Operating Engineers Local 138 (Building Contractors Assn.)

LOCAL 138, OPERATING ENGINEERS Local 138, International Union of Operating Engi- neers, AFL-CIO (Building Contractors' Associa- tion, Inc.) and Edmund L. Galke Local 138, International Union of Operating Engi- neers, AFL-CIO and Joseph Spagnulo. Cases 29- CB-2029 and 29-CB-2050 November 4, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On April 20, 1977, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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, find- ings, l and and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).3 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, Local 138 International Union of Operating Engineers, AFL- CIO, Farmingdale, New York, its officers, agents, and representatives, shall take the action set forth in the said recommended Order.4 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 (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 Since we have found in Case 29-CB-2029 that the reduction of Charging Party Galke's industry seniority was, in fact, motivated by his involvement in protected concerted activities, we find it unnecessary to determine if any other grounds existed upon which such a reduction of seniority could have been based. 3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 4 Member Murphy agrees that the Respondent stripped employee Galke of his 1947 senionty date in a manner contrary to applicable union rules and procedures and for unlawful reasons. Therefore. she joins her colleagues in ordering Respondent to restore to Galke his 1947 industry seniority. In doing so, however, she notes that there is some evidence in the record 233 NLRB No. 46 suggesting, as Respondent claims, that Galke was not in fact entitled to such an early seniority date. Consequently, in agreeing to order restoration of Galke's early seniority date she would not preclude Respondent's redeter- mining such date in a fair nondiscriminatory manner and in accordance with all applicable union rules and procedures, with the express provision, however, that any such redetermination would have prospective effect only and would not affect the amount of backpay due Galke pursuant to the provisions of the Order herein. DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge: These cases came to hearing before me at Brooklyn, New York, on November 8, 9, 10, and 23, 1976. Upon a charge filed by Edmund L. Galke, an individual, the Regional Director for Region 29 issued a complaint in Case 29-CB- 2029 against Local 138, International Union of Operating Engineers, AFL-CIO (referred to herein as the Union) on May 30, 1975. The Regional Director for Region 29 issued the complaint in Case 29-CB-2050 on September 16, 1976, upon a charge filed by Joseph Spagnulo, an individual, against the Union. Thereafter, on September 17, 1976, the Regional Director consolidated Cases 29-CB-2029 and 29-CB-2050. The complaint in Case 29-CB-2029 alleges that the Union violated Section 8(bX)()(A) of the National Labor Relations Act, as amended (29 U.S.C. § 151, et seq.), referred to hereinafter as the Act, by threatening to reduce Edmund L. Galke's industry seniority and to change his industry seniority date. The same complaint also alleged that the Union violated Sections 8(bX2) and 8(b)()(A) of the Act by discriminatorily reducing Galke's industry seniority date and by changing Galke's industry seniority date from 1947 to 1961. The complaint in Case 29-CB-2050 alleges that the Union violated Sections 8(b)(IXA) and 8(bX2) of the Act by causing Marvec Allstate, Inc., to terminate Joseph Spagnulo because Spagnulo was not a member of the Union but of another labor organization. Upon the entire record, including my observation of the witnesses, and after due consideration of the respective briefs filed by counsel for the General Counsel and counsel for the Union, I make the following: FINDINGS OF FACT I. JURISDICTION The complaint in Case 29-CB-2029 alleges that Building Contractors' Association, Inc. (referred to herein as the Association),' at all times material herein has been a membership corporation and a trade association organized under the laws of the State of New York, with its office at New York City, New York, where at all material times it has negotiated and executed collective-bargaining agree- ments with the Union and other labor organizations and has administered such collective-bargaining agreements on behalf of its employer-members. The employer-members of the Association are general contractors providing general contracting services in the I The name of the employer association appears as corrected at the heanng. 267 DECISIONS OF NATIONAL LABOR RELATIONS BOARD building and construction industry in the counties of Nassau and Suffolk, New York, and vicinity. During the past year, a representative period, the employer-members of the Association in the course and conduct of their collective business operations purchased and caused to be transported and delivered to their construction jobsites in Nassau and Suffolk Counties and vicinity, steel pipes, lumber, and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to said construc- tion jobsites directly from States of the United States other than the State of New York. Marvec Allstate, Inc., the employer named in Case 29- CB-2050 (referred to herein as Marvec) is a New Jersey corporation with its principal office and place of business at Verona, New Jersey. Marvec operates various jobsites in New Jersey and New York, where at all times material herein it has been engaged in the construction industry, installing utility facilities, including sewers. During the past year, a representative period of its annual operations, Marvec in the course and conduct of its business purchased and caused to be transported and delivered to its New Jersey facility goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its New Jersey plant directly from States of the United States other than New Jersey. Upon the foregoing admitted facts, I find that at all times material to this case the Association and Marvec, respec- tively, have been, and are, employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE UNION'S STATUS The complaint alleges, the Union admits, and I find that at all times material to this case the Respondent, Local 138, International Union of Operating Engineers, AFL-CIO, has been and is a labor organization within the meaning of Section 2(5) of the Act. IIl. THE ALLEGED UNFAIR LABOR PRACTICES A. Edmund L. Galke's Seniority At all times material herein, the Union and the Association have been parties to a collective-bargaining agreement requiring employer parties to utilize the Union's referral system as the exclusive source of operating engineers. In administering the exclusive referral system under rules entitled "Dispatching Procedure" the Union has accorded considerable importance to seniority. Rule l(A) of the Union's Dispatching Procedure provides the following guidance: Referral of qualified applicants will be based on the principle of "Industry Seniority" which has been defined as follows: The term "Industry Seniority Date" shall mean the first date of regular employment of a job applicant within 2 A master mechanic or lead engineer, as that position is referred to in the Union's contract and in the record, acts as the Union's steward on a jobsite. the geographical jurisdiction of the Union, in a job classification covered by the working agreement of the Union, subject to investigation by the Union.... However, in the absence of other evidence, the date of the first regular employment in the industry may be presumptively established as of the date of the employee's initiation into [the Union ] or as of the date of the first payment of a permit or service fee to [the Union]. Rule V(D) of the Dispatching Procedure, in describing the role of out-of-work cards in the referral procedures, declares: An employee with the highest industry seniority date shall be referred to the first available job requisition in any of the job categories he has checked off [on his out- of-work card] and is capable of operating .... " [Emphasis supplied.] Early in 1973 the Union granted Edmund Galke, an operating engineer by trade, and a member of the Union, an industry seniority date of 1961. However, Galke remained unsatisfied and attempted to establish his entitlement to an earlier date. On June 7, 1973, the Union, by letter signed by its president, James J. Duffy, an- nounced to Galke: "This is to inform you that your request for Industry Seniority in the year 1947 has been accepted." Thereafter, until January 1975, the Union referred Galke to work through its exclusive hiring hall based upon an industry seniority date of 1947. The events leading up to Galke's loss of seniority began on the evening of January 24, 1975, when he attended a union membership meeting presided over by the Union's business manager and president, James J. Duffy. The meeting began at 8:30 in the evening and was attended by about 400 men. In the course of the proceedings, Galke rose to complain that at a jobsite known as the Horn job, where he had been working in December 1974, "The master mechanic [or lead engineer] and the men on the job were not challenging operators of equipment in the locality." Galke stated that he felt that it was the responsibility of the master mechanic and the operating engineers2 on the job to protect their work jurisdiction. Galke addressed his remarks to President Duffy. The two conversed briefly and Galke sat down. Duffy then conversed with another member and after terminating that exchange turned to Galke and asked, "What do you have to say?" At this Galke rose and said that he had been to see Duffy earlier that morning about a matter which he did not wish to raise on the union floor but that now Duffy had "forced my hand." Galke then launched into a critique of safety conditions at his current jobsite described as the Shoreham job. He told Duffy "that there were unsafe conditions out there, debris all around, no fire extinguishers, the equipment that we were supposed to maintain was in hazardous locations, inaccessible in some instance, that we had to jump over concrete steel reinforcing rods in some cases to get to the machines." 268 LOCAL 138, OPERATING ENGINEERS Galke complained about the lead engineer's instructions to operating engineers regarding the fueling of machines. According to Galke, under those instructions, "we would lose our jurisdiction over those machines if they were usurped by laborers or any other crew." Responses to Galke's allegations erupted from the assemblage. Ted Jawroski, one of the two lead engineers on the Shoreham job, rose and denied Galke's allegations. In the continuing skirmish Galke called Jawroski "a liar." A second union member, Doyle, rose and attempted to refute Galke's allegations. Galke called him "a brown nose." President Duffy rose and announced that Vice President Jack Gunning, the Union's area safety representative, whose jurisdiction included the Shoreham job, would respond regarding safety conditions on that job. Gunning rose and stated that the job was "not badly run"; that the employer, Dravo, was "a safety-conscious outfit"; that in his view the job was "pretty well run." When Gunning sat down, Galke disputed his assertions. After the union meeting, Galke sought out President Duffy and requested a meeting with him. Duffy invited Galke into a conference room. There, in the presence of Jack Kearns and Ted Jawroski, who were the Shoreham job lead engineers, and Union Vice President Jack Gunning, Galke repeated his complaints about unsafe conditions and possible loss of engineer's work at the Shoreham job. Duffy responded, "You're going against me again-when you go against my men, you go against me." Galke asked, "Even if they're wrong?" Duffy repeated, "Even if they're wrong." In an effort to buttress his complaints, Galke brought fellow union member Gary Nagle into the room. Naglc supported Galke's complaints about unsafe conditions on the Shoreham job and confirmed Galke's assertion that Jawroski had instructed operating engineers to let other employees fuel the machinery on the job. Jawroski again denied Galke's charge against him. Galke again called Jawroski a liar. Following the Jawroski-Galke exchange, Duffy accused Galke of supporting the candidacy of union member George Hayes for union office. Galke denied this assertion. Duffy then said that Galke had taken equipment from a jobsite for his own personal use and had taken a 3-hour lunch period. Galke denied these accusations. Finally, Duffy charged Galke with asking for relief from a job 15 minutes after coming on the jobsite. Galke denied this charge and rebutted it with testimony from the Union's office manager. As the meeting ended, Duffy warned Galke that he was going to bring Galke before the Union's executive board because Galke was not entitled to his current assigned industry seniority. Duffy also stated his intent to visit the Shoreham job on the following morning. Soon after midnight on the morning of January 25, President Duffy, together with Vice President Gunning and Lead Engineer Kearns, arrived at the shoreham jobsite. Duffy approached employee George Hayes, an operating engineer, and asked what the problems on the job were. Hayes told him of the poor lighting and the lack of adequate shelter against the winter's cold. Duffy advised Hayes to buy more clothing. Hayes also complained of inadequate heating. Duffy directed Lead Engineers Kearns and Jawroski to remedy Hayes' complaints. Hayes told Duffy that an operating engineer was injured by a fall through scaffolding. Hayes blamed the accident on poor lighting. Finally, Duffy climbed the scaffolding and inspected the jobsite himself. On the morning of January 28, Galke, accompanied by Hayes, visited Duffy at the union offices. Duffy began the meeting by asking Galke, "[W]hose white horse are you riding?" and warning, "if you're not careful, I'm going to take your phony seniority away from you." Duffy also challenged Galke's seniority, saying, "Where do you get off this [expletive omitted] claiming 14 years' seniority? You are not entitled to this seniority." Galke replied that he had fulfilled the Union's require- ments for establishing his entitlement to the 1947 seniority date. Duffy responded, "I'm going to see that you don't have it." Following this exchange, Duffy and Galke engaged in a dispute regarding Duffy's accusations that Galke had taken an extended lunch period, had misappropriated equipment, and had supported Hayes for union office. Included in the discussion was Galke's criticism of Lead Engineer Ralph Longo's conduct at the Horn jobsite, safety conditions at the Shoreham job, and Duffy's efforts to improve these conditions. Galke again charged Lead Engineer Jawroski with lying about conditions at the Shoreham job. Galke was laid off from the Shoreham job on Wednes- day, January 29. That same day, Galke filed an out-of- work card at the Union's office. Galke waited until the following Monday afternoon without receiving a job referral from the Union. Late in the afternoon of February 3, Galke called the Union's office and spoke to dispatch clerk John Sommeso. Galke asked Sommeso how he stood on the referral list. Sommeso answered, "Not too good." When Galke sought an explanation, Sommeso responded, "I don't know if anybody has notified you, but your seniority has been cut to 1961." Upon hearing this, Galke terminated the conversation. On February 4, Galke set about investigating his loss of seniority. He spoke to the Union's recording corresponding secretary, Jerry Quill. Quill said he could not provide an explanation and that President Duffy, the person who could furnish the information, was in Florida. At this Galke revealed that he had called the National Labor Relations Board. Quill expressed resentment and terminat- ed the conversation. On or about March 12, Galke and Duffy met at the Union's office at Duffy's request. Also present at the meeting was Galke's brother-in-law, Jim Caples. Duffy told Galke and Caples that Galke was seeking seniority that he was "not entitled to." Duffy remarked that he personally had assigned the 1961 seniority date to Galke. Duffy warned that if Galke were not careful he, Duffy, would lower Galke's seniority to 1971. In the course of the ensuing discussion, Duffy again accused Galke of taking a 3-hour lunch period, and of wrongfully taking equipment from a job. Duffy expressed displeasure at the presence of Gary Nagle and George Hayes at earlier discussions. Galke explained that he had brought them in as witnesses to refute Duffy's accusations. 269 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Galke and Duffy also discussed Galke's complaints about Longo, the lead engineer on the Horn job. Turning to his seniority, Galke asserted that while he had satisfied the Union's procedural rules for proving his seniority the Union had reduced his seniority without according him the requisite registered mail notification. Duffy replied, "Well I'm telling you." Galke's complaint was borne out by the record. He did not receive the notification prescribed by the Union's Dispatching Proce- dure. Article II(H) of Union's Dispatching Procedure states: "The Union shall not disallow the Industry Seniority Date claimed by any job applicant on his out-of- work card except by written notice once by registered or certified mail to said applicant, whereupon the procedure set forth in subparagraphs C, D, E, and F shall apply." 3 Finally, during their March confrontation, Duffy, for the first time told Galke that a union member had protested that Galke was not entitled to a 1947 seniority date. However, Duffy did not identify the complainant. 4 The General Counsel argues that the Unior. violated Section 8(b)(2) and Section 8(b)(1)(A) of the Act by reducing Galke's seniority from 1947 to 1961 because he criticized the Union's administration. The Union urges that it reduced Galke's seniority lawfully, i.e., in response to complaints from the membership, and only after finding that Galke was in fact not entitled to the 1947 seniority. I find merit in the General Counsel's contention. Under settled law, a union which undertakes to operate a hiring hall pursuant to contract or other arrangements with employers as the exclusive source of recruitment of employees is obligated to refer job applicants without regard to their union membership, loyalty to the union, or their attitude toward the union's leadership or policies. Laborer's International Union of North America, Local Union No. 207, AFL-CIO (A. & E. Construction Company), 206 NLRB 902, 904-905 (1973), and cases cited there. Here, the facts reveal that the Union punished job applicant Galke because he criticized the performance of its lead engineers. President Duffy's sarcastic and threaten- ing remarks to Galke on and after the evening of January 24 vividly manifested an intent to punish Galke for his outspoken criticism of Duffy's subordinates. On the evening of January 24, after the meeting, Galke again confronted Duffy and repeated his complaints about safety conditions and the potential loss of work, Duffy revealed his ire when he remarked, "When you go against my men you go against me." Duffy again showed animus when in the same confrontation he castigated Galke for supporting a fellow union member for union office, and accused Galke of misappropriating operating equipment, taking extensive lunch hours and requesting relief after being on a job for only 15 minutes. Duffy's hostility surfaced again 3 days later, when he saw Galke and immediately asked, "[W]hose white horse are you riding?" Duffy then abrasively challenged Galke's 1947 seniority and threat- ened to reduce it. I find this threat violative of Section 8(b)(l)(A) of the Act, for it came in the context of Duffy's 3 Subpars. C, D, E, and F prescribed procedures for establishing an earlier industry seniority date than that claimed by a job applicant. 4 In resolving the few issues of credibility raised by the testimony of Duffy and Galke, I have noted that Galke was more straightforward and appeared more conscientious about providing his complete recollection of hostility toward Galke's criticism of Duffy's subordinates. One week later, in a phone conversation, Galke discovered that his seniority had been reduced to 1961. The timing of the reduction of Galke's seniority so close to his confronta- tions with Duffy and Duffy's expressions of hostility toward Galke's criticism provide ample support for the General Counsel's contention. Further persuasive evidence of the unlawful motive lies in the Union's unexplained failure to give Galke the notice required by its own Dispatching Procedure when an industry seniority date is changed. The Union asserts it reduced Galke's seniority because fellow operating engineers complained to Duffy. An investigation showed that Galke was not entitled to the 1947 seniority date because of a "break in time" from 1947 through 1961. Indeed, according to the Union, Duffy could have properly reduced Galke's seniority to 1971. Examina- tion of the Union's defense revealed its lack of merit. First, I am not persuaded that the reduction of Galke's seniority was sparked by members' complaints. Aside from Duffy's testimony and remark to Galke that members complained to him about Galke's seniority at the January 24 meeting, there is no other evidence that any member complained. Neither Duffy nor any other union witness identified a complaining member. Nor did the Union present any complainant as a witness in support of this important part of its defense. In short, the Union has failed to substantiate Duffy's claim. Nor do I accept the Union's further claim that it investigated the basis of its award of 1947 seniority to Galke before reducing him to 1961 seniority. According to the Union, the letter submitted by Galke in 1973 to support his claim that he worked for the H. V. Finley Corporation in 1947 was not authentic. The fatal infirmity in the Union's claim is the fact that it did not obtain any information regarding Galke's 1973 letter until November 1975, 10 months after it had reduced his seniority to 1961. Indeed, Duffy himself admitted on cross-examination that the Union's investigation of the letter began sometime after Duffy reduced Galke's seniority date to 1961. Duffy further testified under cross-examination that on the night of January 24 he obtained the Union's records pertaining to Galke's employment history and satisfied himself that Galke was entitled only to 1961. However, Duffy's testimony also shows that the Union had considered these same records in 1973, including the letter reporting Galke's 1947 employment by H. V. Finley Corporation, when it awarded Galke his 1947 seniority. It therefore appears unlikely that the same material would result in reduction of Galke's seniority, absent a showing of some basis for a change in evaluation. Here the Union has not shown how its records provided a basis for the change. Finally, the Union claims that Duffy could have properly reduced Galke's seniority to 1971 because Galke was not employed as an operating engineer under the Union's collective-bargaining agreement from 1964 until 1971. The record shows, however, that Duffy awarded the 1961 their conversations. Accordingly, where their testimony conflicted, I have credited Galke. Also, taking into accord the documentary evidence and Duffy's partial corroboration of Galke's testimony, the latter's version of their conversation appeared more probable. 270 LOCAL 138, OPERATING ENGINEERS seniority date to Galke in 1973 after Galke had paid all the back dues covering the 7 years he had been out of the employing industry. From 1973 until January 1975 Duffy and the Union were content to credit Galke with these 7 years. Not until Galke had raised Duffy's ire over the administration of the Shoreham job did the Union even consider the question of Galke's entitlement to the seniority credit for the period from 1961 to 1971. Here again there was no change in the facts which had confronted Duffy in 1973 when he was willing to provide Galke with seniority credit for the period from 1961 to 1973. Here again the record is bare of any valid ground for reduction of Galke's seniority to 1971. In sum, having rejected the Union's defense, I find from the record as a whole that the Union sought to punish Galke for his criticism of Duffy's administration by reducing his industry seniority. By such action, the Union sought to impair Galke's opportunity for job referral and thereby to inflict economic harm upon him. I therefore further find that the Union violated Section 8(b)(2) and Section 8(b)(1)(A) of the Act. B. Joseph Spagnulo's Termination In January 1974, Marvec Allstate, Inc., a New Jersey based contractor, entered into a collective-bargaining agreement with the Union covering work to be performed by the Company in Nassau or Suffolk County, New York. Thereafter, in February 1974 Marvec began installation of a sewer system in Suffolk County, New York. In filling its employee complement for that project, Marvec adhered to the exclusive hiring provision of its collective-bargaining agreement with the Union. Marvec hired operating engineers referred to it by the Union including four or five Koehring backhoe operators. Early in June 1974, employee Blasky, one of the backhoe operators hired under the exclusive referral provision announced his intention of taking a I-week vacation. Marvec's vice president, Vincent Cestone, objected to Blasky's announcement and so advised Lead Engineer Angelo Sposato. Cestone also said that the Company would hire Joseph Spagnulo, a member of Local 825, International Union of Operating Engineers, AFL-CIO, to replace Blasky during the latter's I-week vacation. Sposato voiced strong opposition to permitting Spagnulo to work on the Company's Suffolk County job on the grounds that Spagnulo came from New Jersey and was a member of Local 825. Cestone took the matter of Blasky's replacement up with the Union Business Agent Daniel Martinez, who concurred in Sposato's opposition. Marti- nez insisted that the Union would provide a qualified backhoe operator to substitute for Blasky. On June 17, Blasky began his vacation. That same day, the Union sent a man to the Marvec jobsite as Blasky's replacement. Cestone observed that this replacement was not qualified and told Sposato and Martinez that he "had to go." Cestone again suggested that he be permitted to employ Spagnulo, who was then present at the jobsite. Sposato and Martinez refused on the grounds that Spagnulo was from Local 825. On the following day, the Union sent another operating engineer to operate Blasky's backhoe. Cestone found the second referral worse than the first one. He again protested to Martinez and Sposato, and sought leave to employ Spagnulo. The two union representatives observed the second backhoe operator. At noon on June 18, Martinez and Sposato agreed that Marvec could have Spagnulo as Blasky's replacement. However, the Union insisted that the second referred operator be paid for the remainder of the week. The Company agreed and Spagnulo went to work that day. Before Blasky returned to work on June 24, Sposato and Martinez rejected Cestone's request for permission to employ Spagnulo as a backhoe operator the following week. The Union's representatives said that the Union would provide the operator for the additional machine. Blasky returned to work on schedule. However, the Union did not refer a backhoe operator that day, June 24. On the following morning the Union sent a backhoe operator. Cestone found him to be "grossly unqualified." Cestone protested to the Union, claiming that the employ- ee referred was not qualified to perform the assigned work. He again stated that Marvec would prefer to employ Spagnulo. By the end of that same working day the Union had agreed to send a second referral to the Company. Later, on June 25, Union President and Business Manager James Duffy discussed problems regarding the additional Koehring backhoe operator. The two finally agreed that the Union would send another employee the following day, whose tenure would depend upon his completion of a specified task in a specified amount of time. Duffy agreed that if the referred employee failed to satisfy this test, Marvec could hire Spagnulo. On June 26, the Union sent a backhoe operator to the Marvec jobsite. At the end of the workday Cestone observed that the employee had not performed the specified task. On the following day the Union acceded to Cestone's request. Whereupon Marvec hired Spagnulo, who re- mained on the job until Christmas. At that point Marvec closed down the job for a holiday vacation. When the Christmas vacation ended, the Union balked when Vice President Cestone sought to reemploy Spagnulo on the Suffolk County job. Vice President Cestone's brother, Ralph, asked Duffy to explain the Union's refusal to permit Spagnulo's return to the job. Duffy replied that Spagnulo was "not a Local 138 man and we don't want him working here period." Following further discussion, Duffy agreed to permit Spagnulo to return to work. Thereafter, following the Christmas holiday, Spagnulo returned to work and re- mained on the Marvec job until February 19, 1975. On February 18, Vice President Cestone advised Lead Engineer Sposato that the Company wished to lay off a crew of employees working with Koehring backhoe operator Von Braunsberg. Vice President Cestone added that he did not intend to lay off Von Braunsberg but would transfer him to another type of equipment. Cestone also sought the option of transferring Von Braunsberg to a Koehring backhoe operation if one were needed thereafter. Sposato rejected Cestone's idea, suggesting instead that the Company terminate Spagnulo because he was from Local 825, and Von Braunsberg had job seniority. 271 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vice President Cestone argued that the contract between the Union and Marvec had no provision for displacing employees on the basis of job seniority. Cestone also told Sposato that there was another employee, Foster, a Koehring backhoe operator who had less job seniority than either Von Braunsberg or Spagnulo. Finally, Cestone gave Sposato a list of the Company's Koehring backhoe operators. However, Sposato did not refer to the list or challenge Cestone's assertion that Foster had more seniori- ty than either Von Braunsberg or Spagnulo. In fact, upon receiving the list from Vice President Cestone, Sposato said, "So what? That is the way it is." On February 19, Vice President Cestone dispatched a letter to Duffy regarding the shutdown of the Koehring backhoe. Contained in the letter were the following assertions: Because of job conditions we have found it necessary to temporarily shut down one (I) [sic] Koehring backhoe. I have instructed Mr. Sposato, the Master Mechanic, to temporarily transfer Mr. Von Braunsberg to other duties within the organization and this has been refused by Local 138. This refusal carried with it specific instructions that we must instead lay-off [sic] Mr. J. Spagnulo because he is from New Jersey (Local 825) and replace him with Mr. Von Braunsberg. The Union did not issue a written response to Vice President Cestone's letter. Later on the same day, Union Business Agent Peter Zarcone appeared at the Marvec job and together with Sposato confronted Vice President Cestone. Zarcone and Sposato warned that the Union would shut the job down unless Marvec terminated Spagnulo. In making this demand the two union representatives referred to Spagnulo as "that son of a bitch from New Jersey." When Cestone declared that he would not terminate Spagnulo, Zarcone again threatened a shut down and instructed Sposato to carry out the threat. Sposato left the office. Cestone called him back and sought further discussion. Ultimately, Vice President Cestone summoned Spagnulo to the office and asked him if he wanted to retain his job. Spagnulo said he wished to do so. Cestone reiterated his intention of retaining Spagnulo to which Zarcone respond- ed, "Well, enough of this nonsense we are first going to shut you down." Finally, Vice President Cestone acceded to the Union's demand and terminated Spagnulo that very day, February 19, 1975. 5 From the foregoing, I find that the Union, after permitting Spagnulo to work at Marvec's Suffolk County jobsite, caused Marvec to select him for termination because he was a member of Local 825. By thus effecting its will, the Union necessarily encouraged employees to seek and retain membership in the Union as a condition of 5 The facts surrounding Spagnulo's termination were largely undisputed. However, there were substantial issues of credibility raised. In resolving those issues, I have credited the Cestones rather than Duffy., Zarcone, or Martinez. In assessing the conflicting testimony, I noted that the Cestones testified fully and appeared to be more interested than the union witnesses obtaining and retaining employment under its exclusive referral agreement with Marvec and other employers. In doing so, the Union caused Marvec to discriminate against Spagnulo within the meaning of Section 8(a)(3) of the Act, and thereby itself violated Sections 8(b)(2) and 8(b)(1)(A) of the Act. Rondicken, Inc., 198 NLRB 100, 102-103 (1972). CONCLUSIONS OF LAW I. Building Contractors' Association, Inc., each of its employer-members and Marvec Allstate, Inc., are employ- ers within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent, Local 138, International Union of Operating Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union has violated Section 8(bX2) of the Act by causing and attempting to cause employers to discriminate against their employees in violation of Section 8(a)(3) of the Act by reducing Edmund L. Galke's industry seniority because of his criticism of Respondent Union's administration, and by causing Marvec Allstate, Inc., to terminate Joseph Spagnulo because he was not a member of Respondent Union. 4. Respondent Union has violated Section 8(bXI)(A) of the Act by threatening to reduce employee Edmund L. Galke's industry seniority because he criticized Respon- dent Union's administration. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent Union engaged in unfair labor practices proscribed by Sections 8(bX2) and 8(b)(l)(A) of the Act, it will be ordered that Respondent cease and desist from such conduct and from in any other manner restraining or coercing employees in the exercise of their Section 7 rights. The Union unlawfully discriminated against employee Galke by reducing his industry seniority thereby reducing his opportunity for employment under an exclusive referral agreement. The Union also unlawfully discriminated against employee Spagnulo by causing Marvec Allstate, Inc., to terminate him. Therefore, in order to effectuate the policies of the Act it will be ordered that the Union make whole both Galke and Spagnulo for any loss of earnings each may have suffered by reason of the discrimination practiced against him, by paying each a sum of money equal to the wages he would have earned absent such discrimination less his net earnings elsewhere during said period. Such loss of earnings, with interest thereon at the rate of 6 percent per annum, shall be computed in the manner set forth in F. W. Woolworth Conpany, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I shall also recommend that Respondent Union restore Galke to his 1947 industry seniority and notify in providing complete details as they remembered them. More important was the corroboration provided for the Cestones' testimony by Vincent Cestone's written communications with the Union, particularly his letter of February 19, and the list of backhoe operators he handed to Sposato on that date. 272 LOCAL 138, OPERATING ENGINEERS Building Contractors' Association, Inc., in writing, with a copy to Edmund L. Galke, that it will not object to Galke's employment in the future because of his criticism of Respondent Union's administration. I shall further recom- mend that Respondent Union notify Marvec Allstate, Inc., in writing, with a copy to Joseph Spagnulo, that it will not object to Spagnulo's employment in the future because of his nonmembership in Respondent Union. In view of the nature of the unfair labor practices committed, I shall also recommend that Respondent Union cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 6 Respondent Union, Local 138, International Union of Operating Engineers, AFL-CIO, Farmingdale, New York, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause members of the Building Contractors' Association, Inc., or any other employer to discharge or otherwise discriminate against employees in any way because they criticize Respondent Union's administration, run for union office, or engage in other activity protected by Section 7 of the Act, or because of their nonmembership in Respondent Union. (b) Threatening to reduce industry seniority of employ- ees because they criticize the Union's administration, run for union office, or engage in other activity protected by Section 7 of the Act. (c) In any other manner restraining or coercing employ- ees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Make whole Edmund L. Galke and Joseph Spagnulo for any loss of pay each may have suffered by reason of the discrimination practiced against him, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records, reports, work lists, and other documents necessary to analyze the amount of backpay due under the terms of this Order. (c) Restore Edmund L. Galke to his 1947 industry seniority on the Union's records. (d) Notify Building Contractors' Association, Inc., and Edmund L. Galke, in writing, that there is no objection to the hiring or employment of Edmund L. Galke. (e) Notify Marvec Allstate, Inc., and Joseph Spagnulo, in writing, that there is no objection to the hiring or employment of Joseph Spagnulo. (f) Post at all places where notices to its members are customarily posted copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by the Union's representative, shall be posted by the Union immediately upon receipt thereof and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Union to ensure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Director of Region 29, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith. 6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 7 In the event that the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had the opportunity to present evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and abide by its terms. WE WILL NOT cause or attempt to cause employer- members of the Building Contractors' Association, Inc., or any other employer, to discriminate against Edmund L. Galke or any other employee, in violation of Section 8(a)(3) of the Act, because he criticizes the Union's administration, runs for office in the Union, or otherwise engages in activity protected by the National Labor Relations Act. WE WILL NOT cause or attempt to cause Marvec Allstate, Inc., or any other employer to discriminate against Joseph Spagnulo or any other employee, in violation of Section 8(aX3) of the Act because of his lack of membership in our Union. WE WILL NOT threaten employees with loss of industry seniority because they criticize the Union's administration, run for union office, or otherwise engage in activity protected by Section 7 of the National Labor Relations Act. WE WILL NOT in any other manner restrain or coerce employees or applicants for employment in the exercise of rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL make whole Edmund L. Galke for any loss of pay suffered by reason of the discrimination practiced against him. WE WILL restore Edmund L. Galke to his 1947 industry seniority. WE WILL make whole Joseph Spagnulo for any loss of pay suffered by reason of the discrimination practiced against him. 273 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL notify Building Contractors' Association, Inc., and Edmund L. Galke that there is no objection to the hiring or employment of Galke. WE WILL notify Marvec Allstate, Inc., and Joseph Spagnulo, in writing, that there is no objection to the hiring or employment of Spagnulo. LOCAL 138, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO 274