Heavy Constr. Laborer's Local 663

HEAVY CONSTR. LABORER'S LOCAL 663 Heavy Construction Laborer's Local 663, AFL-CIO (Robert A. Treuner Construction Co. and Owen H. Breckner and Associates, Inc.) and Paul A. Burn- ham, Jr. Case 17-CB-1093 August 10, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 16, 1973, Administrative Law Judge Benjamin B. Lipton issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed cross-exceptions and a brief in support of the cross-exceptions and in support of the Administrative Law Judge's Decision. Pursuant to the provision 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 at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his 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 Administrative Law Judge and hereby orders that Respondent, Heavy Construction Laborer's Local No. 663, AFL-CIO, Nevada, Mis- souri, its officers, agents, and representatives, shall take the action set forth in the Administrative Law Judge's recommended Order. DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Administrative Law Judge: The in- stant proceeding I was heard before me on December 5, 1972,2 in Nevada, Missouri, upon a complaint by General Counsel3 alleging certain violations of Section 8(b)(1)(A) and (2) of the Act. Upon the entire record,4 with due consideration of the i Names are as amended at the hearing 2 Unless otherwise specified, all dates are in 1972 3 The charge was filed on September 19 and served by registered mail on September 20 An amended charge was filed on November 3 and similarly served on November 7 The complaint issued on November 17 455 briefs filed by General Counsel and Respondent, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION Robert A. Treuner Construction Co., herein called Treuner, and Owen H. Breckner and Associates, Inc., here- in called Breckner, are each independent masonry contrac- tors. The base office of Treuner is in Sedalia, Missouri, and of Breckner in Willard, Missouri. Annually, Treuner and Breckner each have a direct inflow of purchased goods and services valued in excess of $50,000. I find, as admitted, that Treuner and Breckner are each engaged in commerce, and that Respondent Union is a labor organization within the meaning of the Act. 11 THE UNFAIR LABOR PRACTICES A. Essential Issues All issues stem from Respondent's operation of a hiring hall under agreement or arrangement with certain employ- ers. Under Section 8(b)(1)(A), it is alleged that Respondent threatened Paul A. Burnham to cause his work to be re- duced by curtailing his referrals for employment, and that it threatened it would refuse to provide union clearance for specific jobs. Under Section 8(b)(2), it is alleged that Re- spondent demanded, attempted to cause, and caused the discharge of Burnham by his employer, Breckner, and the discharge of Dennis Williams by his employer, Treuner.5 B. Introductory Facts Respondent is party to a collective-bargaining contract with an employers' association, and has entered into the same contract with individual employers, in the general area of Kansas City, Missouri. As pertinent, the contract pro- vides hiring hall procedures, viz: Section 1....the employer may bang into any job 4 General Counsel's motion to correct transcript (as appears in the formal public files) is hereby granted without objection 5 Respondent moves to dismiss the complaint as to Williams, on the basis of the limitation provisions in Sec 10(b), in that the original charge filed on September 19 made no reference to Treuner, and that Treuner's name first appeared in the amended charge filed on November 2, which was more than 6 months after Williams' termination on March 26. The original charge specifically alleged that Respondent violated Sec 8(b)(2) as to Williams and Burnham, under an exclusive hiring hall arrangement, but it erroneously named Wayne Neil as Williams' employer. Respondent was not unaware that Treuner was the real employer involved Treuner is not a respondent or party in the case I do not find that the failure to specify Treuner's name in the original charge presents a jurisdictional defect or fatal variance with the allegations in the complaint The complaint did not add a new cause of action in relation to the original charge See Granada Mills, Inc, 143 NLRB 957, 958, In I It is not a prerequisite for a violation of Sec. 8(b)(2) to identify the particular employer who has been caused to discriminate. See Internation- al Longshoremen's & Warehousemen's Union, Local No 12 (Donald D Wilson, et al), 155 NLRB 1042, 1050 Furthermore, the amended charge "relates back" and "defines more precisely" the allegations enumerated in the ongi- nal and timely charge. N L R B v Gaynor News Company, Inc, 197 F.2d 719 (C A 2, 1952), affd 347 U S 17 (1954) And see The Lynn Pacific Corporation, 187 NLRB 589 The motion is denied 205 NLRB No. 69 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from any place of jurisdiction up to two men in the craft covered by this Agreement, or twenty-five per- cent of all the men employed on the job in such craft, whichever number is the greater; however, it is under- stood that the first man on the job shall be selected by the Local Union having jurisdiction of the area in which the job is located. In addition to the 25 per cent mentioned above, the Unions agree to give due consideration to any employer's request for specific employees when re- quested by name. Section 2.. ..the employer shall not employ work- men, either to start a new job or replace a workman or fill a new position on a job in progress without first calling the appropriate Union office or representative and requesting a referral of applicants for the job or jobs available. Section 3. The Union shall have the opportunity to fill the employer's request for men qualified to perform the work involved for a period of 24 hours. If the Union is unable to refer applicants within the 24-hour period, the employer may avail himself of other employment sources Section 4. The Employer shall have the right to ac- cept or reject any job applicant... . Since the covered employers have given up and delegated to the Union, for a period of 24 hours, the right to hire the first employee on the job and any additional employees beyond the maximum of two employees or 25 percent of the complement permitted the employers initially to be brought onto a new job-it is found that, to such extent, an exclusive hiring hall is contemplated by the agreement.' Therefore, in the operation of such an exclusive referral arrangement, the Union was bound to act without discrimination as would encourage or discourage union membership.7 In practice, the testimony indicates that the functions of administering the hiring hall and issuingjob referrals were carried out and controlled entirely by Robert Cargill, assistant business agent of the Union. He also appoints the job stewards and personally collects the dues from each member. Cargill runs the hiring hall from his home in the area of Nevada, Missou- ri.8 At such location, telephone calls, from employers and applicants for work, are the principal means of communica- tion. Cargill regularly travels throughout five counties vis- iting jobsites, and is away from his home for lengthy periods. In his absence, there is no one at his home, and no arrangements are made for taking messages. He estimated that membership in the Union consisted of about 125 labor- ers, of whom 60 were employed on union jobs, at the time of the hearing. In 1972, he had about two job referral re- quests each week, some coming directly from the stewards. As he testified, he has an "odd system" of file cards in 6 E g, Local 25, Marine Division, International Union of Operating Engi- neers, AFL-CIO (American Dredging Company), 149 NLRB 519, 535, Local Union 136, Muskingum Valley District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et at (Frank Vlack Company), 165 NLRB 1040, 1041 7 Local 357, International Brotherhood of Teamsters [Los Angeles- Seattle Motor Express] v NLRB , 365 U S 667 (1961) 8 The Union has a business office in Kansas City, about 100 miles north of Nevada selecting applicants for job referrals .9 He makes the judg- ment himself, in each case, on the basis of such criteria as-how many members out of work, how much work ap- plicant had in past, how long out of work, distance from home, territory involved, means of transportation, and vari- ous demands on the farm. He also stated that the degree of skill required on the job is a "great factor," although he did not clarify whether or how this factor was communicated to him by the employer, or how he determined the skill qualifi- cation of the individual laborer. Hiring "off the bank," i.e., an applicant obtained his own job, was generally regarded by Cargill as a violation of the hiring hall procedures by the applicant and the employer. However, he testified that he told laborers, about five or six times during the year, that they could obtain a job on their own. But such hiring, after the fact, still must be cleared with Cargill. In certain cases, Cargill reserved the job referral for a specific member weeks before the particular work became available. It appears in the record that, in 1972, certain members engaged in a concerted movement to protest Cargill's methods of manag- ing the hiring hall. The complaint does not allege that the entire hiring hall system, as practiced by Cargill, is unlawful, and I do not pass on such question. The foregoing provides a pertinent background against which the specific issues herein may be evaluated. C. Williams On February 25, Robert Treuner, president of the firm, telephoned Cargill that he had the masonry subcontract at the Adrian High School and expected to begin work on this project in the spring. He inquired as to the hiring proce- dures, and Cargill described the terms of the contract. Un- der such terms, Treuner could bring in two of his regular employees, members of a sister local, but was required to obtain his first laborer by referral from the Union. During this time period, Harold Watson, in the employ of a con- tractor, Wayne Neil, was the only steward of the Union at the entire Adrian project. About March 15, when Cargill visited thejobsite, he was told by Watson that he should get in touch with Treuner, who was in the process of moving in. On March 20, between 8 and 10 a.m., while Treuner was at thejobsite, the general contractor, B. H. Brown, introduced Watson as "the job steward." Treuner asked Watson if he could contact Cargill to provide a laborer ready to start work the next morning; if possible he would like to have Williams, who was referred to him as being familiar with the job. Watson stated he would talk to Cargill that evening, and he would "see to it" that Treuner had a man to work the next day. On March 21, Williams was there when Treun- er arrived in the morning. Treuner said, "I assume you are the man that is oing to work for me." Williams answered, "This is right." 1§ Williams worked from March 21 through 23, but not on Friday, March 24, because of rain. On sepa- 9 These were not produced in evidence The contract refers to the mainte- nance of a "hiring list " 10 In February, Williams had worked 5 days for Wayne Neil at the Adrian project, after Watson had called him. Cargill had given Watson subsequent approval without issuance of a work order (i e, an instance of hiring "off the bank") On March 20, Watson called Williams and told him to come down to work for Treuner, that he had been unable to get hold of Cargill, and that he would keep trying to notify Cargill about this job HEAVY CONSTR. LABORER'S LOCAL 663 rate days that week , Watson tried to communicate with Cargill-three times by telephone and one visit to Cargill's home-without success." On March 26, in the evening, Treuner reached Cargill by telephone . When Treuner re- vealed that he had started the job on March 21, Cargill said, "How can you, you don't have one of my men there?" Treuner explained that Watson, the steward , had brought Williams and he assumed Cargill knew all about it. Cargill made it clear that Williams was not "one of his men," and if Treuner wanted to keep Williams he would have to let go one of his two regular employees brought to thejob . Treun- er protested that it was unfair , as he already had one of the Union's men (Williams) on the job . Cargill then stated that Williams would have to be laid off . Treuner said that he would not discharge him, that Cargill "would have to." They "finally agreed" that Cargill would send another man the following morning and see that Williams was not back on thejob. That evening, on instructions from Cargill, Wat- son told Williams not to show up the next day. On March 27, Williams did not appear on the job , and Cargill was there together with Earl Dotson , the new man . Cargill gave Treuner a contract and said that, if signed, they were ready to go to work . Treuner signed, stating-"All I want is one man so I can go to work ." Dotson was then appointed the union steward for the Treuner job. On April 6, Williams and his father, both members of the Union, together with Watson , went to the union meeting in Kansas City. They spoke with Willard Wilkinson, the Union's president, complaining about Cargill's treatment of Williams on the Adrian job . Cargill explained that Williams had been "hired off the bank," and he had to tell the steward not to have Williams show up for work . Williams continued his efforts to obtain employment through the Union. At the end of April, Cargill referred him to the Parker job in Hor- ton, Missouri, where he worked for about I month. Cargill testified that, at the union meeting in April, he indicated he had two jobs in mind for Williams at some future time either at Foodtown or Parker. Williams' father or Watson asked him if he "could o.k." Williams for the Treuner job. Wilkinson then told Cargill to call Treuner and try to get Williams back on that job.12 After the meeting, Cargill called Treuner, who said he had no openings then but would call for Williams later. In late April, Treuner telephoned Cargill for a laborer, specifically requesting Wil- liams. However, Cargill did not send Williams because he had him down for the Foodtown or Parker jobs . Instead, Paul Burnham was sent to Treuner, was hired, and thereaf- ter appointed by Cargill to replace Dotson as steward. Treuner credibly testified as follows: About April 7, he called Cargill for an extra man, and specifically asked for Williams. Treuner quoted from the contract the provision that the Union would give "due consideration" to the employer's request for a specific employee . Cargill replied that it was up to him to place the man wherever he thinks fit. Burnham gave the testimony that , about April 6 (proba- bly April 7), Cargill referred him to the Treuner job. Initial- ly, the general contractor (Brown) refused to allow him on 11 Whether he had been home that week every night to sleep-Cargill answered , "Not every night, I doubt " 12 Corroborated by Wilkinson 457 the job because Williams was the man requested, but relent- ed after talking to Cargill by telephone. The following week Cargill came to the jobsite and told Burnham, "if anyone asks why you were sent on this job, tell them that you had known about the job previously and had asked for this employment with me." 13 In fact, Burnham had no previous knowledge of the job. Conclusions as to Williams There is no contention at the hearing that the 24-hour exclusive hiring hall system, as delineated in the contract, was not applicable when Williams was hired on March 21. The essential arrangement was agreed upon in the telephone conversation between Treuner and Cargill on February 25, and honored by Treuner thereafter. Particularly considering the custom of prehire agreements on new projects in the construction industry, I find that such an understanding arrived at by both knowledgeable parties was binding upon them, preceding the actual signing of the contract. 14 The hiring hall agreement provides that the employer 's request for job referrals be made to the "appropriate Union office or representative." Although Watson was the only steward of the Union then on the project, it cannot be held in the present circumstances that he was authorized to give final approval for the hiring of Williams on the Treuner job; indeed Treuner was so aware. However, Watson was cer- tainly acting as intermediary for Treuner and apparent agent of the Union in his repeated attempts to convey to Cargill Treuner's specific request for Williams. 15 In the op- eration of an exclusive hiring hall, it is an essential duty of the union to make itself reasonably available to applicants and to the covered employers relying thereon. I find that, despite all reasonable efforts for several days after the Treuner job was begun, the Union, through Cargill, was inaccessible to fulfill Treuner's request to supply the first laborer on the job. Further, the "due consideration" clause which is part of the hiring hall arrangement is not a mean- ingless gesture, and must be given some effect, as intended by the negotiating parties. It is also relevant to consider the manner in which the exclusive hiring hall was adminis- tered-virtually out of the vest pocket of Cargill, maintain- ing no regular hiring list or system on a visibly equitable basis,16 being frequently inaccessible, and applying broad subjective judgments in selecting an applicant for referral. Against the entire background, and particularly because of Cargill's unavailability during an extended period, I find that "due consideration" was not given to Treuner' s specific request to hire Williams. The factor stressed by Respondent 13 Uncontradicted 14 E g., International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Local Union No 577 (Various Employers in Hannibal, Missouri), 199 NLRB No 8, Local 117, United Brotherhood of Carpenters & Joiners of America, AFL-CIO (Peter Kiewit Sons' Co), 189 NLRB 690, In 1, Local Union 136, Carpenters, supra, 165 NLRB at 1041 15 See, e g., United Brotherhood of Carpenters & Joiners of America, Local 1281, AFL-CIO (Raber-Keif, Inc), 152 NLRB 629, 630. 16 As for example, the relative priority of equally qualified individuals, including nonmembers, in the order of their making application, and leaving them to the decision whether or not to reject the job offered for personal or extraneous reasons Cf , International Union of Operating Engineers, Hoisting and Portable Local No 513, AFL-CIO (S J Groves and Sons Go), 199 NLRB No. 155. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerning the relative scarcity of jobs during the material period, it appears to me, would be all the more reason for distributing the available jobs to applicants, including non- members, on an even-handed and nondisparate basis. I do not perceive that Cargill was justified in the elimination of Williams simply because he had informed Dotson of the Treuner job 4 weeks before it started and Dotson said he was interested. Among other things, there was no commit- ment made to Dotson, and no consideration given to the relative rights of other applicants, such as Williams, as of the maturation of the job. The agreement permits Treuner to hire directly if the Union is unable to fill his request for men within a 24-hour period. Accordingly, I hold that Williams was validly em- ployed on March 22, more than 24 hours after Treuner's job request. Respondent's decision that, in any event, Williams voluntarily quit on March 27 17 when he failed to show up for work is rejected. Unquestionably, Cargill demanded that Treuner discharge Williams or, in lieu thereof, one of his regular men. Treuner was unwilling but finally did agree that Williams may be relieved on the basis that Cargill would attend to the matter and send another man in Wil- hams' stead. Watson, as instructed, told Williams not to show up, and Williams complied-as not to prejudice his opportunity for future work through the Union's referral system. Treuner knew and acquiesced, though reluctantly, in Respondent's conduct, while agreeing in effect that the Union would act as agent for the termination. In these circumstances. I find that Williams was constructively dis- charged.18 Cargill stated as a reason for his action that Williams had hired "off the bank," 19 although admittedly this was not an uncommon practice and at times specifically authorized by Cargill. The violation of Section 8(b)(2) is made out by Respondent's attempting to cause and causing Williams' discharge, unwarranted by the terms of the exclusive hiring hall, for reasons other than Williams' failure to pay the Union's periodic dues and fees, and which clearly tends to encourage union membership, or membership regularity, in compelling adherence to arbitrary practices of the union leadership 2° On April 6, Treuner's specific request for Williams was again ignored by Cargill. This time, by his own admission, Cargill was directed by the Union's president to get Wil- liams back on the Treuner job, if available, and Cargill agreed to do so. Instead, he referred Burnham to the job, and sought to create a false justification by requesting Burn- ham to say he was promised this job in advance. Cargill's testimony pertaining to the job request of Treuner is clearly to be discredited. I find, in this instance, that Cargill plainly failed to give "due consideration" to Treuner's request for 17 At this time, Treuner was signatory to the formal contract 18 Teamsters, Chauffeurs, Warehousemen, Stablemen and Helpers Local 182 (S A Scullen Co), 164 NLRB 234, 235 19 An additional reason was that Williams "had more than his share of work in the territory, it being short " 20 E g , Teamsters, Chauffeurs, Warehousemen, Stablemen and Helpers Local 182 (S A Scullen Co), supra, International Union of Operating Engineers, Local No 513, AFL-CIO, (S J Groves and Sons Co ), supra, Laborers Inter- national Union of North America, Local 1177 (Nichols Construction Corpora- tion), 183 NLRB 1063 Williams, and that his refusal to refer Williams was arbi- trary and discriminatory . From all the evidence, it is reason- ably inferrable that Cargill's actual motivation was to demonstrate that he was the sole arbiter in determining job placement, and to serve as a warning that his favor and good will are to be nurtured and sustained .21 Therefore, I con- clude that Williams was discriminatorily denied ajob refer- ral on or about April 7, with the necessary effect of encouraging union membership, in violation of Section 8(b)(2). D. Burnham In late 1970, Burnham was told by Cargill that he could seek his own work, or hire "off the bank." Thereafter, he did so in specific instances. He had virtually continuous em- ployment on union jobs for 1- 1 /2 years until the end of June 1972.22 In mid-July, he was part of a group of laborers who visited the Union's office in Kansas City to complain against Cargill's "unjust hiring practices." On August 11, a special union meeting was held to air these grievances. Burnham was chosen and acted as spokesman for the pro- testers. Addressing all the members present, he questioned if anyone knew where he stood on the hiring list. Union President Wilkinson then stated that there was "no such thing as a hiring list," that the men are "sent out at Cargill's discretion," and "not how their names turn up." Wilkinson was asked if a man would be referred if specifically request- ed by a contractor. He answered, "he would if he hasn't been working quite a bit," and if "he had his dues paid up and if he was qualified." 23 He also told them that, if they were not cleared for a job by Cargill, "they could be wrote out for discharge and sometimes" brought up on charges before the Union. Burnham stated that some members were hardly given any referrals, while others, including himself, were favored in receiving continuous work. Cargill then replied, "If you are complaining about working too much, I can damn sure accommodate you on that matter." 24 On August 16, Burnham and eight other members of the Union sent a letter of complaint concerning Cargill to the Interna- tional and requested an mvestigation.25 After completing his work at the Treuner job, Burnham remained unemployed, although he actively sought work through the Union. On September 11, he went to the Central States project, and was hired at 12:30 p.m. by Breckner's superintendent, William Battenberg, on a temporary basis, because a regular laborer did not show up for work that day. The Union'sjob steward, Victor Jennings, had been unable to reach Cargill that morning to send another man. Burn- ham informed Jennings he did not have an advance referral slip, but he had a paid-up union card, Cargill was "peeved" 21 Cf, International Longshoremen's Association, Local No 1581, AFL-CIO (Manchester Terminal Corporation), 196 NLRB 1186 22 Although Burnham estimated he worked 4 months on the Treuner Job, it appears that he was seeking employment in early July, or about 3 months after he started with Treuner 23 Watson 's testimony 24 Cargill admitted saying that Burnham "wouldn't have that problem anymore " 5 In mid-September, the letter was reviewed in detail with a representative of the International at a meeting attended by Cargill and the members who signed the letter HEAVY CONSTR. LABORER'S LOCAL 663 at him, and he felt he was entitled to the work. He asked Jennings to let Cargill know he was working there. Cargill was so informed that evening. On September 12, at the jobsite, Cargill told Battenberg he would have to get rid of Burnham, mentioning that Burnham "had caused him trou- ble." Battenberg did not wish to let Burnham go. He sug- gested that they wait a day or two to see if the regular laborer would return to work. Cargill also spoke to Dennis Williams, who was then employed on the Central States job. He told Williams he needed someone to turn in a complaint against Burnham for hiring "off the bank." Williams said he was complaining himself because Cargill had run him off the Adrian job after the union steward had put him to work. Jennings came over at this point, when Cargill said, "I will bet you my farm that I get Paul Burnham's card or a hun- dred fifty dollars, and have him off thejob." On the follow- ing day, Battenberg again refused Cargill's request that Burnham be discharged, and asked that the demand be submitted in writing. On Monday, September 18, Breckner received a letter signed by Union President Wilkinson re- questing Burnham's discharge on the ground that he was hired without notifying the Union, in violation of the con- tract. Burnham was terminated at the end of that day. On September 19, Burnham filed with the Board the charge in the instant case. On September 22, Burnham asked Cargill if he was going to get the letter Cargill prom- ised him to verify that a certain contractor had told Cargill he would not hire Burnham because he was a "troublemak- er." 26 Cargill replied, "Why should I do anything for you ....You have a lawsuit against me." Conclusions as to Burnham As alleged by General Counsel, I find that, at the union meeting on August 11, Cargill threatened to curtail Burnham's future job referrals because Burnham, as spokes- man of the protest group, complained about Cargill's "un- just" operation of the hiring hall. Similarly, I find that Cargill, with the same motive of reprisal, threatened to get Burnham's union card and to "have him off" Breckner's job on September 12, and that he impliedly threatened on Sep- tember 22 not to do anything for Burnham because he had filed a charge with the Board against Cargill. These consti- tuted separate violations of Section 8(b)(1)(A).27 The ostensible reason for causing Burnham's discharge by Breckner was that he had hired "off the bank." It has already been shown that Cargill's practice in this regard was arbitrary, disparate, and inconsistent. Burnham was instru- mental in lodging organized protests with the Union and the International against Cargill's management of the exclusive referral system. Clearly, there were concerted activities pro- tected under Section 7, and encompassed within the kind of 26 On September 12, at the Central Statesjobsite, Cargill had told Burnham he "would have" sent him to the Sell job but the contractor, in calling for some men , instructed him not to send "Burnham or Frank Ross because they are troublemakers " Cargill offered to get Burnham "a letter on that," if he wished, and Burnham so requested 27 See International Association of Bridge, Structural and Ornamental Iron Workers, Local 350 (Atlantic County Building Trades Employers Association, et al ), 164 N LRB 644, 650-651, United Brotherhood of Carpenters and Joiners of America, Local 1281, AFL-CIO (Raber-Kief, Inc), supra 459 discrimination proscribed in Section 8(b)(2).18 It is suffi- ciently evident from the entire record, particularly in view of Cargill's threats to and regarding Burnham, supra, that the Union attempted to cause and did cause Burnham's discharge by Breckner substantially for reasons relating to his protected concerted activities, thereby violating Section 8(b)(2) .11 THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. It has been found that Respondent unlawfully caused Treuner to discharge Dennis R. Williams on March 27, and that Respondent discriminatorily denied Williams a job re- ferral to Treuner on or about April 7, in violation of Section 8(b)(2). It has also been found that Respondent unlawfully caused Breckner to discharge Paul A. Burnham on Septem- ber 14, in violation of Section 8(b)(2). It shall therefore be recommended that Respondent notify Treuner, Breckner, and other employers using the hiring hall, that it has no objection to the employment of Williams and Burnham, and that Williams and Burnham will have full use of the hiring hall facilities without discrimination for the purpose of referrals for employment. It shall also be recommended that Respondent make Williams and Burnham whole for any loss of earnings suffered by each of them as a result of the discrimination practiced against them. Such payments shall be equal to the amount of wages each of them would have earned but for the discrimination, in accordance with the standards set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. On the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Robert A. Treuner Construction Co. and Owen H. Breckner and Associates, Inc., are each employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Heavy Construction Laborer's Local No. 663, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By attempting to cause and causing Robert A. Treuner Construction Co. to discharge Dennis R. Williams on March 27, 1972; by refusing to issue a job referral to Wil- liams on or about April 7, 1972, for employment with Treuner; and by attempting to cause and causing Owen H. 28 E g, Local Union 136, Muskingum District Council of the United Brother- hood of Carpenters and Joiners of America, AFL-CIO, supra, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No 38, (Al Johnson Construction Co), 146 NLRB 1627, cf. Hoisting and Portable Engineers, Local No 4, et at (The Carlson Corporation), 189 NLRB 366 29Ibid And see Local 1098, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Chauncey Construction Company, Inc), 186 NLRB 385, United Brotherhood of Carpenters and Joiners of America, Local 1281 AFL-CIO (Raber-Keif, Inc), supra 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Breckner and Associates, Inc., to discharge Paul Burnham on September 14, 1972, because Burnham had engaged in concerted activities protected by Section 7 of the Act, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 4. By the foregoing, and by other acts and conduct re- straining and coercing employees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 5. 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 above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3o Respondent, Heavy Construction Laborer's Local No. 663, AFL-CIO, Kansas City and Nevada, Missouri, its offi- cers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Robert A. Treuner Construction Co., or any other employer, to discriminate against Dennis R. Williams, or any other employee or appli- cant for employment, in violation of Section 8(a)(3) of the Act. (b) Discriminatonly refusing to issue a job referral to Dennis R. Williams, in the operation of its exclusive hiring hall. (c) Causing or attempting to cause Owen H. Breckner and Associates, Inc., or any other employer, to discriminate against Paul A. Burnham, or any other employee or appli- cant for employment, in violation of Section 8(a)(3) of the Act, or by discriminatorily denying Burnham or any other employee or applicant job referrals because they engage in the exercise of nghts guaranteed in Section 7 of the Act. (d) Threatening members, employees, or applicants for employment with loss of jobs, internal union discipline, denial or curtailment of job referrals, or any other reprisal, because they engage in protests against the Union's discn- minatory referral practices or engage in any other conduct protected by Section 7 of the Act. (e) In any other manner restraining or coercing employ- ees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Make whole Dennis R. Williams and Paul A. Burn- ham for any loss of earnings suffered by each of them as a result of the discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all refer- ral records and any other records relevant and necessary for the determination of the amounts of backpay due. (c) Notify Robert A. Treuner Construction Co., Owen H. Breckner and Associates, Inc., and all other employers who use Respondent's exclusive hiring hall, and mail copies of such notice to Dennis R. Williams and Paul A. Burnham, that Respondent has no objection to the employment of either Williams or Burnham, and that Williams and Burn- ham will have full use of the hiring hall facilities without discrimination for the purpose of referrals for employment. (d) Post at Respondent Union's offices, meeting halls, and hiring halls, copies of the attached notice "Appen- dix." 31 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent, shall be posted 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 to ensure that said notices are not al- tered, defaced, or covered by any other material. (e) Mail to the Regional Director for Region 17 signed copies of said notice for posting by Robert A. Treuner Construction Co. and Owen H. Breckner and Associates, Inc., if willing, at their business offices and construction sites where notices to their employees are customarily post- ed. (f) Notify the Regional Director for Region 17, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 30 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 31 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 " APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Robert A. Treuner Construction Co., or any other employer, in violation of Section 8(a)(3) of the Act, to discriminate against Dennis R. Williams, or any other employee or applicant for employment, or discriminatorily refuse to issue to Williams a job referral in the operation of our exclusive hiring hall. WE WILL NOT cause to attempt to cause Owen H. Breckner and Associates, Inc., or any other employer, to discriminate against Paul A. Burnham, or any other employee or applicant for employment, in violation of Section 8(a)(3) of the Act, or by discriminatorily deny- ing Burnham, or any other employee or applicant, job referrals because they engage in the exercise of rights guaranteed in Section 7 of the Act. WE WILL NOT threaten members, employees, or appli- cants for employment, with loss of jobs, internal union HEAVY CONSTR. LABORER'S LOCAL 663 discipline, denial or curtailment of job referrals, or any other reprisal, because they engage in protests against discriminatory referral practices of the Union, or other conduct protected by Section 7 of the Act. WE WILL NOT , in any other manner, restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL make whole Dennis R. Williams and Paul A. Burnham for any loss of earnings suffered by each of them as a result of the discrimination against them, plus 6-percent interest. WE WILL notify Robert A. Treuner Construction Co., Owen H. Breckner and Associates, Inc., and all other employers who use our exclusive hiring hall , and mail copies of such notice to Dennis R. Williams and Paul A. Burnham, that Williams and Burnham will have full use of our hiring hall facilities without discrimination for the purpose of referrals for employment. Dated By 461 HEAVY CONSTRUCTION LABORER'S LOCAL No 663, AFL-CIO (Labor Organization) (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 direct- ed to the Board's Office, 616 Two Gateway Center, Fourth at State, Kansas City, Kansas 66101, Telephone 816-374- 4518.