Plumbers Local Union No. 137

PLUMBERS LOCAL UNION NO. 137 359 United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry Local Union No. 137 (Hames Construction and Equipment Co., Inc.) and Floyd H. Sexton. Case 38-CB-519 November 15, 1973 DECISION AND ORDER the employees in the unit, but that it was part of an unlawful overall plan directed at all employee- members who engaged in internal union election activity against the incumbent officers. Since the refusal to refer Sexton was but one element of this plan, it violated Section 8(b)(1)(A)4 for that reason as well. BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On June 29, 1973, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein. We agree with the Administrative Law Judge that the Respondent violated Section 8(b)(1)(A) by Business Manager McKenna's threat to employee Burch that McKenna "was going to jump . . . with both feet" on people who campaigned against him in the union election and that they "were not going to work in this area any more." We also agree that the Respondent violated Section 8(b)(1)(A) by its refusal to refer Sexton for the position of general foreman because he was cam- paigning against McKenna.2 Like the Administrative Law Judge, we find that the rationale of International Photographers of the Motion Picture Industries, Local 659 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (MPT-TV of California Inc., Y-A Productions, Inc.),3 is applicable here. In this connection, we note also that not only do the parties hereto consider the job of general foreman to be within the referral provisions of the contract, but we may take official notice that this proceeding arises in the construction industry in which it is well known that individuals may be employed as rank- and-file workers on one job and as supervisors on the next. Therefore, the refusal to refer Sexton might well restrain or coerce him as an employee on some other construction project. In addition, it is fully apparent not only that the discrimination against Sexton was communicated to ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified herein and hereby orders that Respondent, United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry Local Union No. 137, Springfield, Illinois, its officers, agents, and representatives, shall take the action set forth in the said recommended Order as modified below: 5 1. Substitute the following for paragraph 1(a): "1(a) Refusing to grant referrals from its exclusive hiring hall facilities, which are operated pursuant to contract or other arrangement with employers, to Floyd H. Sexton, or any other member, employee, job applicant, or registrant, on an equal and nondiscriminatory basis, in reprisal for his having opposed the incumbent union leadership and having otherwise engaged in protected internal union activities." 2. Substitute the attached notice for that recom- mended by the Administrative Law Judge. i The 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 credibility 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, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Chairman Miller concurs in the result reached with respect to the refusal to refer Sexton solely because the Respondent's discriminatory activity was part of its overall plan directed at all employee-members engaged in internal union election activity against its incumbent officers. The refusal to refer Sexton was but one element of this plan. Had the discriminatory activity been directed solely against him, Chairman Miller would not have found a violation of Sec. 8 (b)(l)(A) inasmuch as that section. like Sec. 8(b)(2), refers strictly to "employees" and the position to which Sexton sought referral was supervisory. 3 197 NLRB 1187 (Chairman Miller dissented on procedural grounds and did not reach the merits of that case). Although the portion quoted from that decision by the Administrative Law Judge in the last paragraph of part "IIL Discussion" is dictum, inasmuch as the persons there involved were found to be employees and the quoted language stated that the same result would have been reached even if the majority had found them to be supervisors, Members Fanning and Penello (the latter not having participat- ed in that case) agree with the view expressed there. * Cf. Pioneer Drilling Co., Inc, 162 NLRB 918, 923- * The Administrative Law Judge's recommended Order and notice inadvertently include language remedying the alleged 8(bX2) violation which he failed to find. Inasmuch as ' we agree that no violation of Sec. 8(b)(2) was committed, we have deleted those portions of his recommended Order and notice directed thereto. 207 NLRB No. 30 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX DECISION NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To members, employees, registrants, and all other job applicants using our exclusive hiring hall facili- ties: WE WILL NOT retuse to grant job referrals from our exclusive hiring hall facilities to Floyd H. Sexton, or any other member, employee, job applicant, or registrant on an equal and nondis- criminatory basis, in reprisal for his having opposed the incumbent union leadership and having otherwise engaged in protected internal union activities. WE WILL NOT threaten members, employees, job applicants, or registrants with loss of employ- ment opportunities or any other reprisals if they engage in activities which are critical of the conduct of or in opposition to the incumbent union officers and officials- WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL make whole Floyd H. Sexton for any loss of earnings he may have suffered by reason of the discrimination practiced against him. WE WILL notify, in writing, Floyd H. Sexton that the Union's exclusive hiring hall facilities and job opportunities will be available to him on an equal and nondiscriminatory basis with other members, employees, job applicants, and regis- trants. UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES OF THE PLUMBING & PIPEFITTING INDUSTRY LOCAL UNION No. 137 (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Savings Center Tower, 10th Floor, 411 Hamilton Boulevard, Peoria, Illinois 61602, Telephone 309-673-9061, Ext. 282. FRANK H. ITKIN, Administrative Law Judge : This case was tried before me at Springfield, Illinois, on May 24, 1973. The charge was filed by Floyd H . Sexton on March 20 and the unfair labor practice complaint, as amended,' issued on April 20, 1973. The principal issues presented are whether Respondent Union caused Hames Construction and Equipment Co., Inc., not to hire employee Sexton because Sexton ran for union office against an incumbent official and engaged in other intraunion activities and, further, whether Respondent Union otherwise restrained and coerced employees in the exercise of thier Section 7 rights, in violation of Section 8(b)(1)(A) and (2) of the National Labor Relations Act. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by both counsel, I make the following: FINDINGS OF FACT 1. INTRODUCTION ; JURISDICTION The complaint alleges, the answer admits, and I find and conclude that Hames Construction-an Ohio corporation with facilities at North Lima, Ohio-is engaged in the business of installing, erecting, and repairing compressor stations, meter stations, and pump installations at the Eastern Pipeline Company pumping station in Glenarm, Illinois; that during the past 12 months Hames Construc- tion purchased and caused to be delivered to the Glenarm pumping station goods and materials valued in excess of $50,000, which goods and materials were transported directly from States other than Illinois ; and that Harries Construction is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint also alleges, the answer admits, and I find and conclude that Respondent Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. Further, the complaint alleges, the answer admits, and I find and conclude that, at all times material, William McKenna has been business manager for the Union ; Roger Buecker has been business agent for the Union; Charles Williamson has been financial secretary for the Union; and that McKenna, Buecker, and Williamson have been and are agents of Respondent acting on its behalf within the meaning of Section 2(13) of the Act. II. THE UNFAIR LABOR PRACTICES John Tusinac testified that he is employed by Hames Construction as construction superintendent . Tusinac testified that Hames Construction has been engaged in the installation of water coolers, piping, and related items at the Glenarm construction site; and that on September 28, 1972, Hames Construction became an individual signatory employer to the collective-bargaining agreement between Respondent Union and the West Central Illinois Plumbing I The complaint was amended on April 26 and at the hearing on May 24. PLUMBERS LOCAL UNION NO. 137 361 and Piping Contractors Association (G.C. Exhs. 2 and 3, effective April 1, 1971, through March 31, 1973). Tusinac testified that previously, on November 16, 1970, Haines Construction had signed a collective-bargaining agreement between Respondent Union and the Springfield Associa- tion of Plumbing, Heating and Cooling Contractors (G.C. Exh. 5, effective April 1, 1969, through March 31, 1971). According to Tusinac, the 1969-71 contract covered the Company's earlier construction job at Waverly, Illinois. Tusinac explained: ... Well, unless we keep a file of all our past contracts with all the unions, we don't know whether we still have a contract with them or not. We come into an area and we have a pre job conference and we sign everybody's contract, as this one was, since it had expired since the previous contract. . Tusinac testified that Haines Construction had employees referred to it by Respondent Union at the Waverly, Illinois, construction job and, later, at the Glenarm, Illinois, project site, and that both jobs are in Respondent Union's jurisdiction. The 1971-73 collective-bargaining agreement provides in article III (pp. 4-8, G.C. Exh. 3) for the exclusive referral by the Union of job applicants. The agreement states, inter alia: as are competent to fulfill the requirements of the positions sought to be filled and who have acquired the experience and possess the requisite skills for the fulfillment of the vacant positions as specified by the Employer. If required by the Employer, the Union, if no qualified and competent applicants are registered, shall furnish applicants from any source that is available. d. Individuals on each list shall be placed at the bottom of the appropriate list as they register for placement on the out of work list and report that they are out of work seeking placement. e. A job that an applicant is sent on must be for a minimum of 5 consecutive working days before applicant will lose his place on the out-of-work list. Any applicant refusing to accept a job referral shall be returned to the bottom of the out-of-work list, except where said job will create a hardship on said applicant. Any applicant that places his name on the out-of- work list shall make every effort to be available at the telephone number or numbers, that he gives to the referral office. Any applicant that cannot be reached within a 24 hour period shall be passed over. ARTICLE III Referral of Applicants 4. In order that the Employer shall have a competent working force and to promote efficiency and safety of operation, the Employer and the Union agree: 1. The Union shall maintain a list of persons available for employment. 2. The Union shall be the sole and exclusive source of referral of applicants for employment. The Employ- er shall request the Union to refer applicants as required and shall not solicit applicants directly and shall not in any manner circumvent the Union in the recruitment of applicants for employment. 5. All such referrals for employment shall be in accordance with the following procedures. * * * * * b. Applicants for referral shall fill out a work qualification form supplied by the Union prior to their being placed upon the referral register. Each applicant for referral on the said referral list shall be required to register for referral on the first Monday of each quarter in the calendar year in order to maintain his position on the referral list. The referral office shall be open for registration for three (3) hours, from 7:30 to 10:30 A.M. during normal business days. c. The Union shall refer to the Employer in the order of registration on the referral list such applicants 6. Employers desiring the services of a specific applicant registered may request his referral in writing to the referral office,, and if such applicant was employed by the employer in the geographical area for at least 90 calendar days in the 18 months before the request, said applicant shall be referred to such employer. Tusinac testified that, in order to get Respondent Union to refer employees to Hames Construction, he would general- ly telephone Respondent's business agent and "ask . . . if he can send me down certain men. If they are not working and if they are available, they [the Union] generally comply with" the request. Tusinac recalled that Charging Party Floyd Sexton was previously employed by Haines Construction as general foreman at its Waverly construction site for 4 or 5 months.2 Tusinac telephoned Sexton about September 20, 1972. Tusinac testified: We were down here in Springfield for a conference with the Panhandle Eastern Company on this job [at Glenarm]. They gave us the contract, and while we were here I called Floyd [Sexton] to see whether he would want to work for us. * I asked Floyd if he was working. He said, yes he was working outside of the jurisdiction of [Respondent] Local. I told him we were coming in a week or so and asked him if he would like to come back to work for me as general foreman, and he said, yes, but I would have to clear it through the hall first. 2 Tusinac placed this: "Oh, October someplace to February or March the following year." 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tusmac testified that on September 28, 1972, he "had a pre job conference with all the crafts." The 1971-73 contract was signed by Haines Construction. At the close of the conference, according to Tusinac, McKenna said: ... "I [McKenna] understand you want Floyd Sexton to come to work for you." [Tusinac ] said, "Yes, I do." [McKenna] said, "I am sorry, I can't send him down there. He is not available," so [Tusinac] asked [McKenna] to send somebody else down.... Tusmac recalled that, shortly after the above conversa- tion, he had occasion to request the Union to send named employees to the job. Tusinac explained: I called Bill [McKenna] on the phone and asked him if they [Bob Boyd and Bob McCracken] would come down. Tusinac also recalled that sometime after September 28 and before October 2, 1972, McKenna brought a letter to Tusinac at the Glenarm site for Tusinac to sign. The letter-dated September 25, 1972, prepared by McKenna, addressed to McKenna, and signed by Tusinac for Hames Construction-stated: We will be starting some work in your jurisdiction very soon at the Glenarm Station for Panhandle Eastern Pipeline Co., and they have requested, that we request, the 2 men who were on the last job as Welder and Fitter. This would be Robert McCracken and Robert Boyd. I hope you can comply with our request without causing any great inconvenience. Tusinac explained: . . . he [McKenna] showed me [Tusinac] the letter, asked if I would sign it, the request, and said, being those two men were only out of work for one week and there were other men higher up on the list, being as I [Tusinac] requested them, he would like to have it in letter form. Tusinac testified that employee Robert Maddox was referred to him by the Union instead of Sexton as foreman; that Maddox started work on October 2, 1972; and that Maddox completed work or was laid off on December 22, 1972. Tusinac testified that he had never specifically requested by name the referral of employee Eugene Kelley Brown; that Brown in fact was referred to Hames Construction on October 3, 1972; that Brown was laid off on December 22; and that when the Glenarm job resumed in 1973 Brown "came back as [the Company's] Foreman, Maddox didn't come back out on the job." Tusinac added that, with or without a contract with the Union, his employer would usually request a foreman through the Union's hall because: First place, you don't know what you are getting. Second place, no Union members will work for them or with them.3 On cross-examination, Tusinac explained that he under- stood that his employer could "specifically ask for somebody specific. Generally, they [the Union] will send them out, and especially in the case of a general foreman. There are very few general foremen in any Local." Tusinac added: ". . . if they [the employees] work for me previously . . . McKenna has showed me that he agrees with me to some extent, because he did send some men down" who were specifically requested. Tusinac assertedly made "a clear request" for Sexton and McKenna said that "he was not available." Tusinac testified that McKenna had never told him that requests for certain individuals had to be in writing.4 Floyd H. Sexton testified that he has been a member of Respondent Union for over 23 years; he ran for the union office of business agent in 1964; he ran for the union office of president in 1967; he ran for the union office of business agent in 1972; and he was defeated in all of his attempts to be elected to union office. Sexton testified that the last union election was held on December 9, 1972. Sexton ran against incumbent Roger Buecker for the office of business agent. Some 320 union members voted out of a total membership of about 630 and Sexton lost by 42 votes. Sexton recalled that during August 1972, a "number of ... members came to [his] house ... and asked if [he] would consider running for office ...." Sexton agreed. Thereafter, according to Sexton, the group held three meetings. The first meeting was held at the Holiday Inn in Jacksonville, Illinois, on September 16, 1972.5 As Sexton explained, "it was more or less like a caucus meeting to pick a slate of candidates to run in this coming election." The members present selected, inter alia, Sexton as candidate for business agent and Richard Edwards as candidate for business manager.6 The second meeting was held at the Jacksonville Holiday Inn on October 25 or 28, 1972. At this meeting, according to Sexton, the oncoming campaign was discussed.? The group's third meeting was held at the Jacksonville Holiday Inn on November 28, 1972. At this meeting, as Sexton testified, "they were counting their committed votes among the members that were" present. Sexton testified that he had worked as general foreman for Haines Construction from November 20, 1970, until 3 On cross-examination, Tusinac acknowledged that, during the period covered by both contracts with the Union, he was "aware of the existence of the exclusive luring hall provision"; that he "was required to go to the Union for people"; that the Union "was required to send people ... in that order in which they appeared in the out of work list if they were available"; and that it "was inappropriate, according to the terms of the contract, for an individual and [Tusmac] to set up employment for an individual without going through the Union." However, Tusmac explained that on September 20, 1972, he offered Sexton the -foreman's job and that he, Tusinac, subsequently told McKenna on September 28, 1972, "I would like to have Sexton come out to work on this job" Tusinac added: ... Bill and I were talking, and Bill says, "I understand you want Sexton to come out to work for yon" I said, "yes, I would like to have Sexton come to work for me." As noted, the recent contract with the Union was signed by Haines Construction at the prejob conference on September 28. i Tusinac also testified: ... After I get a foreman or general foreman, I generally let him I generally don't interfere with his hiring and firing of his own fitters That is what the general foreman on the job is for, to do the hinng. As to my knowledge, after ... Robert Maddox came to work for me as foreman, he did all the hiring through the ball. s Sexton recalled that 10 or 11 members were present at the meeting. s Edwards would be running against incumbent McKenna; Sexton, as noted, would be running against incumbent Buecker 7 Sexton testified that thereafter, on November 3, 1972, Respondent Union held its meeting to nominate all the candidates for the oncoming election At this meeting. Edwards was nominated business manager; Sexton was nominated business agent; and, among others, Maddox was nominated vice president. PLUMBERS LOCAL UNION NO. 137 April 1, 1971, at the Waverly job. Sexton had been sent to that job by McKenna. At the job, Tusinac was Sexton's "direct supervisor." Sexton testified that, subsequently, on September 20, 1972, Tusinac telephoned Sexton and asked him: "Do you want to run a job for me?" Sexton assertedly responded: ". . . I would be very glad to, but first he [TusinacI must get the okay from Mr. McKenna." Sexton testified that Tusinac replied: "I [Tusinac] can handle that." Sexton testified that on September 20 he was "employed out of Local 99 at Bloomington"; Local 99 is "a sister Local of 137"; and the Bloomington area is beyond Respondent Local 137's jurisdiction. Sexton explained that during August 1972 McKenna did not have any work in Respondent's jurisdiction and, consequently, McKenna then told Sexton that there was "a job in Bloomington if you want to go up there." Sexton wanted "to go to work" and McKenna gave Sexton "a travel card" which entitled Sexton to work in Local 99's jurisdiction at the Blooming- ton jobs However, about Friday September 22, after Sexton had been contacted by Tusinac, Sexton told the foreman at Bloomington that he "had a job at home" and "was quitting." Sexton "thought there would be no problem going to work at home," within Respondent's jurisdiction. On the evening of Friday, September 22, Sexton attempted to return his travel card to Respondent Union's hall. There, Sexton "filled out the register." Business Manager McKenna, according to Sexton, told Sexton: "Come in the office, I want to talk to you." Sexton asked McKenna in the office, "if he [McKenna] had any objection to me [Sexton] going to Glenarm for Hames Construction." McKenna answered: "Hell, no, you are not going to Glenarm. What in the hell are you having these secret meetings about?" Sexton responded: I didn't know there was any law against my holding secret meetings, as you [McKenna] call them. When you was a candidate, we had several meetings in my house. And, on the following Monday, Sexton again went to see McKenna at the Union's hall. McKenna spoke to Sexton in Buecker's office. Present were Sexton, McKenna, and Buecker. According to Sexton, McKenna said: ... "What in the hell are you holding these secret meetings for?" He [McKenna] said: "You are going to- be a candidate in this next election." I [Sexton] said, "That's right. I have been asked by several members to run for business agent, and' I also have a number of these Local members that don't feel that you got the interest of the members in the Local as you should have." He was mad. He throwed his-he said, "As long as I am business manager of this Local, I will run it as I damm well please." s A travel card "shows a sister local that your dues are paid and you are in good standing''; "to leave your Local Union you must have it from your business agent." 9 Sexton assertedly'related his conversation with McKenna to "several" union members On cross-examination, Secton acknowledged that on September 20, 1972, 363 I said, "I am sorry you feel that way. When you ran for business agent I supported you. You only won by three votes. What should I do with my travel card?" s s * * s He said, "I don't give a damn what you do with it. Take it back to Bloomington." Sexton explained that he gave the travel card to Charles Williamson, the Union's financial secretary. Then, as Sexton related, "I went back up to Bloomington ... and asked to go back to work on the same job ..... Sexton continued to work on that job until November 17, 1972.9 George Burch testified, inter alia, that he has been a member of Respondent Union for 10 years. Burch testified that about November 30, 1972, he spoke with Union Business Manager McKenna in the office at the hall. Business Agent Buecker was also present at the time. According to Burch, ... I [Burch] told him [McKenna] when I was out of work in the spring and he put his boys on permit and sold other permit books, I just let it go and took my turn. Then I got back to work and I felt that I was let out of my job over opposing him in the election. ... He [McKenna] asked me [Burch] if I had attended any meetings. I told him no, and he told me, during the last election the people that campaigned against him he let them off easy, but he said, the people that campaigned against him this time, he was going to jump on them with both feet and they were not going to work in this area any more. ... And he [McKenna] told me [Burch], Floyd Sexton made a lot of money in the past, but he was not going to work in this area any more and not going to make any more money in this area any more. Burch explained that the current election was scheduled for December 1972. Eugene Brown testified that he is a member of Respondent Union; that he, like Sexton, worked at Bloomington; that Bloomington is about 67 miles from his home; and that about November 1972 he transferred from Bloomington to Hames' job at Glenarm. Brown explained: ... Well, I had been out of work about a ... month and a half before I went to Bloomington, so naturally everytime I would come home through the week I would occasionally call Mr. Buecker and go down and see him ... ask him if there was any work.... on one occasion ... they told me they had some work at Glenarm. ... my name had been on top of the list. Brown quit his job at Bloomington after, he was told that he was not "at the top of the out of work list .. ." Sexton also testified that "in the past" McKenna had "always cooperated with [employers] Allen Construction, Hood, and Hames. When they called for a man on the station, he has always cooperated immediately. He has pulled me off of jobs and sent me out to them." 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he had a job at Glenarm within Respondent Union's jurisdiction.10 Tony Brown testified that he is a member of Respondent Union; that he was hired in January 1973 as pipefitter general foreman by Babcock and Wilcox Company; and that, after Babcock and Wilcox initially apprised Brown that they wanted him to work for them, Brown "quit" the job on which he was working. Brown recalled that in his capacity as general foreman he would call the Union's hiring hall for some men; he never made requests in writing; and on occasion he orally requested the referral of a welder by name who was sent to the job by McKenna. Leon Urbain testified that he is employed as project manager of Babcock and Wilcox on the job at Kincaid, Illinois; that he hired Tony Brown (whose testimony is summarized above); that, in hiring Brown, he talked to Tony and [Tony] was willing to come back to work for us. I [Urbain] contacted Mr. McKenna to see if [Tony] could be afforded us [and he was]. This request was oral. Urbain testified that, in his dealings with Respondent during the past 4 years, he has never written specific requests for specific employees. Union Business Manager William McKenna testified that he is the chief officer of Respondent Local. McKenna testified that Haines Construction commenced work at the Glenarm site about October 2 and that the employer had signed a collective-bargaining contract with the Union a few days earlier on September 28. McKenna testified, he sent Sexton to work at Bloomington in the fall of 1972. As McKenna explained: ... We called different areas and they said they could use people, and we contacted all the people out of work and asked if they wanted to go to the various jobs in different areas. McKenna claimed that on Friday, September 22, Sexton did not turn in his travel card to McKenna at the union hall. However, McKenna added that an employee is not required to surrender his travel card to the Union. McKenna acknowledged that returning such a card has nothing to do with the employee's position on the referral register. McKenna recalled that on the evening of September 22, shortly before the union meeting, Sexton spoke with McKenna at the union hall. According to McKenna: ... He [Sexton] talked about he was going to work for Hames Construction . . . . I told him I didn't even know they was in the area looking for people, or didn't even know they had a job in the area . . . . Until we had a contract with them, there wasn't anybody going to be going to work for them. McKenna claimed that the Union's prior contract with Hawes Construction had expired about 1 year ago. McKenna claimed: "that was about the essence of the conversation" with Sexton on Friday, September 22. McKenna claimed that, at the time, he did not know that Sexton had quit his job in Bloomington. McKenna testified that his next conversation with Sexton was at 9:30 a.m. on the following Monday, September 25, in the Union's hall. Union Business Agent Roger Buecker was also present during this conversation. McKenna testified: ... Mr. Sexton made a statement something about, "you are not going to send me down on that job," and I think, I don't know whether I said it or whether Roger Buecker said it, that we would send him down on that job [Glenarm] when his turn come up on the list ... . He said, "well, I wouldn't go down there. You are not going to force me down there" . . . if he [Sexton] couldn't go down as foreman, he wouldn't go as a worker. There was a few more words said, something about a travel card. I didn't even know he had the travel card there. As far as I was concerned, he was still employed in Bloomington. McKenna did not "know whether [they] said anything about" the union election. McKenna explained that nominations for office would be made in November for the December election; however, there "was a lot of talk, there was a lot of names thrown around" as candidates and Sexton was one of the persons mentioned. McKenna testified that he spoke with Tusinac about September 24 or 25, 1972. Tusinac apprised McKenna that Haines Construction was in the area and "wanted to talk about the job." As a consequence, Tusinac and McKenna met. At this meeting, according to McKenna, Tusinac asked: ... "What is Floyd Sexton doing?" I [McKenna ] said, "He is working, he's not available right now." Then, he said, "I will get back to you when I find out how many people I need ...." ii McKenna testified that he had a conversation with George Burch in his office about November 30, 1972. Business Agent Buecker was present. According to McKenna, Burch ... said the reason he wasn't working was because of the election .... [Buecker] and I tried to explain .. . that is not the reason he wasn't working, that the employer was very unsatisfied with him and that is the reason he got laid off. When asked whether he had told Burch that he would not refer any members "to a job who had filed their candidacy in the election," McKenna responded: "Not to my knowledge." McKenna testified: ". . . there was a lot of accusations throwed around there. What was said I really don't remember." When asked whether he made a statement to Burch "about whether Sexton would be sent to work or not," McKenna responded: "Not to my knowledge." McKenna claimed, ". . . I don't remember making a statement like that." Later, he added: ".. _ I am not uncertain. I will say I didn't." McKenna generally denied operating the Union's refer- 10 On cross-examination, Brown noted that he had been out of work Construction, however, they had been employed by a general contractor on "longer" than Sexton before going to Bloomington . the prior job which had hired Hames Construction . McKenna recalled that, 11 McKenna recalled that Tusmac later requested by name the referral among others, Robert Maddox and Robert Pickwlll were later referred to of employees Robert McCracken and Robert Boyd McKenna noted that the Glenarm job and that McCracken, pickwlll, and Maddox were also McCracken and Boyd had not previously been employed by Haines candidates in the December 1972 union election. PLUMBERS LOCAL UNION NO. 137 365 ral system in a discriminatory manner. McKenna recalled that since 1967 Sexton has worked steadily an "above average" number of days. McKenna claimed that Tusinac never said, "in so many words, that he wanted Sexton to work for him." Tusinac assertedly "only . . . asked .. . what he [Sexton] was doing [and McKenna] told him, [Sexton] was working and wasn't available right now." McKenna claimed that Tusinac and Haines Construction never requested, orally or in writing, the referral of Sexton. McKenna also testified that Sexton had registered on the out-of-work list about July 17, 1972, and that the people "who were ultimately sent to the Haines job" had registered on that list prior to Sexton "except for the welders with special skills." 12 On cross-examination, McKenna acknowledged that a request for the referral of specific employees to Haines Construction was prepared on September 25 although the contract with the employer was not signed until September 28. McKenna claimed that Tusinac only "discussed" Sexton with McKenna "one time" at the prejob conference on September 28, "after we had left there." McKenna recalled, after examining his prehearing statement, that Tusinac subsequently asked McKenna at the Glenarm jobsite "if [Sexton] was working, if he was available," about two, three, or four occasions. Elsewhere, McKenna claimed that such a conversation occurred at the job only once. In addition, McKenna acknowledged that a request to refer a specific employee may be oral or in writing and that, when a member works outside the Union's "jurisdic- tion," his name does not "come off the out of work list" and, consequently, this factor has no bearing on the member's position on the out-of-work register. Further, McKenna testified that under the contract an employer can request an employee by name, "if the man worked for the contractor in the past 18 months...:. However, as McKenna testified, "Nothing was ever mentioned about where [Sexton] worked or how lone he worked or anything other than he was working." 13 Union Business Agent,Roger Buecker testified that he was present on, Monday, September 25, when McKenna and Sexton met at the Union's hall. The conversation, according to Buecker, was about the Haines job. Buecker testified: I asked Sexton if he didn't think the business manager and business agent should not administrate the office as to how the work should be run.... At that time, he [Sexton] said . . . because it is the way it is right now, "I wouldn't go down there to work for anybody. . . . Under no conditions would I go on that job right now." According to Buecker, McKenna then told Sexton "that it's your prerogative to do as you want to do. .. you will 11 be referred according to the referral list... . 12 McKenna testified that Eugene Brown had been out of work longer than Sexton, and that Tony Brown and Landrey had worked for Babcock and Wilcox over 90 days within an 18-month period prior to their referral to that employer. McKenna testified that the only applicants or members referred to the ,, Haines job before Sexton who were in fact below Sexton on the register were "people with special skills like the welders." McKenna claimed that ' other candidates in the December election who ran against incumbents, like Sexton, have generally worked "steadily" when work has been available. 13 McKenna noted that the "last work Hames did in our area was March Union Financial Secretary Charles Williamson testified that, if a member obtains a job out of the Union's jurisdiction, "eventually his name should come off the list" of persons out of work. Williamson also explained: "That is something I don't handle" and "I think they try to favor our own people in our area, and I think their name is still there as being laid off." Williamson recalled that Sexton "brought his travel card to me on Friday night," Septem- ber 22, and "I simply laid it on my desk." Williamson recalled that on the following Monday, after Sexton met with McKenna and Buecker, Sexton asked for the return of his travel card. Williamson testified that he picked the card up from the desk and handed it to Sexton; "it was there all weekend." The testimony of Sexton as stated above is corroborated in large part by the testimony of Tusinac, Burch, Eugene Brown, Tony Brown, and'Urbain. Further, the testimony of Sexton is also substantiated in part by the testimony of McKenna, Buecker, and Williamson. Relying on demean- or, I am persuaded that the testimony of Sexton, Tusmac, Burch, Eugene Brown, Tony Brown, and Urbain is a truthful, complete, and reliable account of the events recited. Insofar as the testimony of McKenna, Buecker, and Williamson conflicts with the testimony of Sexton, Tusinac, Burch, Eugene Brown, Tony Brown, and Urbain, I credit the testimony of the latter witnesses as more reliable and trustworthy. III. DISCUSSION "It is settled law that a labor organization which undertakes to operate a hiring hall pursuant to contract or other arrangement with employers as the exclusive source of recruitment of employees is obligated to refer job applicants without regard to their union ... loyalty or lack of it ...: . International Union of Operating Engi- neers, Local 406, AFL-CIO (New Orleans Chapter, Associ- ated General Contractors of America, Inc., 189 NLRB 255 (1971), and cases cited. It is also settled that "the activities or employees ... to oust the incumbent union leadership and elect new union officers in a forthcoming union election are concerted activities protected by Section 7 of the Act. ..." Local Union No. 18, International Union of Operating Engineers, AFL-CIO and its agent, George E. Miller (Earl D. Creager, Inc.) 141 NLRB 512, 5 1 8-521 (1963), and cases cited, enfd. J-4002 (C.A. 6, 1965). And see Rust Engineering Co. v. N.L R.B., 445 F.2d 172 (C.A. 6, 1971). Accordingly, a union violates Section 8(b)(2) and (1)(A) by refusing to refer or otherwise causing an employer to discriminate against an employee because he has engaged in the foregoing protected activities.14 And, Section 8(b)(1)(A) makes it an unfair labor practice for a 1971", consequently, McKenna was unsure whether Sexton worked for that employer during the prior 18 months. McKenna testified: "It is a borderline case. . . . It could be 19 months. I don't have those files in my possession." 14 An express demand by a union that an employer discriminate against an employee is not required in order to find a violation of Sec. 8(b)(2) Conduct of union representatives which is "tantamount to a request to discriminate with respect to the terms or' an individual's employment and "reasonably calculated to bring about that result" violates the Act NLRB. v. Miami Valley Carpenters' District Council of Dayton, Ohio, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, 297 F.2d 920, (Continued) 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union to restrain or coerce an employee in the exercise of his-Section 7 rights. (Ibid) The credited evidence of record stated above establishes and I find that at least since September 28, 1972, there was in effect an agreement and understanding between Res- pondent Union and Hames Construction whereby the Union became the sole and exclusive source of referral of applicants for employment by the Company at its Glenarm project site. However, this agreement also provided, inter alia, that an employer "desiring the services of a specific applicant registered may request his referral in wasting ' and "if such applicant was employed by the employer in the geographical area for at least 90 calendar days in the 18 months before the request, said applicant shall be referred to such employer ...." The factual issues raised are whether Haines Construction sufficiently and properly requested the specific referral of Sexton in accordance with the agreement and understanding of the parties and whether Respondent Union refused to refer Sexton and thereby caused Hames Construction not to hire Sexton because of Sexton's protected activities against the Union's incumbent leadership. I find that on September 28, shortly after Tusinac and McKenna had signed the operative contract, Tusinac sufficiently and properly requested the referral of Sexton to the Glenarm job. Tusinac credibly testified that he stated to McKenna that day: "... I would like to have Sexton come to work for me." McKenna refused to refer Sexton, stating: "... I can't send him down there. He is not available ..... As a consequence, Tusinac accepted another applicant referred by the Union instead of Sexton. However, -the credited evidence makes it clear and I find that Sexton was in fact "available" at the time for referral to a job within Respondent Union's jurisdiction. Sexton, prior to September 22, had been working in Bloomington on a job outside of the Union's jurisdiction because there was no work for him within the Union's jurisdiction. McKenna in effect acknowledged that the status of a member or applicant on the Union's out-of-work list is not affected by taking such employment outside of the Local's jurisdiction. And, as Union Secretary Williamson stated, Respondent's officials "try to favor our own people in our area" and, consequently, an applicant's name remains on the out-of-work list in such circumstances. In addition, I find that on the evening of September 22 and again on the morning of September 25 Sexton made it plain to Union Officials McKenna, Buecker, and Williamson that he had quit his job in Bloomington (some 60 miles away) and was available for employment within the Union's jurisdiction. Nevertheless, as Sexton credibly testified, McKenna refused to permit Sexton to go to the Glenarm job and, instead, instructed Sexton to "take" his travel card "back to Bloomington.- I find that Respondent Union, in refusing to refer Sexton to the Glenarm job on September 28 as requested by Tusinac, was motivated- at least in part by an unlawful purpose. Thus, Sexton credibly testified that during August he agreed at a meeting held in his home to run against the incumbent union business agent, Buecker, in the election scheduled for December. Thereafter, on September 16, this group held a meeting at the Jacksonville Holiday Inn where the group picked a number of candidates, including Sexton, to oppose the Union's incumbent leadership. Shortly thereafter, on September 22 and 25, Business Manager McKenna, in refusing to refer Sexton to the Glenarm job, ' asked: "What in the hell are you having these secret meetings about?" Sexton informed McKenna that he was going to be a candidate against incumbent Buecker in the December election. McKenna became angry and warned: "As long as I am business manager of this local, I will run it as I damn well please." McKenna told Sexton that he was not going to the Glenarm job. When Sexton asked what he should do with his travel card for work outside of the Union's jurisdiction, McKenna said: "I don't give a damn what you do with it. Take it back to Bloomington." On September 28, McKenna told Superintendent Tusinac that Sexton was not available for work at Glenarm. Subsequently on November 30, as Burch credibly testified, McKenna warned Burch that "the people that campaigned against him this time . . . he was going to jump on them with both feet and they were not going to work in this area any more." McKenna also told Burch that Sexton had "made a lot of money in the past, but he was not going to make any more . . . in this area 11 On this record, I find that Respondent Union, in refusing to refer Sexton to a job as requested by Tusinac, was retaliating against Sexton for engaging in protected activities to oust the incumbent union leadership. Counsel for Respondent argued at the hearing and in his brief that, assuming a sufficient request had been made for the referral of Sexton and Sexton was available, Sexton could not be referred because paragraph 6 of article III of the agreement (supra) requires that the applicant be "employed by the employer in the geographical area for at least 90 calendar days in the 18 months before the request .... . Respondent never asserted this as a reason for refusing to refer Sexton. Indeed, when questioned about this belatedly claimed reason for refusing to refer Sexton to Glenarm, McKenna was unsure whether Sexton satisfied this exception. McKenna testified that this would be a "borderline case" and he did not "have those files in [his] possession." Moreover, as the record shows, Respondent Union generally has been lax in the past in applying paragraph 6 and related provisions of article III. Under the circumstances, I reject Respondent's asserted reasons for refusing to refer Sexton as pretextual. However, I note that the uncontroverted evidence of record establishes and I find and conclude that the job of general foreman for Hames Construction at the Glenarm site is a supervisory position within the meaning of Section 2(11) of the Act. The duties of general foreman at that job included, inter alia, the authority to hire in the interest of the employer. Thus, counsel for General Counsel, in his posthearing brief (pp. 18-19), states: Respondent may assert that it is not obligated to refer Sexton because individuals employed as general fore- man are supervisors within the meaning of the Act. Brotherhood of Carpente.s and Joiners of America, AFL-CIO, 297 F.2d 920, 921 (CA. 6, 1962). PLUMBERS LOCAL UNION NO. 137 367 This argument is also without merit. The testimony clearly demonstrates that Respondent and employers generally regard the referral system as including the position of general foreman. Discrimination thus directed by Respondent Union can be reasonably concluded to create an impact on other employees, the natural consequence of which is to restrain and coerce them with respect to their Section 7 rights, in violation of Section 8(b)(1)(A) of the Act. See International Photographers of the Motion Picture Industries, 197 NLRB No. 134, p. 16 (1972). I agree with this contention. In the context of an internal union election and Sexton's open opposition to the incumbent leadership, I find that Respondent's discrimina- tion against Sexton came to the attention of other union members who were employees. Sexton related to his fellow members Respondent's discrimination against him. And, McKenna later warned employee member Burch that the "people that campaigned against him . . . were not going to work in this area ... " citing Floyd Sexton as an example. Under these circumstances, I find that here, as in International Photographers, supra, 197 NLRB 1187 (1972), "It can reasonably be concluded that the discrimination thus directed by Respondent Union created an impact on other employees, the natural consequence of which was to restrain them with respect to their Section 7 rights, in violation of Section 8(b)(1)(A) of the Act...:. I do not, however, find this conduct to be also violative of Section 8(b)(2) of the Act. Finally, I find and conclude that McKenna's statements to both Sexton and Burch as stated above were proscribed threats, also violative of Section 8(b)(1)(A) of the Act 15 CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following conclusions of law: 1. Hamel Construction is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union violated Section 8(b)(1)(A) of the Act by threatening to refuse to refer employees to jobs because they opposed the incumbent union leadership during an intraunion election. 4. Respondent Union violated Section 8(b)(1)(A) of the Act by discriminatorily refusing to refer Floyd H. Sexton for hire by Haines Construction on September 28, 1972, because Sexton opposed the incumbent union leadership during an intraunion election. 5. General Counsel has failed to establish by sufficient evidence that Respondent Union committed further violations of the Act as alleged and those portions of the complaint are dismissed. 15 Counsel for General Counsel moves to correct the transcript (see App. A. to his brief). The motion is granted except with reference to requested changes from "Business Agent to Business Manager " The record sufficiently establishes (see Resp. Exh. 2) that McKenna was and ran in 1972 for business manager and Sexton ran against Buecker for the office business agent. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In order to effectuate the policies of the Act, it is found necessary that Respondent Union cease and desist from the unfair labor practices found and from-in view of the nature and extent of these unfair labor practices-any other invasions of employee Section 7 rights; take certain affirmative action, including making whole Floyd H. Sexton with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716; post at its Springfield, Illinois, hiring hall appropriate notices; and mail copies of said notice to Hames Construction . for posting if it is willing to do so. To facilitate the computation of backpay and to assure Sexton equal referral treatment, Respondent shall maintain and make available to the Board or its agents, upon request, job registration records and any other documents or records showing job referrals and the basis for such work assignments of employees, members, applicants, and registrants. Respondent shall further notify Harries Con- struction and Sexton that use of its hiring hall facilities will be available to Sexton on an equal basis with other registrants with respect to job referrals. ORDER 16 Respondent United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry Local Union No. 137, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to grant referrals from its exclusive hiring hall facilities, which are operated pursuant to contract or other arrangements with employers, to Floyd H. Sexton or any other member, employee, job applicant, or registrant, on an equal and nondiscriminatory basis, in reprisal for their having opposed the incumbent union leadership and having otherwise engaged in protected ihiernal union activities and from otherwise causing or attempting to cause employers to discriminate against members, employ- ees, job applicants, or registrants, in violation of Section 8(a)(3) of the National Labor Relations Act. (b) Threatening members, employees, job applicants, or registrants with loss of employment opportunities or any other reprisals if they engage in activities which are critical of the conduct of or in opposition to the incumbent union officers and officials. (c) In any other manner restraining or coercing employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: 16 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, recommendations, 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. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Make whole Floyd H. Sexton for any loss of earnings he may have suffered by reason of the discrimination against him, in the manner set forth in this Decision. (b) Notify in writing Haines Construction & Equipment Co., Inc., and Floyd H. Sexton that the Union's exclusive hiring hall facilities and job opportunities will be available to Sexton on an equal and nondiscriminatory basis with other members, employees, job applicants, and registrants. (c) Maintain and, upon request, make available to the Board or its agents, for examination and copying, job registration and referral records and any other documents or records showing job referrals and work assignments, and the basis for making such referrals and assignments of members, employees, job applicants, and registrants, which are necessary to compute and analyze the amount of backpay due to Floyd H. Sexton and his right to referral to jobs under the terms of this Order. (d) Post at its business offices, hiring hall, and meeting places in Springfield, Illinois, copies of the attached notice marked "Appendix."17 Copies of said notice, on forms provided by the Regional Director for Region 38, after being duly signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Additional copies of the attached notice marked "Appendix" shall be signed by an authorized representa- tive of the Respondent and forthwith returned to the aforesaid Regional Director for posting by Hames, said Employer being willing, at his place of business at Glenarm, Illinois, where notices to his employees are customarily posted. (f) Notify the Officer-in-charge for Region 38, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 17 In the event that the Board's Order is enforced by a Judgment of a to a Judgment of the United States Court of Appeals Enforcing an Order of United States Court of Appeals, the words in the notice reading "Posted by the National Labor Relations Board." Order of the National Labor Relations Board" shall read "Posted Pursuant