Intl. Union of Elevator Constructors, Loc. No. 1

INTL. UNION OF ELEVATOR CONSTRUCTORS, LOC. NO. 1 257 International Union of Elevator Constructors, Local No. 1, AFL-CIO and New York Elevator Manufac- turers' Association . Case 2-CB-5354 October 24, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On June 27, 1974, Administrative Law Judge Jul- ius Cohn issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, Charging Party filed cross-excep- tions and a supporting brief, and the Charging Party and General Counsel filed briefs 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 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 at- tached Decision in light of the exceptions, cross-ex- ceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administra- tive Law Judge and to adopt his recommended Or- der. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, International Union of Ele- vator Constructors, Local No. 1, AFL-CIO, New York, New York, its officers, agents, and representa- tives, shall take the action set forth in said recom- mended Order. charge filed and served April 19, 1973, and amended Janu- ary 31, 1974, by New York Elevator Manufacturers' Asso- ciation herein called Association. The amended charge was filed and served on January 31, 1974. The complaint alleg- es violation of Section 8(b)(l)(A) and 8(b)(2) of the Nation- al Labor Relations Act, as amended, by International Union of Elevator Constructors, Local No. 1, AFL-CIO, herein called Respondent or the Union. The Respondent filed an answer denying generally the commission of the unfair labor practices alleged and pleading certain affirma- tive defenses. Previously, by letter dated July 5, 1973, the Regional Director had administratively deferred further proceedings on the charge in accordance with the Board's decision in Collyer Insulated Wire, A Gulf and Western Sys- tems Co., 192 NLRB 837 (1971), and pursuant to the pub- lished policy of the General Counsel. Thereafter on Janu- ary 16, 1974, an arbitrator issued an interim award, herein- after discussed, followed by the filing of the amended charge and issuance of complaint. Issues Whether this matter should be deferred in accordance with the Board's Collyer policy. Whether Respondent violated Section 8(b)(2) of the Act by attempting to cause members of the Association to as- sign overtime to employees on the basis of their member- ship in Respondent and not to employees who are not members of Respondent. Whether Respondent violated Section 8(b)(2) of the Act by attempting to cause a member of the Association to lay off an employee because he was not a member of Re- spondent and replace him with an,employee who is a mem- ber of Respondent. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally and to file briefs. The General Counsel, Respondent, and the Association filed briefs, which have been carefully considered. Upon the entire record of the case, and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule 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 Walt 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 STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge: This case was tried at New York, New York, on April 22 and May 1, 1974. A complaint issued on February 19, 1974, upon a . 1. THE BUSINESS OF THE ASSOCIATION The Association, an unincorporated association in the State of New York, consists of various employer-members including Westinghouse Electric Corporation, herein called Westinghouse, and Otis Elevator Company, herein called Otis. Both Westinghouse and Otis are corporations who maintain offices and places of business in the State of New York and other States and are engaged in the manufacture, sale, service, and installation of elevators at various con- struction sites in New York City. Westinghouse and Otis each sell and install, annually, elevators valued in excess of $50,000, and each receives products valued in excess of $50,000, which are shipped to sites in New York from states other than the State of New York. The complaint alleges, the answer admits, and I find that Westinghouse 214 NLRB No. 51 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Otis are each employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Association is composed of four employer-members who are the principal companies involved in the construc- tion, installation, repair, and maintenance of elevators and escalators in the New York area. It has had collective-bar- gaining relationships with Respondent for a number of years. Commencing in July 1972, upon expiration of a prior contract and the failure to obtain agreement on a new one, Respondent engaged in a strike for a period of about 7 months. In February 1973, a contract was executed effec- tive July 1, 1972, which expires June 30, 1975. Respondent is exclusive bargaining representative for all elevator constructor mechanics and elevator constructor helpers employed by the Association's members within a radius of 35 miles of the city hall of New York City but including all of Long Island. Basically there are two classes of employees, mechanics and helpers, whose respective pay rates vary depending on whether they are working on con- struction, modernization, or constructual service and re- pair. In addition there are probationary employees who are classified as helpers, have no previous mechanical experi- ence, and have been employed less than 6 months. If the number of mechanics available is not sufficient, the Em- ployers, with the approval of the Union may designate helpers as "temporary mechanics." The Union issues a per- mit so stamped to those employees who then receive the same rate as mechanics. The agreement contains the usual union security clause. However, the contract covers approximately 3,300 employ- ees of whom approximately 2,100 are members of the Union. The latter are generally referred to as card mechan- ics or card helpers, while nonmembers are permit men or permit helpers. At the hearing there was some fencing on the number of union members in each category, and, at one point Respondent's President Watson testified all me- chanics are members. In any event, it is undisputed that the overwhelming number of mechanics are union mem- bers and the vast majority of helpers are not members. Watson stated there are "possibly" 25 union helpers. Fur- ther, it requires about 5 years experience to attain member- ship. During the course of negotiations for the current con- tract, the Union sought a contract clause which would give preference for employment and overtime to those employ- ees with longer years of service in the industry. Watson testified that the Union proposed preference on an indus- try wide basis so that, for example, an employee with 20 years at Otis would be preferred over one with 5 years at Westinghouse. He also said that the proposals related mainly to mechanics and there was little discussion con- cerning helpers. The Union did not succeed in its attempts to obtain specific contract provisions as to these demands. It contends it received an oral commitment from the Asso- ciation that the senior men would get preference with re- spect to employment and overtime. The contract provisions containing reference to overtime are: Section II(E) Probationary Helpers When there is either overtime work or a layoff made on a job, preference will be given to the experienced Helper over the probationary Helper.. . . Section II(F) (c) Helpers are eligible to work as temporary mechan- ics and there shall be no restrictions on hours or work a temporary may perform, except that a tem- porary mechanic will-,not act as a mechanic in charge on a job on which there are permanent me- chanics. Section IV(E) Overtime will be shared among the employees on each job site as equally as practicable, considering the type of overtime work involved, the employees presently performing such work during regular working hours, and the skill and ability of the vari- ous employees to perform such overtime work. The Association and the Union have a Joint Committee which meets monthly to resolve issues and problems which have arisen during the previous month. B. The Events of April 1973 On April 6, 1973, a monthly meeting of the Joint Com- mittee was held . Present for the Association were William Kelmer, district manager of Westinghouse , who is also the Association labor committee chairman , Cecil Lippert, re- gional construction manager of Otis; and Messrs . Becker and Grabouski on behalf of other employer -members. The Respondent's representatives at the meeting were Vincent Watson, president and Carl Stork among others. At the meeting a discussion ensued with respect to the assignment of overtime . The Association representatives stated their intention . to share overtime among card carrying mechan- ics and permit mechanics in accordance with the terms of the contract . Watson stated the overtime would be shared among card carrying members, and noncard carrying me- chanics could work overtime only if all the card carrying members were working. Stork, apparently Respondent's Long Island representative took the same position, specifi- cally referring to the Queens Fashion Mall site. This ac- count of the meeting derives from the testimony of Kelmer, corroborated by Lippert who further testified that Stork said overtime was to be shared only among the Union members or card men and that it would be either that way INTL. UNION OF ELEVATOR CONSTRUCTORS, LOC. NO. I or nobody would work overtime.' Lippert also averred that no one sought to reduce overtime or refuse to work over- time in the following months and that he continued to dis- tribute such work as he said he would to Watson and Stork on April 6. Watson's recollection of the April 6 meeting was to the effect that he stated the experienced men should work the overtime as that was the theme of the 7 month strike: se- niority and the desire to protect the experienced man. Wat- son also testified that an experienced man is always a card man and admitted to the use of the term "card mechanic." On April 13, 1973, Watson called Kelmer by telephone and discussed the working of overtime at the Westinghouse Fashion Mall jobsite in Long Island. Kelmer told Watson that overtime would be shared between card carrying me- chanics and noncard carrying mechanics. Watson replied that it was not going to work, and Kelmer told him he was reiterating what had been stated at the April 6 meeting, that is, "we were going to abide by the contract." Kelmer called Watson later that afternoon and informed him he double-checked again with the management members of the committee, and that they were going to share overtime as the contract called for. Watson said "he could not un- derstand why we were trying to protect these hump tempo- rary mechanics." He also said that "he was trying to be a nice guy but just wait and see, I'm going to bust your ass, Haughton's ass and Otis' ass." Watson recalls the telephone conversation of April 13 and states that he referred to experienced mechanics being permitted to work overtime before the temporary mechan- ics. He also testified as follows: Q. You concede, do you not, Mr. Watson, that that [experienced men] happens to coincide also with union membership? A. In some cases. Q. In almost 100% of the cases, isn't that right? A. Most cases, yes. Q. Isn't it in point of fact the very reason you want- ed the card mechanics to work the overtime, to prefer them, because they were union members. A. No. Experienced members. Q. Your testimony now is that they were experi- enced members? A. It is now and it was then. I wanted my experi- enced men to work. That's what they are paying dues for, yes. In April 1973, Lippert had a conversation with Watson concerning servicing of elevators at the New York Hilton Hotel. Otis had the service contract and maintains a list, referred to as a call-back list, from which an employee is selected to answer a service call made after normal work- ing hours. Such call is always on an overtime basis. Lippert testified that temporary mechanics were included by Otis on the call-back list but Watson wanted the list to include ' Karl Stork , a signer of the collective-bargaining agreement , did not ap- pear or testify at the hearing, and Lippert's testimony in this regard is un- contradicted . Watson said he could not recall it, but did not deny the state- ment. 259 only card mechanics and not temporary mechanics. A sim- ilar request was made respecting the call-back list for New York Hospital. Lippert did not agree to any of these re- quests and the service contract lists continued to be operat- ed on the basis of sharing of overtime. C. The Events of January 1974 On January 17, 1974, Otis had to stop work at its 1633 Broadway jobsite causing a layoff of three of the four em- ployees there, a mechanic and two helpers. Of these the mechanic and one helper were card holders. The following day Watson called Lippert and asked that Richard Mc- Grath, the card holding helper, be put back to work. Lip- pert said that McGrath had been laid off for lack of work and there was nothing available. Watson then asked that Lippert lay off a permit helper on some other job and re- place him with McGrath, a card helper, whom Watson felt was senior to others in Otis' organization. According to Lippert, he was specifically asked by Watson to lay off one of the helpers at Starret City 2 where a number of the help- ers had less than 2 years of experience, and replace him with McGrath who had more than 5 years of service. Wat- son testified that individuals do not become union mem- bers until after 5 years so that anyone employed at Starret City with approximately 2 years service would not be a union member. Lippert refused to accede to Watson's re- quest stating there were no jobs available for McGrath. On the same day, Watson also called Robert Reinhardt, area construction superintendent of Otis. He asked wheth- er Reinhardt was aware that McGrath was laid off and Reinhardt said he was. Watson pointed out that McGrath was a card helper and he thought that was a violation of the contract. Reinhardt refused to take him back saying that he did not feel he "had done anything outside the contract." According to Reinhardt, Watson said if Mc- Grath was not taken back, "that if I thought I saw trouble in this city, I didn't know what trouble was up till now." Reinhardt further testified as follows: I said I didn't have any work for McGrath at that time, and he [Watson] said that I had permit helpers working, I should lay one of those off and keep Mc- Grath, and I didn't agree to it. Watson called Reinhardt again that day and they spoke to the same effect. On cross-examination, Reinhardt de- nied that Watson referred to laying off people with less service when talking about McGrath. He admitted that Watson had mentioned McGrath's 12 years of service. He also remembered Watson alluding to the question of se- niority and retention of employees with greater length of service in the course of group meetings over a period of time. The testimony of Reinhardt was not controverted by any other witness. Thereafter on January 22 all of Otis' employees in Respondent's work jurisdiction, approximately 700, struck. Watson denied that he directed his people to stop work, 2 Starret City is a large apartment project in Bronx . New York, where Otis is installing elevators. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stating that the men were aware of McGrath's layoff and there was a lot of talk about it. He also said that the strike may have "possibly" resulted from his action because he discussed the matter with many members, perhaps more than 100, over the phone. The strike ended when an injunc- tion was obtained on January 24. D. Discussion and Analysis 1. The Collyer deferral issue Proceedings on the original charge in this matter were deferred for arbitration on July 5, 1973, by the Regional Director. The Association then demanded arbitration and an arbitrator was designated pursuant to contractual pro- cedures and a hearing held on December 11, 1973. The issue as presented to the arbitrator by the Association was whether the Union violated the agreement by attempting to have Westinghouse discriminate by assigning overtime work solely to mechanics who are members of the Union and not to temporary mechanics who are not members of the Union, and by threatening Westinghouse in connection therewith. The Union, as it had previously advised, con- tended that the issue as presented by the Association was not arbitrable. The arbitrator issued an interim award on January 16, 1974. In his opinion he noted the background including the reluctance of the parties to arbitrate this mat- ter. Thus, the Association had originally filed an unfair labor practice charge and had requested arbitration only upon the impetus of a prospective dismissal by the Region- al Director of its charge. The Union then promptly advised it would contest the arbitrability of the issue. He stated that neither of the parties appeared to regard the matter as a contractual dispute. However, upon consideration of the relevant provisions, he found that the agreement does touch upon the matter of the assignment of overtime and he concluded that the dispute was arguably arbitrable. The arbitrator then advised the parties they may proceed but warned them that further proceedings before him may be an exercise in futility. He noted that the issue was one of discrimination, which if found as alleged, would be an un- fair labor practice. In short, he said that he was not going to resolve unfair labor practices, that the contract did not track the language of the Act, and that any award he made based upon contractual provisions would not, in all proba- bility, resolve the dispute. The Board, discussing its Collyer policy in National Ra- dio Company, Inc., 198 NLRB 527 (1972), has said: "The crucial determinant is, we believe, the reasonableness of the assumption that the arbitration procedure will resolve this dispute in a manner consistent with the standards of Spielberg." 3 In a later case, the Board then stated it will apply the Collyer rule where two basic conditions have been met: (1) the disputed issues are , in fact, issues suscepti- ble to resolution under the operation of the griev- ance machinery agreed to by the parties, and (2) 3 Spielberg Manufacturing Company, 112 NLRB 1080 ( 1955). there is no reason for us to believe that use of that machinery by the parties could nor or would not resolve such issues in a manner compatible with the purposes of the Act.' Applying these principles and conditions to the instant case, I conclude that these matters should not be deferred. It is questionable whether the issues herein even meet the first condition set forth in Eastman in view of the arbitrator's finding that the dispute was only arguably ar- bitrable. In any event it is reasonably clear that the second condition cannot be met. The arbitrator has flatly stated that he will not determine the unfair labor practice issue of whether the Union is attempting to cause Westinghouse to discriminate by assigning overtime work upon the basis of union membership. Thus any decision he reached on the basis of the contract language without consideration of the unfair labor practice issues will not conform to Spielberg criteria. An arbitrator rather pointedly set forth certain issues in- volving alleged discriminatory actions by the union and decided that these matters must be left for determination in another form, stating his own authority to be limited by the contract. The Board then went on to decide whether the union in that case was motivated by valid contract consid- erations or the fact that the employee was not a member.5 Of course, in Kalamazoo the arbitrator had issued an award, whereas in this case, the arbitrator prospectively stated his refusal to consider the unfair labor practice is- sues when he decided arbitrability. But the difference is in timing rather than result. The Board in other situations had declined to defer cases where for pragmatic reasons the arbitral process does not provide a "quick and fair means" for resolving the dispute. In this case, the dispute gave rise initially to the filing of an unfair labor practice charge. At various stages both parties resisted arbitration and were led into it by the decision of the Regional Director to defer. Apparently the Director changed his mind after the interim award. The arbitrator found the dispute to be only argu- ably arbitrable, warning that he will not determine the un- fair labor practice aspect which is the gravamen of the dis- pute. It is clear that we are not going to get a determination from him which will accord to Spielberg. For the foregoing reasons, deferral to arbitration is not warranted in this case.' Accordingly, I shall deny Respondent's motions to dismiss the complaint and defer the dispute to arbitration. 2. Conclusions as to the April 1973 events The sole conflict as to the discussion which took place at Eastman Broadcasting Company, Inc., 199 NLRB 434 (1972). Kalamazoo Typographical Union, Local No. 122, International Typograph- ical Union, AFL-CIO (Booth Newspapers, Inc., d/b/a Kalamazoo Gazette), 193 NLRB 1065 (1971). 6 See The Seng Company, 205 NLRB 200 (1973); Kansas Meat Packers, a Division of Aristo Foods, Inc., 198 NLRB 543 (1972). 7 The allegations of the complaint concerning the incidents of January 1974 were, of course, not before the arbitrator and, conceivably could be the subject of arbitration . However, I find no useful purpose would be served by dividing the complaint, particularly as these more recent matters also relate to discrimination on the basis of union membership. INTL. UNION OF ELEVATOR CONSTRUCTORS, LOC. NO. 1 261 . the meeting of April 6 is Watson's testimony that he had stated the experienced men should work the overtime. However, both Kelmer and Lippert testified credibly that Watson said overtime would be shared among card car- rying mechanics. Not only do they corroborate each other in this respect but their testimony concerning the state- ments of Stork, a representative of Respondent, at this meeting is uncontroverted.8 Stork not only reiterated the Watson position that only card carrying mechanics would share the overtime, he also said it would be either that way or nobody would work overtime. I find therefore that at the meeting of April 6, Respon- dent, by its representatives demanded generally that the Association share overtime among card carrying mechan- ics before assigning it to noncard or temporary mechanics. Further, specific demand was made at the meeting by Respondent's representative Stork concerning Westinghouse's Fashion Mall site in Queens. I also find that Respondent by its representative Watson made the same demand of Kelmer during the two tele- phone conversations of April 13. 1 again credit Kelmer in this respect. Watson did not deny his remarks about Asso- ciation members trying to protect temporary mechanics and that he was going "to bust your ass...... He merely states that he referred to experienced mechanics being per- mitted to work before temporary mechanics. But in this connection he admitted, in effect, experienced men coin- cides with union membership. In his testimony he said he wanted overtime for "experienced members" and "experi- enced men" who pay dues. In the context, all of Watson's expressions are euphemisms for "membership." Similarly, despite Watson's testimony that he had re- ferred to "experienced men," I find Respondent through Watson in April 1973 sought to have Otis limit its call-back list for contractual service at the New York Hilton Hotel and New York Hospital to card mechanics. Respondent contends that it is interested solely in ad- vancing the claims to overtime of those employees who are most experienced in the industry. But experience is equated with membership as only those with at least 5 years experi- ence gain admission to the Union. Even a reference to "mechanics" means membership as almost all mechanics are members and almost all temporary mechanics and helpers are not members. Upon analysis of the numbers of union members in each classification this defense must fail. Respondent's other contention is related to the contract. A demand by a union that the employer distribute over- time only to union members and not to nonmembers vio- lates Section 8(b)(l)(A) and (2) of the Act. On the other hand the Act would not be violated if the Union's conduct was based in fact on an interpretation or understanding of an agreement .9 Section IV(E) of the current collective-bar- gaining agreement simply says "Overtime will be shared among the employees on each job site as equally as practi- cable, . .. " It is difficult to entertain a contention that Respondent sought in good faith to enforce a contractual 8 Watson, called by the General Counsel under Rule 43(b), said he did not recall Stork's statement, but did not deny it. 9 See Federation of Telephone Workers of Pennsylvania, Local 58 (Bell Tele- phone Company of Pennsylvania), 194 NLRB 461 (1971). right based on such an overtime clause in light of its actual demand . Apparently the arbitrator had similar doubts. In this regard, cases cited in Respondent 's brief are inapposite as they involve real questions of contract interpretation or enforcement. Interestingly enough, Watson did not refer to the contract during the meeting of April 6 or in the course of his telephone calls to Kelmer and conversation with Lip- pert. Indeed it was the Association representatives who mentioned the contract and their intention to rely on it. Respondent , in connection with its contractual claim, also relies on an allegation that the Association made an oral commitment at the conclusion of the long strike that senior men would get preference with respect to employ- ment and overtime . I cannot credit Watson's vague asser- tions in this regard . 10 It was undisputed that the question of seniority was a major issue during the 7 month strike pre- ceding the current agreement and it is admitted that the Union failed to obtain agreement on its proposals . Section IV(E) of the contract relates to overtime and if the de- mands of the Union are based on an oral understanding, such a commitment would be at variance with the written provision. Respondent contends there is no violation in any event since it made no threats , took no action in support of its April 1973 position , and the Association did not change its position , or indeed, its method of assigning overtime. As to the threats, Union representatives Stork , at the April 6 meeting, and Watson , during his April 13 telephone con- versation with Kelmer , uttered statements which may be construed as threats or warnings of consequences. As to the lack of acquiescence , the Union need not succeed, it needs only to attempt to cause the Employer to discrimi- nate in violation of Section 8(a)(3) of the Act.l t The finding of this violation is dependent upon the moti- vation of the Union . Despite its protestations to the con- trary, I cannot find that Respondent was motivated by a desire to enforce contractual provisions relating to over- time. The constant references by Watson and Stork to card holders, card mechanics , card helpers, absent any tie to the contract, make it abundantly clear that they were referring to union members , and were seeking to cause the Associa- tion members to assign overtime on that basis.l" Moreover in view of the realities of acquiring membership references to "senior men," or those with the greatest service in the industry may also be equated with membership. Accordingly, I find that Respondent violated Section 8(b)(2) and 8(b)(1)(A) of the Act during various times in April 1973 as described above by attempting to cause em- ployer members of the Association to assign overtime sole- ly to union members rather than sharing such work among all employees. 3. Conclusion as to January 18, 1974, layoff of McGrath Both Lippert and Reinhardt testified that Watson re- 10 At the hearing, I did not permit, for procedural reasons, a witness for Charging Party to testify on the subject of the oral commitment. However, counsel made an offer of proof that his witness would deny such commit- ment. 11 Walter J. Barnes Electrical Co., 188 NLRB 183 (1971). 12 Yellow Freight System, Inc., 197 NLRB 979 (1972). 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quested them in separate telephone conversations on Janu- ary 18, 1974, to lay off a permit helper at some other job and replace him with McGrath, a card helper. Watson does not deny the conversations except to state that he referred to McGrath as a man with 12 years in the industry. I credit both Lippert and Reinhardt. The uncontradicted testimony of Reinhardt was that Watson said he should lay off one of the permit helpers and keep McGrath, and threatened trouble should he fail to do so. Respondent contends there is no violation as to this inci- dent relying on Local 320, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC (General Electric Company), 183 NLRB 1086 (1970). The Board there held that despite some references to the employee's nonunion status, the union's content was not discriminato- rily motivated because it relied on its interpretation of an established practice concerning lateral transfers. But there is no evidence in this record as to any practice or contrac- tual provision relating to the layoff of permit helpers at one jobsite to be replaced by a card helper laid off at another site. Presumably this is what Respondent sought and failed to obtain during the negotiations preceding the current contract. The credited testimony is to the effect that Wat- son was seeking to obtain replacement of employees at job- sites (Starret City, for example) on the basis of their non- membership, by laid off employees who are members. The only evidence points to the discriminatory motivation. The object of the strike on January 22 of all of Otis' employees was to enforce Respondent's demand that Mc- Grath, a laid-off union member, replace a nonunion helper at another jobsite. Actually this is not denied. Watson merely stated he did not direct the people to stop work. The Otis employees were scattered at many sites through- out the New York metropolitan area. Watson admitted talking to 100 of his people and stated this action could have caused the strike. In view of this, coupled with Watson's prior threat of trouble to Reinhardt, I find the strike was sponsored by Respondent. I conclude therefore that by demanding on January 18, 1974, that Otis replace some permit helper, a nonmember, with McGrath a union member, and striking on January 22 to attain that object,'3 Respondent attempted to cause Otis to discriminate against employees in violation of Section 8(a)(3) of the Act and thereby Respondent violated Section 8(b)(1)(A) and 8(b)(2) of the Act.14 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Westinghouse Electric Corporation and Otis Elevator Company, employer-members of New York Elevator Man- ufacturers' Association described in section I, above, have 13 Marine Warehouses Local 1454 and the International Longshoremen's Association (Bowker Storage and Distributing Co., Inc.), 196 NLRB 16 (1972). 14 Plumbing and Steamfitters Local Union No. 100, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (The McCally Company), 188 NLRB 950 (1971). a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take affirmative action to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Westinghouse Electric Corporation and Otis Elevator Company are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By attempting to cause Westinghouse, Otis, and other members of the Association to assign overtime work solely to members of Respondent because of their membership in Respondent rather than sharing such work with all em- ployees including nonmembers, the Respondent has en- gaged in unfair labor practices within the meaning of Sec- tion 8(b)(2) and 8(b)(1)(A) of the Act. 4. By attempting to cause Otis to replace an employee because of his nonmembership in Respondent, with an em- ployee who is a member of the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(2) and 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 15 Respondent, International Union of Elevator Construc- tors, Local No. 1, AFL-CIO, its officers , agents, and repre- sentatives, shall: 1. Cease and desist from: (a) Attempting to cause Westinghouse Electric Corpora- tion , Otis Elevator Company, and other members of New York Elevator Manufacturers ' Association to discriminate in the assignment of overtime by assigning such work sole- ly to employees who are members of International Union of Elevator Constructors , Local No. 1, AFL-CIO, and de- nying overtime to employees who are not members. (b) Attempting to cause Otis Elevator Company to lay off or otherwise discriminate against employees because of their nonmembership in International Union of Elevator Constructors , Local No. 1, AFL-CIO. 15 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. INTL. UNION OF ELEVATOR CONSTRUCTORS, LOC. NO. I (c) In any other manner restraining or coercing employ- ees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its business office and meeting halls copies of the attached notice marked "Appendix." I Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by the Respondent's rep- resentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to members are customarily post- ed. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 2 signed copies of said notice for posting by employer mem- bers of New York Elevator Manufacturers' Association, if such companies are willing, in places where notices to em- ployees are customarily posted. (c) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 263 We hereby notify you that after a trial at which all parties had a chance to give evidence, the National Labor Rela- tions Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice. WE WILL NOT attempt to cause Westinghouse Electric Corporation, Otis Elevator Company, and other mem- bers of the New York Elevator Manufacturers' Asso- ciation to discriminate in the assignment of overtime by assigning such work solely to members of Elevator Constructors Local No. I and denying overtime to employees who are not members of Local No. 1. WE WILL NOT attempt to cause Otis Elevator Compa- ny to lay off or otherwise discriminate against employ- ees because of their nonmembership in Elevator Con- structors Local No. 1. WE WILL NOT in any other manner restrain or coerce employees in the exercise of rights guaranteed in Sec- tion 7 of the Act. 16 In the event 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 INTERNATIONAL UNION OF of the National Labor Relations Board" shall be changed to read "Posted ELEVATOR CONSTRUCTORS, Pursuant to a Judgment of the United States Court of Appeals Enforcing an LOCAL No. I, AFL-CIO Order of the National Labor Relations Board."