Plumbers & Steamfitters Local 198

974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plumbers & Steamfitters Local No. 198 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (National Mainte- nance Corporation) and William Netherland. Case 15-CB-1450 May 28, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On February 25, 1974, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed exceptions and a brief in support of the Administra- tive 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. 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 and hereby orders that the Respondent, Plumbers & Steamfitters Local No. 198 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, its officers, agents, and repre- sentatives, shall take the action set forth in the said recommended Order. I The Administrative Law Judge at one point in his decision indicated it was unnecessary for him to resolve the conflict in testimony as to the nature of the problems Durbin allegedly had with certain members of Local 798 Later, the Administrative Law Judge apparently resolved the conflict by rejecting Respondent's defense that it had failed to refer Netherland because employers had complained of the lack of qualifications of Local 798 welders We agree with the Administrative Law Judge that under any version of the facts Respondent refused to refer Netherland to employment because of his membership in Local 798 We note the Administrative Law Judge's inadvertent, inaccurate reference to "July 9, 1973" in his section entitled "The Remedy" as the date of the violation was September 25, 1973 DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on January 15, 1974, at Baton Rouge, Louisiana. The charge in this matter was filed on September 26, 1973. The complaint in this matter was issued on November 23, 1973. The issues concern whether (1) Respondent restrained and coerced employees by telling employees that membership in another labor organization adversely affected their referral to employment through an exclusive hiring hall maintained pursuant to a collective- bargaining agreement, and (2) Respondent has attempted to cause and has caused National Maintenance Corpora- tion to discriminate against an employee by said Respon- dent's failure to refer such employee for employment. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by the General Counsel and the Respondent and have been considered. Upon the entire record in the case and from my observation of witnesses, I hereby make the following: i FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The facts herein are based upon stipulations and pleadings and admissions therein. National Maintenance Corporation (herein sometimes called National), a Louisiana corporation with its principal office and place of business located in Baton Rouge, Louisiana, is now, and has been at all times material herein, engaged in the industrial contract maintenance business. As part of its operations in the State of Louisiana, National is engaged in contract maintenance work at the Allied Chemical plant in Geismar, Louisiana, the only plant directly involved in these proceedings. During the 12-month period preceding November 23, 1973, which period is representative of all times material herein, National, in the course and conduct of its business operations in the State of Louisiana, as described above, performed services valued in excess of $50,000 for employers, each of which purchased and received goods and materials valued in excess of $50,000, which goods and materials were delivered directly to said employers in Louisiana from points located outside the State of Louisiana. In the course and conduct of its business operations in the State of Louisiana, as described above, National has purchased and received goods valued in excess of $50,000 which were shipped directly to it from points located outside the State of Louisiana. Based upon the foregoing, it is concluded and found that National Maintenance Corporation is, and has been at all I The exhibit record erroneously reflects that G C Exh. 4 was received The transcript record so reflects at p 121 . The transcript record reflects later therein that G.C Exh. 4(a) and (5), in the exhibit record as G.C Exh. 4 and 5 were rejected My recollection is that such exhibits were rejected. The record is so corrected 210 NLRB No. 154 PLUMBERS & STEAMFITTERS LOCAL 198 times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATIONS INVOLVED The facts are based upon stipulations, pleadings and admissions therein. Plumbers & Steamfitters Local No. 198 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, (herein sometimes called Respon- dent, or Local 198) is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Pipeliners Local Union No. 798 of the United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (herein sometimes called Local 798), is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary Issues 1. Agency Status2 The following named individuals are now, and have been at all times material herein , agents of Respondent (Local 198) within the meaning of Section 2(13) of the Act: 975 obligation of union memberships, policies or require- ments. 6. All selections and referrals shall be in accordance with the following procedure: (A) The Union shall refer qualified journeymen in accordance with their recognized classifications and established trade qualifications, ie, pipefit- ters, steamfitters, pipe welders, plumbers, plumb- er welders, refrigeration mechanics and their apprentices and metal tradesmen and thereafter other qualified persons. (B) Request by the employer for key men to act as general foreman shall be honored without regard to the requested applicants place on the out-of- work list. (C) The hiring hall, 5888 Airline Highway, Baton Rouge, Louisiana shall be open for signing out- of-work list from 8:00 a.m. to 4:30 p.m. Monday through Friday, exception being regular meeting night from 6:30 p.m. to 8:00 p.m. (D) All applicants for work must sign and date the appropriate out-of-work list according to their established trade classification, ie, plumber, pipefitter, welder, refrigeration mechanic, metal tradesmen, and will retain their place on the list until he is dispatched to a job. All applicants must be present when a referral is made. Applicants shall be referred on a qualification, seniority, and residence basis in accordance with Section 8(f) of the National Labor Relations Act. All applicants shall be registered in the highest priority group for which he qualifies and shall be sent out from that group chronologically in the order which they register. Those in Group A shall be referred first and when this group is exhausted, Group B, and when this is exhausted, Group C, and finally Group D. A referral slip containing the applicants name, classification, job and date shall be made up for all referrals to work. A. L. Durbin-Business Manager Bob Atkinson-Dispatcher (E) 2. The Hiring Hall3 (F) At all times material herein, Respondent (Local 198), pursuant to the terms and conditions of its collective- bargaining agreement with National Maintenance Corpo- ration, has maintained and operated an exclusive hiring hall whereby employees are referred for employment with National at Geismar, Louisiana, through Respondent's hiring hall located in Baton Rouge , Louisiana.4 Around June 1973, Respondent's membership voted to adopt certain referral procedures for its use in the operation of its exclusive hiring hall . These procedures became effective as of June 4, 1973, and were contained in a written document. Excerpts from such written document reveal the following sections relevant to the issues in this case.5 5. Selection of all applicants for referral to the Employer shall be on a non-discriminatory basis and shall not be based on or affected in any way by race, creed, color, sex or national origin or by union membership or non-membership or by union by-laws, rules, regulations or constitutional provisions or other 2 The facts are based upon the pleadings and admissions therein 3 The facts are based upon the pleadings and admissions therein 4 I credit Gore's testimony to the effect that he was National's Maintenance job superintendent and that Local 198 was the sole source of (G) Applicants must take referrals in the classification which he signed, ie, plumbers, pipefitters, pipe welders, plumber welders, etc. (H) No one shall be on the out-of-work list while still employed, or working under any contract negoti- ated by Local 198. Exceptions shall be jobs not related to construction. (I) New applicants for referral must show proof of their qualifications by having the necessary licenses, certifications, records of previous employers, length of employment, residence and certificate of health. (J) Apprentices shall be governed by the apprenticeship standards as approved by the state and federal regulations. pipefitters and pipefitter welders for his company 5 The facts are based upon a composite of the exhibit pertaining thereto and the credited testimony of Durbin. 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (K) Disciplinary action may be taken against any journeymen who commits any act detrimental to the best interests of the referral system, including signing the out-of-work list for another applicant, or forging termination slips, or in any other fashion engaging in fraud or deceit to either retain or place their name on the out-of-work list. (L) If an applicant wishes to change his classification, (M) he must possess a minimum of practical working experience in the classification he seeks, and pass a satisfactory examination related to his skills and abilities, conducted by the Examining Commit- tee. Interested applicants should inquire of the business manager or his assistants for information and applications. Examinations shall be given at regular intervals. Upon the applicant passing a satisfactory examination, his name shall be placed on the proper out-of-work list. The Union shall maintain separate out-of-work lists classification 1) Plumbers, 2) Pipefitter/Ste- amfitters 3) Metal Trades. The list may be combined when appropriate. The lists shall be maintained on the following basis: GROUP A All qualified journeymen in the appropriate classifi- cation who have been employed for at least four (4) years in the past five (5) years by an employer signatory or abiding by an agreement with this Local Union or under training in a formally approved program and who have lived for at least five (5) years within the geographical area constituting the normal local con- struction labor market. GROUP B All qualified journeymen in the appropriate classifi- cation who have been employed for at least four (4) years in the past five (5) years by a contractor signatory to a pipefitting or plumbing agreement in the private construction plumbing and pipefitting industry and whose services have proved satisfactory. All persons qualified to be registered in Group B on the out-of-work list shall sign the appropriate list each day in order to be eligible for a referral to work. GROUP C Any persons with at least five (5) years practical working experience as journeymen or apprentice in the building and construction trades industry possessing particular qualifications or skills used in the plumbing and pipefitting industry, as evidenced by their employ- ment for at least four (4) years of the past five (5) years by Employers signatory to a Building Construction Trades agreement in the private construction industry in allied metal working or craft skills, ie, boilermakers, iron workers and millrights. GROUP D All persons with at least four (4) years practical working experience in the plumbing and pipefitting trade at journeymen duties in the building and construction trades industry and who are residents of the geographical area constituting the normal labor construction market for the past year. THIS NOTICE OF REFERRAL PROCEDURE IS BEING PLACED ON THE UNION'S BULLETIN BOARD. do not remove or deface. APPELLATE COMMITTEE PRESIDENT BUSINESS MANAGER The General Counsel does not contend that the written provisions in the referral system document reveal an unlawful referral system. Nor does the General Counsel contend that the normal operation and practice of the Respondent with respect to the operation of its referral system is unlawful. Rather, the General Counsel contends that specific conduct by the Respondent with respect to the referral or lack of referral of Netherland on September 25, 1973, was violative of Section 8(b)(2) and (1)(A) of the Act. The Administrative Law Judge made it clear at the trial that the issues to be litigated were those set forth by the pleadings and within the scope of the contentions referred to above. Thus, no issue is presented as to the general lawfulness of the written provisions relating to the referral system, or to the normal and general practice of referral. In this regard, therefore, the Administrative Law Judge construes Business Manager Durbin's references to the list for referral of Local 198 members, and the list for referral of "travelers" as being a shorthand description of the list for category "A" and category "B" registrants for referrals as referred to in the referral system document, and not as a description of an unlawful discriminatory assignment of registrants based upon their union membership. Durbin credibly testified to the effect that the Respon- dent's normal and everyday operation of its referral system was in accord with the referral procedures set up in the written document referred to above herein, that "travel- ers"6 desiring referrals sign the list for travelers (the Group B list category) in the order of their appearance at the hall, that the registrant designates his job classification on such list, that the registration is effective for only the current day, that the dispatcher in handling referrals calls out the names of the registrants in the specific classification desired for referral in the order of their registration, that, in order to receive such referral, the registrant must be present and acknowledge the calling of his name, that the registrant hands his union book to the dispatcher for possible checking as to qualifications, and that the registrant is then given a referral slip to the job. B. The Events of September 25, 1973 The issues in this case concern remarks made by Respondent's agents to William Netherland on September 25, 1973, and Respondent's refusal to refer Netherland to employment on the same date. 6 Members of sister locals of the UA who have deposited their travel card with the Respondent are known as travelers PLUMBERS & STEAMFITTERS LOCAL 198 977 Netherland's credited testimony reveals that as of September 25, 1973, he was a skilled pipe welder with considerable experience, that he had previously worked on jobs as a result of referrals from Respondent Local 198, that he had formerly been a member of Local 198, that he was on September 25, 1973, a member of Local 798 and had deposited his travel card with Respondent Local 198. On September 25, 1973, Netherland and other "travel- ers" reported to the Respondent's referral hall before 8 a.m. Netherland and the other "travelers" fell in line in the order of their arrival and walked to the dispatcher's window to sign the out-of-work list for "travelers" (Group B category). A registrant named Hartley signed the list first, Netherland was the fifth person to sign the list. A registrant named Blanchard was the seventh person to sign the list, and a registrant named Avara was the 23rd person to sign the referral list. The following reflects the list for travelers on September 25, 1973, and the information posted on September 25, 1973. Date Name Lo No. Class. 9/25/'3 Marvin Hartley 654 fitter 9/25/73 Wiese Maints Shell 9/25/73 Eugene rortless 654 fitter 9/25/73 W iese Maints Shell 9/25/73 C. E. Bryand 57 fitter 9/25/73 Wiese Maints Shell 9/25/73 W. J. Leonard 823 fitter 9/25/73 Wiese taints Shell 9/25/73 Bill Netherland 798 welder 9/25/73 E. L. Mcfuffre 431 fitter 9/25/73 J. P. Blanchard 456 welder 9/25/73 Nat Maints Allied 9/25/73 E. J. Landry 57 fitter 9/25/73 Wiese Maints Shell 9/25/73 B. Lortouck 436 fitter 9/25/73 Fred A. Slayden 412 fitter 9/25/73 R. A. Bruster 247 fitter 9/25/73 Jimmy Drummond 767 fitter 9/25/73 C. Crain 657 fitter 9/25/73 Dave Welch 823 fitter 9/27/73 Tom Bentley 351 fitter 9/25/73 Don W. Bass 687 fitter 9/25/73 Joe islocksher 247 fitter 9/25/73 Joe Gaultier 397 fitter 9/25/73 Lonnie 111olurk 798 fitter 9/25/73 James W. Buours 191 fitter 9/25/73 Catalog Inc. Maints 9/25/73 Autry Aaron 706 fitter 9/25/73 R. Heath 39' fitter 9/25/73 Hank Avara 397 welder 9/25/73 Nat Maints Allied 9/25/73 Cillis C. Estep 798 apprentice 9/25/73 W. J. Martin 247 fitter 9/25/73 R. Mitchem 391 welder 9/25/73 John W. Holms 191 fitter 9/25/73 G. U. McGowan 798 welder What occurred otherwise is essentially revealed by the following credited excerpts from Netherland 's testimony. A. I was the first welder to sign the out -of-work list that morning. Q. How do you know? A. After everyone had already signed the list I went back up to check to see where my name would be. I noticed the fitters had signed ahead of me and I would have been the first welder to be dispatched that day. Q. After you signed the list, what did you do then? A. After I signed it and everyone else had signed it, I walked back up to check and see what place I was on the list. I noticed I was the first welder to go out that day. s s s s Q. During the dispatching what, if anything were you able to observe? A. I could watch him as he was calling out their names. Q. As Mr. Atkinson called out these names, did he take any action after that? A. The members would lay their union books into the little window and they were writing referrals, and those members would leave, he completely went through the list. I noticed him skip my name, he crime completely through the list. And after he had gone through the list, I asked him, I says `Bob, what's wrong, you skipped my name there', and he said `I still need a welder'. He didn't say anything to me and I handed my book in there and he shoved it back out. He said "You're out of 798, aren't you'? And I said that's right, I'm out of 798, why, what's the matter, I haven't done anything wrong. `Well, you have to see Al Durbin, he's running the show, I'm just the dispatcher'. I said `All right, Mr. Bob'. In the meantime Hank Avara was on the outside of the building and he hollered `I still need a welder', and Hank and some other brother members went outside and brought Hank in and they wrote him a referral for National Maintenance at Geismar, Louisiana. 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. job? Do you know the referral was for that specific members. It is not necessary in this case to resolve such issues since the facts reveal violative conduct by the Respondent under either version of the fact. Conclusions A. Hank Avara, after he got his referral to go to work, he showed me where he was going to work at. Q. Were you present during the entire dispatching that morning? A. I was there until everyone, until he completely went through the list and hollered out he still needed a welder and I handed my union book in the window and I said `I'm still here'. Q. Did anything occur before you entered Mr. Durbin's office? A. I was standing up getting a drink of water and Mr. Bob had came out, and he says `Bill, I'm sorry', he says `if you get this straight with Al Durbin' he says `I'll give you a referral to go to work'. Q. After Mr. Atkinson said this, what did you do then? A. I said `Thanks, Bob, I'm going to see Al'. The facts are clear that the dispatcher, Atkinson, did not call Netherland's name from the out-of-work list and did give job referrals to two men (Blanchard and Avara) who were not members of Local 798 and who were listed below Netherland on the out-of-work list. National Maintenance had requested at least one employee without specific request for a named individual. Avara was clearly referred to a job at National for which he had not specifically been requested. Avara had not previously worked for National. Both Netherland and Durbin testified with respect to a conversation that Netherland had with Durbin on Septem- ber 25, 1973, about Netherland's failure to receive a job referral from dispatcher Atkinson. The dispute between the testimony of Netherland and Durbin essentially touches whether it was Netherland or Durbin speaking of problems Durbin allegedly had with certain named 798 members. It is not necessary to resolve such conflict for the purposes of this case. A composite of the credited aspects of Nether- land's and Durbin's testimony reveals, and I conclude and find, that Netherland asked Durbin why dispatcher Atkinson had skipped his name during the morning referral and had told Durbin that he (Netherland) had done nothing wrong. Durbin told Netherland in effect that the problem arose because he was having some trouble with some 798 welders, that he would try to straighten it out, and see what he could do for him (Netherland). Durbin testified to the effect that he did not tell Netherland what the problems with the Local 798 welders were. Durbin testified to the effect that the problems he referred to arose from complaints by employers that Local 798 welders could not pass certain welding tests and that such examinations cost money. As previously indicated, a conflict exists between the testimony of Netherland and Durbin as to references made to certain specific Local 798 welders. There was other evidence adduced relating to alleged problems regarding picket line crossing and transferrance of membership cards by certain Local 798 Considering the statements by Atkinson and Durbin to Netherland to the effect that he was not being referred to a fob, in connection with referrals to employment from a contractual exclusive referral hiring arrangement, because of his membership in Local 798, it is clear that Respondent has restrained an employee or applicant for employment in the exercise of Section 7 rights to engage in or refrain from engaging in union activity. The Respondent thereby has violated Section 8(b)(1)(A) of the Act by such statements.? It is so concluded and found. Considering Atkinson's and Durbin's statements to Netherland to the effect that he was not being referred to jobs because he was a member of Local 798, the clear use of Local 798 membership as a criteria for refusal of referral of Netherland, the existence of a contractual exclusive referral hiring arrangement between Respondent and National Maintenance Corporation and administered by the Respondent, the clear deviation from normal practice and procedure in the referral of two employees who were not members of Local 798 to National instead of the referral of Netherland, I am persuaded and conclude and find that the facts establish that Respondent attempted to cause and did cause National Maintenance Corporation to discriminate against Netherland within the meaning of Section 8(a)(3) of the Act. Such conduct by the Respon- dent is violative of Section 8(b)(1)(A) and (2) of the Act. It is so concluded and found. Respondent's contended defense, that the failure to refer Netherland to employment was because employers had complained of lack of qualifications of Local 798 welders, is rejected. The facts litigated in this case reveal that Netherland was a qualified welder. Under any versions of facts presented in this case, Respondent did not use objective criteria in determining Netherland's qualifica- tions. To equate union membership with lack of qualifica- tions makes such considerations discriminatory. The Respondent contends that this case should be deferred to a "grievance-arbitration" type procedure established by the Union with respect to its referral system. Such procedure is revealed by the following excerpt from a written document pertaining to the Union's referral system. 3. The Employer shall have the right to reject any applicant for employment. However, the rejected applicant shall have the right to demand the reason for his rejection, and if said rejection is in violation of any provision of the Working Agreement and/or is not for just cause, the rejected applicant shall have the right to file a written grievance within forty-eight (48) hours after rejection, and the Union agrees to fully investigate the rejection and to proceed to arbitration, if warrant- ed. 7 The use of an employee's or applicant's membership status is not an constitute unlawful conduct. objective criteria, and statements to such an effect in the instant case clearly PLUMBERS & STEAMFITTERS LOCAL 198 979 4. In the event any job applicant feels he is aggrieved (1) With his failure to qualify for registration, (2) With his order of referral or (3) With his classification, he may within ten (10) days following the occurrence of the event file a written statement of the grievance clearly and specifically setting forth the wrong or violation charged, with the Appeals Committee. The Appeals Committee shall consist of three (3) members of Local 198 and one (1) alternate member, to be selected by a secret ballot vote of the membership, to serve for a period of two years or for the duration of the Working Agreement, whichever occurs sooner. The Appeals Committee shall conduct a hearing in the grievance. The grievant shall be notified in writing at least ten (10) days before the date of the hearing. An adequate record of the hearing shall be maintained by the Committee. If the person filing the grievance fails to attend the hearing, or to state a good cause for his absence, the appeal shall be dropped. After a hearing on the facts in which all parties shall be permitted to present witnesses and be represented, the Appeals Committee shall render a decision and order any remedial action it deems necessary. All decisions of the committee may be appealed to final and binding arbitration within ten (10) days after the committees decision. The expense of arbitration shall be shared equally by the parties. If an impartial arbitration cannot be agreed upon, resort shall be made to the Federal Mediation and Conciliation Service for a list of Five (5) persons to serve as arbitrator. Each party shall strike a name until an arbitrator is chosen The above grievance-arbitration procedure is not one established by collective bargaining between the Union and the Employer. Nor is such a procedure one established by agreement between the Union and Netherlands Since the procedure concerns grievances by an employee or applicant in connection with the Union's actions, the employee or applicant is denied in effect the benefit of bona fide representation by the collective-bargaining representative Further, the grievance-arbitration proce- dure places a financial burden upon the individual employee or applicant by making such employee or applicant share the expense of arbitration. Such procedure in effect would require the employee or applicant to exhaust remedies available through the Union's own procedure and at a possible financial cost to himself before receiving the statutory protection of the Act. Such arbitration-grievance procedure as provided unilat- erally by the Union is repugnant to the Act and to the 8 Netherland is not a member of the Respondent and had no voice in the selection of such procedure Even if Netherland were a member and had voted for such procedure, such procedure would not have been arrived at through collective bargaining and would still deny Netherland collective- bargaining representation in such grievance or arbitration procedure 9 Collyer Insulated Wire, 192 NLRB 837 10 See Kansas Meat Packers, 198 NLRB No 2, and cases cited therein i l The Respondent and the Employer also have a grievance-arbitration procedure set forth in their collective -bargaining agreement Excepting for the question of the employee's having to share the expense of arbitration, the pnnciples discussed above are equally applicable Because the conflict is between the Union and the employee or applicant , I reject any contention principles set forth by the Board in the Collyer doctrine or cases related thereto .9 The Board's Collyer doctrine essentially concerns the deferral of issues arising in the interpretation of contract where the parties have agreed voluntarily to have such issues determined by grievance arbitration procedures, having standards to insure a fair and j•ist determination. Clearly, Netherland has not voluntarily agreed to this procedure. Further, the Board's Collyer doctrine is only applied where the interests of the Union and the employees are in substantial harmony and not in substantial conflict as in this case where reasonable ground exists for assuming that Netherland's interests may not be adequately represented in the arbitral process. Nor is it consistent with the purposes of the Act for an employee or applicant to be required to submit to a grievance or arbitration procedure, without the benefit of collective-bargaining representation and with an imposed burden of having to share the expenses of such arbitra- tion.iO For the above reasons, I reject the contention that this case should be deferred to the grievance-arbitration procedures unilaterally established by the Union for its referral system.ii Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Employer's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. To remedy the Respondent's discrimination in the operation of the hiring hall under its exclusive hiring agreements, the recommended Order will provide that it cease such discrimination. To remedy the Respondent's discrimination with respect to the discriminatory refusal to refer William Netherland for employment, the Recommended Order will provide that Respondent notify Netherland that it will reinstate him as a registrant for referral, if requested, and that it will henceforth refer him to employment on a nondiscriminato- ry basis.12 The Recommended Order will also provide that that this case be deferred to such arbitration-grievance procedure 12 Pursuant to this Order, Respondent is required to consider Netherland for referral, to refer him to jobs in accordance with nondiscriminatory criteria, and in no way to base consideration for referral on membership status, traveler status, or nonmembership status The Respondent presented evidence to the effect that after notification of charges it commenced adding Netherland's name to the out-of-work list and calling him for lobs Under the circumstances of this case, Netherland had every reason to believe that further appearances at the referral hall would be futile Respondent's action in adding his name to the out -of-work list and to calling his name was obviously meaningless 980 DECISIONS OF NATIONAL the Respondent make Netherland whole for any loss of wages or other benefits suffered as a result of the discrimination on July 7, 1969, and thereafter until the date that the Respondent has complied with the question of reinstatement of Netherland as a registrant for referral, and commencement of nondiscriminatory referral of Netherland. Such backpay, and interest thereon at 6 percent , shall be computed in accord with the Board's decision in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. In addition to requiring Respondent to post the remedial notice for employees, it will be required that Respondent forward signed notices for posting by National Mainte- nance Corporation, if National be willing. Because of the character and scope of the unfair labor practices herein found, the recommended Order will provide that the Respondent cease and desist from the specific unfair labor practices found, and that it cease and desist from in any other manner interfering with, restrain- ing, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. National Maintenance Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. Plumbers & Steamfitters Local No. 198 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, and Pipeliners Local Union No. 798 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, each is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By restraining and coercing employees in the exercise of rights guaranteed by Section 7 of the Act and by threats thereto, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. By discriminating in the referral of employees in the operation of its contractual exclusive hiring hall by discriminating in the referral opportunities afforded William Netherland, the Respondent has caused an Employer to discriminate in violation of Section 8(a)(3) of the Act and thereby has engaged in unfair labor practices within the meaning of Section 8(b)(I)(A) and (2). 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclusions of law and the entire record in the case, I hereby issue the following recommended: ORDER 13 Upon the foregoing findings and conclusions and the entire record and pursuant to Section 10(c) of the Act, it is LABOR RELATIONS BOARD recommended that the Respondent, its officers, representa. tives, successors, assigns, and agents, shall: 1. Cease and desist from: (a) Threatening employees or registrants for referral to employment with reprisals relating to job opportunities, or in any other manner restraining or coercing employees or registrants for employment. (b) Causing discrimination in violation of Section 8(b)(2) and (3) of the Act in the hiring or employment of registrants for referral hiring based upon considerations of union membership, status, or lack thereof, or of protected union activities. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Make whole William Netherland for any loss of pay suffered as a result of the discrimination against him with respect to referral to employment opportunities in the manner set forth in the section entitled "The Remedy." (b) Notify William Netherland that, upon request, it will refer him to jobs covered by its contractual exclusive referral hiring hall on a nondiscriminatory basis. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records relating to requests for employee referral, registra- tion, and referral of employees, and all other records necessary or useful in the analysis of backpay due employees under the terms of this Recommended Order and cooperate with the Board's agent in furnishing similar records or information from the Employers involved. (d) Post at its business office and hiring hall copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's authorized representative, shall be posted by it immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Forward signed copies of the "Appendix" to the Regional Director for Region 15 for posting by National Maintenance Corporation, and by other employers using Respondent's contractual exclusive referral hiring hall, if they be willing. (f) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this recommended Order, what steps have been taken to comply herewith. 13 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. 14 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." PLUMBERS & STEAMFITTERS LOCAL 198 981 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees or registrants for referral to employment with reprisals relating to job opportunities, nor in any other manner restrain or coerce employees or registrants for employment. WE WILL NOT cause discrimination, in violation of Section 8(b)(2) and 8(a)(3) of the Act, in the hiring or employment of registrants for referral hiring based upon considerations of union membership, status, or lack thereof, or of protected union activities. WE WILL make William Netherland whole for any loss of pay or other benefits suffered by him as a result of discrimination caused by us, with such backpay and other benefits computed in the manner set forth in the section of the Decision entitled "The Remedy." WE WILL notify William Netherland that, upon request, we will refer him to jobs covered by our contractual exclusive referral hiring halFon a nondiscri- minatory basis. PLUMBERS & STEAMFITTERS LOCAL No. 198 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF UNITED STATES AND CANADA, AFL-CIO (Labor Organization) Dated By THE (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Plaza Towers, Suite 2700, 1001 Howard Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361.