Giasgow, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glasgow, Inc. andJimmy F. Connor International Union of Operating Engineers, Local 132, AFL-CIO and Jimmy F. Connor. Cases 9- CA-10646 and 9-CB-3371 October 28, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On June 21, 1977, Administrative Law Judge Abraham Frank issued the attached Decision in this proceeding. Thereafter, both Respondents filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 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 below and hereby orders that the Respon- dent, Glasgow Inc., Clendenin, West Virginia, its officers, agents, successors, and assigns, and Respon- dent International Union of Operating Engineers, Local 132, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the said recommended Order as so modified: 1. Substitute the following for paragraph A,2(a), insert footnote 13, and renumber the subsequent footnotes accordingly: "(a) Offer Jimmy F. Connor immediate and full reinstatement to his former or substantially equiva- lent position, without prejudice to his seniority or other rights and privileges, and, jointly and severally with the Respondent Union, make him whole for all losses he may have suffered by reason of the discrimination against him, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest to be computed as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).13 "13 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)." 233 NLRB No. 26 2. Substitute the attached notice for that of the Administrative Law Judge marked "Appendix A." I The Respondents have 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 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We are attaching a revised notice to employees to conform to part A of the Administrative Law Judge's recommended Order. Appendix A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United Sates Government WE WILL NOT encourage membership in Inter- national Union of Operating Engineers, Local 132, AFL-CIO, by discharging or otherwise discriminating against our employees because of their failure to abide by union rules, practice, policy, contract, or the obligations of union membership, except to the extent such employees may be required to tender periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL offer Jimmy F. Connor immediate and full reinstatement to his former position and, if such position no longer exists, to a substantially equivalent position. WE WILL make Jimmy F. Connor whole for any losses he has suffered as a result of the discrimina- tion against him, plus interest. WE WILL expunge from Jimmy F. Connor's employment record any notation that he was discharged for violation of safety rules. GLASGOW, INC. DECISION STATEMENT OF THE CASE ABRAHAM FRANK, Administrative Law Judge: The charges in this consolidated case were filed on September 20, 1976,1 and the complaint, alleging violations of Section 8(a)(3) and (1) with respect to Respondent Employer and Section 8(b)( I)(A) and (2) with respect to Respondent i All dates are in 1976 unless otherwise indicated. 126 GLASGOW, INC. Union, issued on November 12. The hearing was held on January 13, 1977, at Charleston, West Virginia.2 All parties filed briefs, which have been duly considered. Respondent Employer is a Pennsylvania corporation engaged in the heavy and highway construction business in various States of the United States. During the past 12 months, a representative period, Respondent Employer purchased goods and products in interstate commerce valued in excess of $50,000, which goods and products it caused to be shipped from points outside the State of West Virginia directly to its construction site located near Clendenin, West Virginia. Respondent Employer is en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent Union at all material times has been the exclusive collective-bargaining representative of Respon- dent Employer's operating engineers and is a labor organization within the meaning of the Act. The principal issue in this case is whether an employee was unlawfully discharged by Respondent Employer in violation of Section 8(aX3), at the request of Respondent Union, in violation of Section 8(b)(2); subsidiary and related issues involve alleged 8(b)(1)(A) threats by Respon- dent Union. My findings of fact are based upon a composite of the testimony of all witnesses. In reaching my conclusions, I have relied upon the demeanor of the witnesses as they appeared before me, their ability to recall events, and their willingness to testify fully and without apparent evasion. I have also taken into account contradictions and inconsis- tencies in the evidence presented and I have given weight to testimony which has the ring of truth. In so doing, I have been aware of a witness' self-interest in the outcome of this proceeding. Jimmy F. Connor, a heavy equipment operator for about 12 years, was first employed by Respondent Employer in mid-June. He was discharged on August 26. Prior to the incident which precipitated his discharge, Connor had voiced a vigorous protest with respect to two work-related issues. In mid-July his immediate superior, Grade Foreman Charles Brown, directed Connor to wear his "hard hat." Connor replied that he did not believe some of the employees on the job should be required to wear hard hats while others were not wearing theirs. Connor refused to put his hat on until he had talked to James Smith, the assistant job superintendent. Later in the day Connor informed Smith that Bobby Lowe, the head master mechanic on the day shift, and another mechanic identified only as "John" were not wearing hard hats and if they did not wear theirs Connor would not wear his. Smith promised to take care of the problem by morning and Connor then put his hat on. The next morning Connor noticed that Lowe and John were not wearing hats and complained to Smith. Connor said, "If they're not going to wear theirs, I'm going to take mine off. You'll have to fire me if that's what you have to do." Smith told Connor that every man on the job would have to wear a hard hat. Later that day Connor spoke to Iverson V. Linger, Jr., Respondent Union's steward on the day shift. Linger told 2 Errors in the transcript have been noted and corrected. 3 "Bump" hats were cheap, plastic hard hats that could be purchased Connor that Linger would appreciate it if Connor did not say any more about the hard hats. Linger pointed out that if Connor kept pushing the issue they would all have to wear the company-type hard hats, which were heavier than the "bump" hats that some of the employees wore.3 Linger said, "I'd just take it as a personal favor if you'd drop the issue about the hard hats." Connor agreed, noting that the mechanics were wearing their hats. Connor asked Linger to do Connor a favor. Connor said, "Bobby Lowe, he won't throw his hand up to me. He hasn't spoke to me since this took place. How about telling him it ain't no personal matter." Linger promised to take care of it. About a month later when Connor received his weekly check on August 13 he noticed that he had received straight pay for 43 hours of work. Connor believed he was entitled to overtime for all hours over 40 hours per week. Connor took the matter up with Brown. Brown told Connor his check was legally correct. At Connor's insistence they inspected the Union's contract with the Company and Brown pointed to page 28, paragraph 3, which specified that time not worked shall be paid for at straight time and not used in computing overtime. Brown explained that Connor had been called to work on a Saturday, but had only worked I hour and was sent home. That accounted for I hour's overtime and 3 additional hours of straight time on his paycheck. Connor was not satisfied with this explanation and sought out Linger later in the morning. Linger confirmed Brown's interpretation of the contract; Linger informed Connor that Linger had checked it with Russell Barnett, the Union's business agent; that Barnett had been on the jobsite and had said it was all right. Still not persuaded, Connor called the Federal wage and hour division and was referred to the state wage and hour office. Connor requested that somebody from that office come to the jobsite to check the matter out. Connor also discussed the question with Smith, who told Connor that Connor "ought to just drop it." Sometime about August 16, William A. Johnson, the job superintendent, addressed the employees on the subjects of nondiscrimination and safety. Connor brought up the matter of his wages. Johnson agreed to check the matter out more thoroughly. On August 24 several state wage and hour representatives came to the jobsite and informed Connor that the Company's practice of paying straight time for hours over 40 not worked was legal. On the same day Connor had a conversation with Lowe. Lowe asked Connor if Connor was ready to apologize to Johnson, as Connor had agreed to do if he was wrong on the wage question. Connor said he was not ready to apologize until the question was checked out a little more. About this time Johnson drove up to bring Connor an advance wage check. Again, Lowe suggested that Connor apologize. Johnson said it was not necessary. Connor said he would apologize if he was wrong whether it was necessary or not. After Johnson left, Lowe told Connor a story about a man and a dog. The dog would not hunt. The man brought the dog home. When it came time to be fed, the dog went to the place where he always ate. The man walked over to the dog and said, "Now, hunt your own." locally for 97 cents each. Light in weight, these hats would appear to have little or no safety value. 127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Connor told Lowe Connor knew what Lowe was talking about. It was about Connor being referred out of the union hall and being referred to other jobs and "this business here." Lowe did not dispute Connor's interpretation of the dog story, but told Connor that Connor had embarrassed the Union and that the Union's business agent would be "real pissed" about it. Connor suggested that the business agent be called to the jobsite. Lowe said he had already called the business agent and that the latter would try to be at the site in 2 days.4 About this time Connor was called away to meet his Uncle Raymond and his uncle's friend, a boy identified as "Dave." Connor met his uncle and told him to go back to Route 53 and wait for Connor because the Company did not like outside people in the working area. Dave asked if he could ride with Connor. Connor's uncle left the jobsite in his truck. Dave climbed up on the grader and sat on the shifting lever. Connor operated the grader in that manner for about 10 minutes. A scraper operator, Butler, came alongside Connor's grader and Connor suggested that Butler take Dave for a couple of rounds on the scraper so that Dave could learn how to run a scraper and go down to the union hall and apply for a job. Butler agreed to let Dave hang onto the side of the scraper. Dave climbed up on the scraper and clung to the roll bar and the steering column. Butler made two trips with Dave and then went to Route 53 to park his scraper. Connor testified that thereafter he secured permission from Respondent's night superintendent and the night foreman to take Dave out on the scraper and show him how it worked. Connor also testified that, pursuant to their instructions, Connor had a mechanic check the scraper before using it. John Harney, Respondent's night superin- tendent on August 24, denied that he had given Connor permission to allow a nonemployee on the scraper. Harney testified that he had to ask who Connor was on the day of the hearing in this case. In crediting Connor over Harney, I have taken into consideration the fact that Connor told Bruce Smith, the Union's night steward, who accosted him that evening, and Lowe, who questioned Connor on August 26, that Connor had permission of the above company officials for his conduct on August 24. His assertion could easily have been checked by the union agents on those occasions, and Connor knew it. Neither the night foreman nor the mechanic testified. The incident, for Connor, was a matter of importance, which he would likely remember. For Harney, the incident, 5 months past, could not have loomed large, particularly since he had shunted final responsibility to his night foreman to give Connor permission to train Dave on a scraper. These preliminaries out of the way, Connor showed Dave how to crank up the engines on a scraper and how to operate it. At first, Connor put Dave in the seat, but Dave was nervous so Connor sat in the seat and let Dave hang on the bars, the same procedure Dave had followed with Butler. Connor loaded a load of dirt and then put Dave in the seat, showing him how to operate the shift levers. Dave 4 Lowe denied that he had ever made a statement to Connor that Connor had embarrassed the Union. However, Lowe was not asked and did not testify with respect to Connor's interpretation of the dog story or Connor's testimony that Lowe had said the business agent would be "real pissed" and that Lowe had called the business agent to the jobsite. I credit Connor. put the scraper in first gear and moved the load of dirt to the waste pit. He unloaded and returned for another load. When they reached the dump area, they were met by Night Shift Steward Smith. Connor was on the side of the scraper, holding on the left bar and the steering column. Smith asked Connor if Connor and Dave had a union book. Connor conceded that Dave did not have a book or a permit. Connor told Smith that Connor had checked with the night shift superintendent and foreman. Smith told Connor that Connor was supposed to clear any new employee through the union steward and that Connor could not run the scraper anymore unless he cleared the man through the hall. Smith said that in the future if Connor brought a new man on the job Connor would have to clear it either through the steward or the master mechanic if the steward could not be found. Smith did not pursue the matter further because Connor dumped his load and parked the scraper. Smith mentioned the incident to the master mechanic on the night shift. The following evening Smith told Lowe what Smith had witnessed the night before. Smith testified that he reported the incident to Lowe because Connor worked on Lowe's shift and Smith believed that Lowe should be informed so that he could be on guard against another such occurrence.5 On August 26, when Connor reported for work in the morning he was accosted by Lowe and Linger, who overtook him in a company truck. Lowe asked Connor who told Connor to put a man on the scraper for training. Connor said he had secured permission from the night shift superintendent and the night foreman. Lowe said, "One more time of that and I'll get your money for you." Lowe told Connor that Connor knew better than to do it. Connor agreed, but repeated that he had checked with the Company and if anyone was at fault it was the Company, not Connor. Lowe replied, "You let it happen one more time and I'll get your damn money." Connor said he would try to do better. With respect to this incident, Linger testified that he and Lowe talked to Connor about "running the pan" with someone who was not out of the union hall. About noon on the same day Connor met Henry Shearer, a laborer performing the duties of a grade checker. While Connor was getting his lunch, Shearer climbed up on the grader and idly fingered the controls. When Connor returned, Connor climbed up next to Shearer. Shearer started to dismount, but Connor told Shearer to sit in. Shearer protested that Connor would get them both in trouble or they would both get in trouble. Connor said, "Go ahead. I'm all messed up anyway." Connor sat on top of the shifting levers and put the grader into first gear. Shearer remained in the seat fingering the controls. In this manner they moved the grader about 150 yards. About that time Lowe and Linger came by in a company truck. Connor told Shearer to get off the grader. Connor turned the grader around, parked it, and walked over to Lowe and Linger. Lowe said, "Now, I told you this morning. That'll 5 Smith testified that he had two concerns. His first concern was Connor's failure to clear Dave through the union hall. His second concern was the safety factor. However, Smith mentioned only the former concern to Connor. 128 GLASGOW, INC. do it. I'll get your damn money over this." Connor replied, among other comments, "If you want to fire me, I'll meet you down at the office if that's what you want." Lowe looked over at Linger and Linger said, "Get it." With respect to this incident, Linger testified that Connor was going "up across the fill" with another man in the cab, contrary to union rules or the union book. Connor got in his car and drove off. While driving, he met Johnson and flagged him down. Connor told Johnson, "Bobby Lowe and Linger just fired me up there." Johnson asked, "What for?" Connor answered, "Because Henry was up in my grader. I'm going down here to lunch and I'll be back up to the office when I come back." Prior to meeting Connor, Johnson had met Lowe and Linger. Lowe told Johnson about the scraper incident on August 24 and the incident with the grader that morning. Lowe said that something had to be done. From these or other words Johnson understood that Lowe wanted Connor fired. Johnson said he would take care of it. About 15 minutes later Johnson returned to the office. He approached Lowe and Linger, who were standing outside, and asked them if they wanted to reconsider. Linger replied, "Hell no. Get his money. We don't want the man on the damn job." Johnson walked over to Connor, who had overheard the conversation, and told Connor that Johnson's hands were tied. Johnson had to terminate Connor or have problems with the Union.6 They went into the office and Connor was terminated. CONCLUSIONS OF LAW As I view the evidence, the two protagonists in this case are Lowe and Connor; Connor, vociferous and stubborn; Lowe, less given to words, but equally stubborn; both strong, independent, and prideful men. Connor, with a penchant for causes, incurred Lowe's hostility by pushing the issue of the hard hats and specifically calling to management's attention the fact that Lowe was not wearing his.7 Connor next questioned the Union's contractual provision that the Company need not pay overtime for hours not worked over 40 per week. Connor's activity in pursuing both issues is protected by Section 7 of the Act. The wearing of hard hats, a condition of employment, and the wage issue, included in the contract, are issues affecting all employees. Lowe did not challenge Connor openly with respect to the latter's hard hat campaign. When, however, Connor boldly disputed the Union's contract agreement on wages, Lowe taunted Connor with having lost out on this issue and threatened him with loss of referral rights because Connor had "embarrassed" the Union. Shortly thereafter, Lowe was informed by Smith that Connor had permitted an individual not cleared through the union hall to ride on and operate a scraper, contrary to 6 As to these conversations. I have credited Connor over Johnson and Lowe. Johnson. a man over 62, conceded that he had difficulty remember- ing exact words. Moreover, for him, the conversations relating to Connor's discharge were not as significant at the time as they eventually became. On the other hand, Connor was personally and emotionally involved. He would be likely to recall these conversations and in specific detail. Lowe did not impress me as a witness. I Connor's testimony that Lowe would not hold his hand up or speak to Connor after the hard hat incident is undenied. union rules and Connor's obligation as a union member. Lowe confronted Connor with this information and threatened to have Connor discharged if it happened again. On the same day Lowe and Linger observed Connor permitting a laborer, a nonmember of Respondent Union, to ride on Connor's grader and help operate it. Lowe again threatened to have Connor discharged for this second infraction of union rules. Connor was, in fact, discharged immediately thereafter by Johnson at the insistence of Lowe and Linger for "unsafe operation of equipment." Section 8(bX2) forbids a union to cause or attempt to cause an employer to violate Section 8(a)(3) on some ground other than the employee's failure to tender periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership. The record is clear that both Lowe and Linger are agents of Respondent Union within the meaning of Section 2(13) of the Act, as alleged in the complaint. With respect to Linger, there is no issue. With respect to Lowe,8 the contract requires that he be a union member and receive 25 cents per hour in addition to the highest hourly rate paid on the job. He has virtually exclusive authority to call the union hall whenever an operating engineer is needed on the job. In exercising this function, he acts for the Union. Moreover, the record shows that employees bring their grievances to him or to the union steward. Respondent Union's answer admits the agency status of Lowe and Linger. I find Respondent Union is responsible for the conduct of these agents. Both Respondents contend that Connor was discharged by Johnson solely for the reason that he had violated Respondent Company's safety rules; that Lowe and Linger merely called the matter to Johnson's attention; and that Johnson acted independently in reaching this decision to discharge Connor. The record, in my opinion, does not support this conclusion. This is not a case where the Union's motivation in seeking an employee's discharge is unrelated to union membership or the performance of a union obligation.9 While I am satisfied that Connor's conduct, at least with respect to the scraper incident, was not a safe practice, I am not persuaded that his violation of the Company's safety rule was the reason Lowe and Linger sought his discharge. In the scraper incident the only concern voiced to Connor by Smith was Connor's failure to clear Dave through the union hall or the union agents. Smith's second concern, safety, was mentioned by him only during cross-examina- tion. Connor testified that his method of teaching a new employee how to operate heavy equipment was not an uncommon practice. Linger admitted that it had been done, although he did not like to see it. He could not remember whether it had been done at other times on Respondent Company's jobsite. Certainly, it was done by a No party contends that Lowe is a supervisor within the meaning of the Act and I make no finding on this point. s Cf. Studebaker Corporation, 110 NLRB 1307 (1954); Daugherty Company, Inc., 112 NLRB 986 (1955). The application of the rule of those cases has been affected, to an extent not yet clear, by the Board's decision in Miranda Fuel Company, Inc., 140 NLRB 181 (1962), cited by the General Counsel. I find it unnecessary to discuss or rely upon the doctrine of the latter case in view of my decision herein and the cases cited below. 129 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Butler, who voiced no concern about safety when Connor asked Butler to show Dave how to operate the scraper. Butler did, in fact, operate the scraper while Dave clung to its side. I note that Shearer, who participated with Connor in the grader incident, received no discipline or even warning for his part in that activity. Moreover, it does not appear that Respondent Company enforced its safety rules otherwise with the stringency that the Connor discharge suggests. As indicated above, some employees wore relatively unsafe "bump" hats rather than the heavier company-type hard hats. Indeed, as Connor noticed early in his employment, some employees at one time wore no hats at all in defiance of company safety rules. I am persuaded that the motivating and primary reason that Lowe, joined by Linger, sought Connor's discharge was the fact that Connor had violated the Union's jurisdictional rule that only employees cleared through the union hall or union agents were permitted to operate heavy equipment traditionally operated by operating engineers. It may well be that they were concerned with the safety factor, but, if so, I find this concern was secondary and of minor significance. Lowe, the prime mover and spokesman for Connor's discharge, was also motivated, I find, by his hostility to Connor as a result of the hard hat incident and Connor's effrontery in questioning the Union's contractual provision relating to straight time for overtime hours. The evidence is overwhelming that the Respondent Company would not have discharged Connor but for the demand of Lowe and Linger. A request for a discharge need not be stated in any specific words or particular form so long, as here, the Union is responsible for the Employer's action.to Although Johnson liked Connor and the two had had friendly conversations, Johnson dis- charged Connor summarily, making the decision within 15 minutes after Lowe requested that Johnson do so. Johnson made no investigation other than to speak a second time to Linger. Johnson gave Connor no hearing. Surely. if, as Connor testified, he had secured permission from two company officials to train Dave on the scraper, those officials should at least have shared the blame for his conduct on August 24. Yet Johnson made no attempt to ask any of his subordinates if they knew anything about the incidents or whether Connor had received company permission to train an employee on a scraper. This evidence lends weight to Connor's testimony that Johnson said he had no choice but to discharge Connor at the insistence of the union agents. On the basis of the foregoing, I find that Respondent Union violated Section 8(b)(l)(A) and (2) of the Act and Respondent Company by acquiescing in the Union's demand violated Section 8(a)(3) and (1) of the Act.' I find that Respondent Union further violated Section 8(b)(l)(A) by the following conduct: I. Lowe's implied threat to Connor on August 24, 1976, that Respondent Union would not refer Connor from Respondent Union's hiring hall because of Connor's 'o Falstaff Brewing Corporation, 128 NLRB 294 (1960). 1i Mid-States Metal Products, Inc., 156 NLRB 872, 899 (1966); Emma- dine Farms, Inc., 138 NLRB 1098 (1962): Air Conditioning, Refrigeration and Steamfitters Local Union No. 725, Plumbers (Bechtel Corporation), 194 NLRB 1089 (1972). 12 In the event no exceptions are filed as provided by Sec. 102.46 of the protected activity in questioning the legality of Respondent Company's practice, sanctioned by the collective-bargain- ing agreement, to pay straight time over 40 hours for hours not worked. 2. Lowe's threats to Connor on August 26, 1976: (a) that Lowe would secure Connor's discharge if he permitted a nonemployee, not cleared through the Union's hiring hall, to operate a scraper one more time; (b) that Lowe would secure Connor's discharge because Connor had permitted an employee, not cleared through the Union's hiring hall, to assist in operating a grader; both threats motivated primarily by Respondent Union's rule and Connor's obligation as a union member to require all employees operating heavy equipment on Respondent Company's jobsite to be cleared through the union hall. THE REMEDY In addition to the remedy usual in these cases, the General Counsel requests that I order the Respondent Company to expunge from Connor's employment record any notation that Connor was discharged for safety reasons; and that I order Respondent Union not to state to prospective employers seeking referral from Respondent Union's exclusive hiring hall that Connor had a poor safety record with past employers. Inasmuch as I have found that Connor's discharge was unlawfully motivated, Connor is entitled to be put in the position he would have enjoyed but for the discharge. Accordingly, I shall order Respondent Employer, as requested by the General Counsel, to expunge from its records any notation that Connor was discharged for violation of safety rules. I shall also order Respondent Union not to state to prospective employers, seeking referral from its hiring hall, that Connor had a poor safety record with respect to Respondent Employer. ORDER 12 A. The Respondent, Glasgow, Inc., Clendenin, West Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in International Union of Operating Engineers, Local 132, AFL-CIO, by discharging or otherwise discriminating against employees because of such employees' failure to abide by union rules, practice, policy, or contract, or the obligations of union member- ship, except to the extent employees may be required to tender periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the Union. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: 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. 130 GLASGOW, INC. (a) Offer Jimmy F. Connor immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and, jointly and severally with the Respondent Union, make him whole for all losses he may have suffered by reason of the discrimination against him with interest at 6 percent in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due the discriminatee under the terms of this recommended Order. (c) Post at its construction site near Clendenin, West Virginia, copies of the attached notice marked "Appendix A."1 3 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by its representatives, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notice is not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions set forth in paragraph 2(c), above, and as soon as they are forwarded by the Regional Director, copies of the Respondent Union's notice marked "Appendix B." (e) Furnish to said Regional Director signed copies of the notice marked "Appendix A" for posting by Respondent Union as hereinafter directed. (f) Expunge from Jimmy F. Connor's employment record any notation that he was discharged for violation of safety rules. (g) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. B. The Respondent, International Union of Operating Engineers, Local 132, AFL-CIO, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Threatening employees with discharge because of their failure to conform to union rules, practices, policies, or contracts, or obligations of union membership, except to the extent that such employees may be required to tender periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the Union. (b) Threatening employees that they will not be referred from the Union's exclusive hiring hall because of their protected activity in questioning the application of a provision of the Respondent Union's collective-bargaining agreement. (c) Causing or attempting to cause Respondent Glasgow, Inc., to discharge or otherwise discriminate against any of its employees in violation of Section 8(a)(3) of the Act. (d) In any other manner restraining or coercing employ- ees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Notify Jimmy F. Connor and Respondent Glasgow, Inc., in writing, that it withdraws its objections to the employment of Connor and requests his reinstatement. (b) Jointly and severally with Respondent Company make Jimmy F. Connor whole for all losses suffered by him as a result of the discrimination against him in the manner set forth in paragraph A,2(a), above. (c) Post at its offices copies of the attached notice marked "Appendix B." 14 Copies of said notice on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent Union's representa- tive, shall be posted immediately upon receipt thereof, and be maintained by the Respondent Union for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notice is not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in paragraph B, 2(c), above, as soon as they are forwarded by the Regional Director, copies of the Respondent Company's notice marked "Appendix A." (e) Forward signed copies of "Appendix B" to the Regional Director for posting by Respondent Company at its construction site near Clendenin, West Virginia. (f) Refrain from stating to prospective employers seeking referral from Respondent Union's hiring hall that Jimmy F. Connor has a poor safety record at Respondent Company's construction site near Clendenin, West Virgin- ia. (g) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. 13 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." 14 See fn. 13, supra APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees with discharge because of their failure to conform to union rules, practice, policy, contract or the obligations of union membership, except to the extent that such employees may be required to tender periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the Union. WE WILL NOT threaten employees that they will not be referred from our exclusive hiring hall because of their protected activity in questioning the application of a provision in our collective-bargaining agreement. WE WILL notify Jimmy F. Connor and Glasgow Inc., in writing that we have withdrawn our objections 131 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the employment of Jimmy F. Connor and request that he be reinstated. WE WILL make Jimmy F. Connor whole for any losses suffered by him as a result of the discrimination against him, which we caused. WE WILL NOT in any other manner restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 132, AFL-CIO 132