Laborers Local 324 (Cente Homes of California)

LABORERS INTL. UNION OF NORTH AMERICA, LOCAL 324 Laborers International Union of North America, Local 324, AFL-CIO (Centex Homes of California, Incorporated) and Glenn W. Irish. Case 32-CB-I 1 (formerly 20-CB-4183) January 23, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On October 18, 1977, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions of the Administrative Law Judge, except as modified herein,2 but not to adopt his recommended Order.3 The General Counsel contends that the Adminis- trative Law Judge erred in not ordering Respondent to make Irish whole for any loss of earnings he may have suffered as a result of Respondent's failure to process his grievance in a fair and impartial manner. We find merit in this contention and shall modify the Administrative Law Judge's remedy in accordance with Board policy. United Steelworkers of America, AFL-CIO (Inter-Royal Corp.), 223 NLRB 1184 (1976); Local Union No. 2088, International Brother- hood of Electrical Workers, AFL-CIO (Federal Elec- tric Corporation), 218 NLRB 396 (1975). THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirma- tive action necessary to effectuate the policies of the Act. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. I we do not adopt the Administrative Law Judge's finding that the principal reason offered by Respondent's agent, Elliott, for not processing Irish's grievance (i.e., that Irish had "hustled" his job and did not secure it through the Union's hiring hall) was "pretextual." Nor do we adopt the Administrative Law Judge's Decision insofar as it states that Respondent defended this proceeding on the ground that Irish had "hustled" hisjob. and that such a defense was a "smoke screen." Rather. in agreeing with the 234 NLRB No. 60 The uncertainty as to whether Irish's grievance would have been found to be meritorious is a direct product of Respondent's unlawful action. Where, as here, resolution of that uncertainty is required for the determination of monetary responsibility, it is proper to resolve the question in favor of the injured employee and not the wrongdoer. Federal Electric, supra. Accordingly, for the purposes of remedy, we shall presume that Irish's grievance, if fairly and impartially processed, would have been found to be meritorious and would have resulted in his reinstate- ment with backpay. Respondent's backpay liability must be limited to any loss Irish suffered as a result of the refusal to consider and process his grievance. That grievance now appears to be time-barred under the terms of the applicable collective-bargaining agreement, but Re- spondent may be able to prevail upon the Employer to waive those time limits. Accordingly, we shall order Respondent to make Irish whole for any loss of earnings he may have suffered as a result of his discharge by Centex Homes of California, Incorpo- rated, from the date of that discharge, June 25, 1976, until the earlier of the following occurs: Respondent secures consideration of his grievance by the Em- ployer and thereafter pursues it in good faith and with all due diligence, or Irish is reinstated by Centex Homes or obtains other substantially equivalent employment. Inter-Royal, supra. Backpay shall be computed in the manner prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), and interest thereon as set forth in Florida Steel Corporation, 231 NLRB 651 (1977).4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Laborers International Union of North America, Local 324, AFL-CIO, Richmond, California, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Failing to process employee grievances in a fair and impartial manner. Administrative Law Judge that Respondent breached its duty of fair representation, we rely on his finding that the fact that Irish had "hustled" his job was an irrelevant and arbitrary consideration in processing his grievance because Respondent knew of Irish's conduct months before the filing of the grievance and never took any action in regard thereto other than to request that he become a member of Respondent. 3 Both the General Counsel and Respondent have excepted to the Administrative Law Judge's finding that the Northern California District Council of Hod Carriers, Building and Construction Laborers is a respondent in this case on the ground that that body was neither named as a party to this proceeding nor served with copies of the charge or complaint. We find merit in this contention and shall omit any reference to the District Council in our Order. 4 See, generally, Isis Plumbing A Heating Co.. 138 NLRB 716(1962). 367 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner restraining or coercing employees in the exercise of their rights under the National Labor Relations Act, as amend- ed. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Request Centex Homes of California, Incorpo- rated, to reinstate Glenn W. Irish to his former position or, if it no longer exists, to a substantially equivalent position. If Centex Homes refuses to reinstate him, ask it to consider a grievance over his June 25, 1976, discharge and thereafter pursue his grievance in good faith with all due diligence. (b) Make Glenn W. Irish whole for any loss of earnings he may have suffered as a result of his discharge by Centex Homes of California, Incorpo- rated, from June 25, 1976, until such time as he is reinstated by Centex Homes or obtains otlier sub- stantially equivalent employment or Respondent secures consideration of his grievance by the Em- ployer and thereafter pursues it with all due dili- gence, whichever is sooner, together with interest, all to be computed in the manner set forth in the section of this Decision entitled "The Remedy." (c) Post at its business offices and meeting halls copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 32, after being duly signed by an authorized representative of Respon- dent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 5 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 MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail to process employee griev- ances in a fair and impartial manner. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights under the National Labor Relations Act, as amended. WE WILL request Centex Homes of California, Incorporated, to reinstate Glenn W. Irish to his former position or, if it no longer exists, to a substantially equivalent position. If Centex Homes refuses to reinstate him, we will ask it to consider a grievance over his June 25, 1976, discharge and will pursue it in good faith with all due diligence. WE WILL make Glenn W. Irish whole for any loss of earnings he may have suffered as a result of our unlawful refusal to process his grievance. LABORERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 324, AFL-CIO DECISION STATEMENT OF THE CASE BERNARD J. SEPF, Administrative Law Judge: This case came on for hearing before me on May 26 and 27, 1976,1 in San Francisco, California, based on a charge filed on December 14, 1976, and a complaint issued on January 31, 1977. The complaint alleges that Laborers International Union of North America, Local 324, AFL-CIO, hereinaf- ter called Local 324, refused to process a grievance filed by Glenn Irish based on his discharge, which took place on or about June 18, for arbitrary, irrelevant, invidious, or unfair reasons and this constitutes a violation of Section 8(bXIXA) of the National Labor Relations Act, as amend- ed. Respondent denied on information and belief that the Company, hereinafter called Centex Homes of California, Inc., is engaged in interstate commerce. There is also an issue as to whether or not Nathaniel Jackson and Floyd Elliott acted as agents of Respondent with regard to their involvement in the grievance of Irish. Briefs have been received from the General Counsel and Local 324, which have been duly considered. Upon the entire record in this proceeding, and having observed the testimony and demeanor of the witnesses, I hereby make the following: All dates refer to 1976, unless otherwise stated. 368 LABORERS INTL. UNION OF NORTH AMERICA, LOCAL 324 FINDINGS OF FACT I. PRELIMINARY MATTERS (COMMERCE, JURISDICTION, AND LABOR ORGANIZATIONS) A. The Business of Centex Homes of California, Incorporated Centex Homes of California, Incorporated (hereinafter called Centex), is a California corporation engaged in the retail sale of homes at locations within the State of California, including a location in Hercules, California. During the calendar year 1976, Centex had gross sales in excess of $45 million. During 1 month in the same period, Centex purchased and received from Boise Cascade Corpo- ration, lumber valued in excess of $10,000 which was shipped at the order of Boise Cascade Corporation, and received by Centex directly from a supplier located in Oregon.2 I find that Centex is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I also find that Northern California District Council of Laborers and Local 342 (hereinafter respectively known as District Council and Local 342) are labor unions within the meaning of Section 2(5) of the Act. B. Background and the Applicable Collective- Bargaining Agreement The Northern California District Council of Laborers (hereinafter called District Council) negotiates collective- bargaining agreements on behalf of laborers local unions in Northern California, including Local 324. The collective- bargaining agreement applicable to Centex's Hercules jobsite and this proceeding, was negotiated by the District Council with the Associated General Contractors of North- ern California, Inc., and was signed by an association of home builders to which Centex belongs. The agreement provides for a multistep grievance procedure. The first step of that procedure calls for resolution of the grievance at the first level by a representative of either the Local Union involved or the District Council. If these representatives fail to resolve the grievance, "the matter is referred to the District Council and the employer." There is no require- ment that the grievance be presented in writing in the first two steps. The collective-bargaining agreement also provides that the District Council or local unions shall maintain hiring halls which are to be contacted by individual employers requiring workers and from which the workers are to be dispatched. Respondent Local 324 maintains such a hiring hall. C. The Employment and Union Membership of Glenn W. Irish Irish was hired by Centex Homes in November 1975 and was employed as a general laborer at the Hercules, 2 This information is based on the unrefuted testimony of Ralph Allred, Boise Cascade Corporation's regional credit manager and chief accountant for northern California, and business records of Boise Cascade Corporation kept in his care, custody, and control. Allred testified that the record introduced in evidence, which established the shipment of three consign- California, location of Centex which is a construction site. Irish secured his job on his own and was hired by Centex's job superintendent, Hansen, who had been Irish's boss on an earlier job. At the time of his hiring, Irish was a member of Laborers Local 304, which maintains an office in Oakland, California. During approximately the third week of February 1976, Irish met Nathaniel Jackson, a business representative of Respondent's Local Union 324 on the Hercules jobsite. Jackson asked Irish if he was a laborer. Irish told Jackson that he was a member of Local 304. Jackson told Irish that he had to be a member of Local 324 and consequently, Irish went to Local 324's office to transfer his membership. The record shows that on Febru- ary 22, Irish sent Local 324 payment for the transfer and the Union issued a receipt to Irish. D. The Discharge of Irish It is not disputed that on Friday, June 18, 1976, Centex Construction Superintendent Toepher approached Irish near the jobsite and asked for the keys which Irish used in his employment. Toepher told Irish he was being laid off and told him to turn in his tools. Toepher also told Irish he was giving him a week's pay, which he could pick up the following Friday, June 25, and explained that although Toepher's predecessor who hired Irish had recommended him, Irish had not lived up to the recommendation. Toepher said he received many complaints about Irish and had no choice but to lay him off permanently. Toepher testified that he had a long discussion with Jackson on or about June 25 which took from I to 1-1/2 hours. During this discussion, Toepher testified that he told Jackson about his problems with Irish which had begun in February and continued for some months after that. He described a lengthy series of complaints including Irish's refusal to cooperate with fellow employees; refusal to follow orders; refusal to perform duties concerning clean- ing up of houses and placing of cabinets, where they later would be installed; he was drunk and obstreperous and had to be removed by the police on a Saturday in March. The General Counsel properly objected to the detailed explanation being made by Toepher on the basis that what this information lead to was a justification by the employer for the discharge, which is not an issue in the instant case. What is in issue is what the Union was told specifically, and the General Counsel objected to any testimony that was not specifically related to what was told to the Union. Toepher further stated that he could produce witnesses who would verify what he had said about Irish. Jackson said he did not want such confirmation, but he reiterated his desire to find out whether Toepher would reemploy Irish. Toepher said this was out of the question. It appears that Jackson seemed anxious not to pursue Irish's grievance because Toepher credibly stated that Jackson explained ihe had a problem with the Union's District Council. He understood that Irish indicated that he would call the District Council's attention to his ments of lumber valued at $12,277.67 to Centex from a Boise Cascade supplier in Oregon, constitutes less than a month's shipments of lumber to Centex, that Centex pays all its invoices on a current basis, and that Centex paid for the three shipments. 369 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint. Without attempting to describe the exact words used, Toepher said that Jackson then stated that he had a problem with the Union's District Council which he wanted to "sweep ... under the rug" or "make go away." It seems that Jackson felt he was required to explain to the council the facts concerning Irish's grievance and his handling of this situation. In order to protect himself from adverse criticism, he obviously would be relieved of exposing himself to criticism by simply dropping the grievance. It is to be noted that Respondent did not deny Toepher's testimony with respect to Jackson's comments to the effect that he wanted to sweep the grievance under the rug. Toepher's recital of Jackson's alleged remarks stands unrefuted on the record. I credit Toepher. Respondent sought to make it appear that Irish's testi- mony concerning his conversation with Elliott is both illogical and untrue. According to the credible testimony of Irish, he was told by Jackson to call Elliott, who was described as a representative of the District Council and who appears to be Jackson's superior in Respondent's hierarchy. Irish testified that Elliott (whose phone number was given to him by Jackson) and he had a number of phone conversations. In his first conversation in July, Irish testified that for the first time Elliott told him that Respondent would not pursue Irish's grievance because Irish had hustled his own job and did not secure his job with Centex through the Union's hiring hall. Respondent contends, inter alia, that Irish's testimony that he was referred by Jackson to Elliott does not hold together. Irish could not explain who Elliott was or why he was involved in the grievance at all. I find that this argument is untenable. The grievant accepted Jackson's suggestion that he call Elliott. If Respondent truly believed that the testimony of Irish was untrue or the conversation with Elliott had never taken place, it would have been a simple matter for it to have Elliott produced at the hearing and testify under oath that he knew nothing about the grievance and had no conversations with Irish. Its failure to produce Elliott gives raise to an inference, which I make, that if Elliott had testified, his testimony would have been adverse to the Respondent. Respondent in its brief raises a question as to the agency status of Jackson and Elliott. I find that both Nathaniel Jackson and Floyd Elliott acted as agents of Respondent concerning the grievance of Irish. Jackson admitted that he is a business representative of Local 324. He described his duties as checking jobsites to insure complaince with the Laborers agreement and the processing of grievances. Floyd Elliott was a representative of the District Council which negotiated the collective-bargaining contract relat- ing to this proceeding on behalf of all the laborer's locals in Northern California and which is clothed, under that agreement, with both the authority and responsibility of processing grievances arising under the agreement. The General Counsel's brief succinctly disposes of the question of the agency relationship of Elliott as follows: Although the District Council's responsibility with regard to the local grievances of Respondent is alone sufficient to constitute it as an agent of Respondent, its agency and that of Elliott is buttressed by the conduct of Jackson, who directed Irish to Elliott after Irish's grievance had been referred to the District Council and Elliott telling Irish that Elliott was responsible for checking grievances. Toepher's testimony that Jackson told him Irish's grievance was before the District Council, is a further admission of the role of the District Council. In sum, the closely woven relationship between Respondent and the District Council is dem- onstrated by the grievance provisions of the Laborer's agreement, Jackson's conduct and his statement to Toepher that Irish's grievance was before the District Council and establishes that Elliott acted as agent of Respondent with regard to Irish's grievance. In this connection it should be noted that Irish phoned Elliott late in July a second time to confirm what Elliott had earlier told Irish. Irish testified he said, "Mr. Elliott, are you going to back me up on this grievance or not?" Elliott replied, "Definitely not. You hustled your own job so, therefore, the union has no responsibility to back you up." It should be reiterated that Jackson knew Irish had hustled his job in February when he found Irish working on the job. Jackson made no issue of this fact but merely told Irish to transfer his membership to Local 324. Apparently all that Jackson was interested in was gaining a new dues-paying member. The first time the matter of hustling his job came up was in July when Elliott told Irish the Union had no responsibility for processing his griev- ance because he had hustled his job. I find that this explanation is pretextual and violative of Section 8(bXIXA) of the Act. E. Discussion A copy of the Laborers master agreement appears in the record as Respondent's Exhibit 1. The section on griev- ances is identified as section 9 and appears on pages 23, 24, and 25 of the agreement. It contains a provision that no grievance shall be recognized unless adequate notice was given to the employer and/or Union or Local Union within 10 days after the alleged violation was committed. In this connection, it should be noted that although Respondent contends the grievance was not timely filed, there is no evidence in the record that the Centex Corporation ever refused to discuss the grievance because it had not been timely filed. In fact, the record clearly shows that Toepher did discuss the grievance in some detail with Jackson on June 25 and never raised any issue about the fact that the grievance had not been timely filed. The major thrust of Respondent's defense is that the grievance was time-barred because it was not filed within 10 days from the date of Irish's discharge and further that the Union refused to press the grievance because Irish hustled his own job without being referred to it through Local 324's hiring hall as required by the collective-bar- gaining agreement. Initially it should be noted that, according to the provisions of the collective-bargaining agreement, the machinery of the grievance procedure (sec. 9, pp. 23, 24, and 25) was invoked when Irish first called Jackson and does not require being reduced to writing until the second 370 LABORERS INTL. UNION OF NORTH AMERICA, LOCAL 324 stage of the processing. For reasons which will be detailed below, I find that Irish grieved about his discharge on June 25. While he was notified of his layoff on June 18, it was not to become effective until June 25. Irish, who testified in a direct, forceful, and convincing manner and whom I credit, testified that he phoned Jackson on June 25 to report his termination and to enlist his aid in taking up his complaint. At the time he was notified by Toepher that he was terminated, Centex told him he would be given a week's pay on June 25. Irish did not want to take any action before that date because this might cause Centex to stop payment on the check. The record contains an exhibit which consists of a xerox copy of the check which is dated June 25. Irish testified that he immediately phoned Jackson on June 25 and grieved about his discharge. I do not credit Jackson's testimony because throughout the record he gave confused and contradictory evidence. He rambled, was vague and uncertain, frequently did not answer questions responsively and I found his demeanor unconvincing. The record does show that Jackson did ask Irish why he waited so long but contrary to the contention of Respondent in its brief, Jackson did not tell Irish that his grievance was time-barred. Neither did he tell him that according to the contract, unless he filed his grievance and commenced action under it within 10 days of the date of his discharge the grievance would be barred. Similarly, Jackson did not initially raise the question of "hustling" with Irish. In fact, from the time Jackson first discovered Irish on the job in February, he knew Irish had not been referred to the job through Respondent's hiring hall. He merely asked Irish if he was a laborer, to which Irish replied that he was and that he was a member of Local 304. Jackson told Irish to transfer his membership to Local 324 which Irish promptly did. It was Elliott, who, some weeks later and for the first time, told Irish that the Union refused to process the grievance because Irish had been drunk and had hustled his job. In my opinion, this was a sheer afterthought. In order to put the case in its proper prospective, it should be emphasized that the essential purpose of this proceeding, as it pertains to the 8(bX(IXA) allegation, is not to determine finally whether Irish's grievance was meritori- ous but the purpose is to determine whether or not the Respondent Union's conduct was arbitrary and capricious and thereby evaded the fiduciary duty it owed to its members. In this frame of reference it appears to me that the issues of untimely filing and hustling were erected by the Respondent as a smoke screen. Such defenses are not germane to the resolution of this case. The fact remains that once Jackson discussed Irish's case with Toepher the grievance machinery was invoked in accordance with the requirements of the contract. Furthermore, Respondent raises as a collateral matter the fact that the grievance was not reduced to writing until some weeks later. While this is true, it has nothing to do with the major issue in this case because there is no requirement created in the contract that the grievance be reduced to writing until it reaches the second stage of the machinery of the grievance procedure. In fact, it seems clear that after Jackson's initial meeting with Toepher, which I have found to have taken place on June 25, the Union thereafter did nothing else to further the complaint of Irish. There is no explanation in the record, apart from the comments by Elliott, that the Union refused to continue to process the grievance principally because Irish hustled his own job. The matter of hustling was also completely ignored by Respondent because of the fact that in February Jackson knew that Irish had secured his job on his own and did not come to it through the hiring hall. He did not take any action except to request that Irish transfer his membership from Local 304 to Local 324. It was specifically denied by Irish in his direct and cross-examination that Jackson ever told him anything about hustling the job and this did not become an issue in the case until Elliott spoke to Irish on the telephone. I find and conclude that Respondent's ceasing to process this grievance was arbitrary and invidious. As the result of this finding I conclude that Respondent violated Section 8(b)(1XA) of the Act. Respondent asserted a number of reasons for not processing Irish's grievance. Initially, Jackson testified to the fact that Irish had not notified him of his discharge within the 10-day requirement contained in the Laborers agreement grievance provisions. First it should be noted that Irish denied ever being told of such a provision, Toepher did not refuse to consider Irish's grievance, and there is nothing in the record indicating that Centex ever refused to consider it on the ground of untimeliness. The General Counsel calls attention to the fact that this absence is not surprising, for the testimony of Toepher and Irish establishes that the grievance was brought to the Union and Centex's attention in a timely fashion. Analysis It is clear on this record that Respondent did commence an investigation of the complaint of Irish on or about June 25. Suddenly, without justifiable cause, Elliott, the agent of the Council, told the grievant that the Union would not represent Irish and would not pursue the matter principally because Irish had hustled his own job. As explained, supra, I have found this explanation to be pretextual. I have also found that the grievance, in its initial presentation, was commenced in timely fashion. It should be emphasized that the essential purpose of this proceeding, as it pertains to the complaint allegation that Respondent violated Section 8(bX I XA), is not to determine finally whether Irish's grievance was meritorious but the purpose is to determine whether or not the Respondent Union's conduct was arbitrary and capricious and there- fore evaded the fiduciary duty it owed to its members. It appears to me that the issues of untimely filing and hustling were erected by the Respondent as transparently false issues which were introduced to erect a smoke screen behind which the Respondent committed a violation of Section 8(bX IX)(A) of the Act. I so find. I agree with the General Counsel that, based on the record, it is clear that Respondent did in fact violate Section 8(b)(IXA) of the Act as alleged in the complaint. Its failure to process the grievance of Irish was arbitrary and unlawful. By failing to take the action it was required to do as a matter of fair representation, the Respondent violated Section 8(bX IXA) of the Act. 371 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Local 324 and its District Council, as set forth above, occurring in connection with the operations of Centex Homes of California, described above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY It has been found that Respondents Local 324 and its District Council have engaged in certain unfair labor practices. It will, therefore, be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. Local 324 and its District Council are required by statute to give fair and impartial representation to all employees represented by them. The gravamen of Respondents' offense is their failure and refusal, for arbitrary reasons, to process the grievance of Glenn Irish. This failure can and should be remedied by resort to the arbitration process. I shall, therefore, recommend that the Respondents Local 324 and its District Council be ordered to take the grievance of the complainant to arbitration. Since the said Respondents have prejudged the case, it will also be recommended that said Respondents be required to furnish the complainant with reasonable legal fees and to allow 3 Local 485, International Union of Electrical, Radio & Machine Workers, AFL-CIO (Automotive Plating Corp.), 170 NLRB 1234, 1235 (1968); United Parcel Service, Local Union 396, International Brotherhood of Teamsters. him to have his own counsel at the arbitration proceeding. I shall further recommend that the Board retain jurisdic- tion in order to reconsider appropriate, affirmative remedi- al provisions, should those proposed herein prove ineffec- tive.3 CONCLUSIONS OF LAW 1. Centex Homes of California, Incorporated, is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 324, AFL-CIO, of Laborers Interna- tional Union of North America, and its District Council, are labor organizations within the meaning of Section 2(5) of the Act. 3. Nathaniel Jackson and Floyd Elliott are agents of the above labor organizations within the meaning of Sections 8(b) and 2(13) of the Act. 4. By restraining and coercing employees in the exer- cise of rights guaranteed in Section 7 of the Act, Respon- dent Local 324 and its District Council have engaged in unfair labor practices within the meaning of Section 8(b)(1)(XA) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 8(bX)(IXA) of the Act. [Recommended Order omitted from publication.] Chauffeurs, Warehousemen and Helpers of America 203 NLRB 799, 805 (1973). 372