AND OTHER ACTS OF COERCION IF I DID NOT RE- MOVE CERTAIN EMPLOYEES ... I HAVE TODAY IN AN EFFORT TO PROMOTE HARMONY BETWEEN MY COMPANIES AND YOUR UNION DISCHARGED THESE EMPLOYEES UNTIL A FINAL AND BINDING DECISION HAS BEEN REACHED .... Hood testified that the employees referred to were Glass- burn and Lewis, and Burton testified that he took for grant- ed they were the employees in question. After their layoff on August 26, Glassburn and Lewis were put back to work by the Employer about September 6, and were transferred to the International Nickel project about September 20. When Burton learned of this, he called Snodgrass, a job steward on the Goodyear Tire project, and asked if Glassburn and Lewis had earlier worked at that project. When Snodgrass said they had, Burton replied, as 8 One of the receipts made out to Lewis bore a number, but there was no number on any of the other documents issued by the Respondent to Glass- burn and Lewis. 87 Snodgrass testified, that they did not have their books and that "he might have to pull the job so he would call me back if he did but he never did call back." Snodgrass, who had never checked the books of Glassburn and Lewis because they had been working for the Employer long before he went there to work, told some of the men on the job what Burton said about pulling the job. Burton admitted that he called Snodgrass, asked Snodgrass if the two men had worked on that job, and said it might be necessary for him to pull the job for that reason. As set forth above, it was at about this time that Collins told the men on the International Nickel project, where Glassburn and Lewis were then working, that Burton said they were to "go fishing." Burton also called James Kitchen, job steward on the Employer's Goodyear Tire project in Chapmansville, West Virginia, on Thursday evening, September 23. Kitchen testi- fied that Burton said the Employer was hiring nonunion men and that on the Employer's other jobs the men had walked off, and asked how Kitchen felt about it. When Kitchen said he did not know anything about this, Burton said, as Kitchen testified, "as far as he was concerned if the contractor was unfair on one job then he is unfair on all of them." Kitchen told Burton he agreed with him and "If the other fellows shut their jobs down then we wouldn't work Friday." Kitchen also testified that, while Burton did not mention Glassburn or Lewis by name, "There was no need to because I knew who he was referring to because there had been a discussion over it for three or four years about their books, whether they were going to get them or not." Burton admitted that he called Kitchen although Glassburn and Lewis had never worked to his knowledge at the Chapmans- Ville job, that he told Kitchen there was a problem about Glassburn and Lewis not having books, that he told Kitchen that the Chapmansville project should be "shut down be- cause if a contractor is unfair at one place he is unfair at another place," that Kitchen indicated he did not know what the situation was, and that he advised Kitchen that the job should be shut down until he could get this situation straightened out and that if necessary he would shut down all the Employer's jobs. Kitchen told the men at the project the next morning that the Employer was working nonunion men, and "the other projects they were doing had shut down and we were going to do likewise." The men agreed to walk off. Members of other trades asked Kitchen if they should leave also. Kitchen replied that it was up to them whether they worked or left as long as they did not do the Respondent's work. Hood called Kitchen on Sunday, said he had settled his differences with the Respondent, and asked if the men were going back to work. Kitchen said he would check and, if the differences were settled, the men would be back at work on Monday. Kitchen was not able to reach Burton, whose tele- phone was busy, but finally got in touch with the president of the Respondent who, as Kitchen testified, "said as far as I know all the jobs will go back to work Monday and so we were back on the job Monday morning." On Thursday, September 23, in a conversation with Collins, job steward, about the Glassburn-Lewis situation of having stamps and receipts without books, Burton admit- tedly told Collins that if Hood sent him a letter or telegram 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the effect that he would not work Glassburn and Lewis until their situation was settled, "we could put the men back to work." Accordingly, when he received a telegram from Hood the next day that "the two men in question are not assigned to any job and will not be," he testified, "I put the men back to work" He did so by calling the stewards and telling them "it was all settled to go back to work." Burton testified further that he did not know why his predecessors in office had accepted initiation fees and dues from Glassburn and Lewis without granting them member- ship. He admitted, reluctantly, that he "assumed" both would be found qualified by a union examining board. He also testified that he made every effort to get their situation straightened out, and that he knew from the time he took office that they were not responsible for their lack of Union books. He maintained nevertheless that, as they had not satisfied the procedural requirements for membership in the Respondent, they would not have been allowed to work in building trade jobs in the Respondent's jurisdiction; that he felt warranted in shutting down jobsites to force their dis- charge; that if they had not been put back to work in Sep- tember, after their August 26 layoff, he would not have called Chapmansville and "there would have been no work stoppage"; and that if Hood had not furnished him with a written statement that he would no longer work Glassburn and Lewis, he was prepared to shut down every job of the Employer within his jurisdiction. 3. The position of the Employer Hood testified that both Glassburn and Lewis had been referred to the Employer by the Respondent, that he had observed the work of both, that both had been tested and certified by his foremen and other employers, that they were qualified to do some types of pipefitting as well as welding, that he employs members of the Respondent whose principal duty is welding, and that he had no ques- tion as to the competence of Glassburn and Lewis to do the work. The General Counsel placed in evidence a "Working Agreement" between Huntington Master Plumbers Associ- ation and the Respondent effective by its terms June 1, 1969, through May 31, 1972. Burton testified, however, that he had been unable to find a copy in the files of an agree- ment signed by the Employer, that he had this agreement signed by the Employer "about two or three weeks ago," and that there was no collective-bargaining agreement in effect with the Employer prior to that time .9 Hood on the other hand testified that he signed this agreement as an individual contractor as he was not a member of the associa- The agreement provides under the heading "Union Security" as follows: All Journeymen and Apprentices hereunder, members of the Union now in the employ of the Employer shall remain members in good standing in the Union during the term of this Agreement . All Journey- men and Apprentices covered by this Agreement, hereinafter employed by the Employer, shall become members of the Union on the earliest date provided by applicable Federal law after their employment , or date of the contract, whichever is later and shall remain members of the Union in good standing during the term of this Agreement . 9 Burton referred to this agreement as "kind of a closed shop" under which signatory contractors have agreed to hire only members of the Respondent The General Counsel has not alleged that the agreement is violative of the Act. tion, that he signed it when it was negotiated, that it took effect on or about June 1, 1969, and that in accord with its terms he paid into health and welfare and other funds for Union fringe benefits on behalf of employees including Glassburn and Lewis. On the record as a whole, I credit Hood's testimony as to his contractual relationship with the Respondent. Shortly after Burton took office, he required Hood to delete the names of Glassburn and Lewis from his reports of contributions. Hood testified that until Burton assumed office no question was raised about the inclusion of Glassburn and Lewis in these funds, no employees re- fused to work with them although they knew about the lack of books, and no union representative questioned their em- ployment by the Employer. Concluding Findings The evidence establishes, and I find, that Glassburn and Lewis had taken steps to become and remain members of the Respondent, and the Employer was satisfied with the work they performed. Nevertheless, when Burton became business agent and acting financial secretary and treasurer of the Respondent, he arbitrarily directed that their dues be rejected, that the Employer discontinue payments on their behalf into the Union's fringe benefit funds, and that the Employer terminate their employment, on the ground that Glassburn and Lewis had not complied with all the proce- dural requirements for attaining full membership status in the Respondent. It is manifest, therefore, and I find, that Glassburn and Lewis was each "an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining member- ship." It is also clear from all the relevant evidence, and I find, that Burton carried out his purpose to force the Employer's discharge of Glassburn and Lewis by threats of work stoppages and by causing work stoppages on the Employer's projects, including projects where Glassbum and Lewis were not working, which ended only when he was assured by the Employer, in writing, that Glassburn and Lewis would no longer be employed. The Respondent is therefore clearly responsible for such work stoppages, which it threatened to and did cause, the immediate consequence of which was that the Employer was compelled to remove Glassburn and Lewis in order to carry on its work. 10 In these circumstances, I find no merit in the apparent contentions of the Respondent, as indicated by the testimony of its witnesses, that Burton could not authorize any walkouts, which must be approved by the executive board, so the walkouts in issue were wildcat strikes for which the Respon- dent cannot be held responsible; that the Respondent should not be held responsible for the acts and conduct of the union officials no longer holding office who accepted initiation fees and dues from Glassbum and Lewis without granting them membership, and who left the Respondent's records and finances in complete confusion; that Glassbum and Lewis were properly denied membership because they 10 See Local 120, Laborers International Union (Edward J DeBartolo Corp), 174 NLRB 1012, Bricklayers and Stone Masons (Linbeck Construction Corp), 185 NLRB No 94 PLUMBERS LOCAL UNION 521 89 had not complied with all the established procedures for obtaining membership; that in view of this lack of complet- ed membership status, Burton's conduct herein was war- ranted by the Union's constitution and bylaws, by the "closed shop" trade practice in the Respondent's jurisdic- tion, or by a collective-bargaining agreement." Accordingly, I conclude and find that the Respondent attempted to and did cause the Employer to discharge Glassbum and Lewis in violation of Section 8(a)(3) of the Act, and thereby restrained and coerced Glassbum and Lewis in violation of Section 8(b)(1)(A) and attempted to and did cause discrimination against them in violation of Section 8(b)(2) of the Act.I2 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III above, occurring in connection with the operations of the Employer described in section I above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist from such conduct and from any like or related unfair labor practices' 3 and to take certain affirma- tive action designed to effectuate the purposes of the Act. As I have found that the Respondent attempted to and did cause Huntington Piping, Inc., to discriminate against Arnold Glassburn and Herbert Lewis in violation of Section 8(a)(3) of the Act, I shall recommend that the Respondent be ordered to cease and desist from such conduct, and to notify Huntington Piping, Inc., in writing, with copies to Glassburn and Lewis, that it has no objection to the employ- ment of Glassburn and Lewis. The record shows that, ab- sent the Respondent's unlawful activity, the Employer would not have laid off Glassburn and Lewis on August 26, 1971, and would not, after reemploying them, have dis- charged them on or about September 20. I shall therefore recommend that the Respondent be ordered to make Glass- bum and Lewis whole for any loss of earnings each of them may have suffered by reason of the discrimination practiced against him 14 by payment to him of the amounts he would II See Union Starch and Refining Co, 87 NLRB 729, enfd 186 F.2d 1008 (C A. 7), cert. denied 342 U.S. 815, Local Union No. 749, International Broth- erhood of Boilermakers (California Blowpipe & Steel Co., Inc), 192 NLRB No 58, Chicago Local No 245, Lithographers (Alden Press, Inc), 196 NLRB No. 97; N L R B. v. Brotherhood of Teamsters, 470 F.2d 509 (C A. 9, March 1972), holding that, where a union credited dues and took other action evidencing membership of an individual, that individual and his employer "had a right to rely upon these official acts of the Union " 12 Local 120, Laborers International Union, supra, Bricklayers and Stone Masons, supra, Local Union No 58, of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry (Heyse Sheet Metal), 187 NLRB No. 22 17 Local Union No 58, of the United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry, supra, N.LR B v Brotherhood of Teamsters, 470 F.2d 509 (C.A 9, March 1972). 14 See Bulletin Company, 181 NLRB 647, Newport News Printing Pressmen's normally have earned as wages from the date of the discrim- ination against him to the date 5 days after the Respondent serves the written notice required above, less his net earn- ings during this period. Backpay shall be determined in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, including interest thereon at 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Huntington Piping, Inc., is an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. 2. Local Union 521, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By causing and attempting to cause the Employer to discharge Glassburn and Lewis in violation of Section 8(a)(3) of the Act, the Respondent has engaged in and is engaging in unfair -labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:l5 ORDER The Respondent, Local Union 521, United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Huntington, West Virginia, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Huntington Piping, Inc., its officers, agents, successors, and assigns, to dis- charge Arnold Glassburn, Herbert Lewis, or any other em- ployee in violation of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coerc- ing employees of Huntington Piping, Inc., in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Notify Huntington Piping, Inc., in writing, that it has no objection to the employment of Arnold Glassburn and Herbert Lewis, and furnish each of them with a copy of such notification. (b) Make Arnold Glassburn and Herbert Lewis whole and Assistants Union (The Daily Press, Inc), 188 NLRB No. 73, Marine Warehouses Local 1454, et aL, 196 NLRB No 14. IS In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for any loss of earnings each of them may have suffered by reason of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (c) In the event that Arnold Glassburn or Herbert Lew- is is at present serving in the Armed Forces of the United States, notify him, in writing, that it has no objection to his employment, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Post at its business office and all places where no- tices to its members are customarily osted copies of the attached notice marked "Appendix."'? Copies of said no- tice, on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent's representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Deliver to the Regional Director for Region 9 signed copies of said notice to be posted by Huntington Piping, Inc., if willing, in all places where notices to employ- ees are customarily posted. (f) Notify the Regional Director for Region 9, in wnt- ing, within 20 days from the date of the receipt of this Deci- sion, what steps the Respondent has taken to comply here- with. " Piping, Inc., to discharge Arnold Glassburn, Herbert Lewis, or any other employee, in violation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees of Huntington Piping, Inc., in the exercise of rights guaranteed in Section 7 of the Na- tional Labor Relations Act. WE WILL notify Huntington Piping, Inc., in writing, that we have no objection to the employment of Arnold Glassburn and Herbert Lewis, and we shall furnish each of them with a copy of such notification. WE WILL make Arnold Glassburn and Herbert Lewis whole for any loss of earnings each of them may have suffered by reason of the discrimination against him. Dated By 16 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 17 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 the Regional Director for Region 9, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Huntington LOCAL UNION 521, UNITED ASSOCIA- TION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING IN- DUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO (Labor Organization) (Representative) (Title) In the event that Arnold Glassburn or Herbert Lewis is at present serving in the Armed Forces of the United States, we will notify him, in writing, that we have no objection to his employment, after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. 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 direct- ed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.