International Brotherhood of Electrical Workers, Local 309

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 309 409 International Brotherhood of Electrical Workers, Lo- cal 309, AFL-CIO-CLC (R. Dron Electrical Co., Inc.) and Clayton H. Williams and John T. Gurga- nus. Cases 14-CB-2687-1 and 14-CB-2687-2 July 10, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY employees "because of their lack of membership in Respon- dent." All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Briefs were filed by General Counsel and Respondent. Upon the entire record I and my observa- tion of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I JURISDICTION , LABOR ORGANIZATION INVOLVED On March 28, 1974, Administrative Law Judge Samuel M. Singer issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Ad- ministrative Law Judge's Decision in light of the ex- ceptions and briefs and has decided to affirm the Administrative Law Judge's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent , International Brother- hood of Electrical Workers, Local 309, AFL-CIO- CLC, its officers , agents, and representatives, shall take the action set forth in the said recommended Order. 1 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 DECISION SAMUEL M. SINGER, Administrative Law Judge: This case was tried before me in St. Louis, Missouri, on December 17, 1973, and January 14-15, 1974, based upon charges filed September 26 and complaint issued November 13, 1973. The issue litigated was whether Respondent violated Sec- tion 8(b)(1)(A) and (2) of the National Labor Relations Act by threatening to assault and inflicting physical abuse on two employees; and by causing or attempting to cause R. Dron Electrical Co., Inc. ("Dron") to discharge the two Dron , a Delaware corporation with its place of business in Granite City, Illinois, distributes and installs electrical equipment and related products . It annually purchases and receives goods valued in excess of $50,000 directly from points outside Illinois. I find that at all material times Dron has been and is an employer engaged in commerce within the meaning of the Act, and that assertion of jurisdiction here is proper. Respondent ("Local 309") is a labor organization within the meaning of Section 2(5) of the Act. 11 ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Background; contractual relations and hiring practices Dron, member of an Employer Association,' had for many years been a party to collective agreements between Respondent (Local 309) and the Association. The agree- ment in effect during the period here involved provides that the Union "shall be the sole and exclusive source of referrals of applicants for employment." However, Association members retain "the right to reject any applicant" and are "free to secure applicants" directly if the Union is unable to make referrals within 48 hours after the employer's re- quest. All referrals are to be made "without discrimination ... by reason of membership or nonmembership in the union" in accordance with an established system of priority. Among applicants referred for employment are "travel- ers," who are members of locals other than Local 309, affili- ated with the International ("IBEW"), who seek em- ployment within the area of Local 309's jurisdiction. A traveler pays his regular dues to his "home" local and his "working dues" to Local 309. Travelers must report to Local 309's union hall on the third Tuesday of each month to have their introductory cards or "work permits" "validated" and to enable Local 309 to check on their dues status in their home locals. A traveler may work out of Local 309's juris- diction indefinitely. Thus, Gurganus, a journeyman line- man and Local 846 (IBEW) member, has worked for contractors in Local 309's area since 1968; and Yenny, a Local 51 member, has worked for the same contractor in the Local 309 area (Dron) for 4 or 5 years Transcript corrected by my order on notice dated March 13, 1974 i American Line Builders Chapter , National Electrical Contractors ("N ECA") 212 NLRB No. 59 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union's dispute with Donovan Construction Co.; its problems in filling Donovan's manpower needs Union Business Agent Faust testified that Local 309 has "continually" had serious problems in implementing its col- lective agreement with Donovan Construction Company, which was constructing a 20-mile 345,000 volt transmission line for Illinois Power Company. The major dispute in- volved Donovan's practice of assigning certain tasks to journeymen-linemen, groundmen, and others in alleged vio- lation of the collective agreement. In a notice to employees dated October 14, 1972, the Union instructed its members to see to it that the contractual provisions covering job classificstions were not being "abuse[d]." The differences between Donovan and the Union were ultimately processed as a grievance under the contract grievance-arbitration pro- cedure.3 Claiming that Donovan was not abiding by the resolution of the grievance, rendered by the Industrial Rela- tions Council (supra, fn. 3) on February 19, 1973 (as the Union construed the Council decision), members continued to refuse to perform certain work at Donovan-until the latter obtained a temporary restraining court order and a settlement was worked out by Donovan and the Union. On May 24, 1973, before finalization of the settlement agreement, the Union held a meeting at which Assistant Business Manager Turpin reported at length on the Dono- van dispute-including the grievance discussions, the tem- porary restraining order, and the pending settlement. Charging Party Williams, who attended the meeting, ques- tioned Turpin about changes Donovan was allegedly mak- ing in the contract classifications of groundmen and linemen, accusing Donovan of dictating to the Union "how they [the Union] was going to run theirjob." When Williams asked "what was going to happen" to groundmen and others whose classifications Donovan changed, Turpin's su- perior, Business Agent Faust, jumped up, called Williams a "flap mouth," and told him that if he "didn't like what the hell was going on in this jurisdiction to get the hell out of the hall and out of the jurisdiction and to stay out."4 Faust, like Turpin before, reviewed the background of the Union's dispute with Donovan-including the Council decision and the settlement worked out by the parties.' The record shows that in addition to problems relating to the work of linemen and groundmen, the Union encoun- tered difficulties in filling Donovan's requests for help. Al- though the terms of the Association contract (supra, sec. A, 3 Under Article 2 of the collective agreement a grievance is initially han- dled by a Labor-Management Committee consisting equally of union and employer representatives In case of disagreement, the dispute is referred to the Council on industrial Relations for the Electrical Contracting Industry for "final and binding" resolution 4 Williams, a lineman and member of Local 649, has worked in Local 309's geographical area as a "traveler" from time to time since 1958-for Dron continuously from March 1972 5 The foregoing findings are based primarily on the composite and mutual- ly corroborative testimony of Williams and employee Richardson The latter. ajourneyman-lineman and Local 309 member for 13 years, impressed me as highly credible and trustworthy, he was a disinterested witness with no personal stake in the outcome of this proceeding Faust admitted leveling "a few slang expressions" at Williams and ordering him "to get out of our local, get the hell out of our jurisdiction," but claimed that this was prompted by Williams' unfair comment that the Union had been making "under the table" deals and by the assertion that "Donovan Company was running the local." 1) were applicable to Donovan as well as to contractors like Dron-so that job classifications and wage rates were iden- tical-credited evidence establishes that the Donovan job was regarded by employees as less desirable than the Dron job .6 In any event, as Business Agent Faust testified, "there was a great deal of turnover of personnel" at Donovan and it was difficult to fill its needs. Faust and his assistant Tur- pin further testified that in addition to seeking to man the job with Local 309 members and travelers, they tried to procure men through other locals.' Donovan itself was per- mitted to hire directly-outside the union hall-and even brought in Canadian workers because Local 309 was unable to meet its manpower needs.8 On September 17, Faust, Tur- pin, and International (I BEW) representatives met with Don- ovan officials in the International's Chicago office to resolve the manpower problem. The Union promised to do "ev- erything possible" to man the Donovan job. 3. The Union's September 18 requests of six Dron em- ployees ("travelers") to quit Dron and work for Donovan The next day (September 18, the third Tuesday of the month, when travelers working out of Local 309's jurisdic- tion came to stamp or validate their permits), Assistant Business Agent Turpin asked the six travelers working for Dron 9 whether they "wanted .. . to quit" Dron to work for Donovan. Turpfn testified that he approached these men because Dron had laid off employees in recent weeks and had "indicated there were going to be more layoffs."10 Dron employee Craft testified credibly that Turpin asked him "to quit because he needed the [Dron] job for some local hands he had." Craft said "O.K.," but when Turpin revealed that he would be referred to Donovan he "didn't want to work there" and quit Dron that afternoon. Yenny testified credi- bly that when Turpin asked whether he "would quit" Turpin informed him that he was "going to ask all the [Dron] travel- ers to leave"; Yenny agreed to quit, but was told to finish out the week. Gurganus testified credibly that Turpin told him that he "needed some jobs" because he had "some men on the bench" (i.e., laid-off members). Gurganus said he would leave at once, but Turpin said that he might as well finish out the day. According to employee Williams, when Turprn asked him to leave, Turpin indicated that he needed the Dron jobs "to make room" for laid-off Local 309 members. Turpin told him that if he left, he would send him to Dono- van. Williams refused, stating that Local 309 members were available for referral to Donovan. He agreed to leave, how- ever, if all Dron travelers left, including Yenny who was to quit at the end of the week. Williams said, "Well good, if he'll leave Friday, then I'll leave Monday." Turpin asked 6 While the Donovanjob involved a good deal of steel construction, Dron's involved only wood pole construction 7 According to Turpin, 8 of the 25 men on the Donovan payroll during September were Local 309 members Those hired directly were "cleared" through Local 309, securing " intro- ductory" cards or permits like travelers 9Craft, Yenny, Gurganus, Williams, McCord, and England. 10 According to Superintendent Hitt, a week or two before September 18 he informed Turpin that he laid off three men (two truckdrivers and a lineman) because they were "nonproductive " He also said that "one more man" was going to be released INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS , LOCAL 309 him not to tell Dron that he had been asked to leave; and, as in the case of all Dron travelers to whom he spoke that day, Turpin stamped (validated) Williams' permit. The two other Dron travelers, England and McCord, agreed to quit and were referred to the Donovan project on September 20. The record shows that it is an established practice for an IBEW Local to request travelers working in another Local's jurisdiction to quit to go to another job or just not work. According to Yenny, this was the situation while he worked out of Local 2 and Local 193, as well as Local 309, in each case the decision to quit being up to the traveler. Gurganus, who testified in similar vein, stated that a traveler would be asked to leave a job to make room for a member "on the bench" when "no other jobs [were] available [for the mem- ber] in the jurisdiction." According to Dron Superintendent Hitt, who at one time was a Local 309 member as well as traveler, members (as well as travelers) have been asked to quit one job to man another project. Union Officials Turpin and Faust testified that they have requested both travelers and members to go from job to job for a variety of reasons, including the need for a skilled craftsman or because of a special need to man a project. Turpin indicated that although some Local 309 members were requested to man the Donovan job around September 18, none were willing to do so, except for men who had worked for contractors that had laid off, or were about to lay off, members. Both he and Faust admitted that some members were "on the bench" (unemployed) and could have been sent to the Donovan job. 11 4. Dron's objections to the Union's requests of its travel- ers to quit their jobs Company Superintendent Hitt testified that he got "the first inkling" of what was happening when Craft, one of his travelers, left word that he was "quitting." When he called Craft that night (September 18), Craft said "the Union told him they needed his job and that he was leaving." Hitt also called Yenny who said he had been "asked to leave" and that he will "quit" at the end of the week.12 Hitt then re- ceived a call from Williams who reported that, although requested to quit, he "wasn't going to leave the job until all the other [Drop] travelers had left." Business Agent Faust testified that the next morning (September 19), Dron President Lomax telephoned him and said that "three or four" people, including Williams, com- plained that Business Agent Turpin "would not stamp" their permits and had requested them "to leave their jobs." Faust answered that he was "trying to man [the] Donovan job" and that Turpin "was only following [Faust's] orders" to "inquire if any [Dron travelers] would go to the Donovan "Although Turpin claimed that one unemployed member ("Charles") could not perform the Donovan work because he was "up in the years and physically can't do the job" and that another (Bangle) found it inconvenient to travel to the Donovan site because of a seriously ill wife, he advanced no reason why other unemployed members (Roper, Eccles, Grotecke, Mell Craft) were not asked to go to Donovan According to Turpin, one member (Zuber) had previously "tried the Donovan job" and quit 12 Hitt also quoted Yenny as saying that he was told "not to say anything more" and Hitt accordingly "didn't pressure" him further 411 job." He also stated that Dron Superintendent Hitt had previously indicated that Dron was "going to have another layoff." It was agreed to get together the next day to "straighten" out the situation.13 After his telephone conversation with Lomax, Faust asked Turpin if he had talked to Dron's employees about manning the Donovan job. When Turpin replied he had, Faust said, "I want you to go with me . .. we are going to go for a ride." 5. The September 19 Faust-Williams incident a. Faust and Turpin drove up to the Dron's New Baden, Illinois, jobsite (where Williams was working) around 2 p.m. Faust walked over to Williams, displayed his union card, and asked to see Williams'. After showing each other's cards, Faust said, "You phoney son-of-a-bitch. What the hell did you tell Dron Electric last night"-accusing Wil- liams of telling Dron President Lomax that the Union was "pulling the travelers from Dron." Williams denied talking to Lomax, insisting that he spoke only to Superintendent Hitt who "already heard about it.- 14 Faust uttered another obscenity and Williams returned in kind. Faust then said that he "wanted [Williams] off the job," but Williams insist- ed that he "wasn't going to go until he saw all of the other travelers had left"-asserting that he "had been coopera- tive" on other occasions when he left jobs before other travelers were asked to leave. At this point Faust beckoned Richardson, foreman of the crew who had overheard part of the exchange between Faust and Williams. Faust told Richardson that Williams had "solicited" his job instead of going through the hiring hall procedure. Richardson said that he "didn't believe it." Faust continued demanding that Williams "get off the job," accusing him of not being a "good union man" and a "good lineman." Williams retorted, "I am as good a lineman as you are a business agent and at least I don't make deals under the table." Faust then "shoved" Williams onto the trailer by which he was standing with "a small push," and some bumping and "foot scuffing" ensued. Faust asked Williams "what time [the men] got off work" and when "show-up was," i.e., where the trucks were parked for the night. After Williams gave him the information, Faust said, "I will see you then." At 4 p.m. quitting time, Faust and Turpin showed up at the truck park-a service station. As Williams approached them, Faust "waved away" the rest of the crew which left for the back of the service station. To Williams' inquiry whether he wanted "to talk some more," Faust responded, "You're Goddam right I want to talk some more, and that's not all I want to do." Faust then asked Williams to "get in 13 Also, according to Faust, Lomax quoted Williams as saying that Turpin "better stamp his permit or else," to which he (Faust) responded "I am not particularly fond of anybody making threats against one of my representa- tives " It is hard to believe that Lomax made the quoted statement. Williams freely testified that despite his objections to quitting and going to the Dono- van job, Turpin validated his card 14 It will be recalled that Hitt had telephoned employees Craft and Yenny on the preceding night to ascertain why they were quitting Hitt received Williams' call later that evening. (See supra, sec A, 4 ) 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the car and take a ride out in the country," but Williams refused and suggested that Faust do whatever he intended to do right there. Faust said, "I'm not going to do nothing here because there's too many witnesses and I don't want to go tojail," and thereupon invited Williams to accompany him to the union hall. When Williams said he would see him there the "next report date" (i.e., the third Tuesday in Octo- ber), Faust said, "You're not going to be around long enough for the next report date, because I'm going to get you." Williams turned around to leave for home. At this point Faust approached Richardson, who was preparing to leave, and asked him which car was Williams'. Richardson said that Williams had already left and asked "what was going on." Faust answered, "Don't act dumb," and got into his car. The next morning (September 20), Trybinshi, a truckdriver on another Dron crew, told Williams that Faust and Turpin "had pulled" him over "along [the] side of the road" and asked him where Williams resided. Trybinshi also reported the incident to Richardson, Williams' crew foreman. Sometime during the confrontation between Williams and Faust, the latter threatened to file internal union charges against Williams with the Union's executive board; Faust later filed such charges.15 Williams, in turn, filed union charges against Faust and Turpin; he filed the unfair labor charges against the Union here on September 26. to comply with Turpin's request that Williams "quit" Dron and move to the Donovan project in order to make room for a Local 309 member. Nor do I credit Faust's explanation that he went to the jobsite in the first place solely to check whether Turpin had refused to stamp (validate) Williams' permit as claimed by Dron President Lomax. The fact is that Faust checked on this matter with his assistant (Turpin) before going to the jobsite and that Turpin assured him that he had stamped Williams' as well as other travelers' cards. Turpin's surmise that Faust wanted to check out "two dif- ferent versions"-Turpin's and Lomax'-appears to be an afterthought to supply a legitimate rational motive for Faust's initial move against Williams. Turpin's other testi- mony on the Faust-Williams episode-he admittedly did not hear or witness all of their conversations-is transpar- ently biased. Turpin colored and exaggerated his account of Williams' "under-the-table" remark even more than Faust; he minimized the physical contact between Faust and Wil- liams as a mere "reflex push." Turpin impressed me as a witness openly devoted to promotion of his supervisor's (Faust's) wishes and interests. As between Williams and Richardson on the one hand and Faust and Turpin on the other, I credit the version of the first two-on the basis of testimonial content and qual- ity as well as comparative demeanor. b. The above findings are based almost entirely on the com- posite and mutually corroborative testimony, of Williams and Richardson. As already noted (supra fn. 5), the latter was a highly credible witness who has no personal interest in the outcome of this litigation. Faust adrrutted much of the conduct attributed to him by Williams and Richardson- including the use of vulgarities; accusations that Williams was a "phoney," that he "solicited" his job and that he was ..not a good union man"; that he (Faust) "did touch Wil- liams on his shoulder," but claimed it was done "very light- ly" without intent to harm; that he "invited" Williams for a ride in the country and, when Williams refused, to the union hall; and that he then tried to follow Williams to get his license number and stopped Trybinshi on the road-but claimed he did all this only to determine Williams' mailing address so that he could file and serve union charges against him. Yet, Faust also testified that when he asked Richard- son "what kind of car" Williams had and Richardson asked "what is going on here," he (Faust) told him "not be so naive." At a later point, Faust admitted that he was wrong in asking Williams to ride out to the country, adding, "thank God now I didn't do it to him." I do not credit Faust's explanation that the whole chain of events (his threats and the altercation) were but a "per- sonal matter" and the result of Williams' accusation that Faust had made "under the table" deals with contrac- tors-a matter totally unconnected with Williams' refusal 15 According to Faust, he decided to file the charges against Williams before the latter's "under-the-table" remarks-on the ground that Williams was "creating dissension on the job and telling the employer his ticket was not stamped " 6. The Dron-Union September 20 meeting on the Union's quitting requests and on the Faust-Williams al- tercation After receiving a report of the Williams-Faust episode from its crew, Dron arranged to meet with the Union on the next day, September 20. At the meeting held in the af- ternoon of that day, the Union was represented by Faust and Dron by Company President Lomax and Superintend- ent Hitt.16 The parties discussed the Faust-Williams con- frontation and the Union's prior solicitation and request of the six Dron travelers to quit Dron. Lomax stated that he could not understand why the Union "would want to pull [his] travelers [when] there was plenty of work in the territo- ry." Faust stressed that he was "making every endeavor to man the Donovanjob"; that since Dron had previously laid off people and "had indicated . . . they were going to lay off some more, so we asked [Dron's] people to leave"; and that all six Dron travelers "volunteered to go there." Hitt stressed the previous day's incident, stating that he was "highly perturbed that [Faust and Turpin] had been out on the jobs harassing [his] men"; and that his crew had reported that Faust "had kicked rocks at Williams and had tried to provoke him into a fight. Faust replied that "nothing like that happen[ed]" and that the "whole crew ... must be hard of hearing"-adding that if it were up to him, he (Faust) "would fire the whole crew" because it had left early on a previous occasion. Faust characterized Williams and Gurganus as "phonies"; and said that "Dron would have trouble with Mike Faust as long as [Dron] had Clay Wil- 16 Hitt arrived after the meeting started INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 309 hams on the payroll."17 Hitt stressed that Williams "was one of the best linemen [he] had."18 The meeting broke up with Faust's statement that he would see what he could do after speaking with his assistant, Turpin. Lomax and Hitt stressed that they "would like to have all the men back," especially Craft. When Faust called back later that day, he told Hitt, "I can't do a bit of good." The next day (September 21) Dron initiated the pro- cessing of a grievance charging that the Union violated the contract referral system by requesting its travelers to quit Dron's employment. As required by the contract (supra, fn. 3), the grievance was considered by a labor-management committee consisting of representatives of the Employer and Union (including Assistant Business Agent Tur- pin)~the initial step in the grievance procedure. At the conclusion of the grievance session held on October 11, it was unanimously agreed that "the referral procedure was not violated based upon the evidence presented," including the positions advanced by Company Representatives Lo- max and Hitt and by Union Representatives Turpin and Faust. Lomax testified that he did not appeal the decision to the next step (Industrial Relations Council, supra, fn. 3) because he was persuaded that "the referral procedure, as written, did not necessarily apply to the case of the men being asked to quit." It is undisputed that Charging Parties herein were neither notified of nor invited to participate in the grievance discus- sions; and that neither the September 19 altercation be- tween Williams and Faust, nor the altercation between Gurganus and Turpin presently discussed (sec. A, 7), were covered in the grievance meeting. 7. The September 24 Turpin-Gurganus incident At the end of the day (4:30 p.m.) on Monday, September 24, Assistant Business Agent Turpin went to the service station where the Dron employees parked their trucks. He first approached Yenny and asked "how come [he] didn't quit yet "19 Yenny answered that he had "understood" Tur- pin to say that all travelers were going to leave. As Gurganus walked by, Turpin told Gurganus that he wanted to talk to him. Turpin began the conversation with Gurganus by saying, "Don't give me no bull s-," indicating that Gurganus had violated Turpin's previous instruction that he tell Dron nothing about the Union's request that he quit. Gurganus said that he was not giving him any "bull s-" and that Turpin had not instructed him .not to tell Dron any- thing."20 At this point, Turpin grabbed Gurganus by the 17 Although Hitt indicated that Faust "said the same thing," (about having "trouble" with Faust) in regard to Gurganus, he was vague on this point, admitting that Faust "was referring especially to Clay Williams." On the other hand, 'Lomax did not recall Faust making this threat about Gurganus, expressly stating that Faust said "Nothing other than the fact that he called him a phoney and not much of a lineman." It should be noted that the incident involving Gurganus presently described (sec A, 7)-m which Assis- tant Business Agent Turpin demonstrated his hostility to Gurganus-did not occur until 4 days after the September 20 meeting. 18 The above findings are based on the testimony of Lomax, Hitt, and Faust-to the extent credited. Faust admitted stating that Dron would be having trouble as long as it employed a worker like Williams , but calimed that he "was referring" to Williams' poor performance, to his soliciting his own job, and to his circulating rumors. 19 It will be recalled (supra, sec. A, 3) that Yenny earlier agreed to quit at the end of the week, on Friday. 413 shoulders and swung him beside one of the trucks, ripping his shirt on his right shoulder in the process. Turpin then grabbed Gurganus by the collar under his chin as the latter called to other employees to witness the incident. Turpin said that Gurganus "best not be there [at the jobsite] the next day" and that he "could pack [his] tools and leave the State of Illinois." When Turpin went on to ask where he was "going to be tomorrow" and Gurganus replied at home, Turpin said "You damn sure better not be here."" Later that night employee Yenny reported the September 24 incident to Superintendent Hitt and said he was "quit- ting" Dron because he did not "want to be around this harassment"; Hitt asked him not to leave until he heard from him further. He then telephoned Gurganus and told him that he heard about the incident and asked Gurganus to meet him in his office the next morning, "to see if [he] can straighten it out." He also called other Dron travelers, in- cluding Craft. At the 2-hour meeting held in Hitt's office in the morning (September 25), Hitt tried to prevail on the employees pre- sent (Yenny, Craft, and Gurganus) not to quit. Yenny said that he would "rather leave" than have -"trouble." Craft said he would like to remain. Gurganus asserted that he would not go back until "something is settled." Hitt then tele- phoned an International representative in Chicago (Elliott), apprised him of Local 309's requests to his men to quit, complained about the "harrassment" the Local had resorted to, and said he was "going to the Labor Board" to get the situation "straightened out." Elliott promised to look into the matter, but then called back and said that Faust "denied everything." However, he advised Hitt to tell his men "to stay on the job, not to quit," adding that the travelers need not fear that their permits would not be validated in the future. Hitt relayed Elliott's assurances to the men. Gurganus testified that he remained away from work for 3 days (September 26-28) because he feared for the safety of his family' He returned on Monday, October 1, after Hitt reassured him that he had "nothing to worry about." Gurganus testified that he never did quit Dron. Yenny testi- fied that although he quit on September 25 (after the Tur- pin-Gurganus altercation), he returned to, work the next day. Craft, who had quit on September 18, returned to Dron a week later on a referral by the Union.23 Williams never 20 Gurganus did in fact report to Superintendent Hitt what Turpin had told him when his card was validated on September 18 (supra, sec. A, 3), i.e., that Turpin "needed some jobs" because he had some men "on the bench." 21 The above findings on the Turpin-Gurganus confrontation are based on Gurganus' credited testimony, in part corroborated by employees witnessing some of it-including Zagar and Gates, members of Local 309. Turpin admitted questioning Gurganus about "carrying tales to Dron." He also admitted grabbing him by the collar and shoulders, but claimed he did this only to get him to "cool off" and "had no way of knowing" if he upped his shirt in the process. I do not credit his testimony that the altercation started when, in response to his "carrying tales" interrogation, Gurganus retorted that it was "none of [Turpm's] business" and Gurganus "more or less indicated I was crooked [and] after some kind of dealings ... " Equally incredible is his testimony that at the end of the heated fracas he asked Gurganus (ostensibly in matter-of-fact fashion) whether he had decided on going to the Donovan job; and that when told "no," Turpm said, "Well, that's good enough, that's the answer I came down here for." I have previously ex- pressed my reservations concerning Turpin's reliability as a witness (supra, sec A, 5). 22 He admitted that no threats were in fact made to his family. 23 Three others (Local 309 members Foster, Bangle and Zuber) were re- ferred at the same time, but Dron refused to hire one of them (Bangle) Continued 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quit Dron despite his September-19 altercation with Busi- ness Agent Faust. As previously noted (sec. A, 3), the re- maining two of Dron's six travelers who were requested to quit on September 18 (England and McCord), were referred to Donovan on September 20, after agreeing to work there; they left Donovan on October 24. B. Conclusions 1. Alleged violations involving Williams a. As found, prior to September 18, the Union (Local 309) was faced with the problem of meeting the need to man the Donovan project-lobs regarded as less desirable than the Dron jobs. On September 18, Assistant Business Agent Tur- pin requested Dron's six "travelers" (i.e., men working out of Local 309's jurisdiction who belonged to other IBEW Locals) to quit Dron for referral to Donovan, although unemployed Local 309 members were available for referral to Donovan. It is not unusual for IBEW Locals to ask travelers working in their areas to make room for members "on the bench," leaving the decision to comply with the travelers. Four of the six Dron travelers initially agreed to "quit" and work for Donovan. A fifth (Craft) did not object to quitting, but refused to go to Donovan. And the sixth (Williams) first refused to quit, but then agreed to do so after all other Dron travelers did. Williams had previously (at a July 24 union meeting) incurred Business Agent Faust's wrath by questinging the Union's dealings with Do- novan-Faust telling Williams that if he "didn't like what was going on in this jurisdiction to get the hell out of the hail and of the jurisdiction and stay out." The next day (September 19), Faust went to the Dron jobsite (accompanied by Turpin) and accused Williams of telling Dron President Lomax that the Union was "pulling the travelers from Dron," contrary to Turpin's previous instruction that he make no disclosure. Williams denied talking to Lomax, but conceded speaking to Superintendent Hitt who, he pointed out, "had already heard about" the Union's quit requests from other employees. The two then exchanged vulgarities, Faust exclaiming that he "wanted [Williams] off thejob" and accusing Williams of "soliciting" his job without "going through the hiring hall procedure." Responding to Faust's charges that he was not a "good" union man and lineman, Williams said that he was "as good a lineman as you are a business agent . . . at least I don't make deals under the table." A fracas developed with Faust shoving Williams onto a nearby trailer. When Faust reap- peared at the "show-up" at 4 p.m. quitting time, Williams asked whether he wanted "to talk more"; Faust retorted, "You're Goddam right . . . And that's not all I want to do." Reflecting on Williams' refusal to "take a ride out in the country" with Faust, the latter mused, "I'm not going to do nothing here because there's too many witnesses and I don't because it had previously laid him off for being "nonproductive" Another (Zuber), previously laid off for the same reason and at same time, was not refused employment want to go tojail." Williams also spurned Faust's alternative request to accompany him to the union hall, stating that he would see Faust on the "next report date" (when he would have to validate his permit), but Faust said, "You're not going to be around long enough for the next report date, because I'm going to get you." After Williams left the job- site, Faust tried to find out where Williams resided. A Dron truckdriver, whom he pulled over to the side of the road, refused to tell him because he feared "trouble." After receiving a report of the incident Dron officials Lomax and Hitt met with Faust to discuss the altercation and the Union's requests to the Dron travelers to quit- which requests led to the Faust-Williams incident. Hitt stat- ed that he was "highly perturbed" by Faust's visit to the jobsite and his "harassing" the men. Faust denied that the incident occurred as portrayed, called Williams (and also Gurganus) "phonies," and said that "Dron would have trouble with Mike Faust as long as [Dron] had Clay Wil- liams on the payroll." b. I find, as alleged in the complaint, that Business Agent Faust on September 19 "threatened to assault and did inflict physical abuse" on Williams; and that the Union (through its agent Faust) thereby restrained and coerced employees in the exercise of rights guaranteed by Section 7, in violation of Section 8(b)(1)(A) of the Act-here the right of Williams and other employees to refrain from assisting the Union in getting the travelers to leave their jobs in order to provide employment to Local 309 members. Cf. Edward Kraemer & Sons, Inc., 203 NLRB 739 (1973); Pacific Maritime Associa- tion, 192 NLRB 338, 348-349. Such coercion "into following the union's desired hiring practices deprived [the employ- ees] of a protected right." (Radio Officers' Union of the Com- mercial Telegraphers Union [A. H. Bull Steamship Company] v. N.L.R.B., 347 U.S. 17, 42). "The natural and foreseeable consequence of [Faust's conduct] was to impel [Williams] and others to respect the position and accept the authority of Union officials, and [Faust] must be deemed to have intended that result." (Lummus Company v. N.L.R.B., 339 F.2d 728, 734 (C.A.D.C., 1964).) 1 reject Respondent's suggestion (br. p. 46), that the Faust-Williams incident was no more than a "personality clash . . . in which both persons have filed charges against each other under the IBEW International Constitution." The record establishes, and I find, that the root cause of the threats and assault against Williams stemmed not from Wil- liams' charge that Faust had made "under the table" deals with contractors, but from Faust's belief that Williams had reported to his employer that the Union was "pulling the travelers" and from Faust's resentment against Williams (who once earlier protested the manner in which the Union operated) for not fully cooperating with the Union's request that he (and other travelers) quit the Dron job to work at the less desirable Donovan job. In any event , it is unrea- sonable to assume that the employees could distinguish [Faust's] personal feud with [Williams]" from his insistence that Williams comply with the Union's quitting request. General Truck Drivers, Chauffeurs, Warehousemen, and Helpers of America, Local No. 5 [Union Tank Car Co.] v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 309 415 N.L.R.B., 410 F.2d 1344, 1347 (C.A. 5, 1969). See also Pacif- ic Maritime Association, 192 NLRB 338, 352. C. I further find that the Union, in violation of Section 8(b)(2) of the Act, attempted to cause Dron to discharge Williams because of his failure to cooperate and comply with the Union's efforts to get the Dron employees to quit and because of its business agent's (Faust's) belief that Wil- hams was obstructing and impeding such efforts by report- ing his decision to "pull" all Dron travelers.24 It will be recalled that on September 20, the day after Business Agent Faust threatened and assaulted Williams, Dron officials protested Faust's conduct. In addition to characterizing Williams (and also Gurganus) as a "phoney," Williams stat- ed that "Dron would have trouble with Mike Faust as long as [Dron] had Clay Williams on the payroll." Implicit in this statement, in the light of its timing and context, is the threat that Dron would have no industrial peace unless it got rid of Williams. "This ... establishes the requisite causation under Section 8(b)(2)." (N.L.R.B. v. Local 50, American Bakery & Confectionery Workers Union, AFL-CIO [Ward Baking Co.], 339 F.2d 324, 329 (C.A. 2, 1964).) The law is settled that "if the Union's action, directed to an employer, was intended to discipline an individual . . . for violation of union rules, or to encourage individuals to accept the authority of union officers ... such action constitutes an unfair labor practice." Lummus Company v. N.L.R.B., 339 F.2d 728, 733-734 (C.A.D.C., 1964). See also N.L.R.B. v. Local 490, International Hod Carriers [Dickmann-Pickens- Bond Construction Co.], 300 F.2d 328, 332 (C.A. 8, 1962). Accordingly, I conclude that Respondent violated Sec- tion 8(b)(2) as well as Section 8(b)(I)(A) of the Act insofar as its conduct affected employee Williams.25 2. Alleged violations involving Gurganus As in the case of Williams, Assistant Business Agent Turpin's September 24 altercation with Gurganus originat- ed in an accusation that Gurganus, contrary to. instructions, had reported to his employer the Union's request that he quit his job. As shown (supra, sec. A, 7), Turpin physically attacked Gurganus (ripping his shirt in the process) and warned that he "best not be there [at the jobsite] the next day," advising him to leave Illinois. Apprised of the inci- dent, Superintendent Hitt met with several travelers (includ- ing Gurganus) the next morning and sought to prevail upon them not to quit. Hitt telephoned International Representa- 24 Respondent correctly points out that the complaint does not allege as a violation the Union's general practice (also followed by other IBEW Lo- cals) of requesting travelers to quit to go to other jobs (or just stop work) in order to make room for Local 309 members, where the travelers' compliance with such request is purely voluntary. The issues litigated and resolved here are whether the Union, through threats and assaults, attempted to coerce two employees (Williams and Gurganus) to quit their employer ; and then at- tempted to cause the employer to discharge them for failing to comply with and obstructing the Union's decision to get the Dron employees to leave their jobs. 251 find no merit in Respondent 's contention (br. pp 40-42) that the instant proceeding was unnecessary and superfulous because the issue wheth- er or not the Union violated the contractual referral system (by requesting tive Elliott in Chicago, threatening "to call the Labor Board" unless the situation was "straightened out." He then relayed to them Elliott's assurances that they need not quit and should "stay on the job." Still fearing for the safety of his family, Gurganus remained home 3 working days until Hitt reassured him that he had "nothing to worry about." I find that Turpin's threats and physical abuse toward Gurganus had the purpose and effect of restraining and coercing employees in the exercise of their statutory right to refrain from assisting the Union in getting the Dron travel- ers to quit their jobs in order to make room for Local 309 members. Like his superior's (Faust's) conduct toward Wil- liams, Turpin's actions were violative of Section 8(b)(1)(A) of the Act. Contrary to Respondent's contention (br. p. 46), the two incidents-involving two of six travelers, were by no means "isolated." In any event, even if "few in number" the incidents were "positive and purposeful" justifying is- suance of a cease-and-desist order. (N.L.R.B. v. Essex Wire Corporation, d/b/a Essex Corporation of California, 245 F.2d 589, 594 (C.A. 9, 1957).) See also N.L.R.B. v. Local 140, United Furniture Workers of America [Brooklyn Spring Corp.], 233 F.2d 539, 540, (C.A. 2, 1956). Moreover, the "assault on [each of the two employees] was an object lesson to any of the spectators who in the future might follow the two employees' [footsteps.]" Pacific Maritime Association, 192 NLRB 338, 348. However, I reject General Counsel's contention that Respondent's conduct vis-a-vis Gurganus also constituted an 8(b)(2) violation. The gravamen of such violation lies in a union's causing or attempting to cause an employer to discriminate against an employee. See N.L.R.B. v. Jarka Corporation, 198 F.2d 618, 621 (C.A. 3); American Guild of Variety Artists, AFL-CIO, 163 NLRB 457, 458. A request to discharge or otherwise discriminate, if not explicit, must be implied. There is no substantial credible evidence that Respondent had asked for Gurganus' discharge even by implication. Business Agent Faust's mere statement to Dron's representatives that Gurganus (as well as Williams) was a "phoney" is insufficient to establish the requisite showing of causation. Moreover, this statement was made before the September 24 incident-in the September 20 conference between Faust and Dron following the Faust- Williams altercation. As found (supra, fn. 17) while the cred- ited evidence supports a finding that Faust had threatened Dron with "trouble" as long as it retained Williams, no such statement (or like statement) was made in regard to Gurga- nus. To be sure, Gurganus suffered loss of wages as a re- sult of the assault upon him. As noted, he stayed home 3 days in fear for the safety of his family. The Board has recently reaffirmed the principle that no remedial order travelers to leave Dron's employment) was decided in its favor by the labor- management committee in the grievance proceeding Dron had instituted (supra, sec A, 6). It is clear that the Board will not defer to a grievance award which, as here, was made by a bipartite (union-employer) committee, includ- ing officials of a labor organization whose interests are diametrically opposed to those of the affected union members or employees See Kansas Meat Packers, 198 NLRB No. 2 (80 LRRM 1743, 1746); Fleet Carriers Corp., 201 NLRB 227, 3, (1973); United Industrial Workers of North America of the Seafarers\International (Sea-Land Serzvce), 207 NLRB No. 150. Indeed, here one of the Union's representatives on the committee (Turpin) was directly involved in one of the two incidents here under consideration (supra, sec. A, 7). 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD compensating for such losses is warranted-in even more violent union unfair labor practices than here involved. See Pacific Maritime Association, 192 NLRB 338, 352. Accordingly, I conclude that while Respondent violated Section 8(b)(1)(A), it did not breach Section 8(b)(2) of the Act, insofar as its actions involved Gurganus. CONCLUSIONS OF LAW 1. Respondent violated Section 8(b)(1)(A) of the Act by threatening bodily harm and physically abusing employees because they refrained from assisting the Union in getting Dron's travelers to leave their jobs in order to provide em- ployment to Local 309 members. 2. Respondent also violated Section 8(b)(2) of the Act by attempting to cause Dron to discharge Williams because of his failure to cooperate and comply with the Union's efforts to get Dron employees to leave their jobs and because of its belief that Williams impeded such efforts by reporting its decision to "pull" all Dron travelers. 3. Respondent did not violate Section 8(b)(2) by causing or attempting to cause the discharge of Gurganus. 4. The unfair labor practices described in above para- graphs I and 2 affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, it should be ordered to cease and desist therefrom and to take certain affirmative action to effectu- ate the policies of the Act. Respondent should also make Clayton H. Williams whole for loss of earnings, if any, by reason of the discrimination against him 26-backpay to be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb- ing & Heating Co., 138 NLRB 716 (1963). 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:27 ORDER Respondent, International Brotherhood of Electrical Workers, Local 309, AFL-CIO-CLC, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Restraining and coercing nonmembers of said Local 309, by threatening bodily harm or physically abusing them because they fail or refuse to quit or assist Respondent in encouraging others to quit employment in order to provide jobs to members of Local 309. (b) Causing or attempting to cause R. Dron Electrical Co., Inc., or any other employer, to discharge or otherwise discriminate against nonmembers in violation of Section 8(a)(3) of the Act, for refusing to quit employment, in order to provide jobs to Local 309 members. (c) In any like or related manner, restraining or coercing employees in the exercise of any right guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Make whole Clayton H. Williams for any loss of pay he may have suffered because of the action and discrimina- tion against him, in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all re- cords relevant and necessary to comply with above para- graph (a). (c) Post at its business office, hiring halls, and meeting places copies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's official representative, be posted by it imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail or deliver to said Regional Director signed cop- ies of the attached notice marked "Appendix," for posting by R. Dron Electrical Co., Inc., in places where notices to employees are customarily posted. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respon- dent has taken to comply herewith. IT IS FURTHER ORDERED that, except as found herein, all allegations in the complaint of violations of the Act be dismissed. 26 Although Williams did not "quit" and is still employed at Dion (supra, sec A, 7), it is not clear whether he had abstained from the Job for any period of time because of the threats and physical abuse against him 27 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 which follow here- in 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 objec- tions thereto shall be deemed waived for all purposes 28 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 " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial before an Administrative Law Judge, at which all sides gave evidence, it has been decided that we have violated the National Labor Relations Act, and we have been ordered to post this notice. We give you the following assurances: WE WILL NOT threaten bodily harm, physically abuse, or 'otherwise corece nonmembers (including travelers) to quit their jobs, or to assist us in encouraging others INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 309 to quit their jobs, in order to provide employment to our members. WE WILL NOT cause or attempt to cause R. Dron Elec- trical Co., Inc., or any other employer , to discharge or otherwise discriminate against nonmembers , in viola- tion of Section 8(a)(3) of the Act, for refusing to quit or assisting us in encouraging others to quit employ- ment in order to provide jobs to our members. WE WILL NOT, in any like or related manner, restrain or coerce nonmembers in the exercise of any right guar- anteed in Section 7 of the Act. WE WILL make whole Clayton H. Wilhams for any loss of pay suffered by reason of the discrimination against him. Dated By 417 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Lo- CAL 309, AFL-CIO-CLC (Labor Organization), (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4361.