Carpenters, Local 1092

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Carpenters and Joiners, Local 1092 (Walsh Construction Company) and Ronald Halmagyl, Sr. Case 38-CB-652 July 22, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On April 29, 1975, Administrative Law Judge Mel- vin J. Welles issued the attached Decision in this pro- ceeding. Thereafter, the Respondent and the General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering 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 at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.' The Administrative Law Judge found that the Re- spondent, Local 1092, violated Section 8(b)(2) during a layoff by causing the Employer to prefer its mem- bers over nonmembers, including Darnell. However, he found that the Respondent's later request to "get rid" of Darnell, who had been rehired, and its still later offer to allow the Employer to retain "two good permit men" in exchange for Darnell's departure were "bare" requests that were not "attempts to cause" the Employer to discriminate within the meaning of Section 8(b)(2). In our view, whether or not a "bare" request is an "attempt to cause" dis- crimination is not even in issue here, and we do not adopt the Administrative Law Judge's discussion of that point. The Respondent's success in obtaining unlawful preference for its members in the earlier layoff and its offer to let the Employer retain two other non- members as the price for Darnell's departure make the distinction the Administrative Law Judge relied upon barely, if at all, relevant. However a "bare re- quest" may be defined, it is not applicable in a con- text which includes earlier related unfair labor prac- tices nor to a coercive offer to forbear from an equally unlawful alternative. Accordingly, we conclude that the Respondent violated Section 8(b)(2) by attempting to cause the Employer to discriminate against Darnell in violation of Section 8(a)(3). We shall amend the recommended Order and notice accordingly. 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, as modified below, and hereby orders that Respondent, Interna- tional Brotherhood of Carpenters and Joiners, Local 1092, Seneca, Illinois, its officers, agents, and repre- sentatives, shall take the action set forth in the said recommended Order, as modified herein: 1. Amend paragraph 1(b) of the Administrative Law Judge's recommended Order by inserting the phrase "Attempting to cause or" at the beginning of the sentence. 2. Substitute the attached notice for that of the Administrative Law Judge. 1 The Respondent's request for oral argument is denied. In our judgment, the record, including the exhibits and briefs , adequately presents the issues and the positions of the parties. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to give evidence, the National Labor Relations Board found that we violated the National Labor Relations Act and ordered us to post this notice. WE WILL NOT threaten or intimidate employees because they have filed charges with the Nation- al Labor Relations Board, or have refused to withdraw them. WE WILL NOT attempt to cause or cause Walsh Construction Company to discriminate against any employees in violation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL notify Walsh Construction Compa- ny, in writing, that we have no objection to its reemploying McClellan, Darnell, Turner, Lamp- son, and Halmagyi. WE WILL reimburse James McClellan, Donald Ray Darnell, Sr., James Turner, David Lamp- son, and Ronald Halmagyi, Sr., for any pay they CARPENTERS, LOCAL 1092 lost as a result of the discrimination against them. INTERNATIONAL BROTHERHOOD OF CARPENTERS AND JOINERS, LOCAL 1092 DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Ottawa, Illinois, on February 10, 11, and 12, 1975, based on charges filed August 14, 1974, and a com- plaint issued September 18, 1974, and subsequently amended, alleging that Respondent Union violated Section 8(b)(2) and (1)(A) of the National Labor Relations Act, as amended. The General Counsel and the Respondent have filed briefs. Upon the entire record in the case, including my obser- vation of the witnesses, and upon consideration of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Walsh Construction Company, a division of Guy F. At- kinson Company, is a California and Nevada corporation, with an office and place of business at Seneca , Illinois, where it is engaged in heavy construction work, including the construction of a nuclear power plant . During the past 12 months, Walsh purchased goods and materials valued in excess of $50,000, which were sent to its Seneca, Illinois, location directly from points outside the State of Illinois. I find, as Respondent admits, that Walsh is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent, herein called Local 1092, is a labor organization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issue herein is whether Respondent Local 1092 violated Section 8(b)(2) of the Act by, on August 7, 1974, causing Walsh to lay off five employees who were not members of Local 1092 . Respondent is also alleged to have violated Section 8(b)(2) by attempting to cause Walsh to discharge employee Darnell on about October 11 and 18, 1974. The 8(b)(1)(A) violations alleged concern threats of reprisals of various sorts by Local 1092 officials against employees for seeking employment in Respondent's terri- tory, or to coerce the employee , in this instance Halmagyi, to withdraw the charges he filed herein. B. Background Local 1092 is affiliated with Fox River Valley District Council of Carpenters, herein called District Council, 373 which is comprised of nine local carpenters' unions in the State of Illinois. Local 1092 is the "home" local for Seneca, Illinois, where Walsh's jobsite involved herein is located. Walsh, through its membership in General Contractors As- sociation of Grundy County, Illinois, has a collective-bar- gaining agreement with the District Council and Local 1092, which is signed, for the union parties thereto, by Wil- liam E. Hicks, Jr., president of Local 1092, and by William "Abe" Vaughan, Local 1092's business agent, as "Chair- man of Contract Committee." The contract between Walsh and the Union I does not provide for an exclusive hiring hall, Walsh being free to hire from any source whatsoever, nor is there any referral from or clearance by the Union necessary to obtain em- ployment, or any preference in employment, or its reten- tion, given to members of Respondent or the District Council. The contract does provide that "when it is neces- sary to lay-off, the selection will be `Chain of Command,' thus the Foreman shall select the journeyman for lay-off, General Foreman selects the Foreman and etc." Just prior to August 7, Walsh employed about 104 car- penters at the Seneca site. William Ramsey, carpenter su- perintendent for Walsh, was in charge of all 100-odd car- penters, working through two "general foremen," Bill Dunn and Claud Dlask, who in turn had 9 carpenter fore- men under them, 4 and 5 respectively, each of whom super- vised approximately 10 employees .2 C. The Alleged 8(b)(2) Violation of August 7, 1974 On August 7, Walsh decided that because of a shortage of material there would be a carpenter layoff. Ramsey told his two general foremen to instruct each of the nine fore- men to prepare a list for layoff, ranking them in order of quality, the most qualified man on each crew to be at the top of the list and the least on the bottom. Robert Brestol, who was one of the nine foremen, and who directly super- vised the five alleged dlscriminatees, was told that two members of his crew would be laid off.' The foremen, in- cluding Brestol, prepared their lists, turning them in to the general foremen . One of the lists, that of Foreman Tommy Tucker, was mistakenly made out in reverse order, with the most qualified carpenter at the bottom of the list, and the least qualified on top. General Foreman Dunn was in- formed of this error by Tucker, and Dunn so informed Ramsey. Ramsey, together with Dunn and Dlask, then went over the lists and compiled a master layoff list con- sisting of 19 carpenters, at least 16 of them being employ- ees at the bottom of their lists (counting Tucker's list in proper, i.e., inverse, order). Of the other three, two, Rex- roat and Collins, were at the bottom of their foreman's list according to the testimony of Ramsey and Dunn, although Local 1092 agent Vaughan testified that they were not at 11 use "Union" to refer to the District Council and Respondent Local 1092 jointly, as the named parties to the contract 2 The record is not completely clear, but I assume the figure of 104 given at the hearing included the 9 foremen, 2 general foremen, and Superinten- dent Ramsey. 3 After preparing his list, pursuant to Dunn's instructions, Brestol told all but the bottom two carpenters on that list that there was going to be a layoff, but that they had nothing to worry about, they would not be laid off. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the bottom. The third, Oakie Groomis, was third from the bottom on the list of Foreman Hollenbeck, with no other employees on Hollenbeck's list to be laid off. Groomis was selected, according to Ramsey's uncontroverted testimony, for "discharge," rather than "layoff," because Ramsey had personally observed that Groomis was not doing his work. Foreman Brestol's rating list, in order of his assessment of the men's qualifications, had a Local 1092 member, Quay Edwards, on top, and then, in descending order, union affiliation in parentheses, Darnell (District Council), Turner (District Council), Lampson (District Council), Halmagyi (District Council), McClellan (District Council), Riveria (District Council), Clements (Local 1092), Holm- quist (District Council), and Herman (District Council). After the determination had been made by Ramsey, Dunn, and Dlask as to the 19 employees to be let go (18 laid off and Groomis discharged), Ramsey notified the payroll office to prepare checks for the specified 19 em- ployees. Early that afternoon, in Ramsey's office, there occurred the events upon which rests the General Counsel 's allega- tion that Local 1092 caused Walsh to lay off Darnell, Turner, Lampson, Halmagyi, and McClellan, in violation of Section 8(b)(2). Precisely what was said and done, and perhaps more importantly, the meaning and significance of what was said and done in Ramsey's office during that time is in sharp dispute . It is not in dispute , however, that the 5 alleged discriminatees, along with Riveria,4 none of whom had been on the list of 19 prepared by Ramsey, Dunn, and Dlask, found themselves laid off as a result of what occurred, and that 6 other carpenters, who had been on the list of 19, were no longer on that list and were not laid off as a result of what occurred. It is also a fact that the five alleged discriminatees and Riveria were not mem- bers of Local 1092, all being members of other district council locals, and that the six employees who were origi- nally scheduled to be laid off but whose layoffs were res- cinded were all members of Local 1092. It is also a fact that Brestol's crew, originally scheduled to lose two men, was now, following the events in Ramsey's office, to lose eight men .5 The most crucial undisputed fact is that Vaughan said at the meeting that "travelers would be the first to go since they didn't belong in the local or DC. The general rule we worked by was that travelers went first, then District Coun- cil people and then local people. He [Ramsey] asked me which way it should go, and I told him it should be this way." 6 This statement, coupled with the fact that six Dis- trict Council carpenters did replace six Local 1092 carpen- ters on the layoff list, surely establish a prima facie viola- tion of Section 8(bX2) of the Act. But, claims Respondent, despite the seeming baldness of 4 According to the General Counsel, Riveria was not alleged as a discn- minatee in the complaint because Rivera did not wish to prefer charges against Local 1092 or to be involved in the General Counsel's case. 3 All but Quay Edwards, a Local 1092 member, who was at the top of the list, and Clements , a Local 1092 member , who was third from the bottom, and an apprentice. 6 This is the way Vaughan put it in his affidavit given to a Board agent. He ultimately seemed to concede saying this , in his testimony before me, but "with an explanation ." I discuss this at more length below. the language used, the Union's "true motivation" can only be ascertained by "the totality of all the objective facts." And this "true motivation," in Respondent's view, was that Vaughan believed the "chain of command" requirement of the contract was not being followed, that there was favorit- ism shown by Ramsey in the selections, and that foremen normally followed a policy of last hired being first laid off when "skills were relatively equal," which had not been the case on this occasion. Vaughan was arguing all these points at the meeting with Ramsey, rather than membership or lack thereof in Local 1092. All this may be gleaned even without crediting Respondent's witnesses as against the General Counsel's witnesses, asserts Respondent , and will demonstrate the truth of Vaughan's explanation at the hearing of what he means by travelers first, then District Council, and then Local 1092 men; i.e., that he was using "shorthand labels of identifying those who had been on the longest or the shortest and not a layoff because they held one affiliation or another." Although I agree with Respondent that particular words used do not always mean what they seem to, Vaughan's own testimony in this case convinces me that he meant exactly what he said, that District Council men I be laid off before Local 1092 men. Vaughan's testimony, indeed, de- feats itself in terms of his asserted contentions , positions, and arguments taken at the August 7 meeting, without re- gard to whether he in fact took the various positions he claimed to have taken, and there is sharp dispute, as noted above, as to exactly what did occur. Thus, according to Vaughan, Local 1092 Steward Holi- day told him, when he arrived at the jobsite on August 7, that there was going to be a layoff. Vaughan asked Holiday whether the layoff was going "according to chain of com- mand," and Holiday said it was not, that "Ramsey is pick- ing whoever he wants to pick." Vaughan and Holiday went into the office, with only General Foreman Dunn there at the time, and Dunn showed Vaughan Hollenbeck's list, pointing to Oakie Groomis' name and saying "this man is getting laid off and you have two men slated below him." Vaughan testified that he then looked at the nine lists, which were on the table, and noticed that the layoffs on Tucker's list were from the top rather than the bottom, and also noticed that Collins and Rexroat were being laid off even though they were not at the bottom of Foreman Coldwater's list. But for Holiday's having mentioned to Vaughan that Ramsey was not following the chain of com- mand, Vaughan would never have gone into the office and 7 Local 1092 men are, of course, also District Council men, for the Local is a constituent member of the District Council. Reference to District Coun- cil herein, therefore, signifies, in terms of membership, membership in a local of the District Council other than Local 1092 Although Respondent seemed to be contending at the hearing that Vaughan , as an agent of the District Council, had no reason to prefer Local 1092 men over District Council men, particularly since Local 1092 were also District Council men and the contract was with District Council (it was also, of course, with Local 1092), the distinction between District Council and Local 1092 was made by Vaughan at the meeting . Furthermore, as General Counsel cogently argues in her brief, Vaughan, who had been appointed business agent of Local 1092 not too long before the events in this case , was about to run for the office in an election , and only Local 1092 members could vote in that elec- tion, so that District Council members could give Vaughan no support. This gave Vaughan at least one personal reason to prefer Local 1092 carpenters as against all others. CARPENTERS, LOCAL 1092 had the ensuing discussion with Ramsey. Vaughan argued for Groomis, but lost, with Ramsey telling him that "I have been keeping an eye on him for a week and . . . he is no good." (Vaughan's testimony). He argued for Rexroat and Collins, and won-in the sense that they were taken off the list to be laid off. But he also argued (and won) for Hen- dricks, who was concededly on the bottom of his foreman's list. And he "accepted" the Tucker listing layoffs, even though he testified that he was never told that the list was upside down, and even though he "cared about the chain of command," because the "four people was the last people that came in and the people that I was arguing for 8 had been there for a long time." Having virtually accepted this despite what to him (not having been told the list was upside down) 9 had to be a blatent violation of the chain of command, and having been informed that Groomis was discharged, rather than laid off, and losing the argument that he should not be, there remained only Collins and Rexroat.10 Yet Vaughan began arguing "qualifications," assertedly complaining that carpenters who had been employed for months could not "all of a sudden" have become unqualified. Respon- dent argues that this stemmed from Vaughan's honest be- lief that Ramsey was "playing favorites ." But the purpose of the "chain of command" provision in the contract was, as Respondent asserts in its brief, "to protect, as far as possible, against favoritism and to let the individual most qualified who had been observing the work of the men make the determination." For Vaughan to argue "qualifi- cations" was therefore diametrically opposed to the whole concept of chain of command, and amounted to his substi- tuting, or attempting to substitute, his own limited knowl- edge of the qualifications of certain individuals, who hap- pened to be members of Local 1092, for that of the foremen, obviously, as Respondent puts it, the individuals "most qualified" to rate the men under them. Finally, Vaughan claimed at one point to have argued that there were too many men off one crew, and not s I.e., Groomis, Henricks, Rexroat, and Collins. s It is strange that Holiday, who was "upset" about Groomes being out of the chain of command , and told this to Vaughan , did not mention to Vau- ghan the obvious selections from the top down from the Tucker list. (Vau- ghan, as noted above, claims to have seen this list and noted the selections from the top, after he went into the office .) My guess is that Holiday obvi- ously knew of the reversal , probably having been told by one of the general foremen. Absent testimony to this effect , I make no finding-it is not neces- sary to resolve this puzzle . It is significant, however, that when Vaughan was asked on cross-examination why his affidavit to the Board did not contain anything about Tucker's "upside-down" list having been mentioned by him to Ramsey, he responded that "I did not bring this up in my affidavit, simply for the reason Wally Holiday had already brought this up to Ram- sey. He knew that before I went into the office." 10 I am assuming only arguendo that they were not at the bottom of their list. Actually, I am satisfied from the testimony of Dunn and Ramsey that they were . I believe that Holiday's failure to mention them to Vaughan, although he did mention Groomis, corroborates Dunn 's and Ramsey's testi- mony. I also agree with the General Counsel that Vaughan's testimony that the foreman of Collins and Rexroat "had personal reasons not to like them," strongly suggests that Vaughan did know they were at the bottom of the list. Had they, like Groomes, been above employees not selected for layoff, there would be no reason for Vaughan to claim their foreman did not like them ; his quarrel would then have been with Ramsey , or perhaps the general foreman, for selecting them for layoff "out of the chain of com- mand." 375 enough off others, selected for layoff. Aside from the fact that it is conceded that there was no requirement or prac- tice that the number laid off from the various crews be equal, Vaughan's arguments on behalf of Hendricks, the only one selected from, and the bottom man on, his crew, and his "compromise" solution to the entire problem, which resulted in eight being laid off from Brestol's, dem- onstrate that this argument, even if made, was not really a motivating factor in Vaughan's complaints. Taken all together, it is plain that Vaughan's asserted concern over violation of the chain of command require- ment of the contract, ostensibly the only reason he even went into the office for the ensuing discussion, was not his true concern at all; his asserted concern that there were too many from some lists was not his concern at all; and his explanation that he was using "District Council" as a shorthand way of describing carpenters who were by and large the last hired was not his concern at all. To the extent that Vaughan may have argued for a "last on, first off" concept, he would plainly have been asserting a position that had nothing to do with the contract's chain of com- mand principle." Vaughan testified, and Respondent argues, that, because as a general rule persons residing in a particular area nor- mally secured employment first because of their prior knowledge that the job was starting, members of other dis- trict council locals (other than the one in the area where the job was being manned) were the next hired, and mem- bers of locals outside the District Council altogether were the last hired; Vaughan used the terms "permit men," "District Council," and "Local" only as a shorthand way of identifying those who had been on the job the longest or the shortest. Had it been this kind of "seniority" that con- cerned Vaughan (and it must be borne in mind that Vaughan said he would have had no complaint if "chain of command," which does not involve seniority, had been fol- lowed), I could understand his saying to Ramsey "Why don't you lay off these District Council men who are all new on the job, rather than these Local 1092 men selected by their foremen who have been around for a long time?" In that context, the use of the employees' union affiliations might well be descriptive, rather than showing that Vaughan's concern was their union membership. But that is not what he said. Vaughan's own testimony, in short, demonstrates that virtually every argument he made to Ramsey was tailored so as to save Local 1092 men at the expense of District Council men. Although in arguing for Groomis, who was a Local 1092 member himself, he seemingly was arguing against Dyess and Cavins, who were below Groomis on the list, but were also Local 1092 members, the record does show that Vaughan regarded at least one of the two, Dyess, as one of Ramsey's "favorites," having come with Ramsey from another job. Furthermore, he lost that argument, and obviously did not argue the case of Tucker's upside-down list with any great vigor, where to have done so and suc- ceeded might have favored some permit men over Local 11 Although Vaughan testified that, everything else being equal, it was the practice that last hired would be the first laid off, "everything else" was not equal here, for the foremen had rated their employees in order of their qualifications. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1092 men. But Vaughan was successful in saving the job of Clements from the Brestol crew, even though Clements was far down on the list, based on his view that apprentices should remain on the job in a certain ratio , despite their lack of seniority or position on their foremen's lists. Not only is there no provision in the contract to this effect, McCarty, assistant project manager for Walsh, testified credibly that Walsh has never treated apprentices differ- ently from journeymen in layoffs. The foregoing analysis itself suffices to discredit Vaughan's testimony with respect to what was said and done at the August 7 meeting. There are other bases as well for discrediting him. Thus, when giving his version of the conversation with Ramsey , he made no reference whatso- ever to having said anything to the effect that travelers should be laid off first, District Council men second, and Local men last. Only when his counsel questioned him about the statement given to the Board agent, which con- tained that crucial language, did he admit to having said it, suggesting that he had already been testifying to that ef- fect. His demeanor in general, including his obvious reluc- tance to concede that an insertion in the affidavit he had given to the Board was made and initialled by him, when it clearly was, are further grounds for discrediting his testi- mony. I find, accordingly, that the events at this meeting oc- curred substantially as testified to by Ramsey and Dunn, that Vaughan told Dunn, before Ramsey came into the office, that Walsh was laying off too many Local 1092 members, while there were so many District Council mem- bers still on the job, stating "We are not going to work that way out here. We are going to lay off District Council people and keep our local people." When Ramsey arrived, Vaughan said approximately the same thing, that District Council members had to be laid off before Local members, and that Vaughan responded, "Yes, that's how it's going to be," to Ramsey's query whether he had to do that. After some discussion about Groomis (there is no real dispute on that score), and some other employees, Holiday compiled a list of District Council employees still on the job, referring to his book, and there were approximately eight left. Holi- day said that two could remain, but the six who had been with Walsh for only a short time had to go. Both Vaughan and Holiday then said that they would "swap" six District Council members for six Local members. At that point, as noted earlier, the five alleged discriminatees and Riveria were chosen for layoff from Brestol's crew, and six Local 1092 members were removed from layoff status. I have already concluded, even accepting Vaughan's version of what occurred at the meeting in Ramsey's office (but not, of course, his testimony with respect to motivation, or what he really meant by the "labels"), that his true motivation was to save Local 1092 men at the expense of District Council men. Based on my findings as to what did occur, having resolved the credibility conflicts, the illegal motiva- tion is manifest. Respondent argues that the facts, even assuming Vaughan's motivation was to save Local 1092 members from layoff, do not establish "cause" within the meaning of Section 8(b)(2), because Vaughan made no threats to Ram- sey, either express or implied, nor did he at any point "even indicate any retaliatory action." Furthermore, Ramsey tes- tified that he was not "fearful" in any respect. Respondent relies on language in Board cases suggesting that some- thing more than a bare request is necessary to constitute "cause" within the meaning of that Section. Whatever the Board's earlier view may have been,12 the more recent cases directly and unequivocally hold that "a Union 'caus- es' an employee's discharge, within the meaning of the Act, by successfully requesting the employer to effect it." (Em- phasis supplied). Furniture and Piano Moving etc., Local #82 (Arlington Storage), 210 NLRB 838, 841 (1974). See also, San Jose Stereotypers' and Electrotypers' Union No. 120, etc. (Dow Jones & Company), 175 NLRB 1066 (1969), where the Board found a union's "efficacious request" to constitute cause under Section 8(b)(2), and Yellow Freight System, Inc., 197 NLRB 979, 981 (1972), quoting from N.LR.B. v. Jarka Corporation of Philadelphia, 198 F.2d 618, 621 (C.A. 3, 1952), "This relationship of cause and effect, the essential feature of Section 8(b)(2), can exist as well where an inducing communication is, in terms courte- ous or even precatory, as where it is rude and demanding." I believe some of the confusion stems from the fact that the Board formerly took the position that a union-caused discharge violated Section 8(b)(2) irrespective of the reason for the Union's action, a view that to all intents and pur- poses ended with the Supreme Court's decision in Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N.L.R.B., 365 U.S. 667 (1961). In that earlier context, a mere request based on considerations wholly unrelated to union consid- erations would have violated the Act had the Board held that a "successful request" was sufficient to constitute cause, so the Board, in keeping with its theory that a union's demonstration of its power to control employment was per se a violation of the Act, refused to find violations upon a mere request when the motivation was benign. Fol- lowing Local 357, with union "causation" no longer suffic- ing as a per se basis for finding a violation, but with the basis for the union's action becoming a necessary consider- ation, the rules of the game had been altered. Thus, if the Union sought, even by a bare request, a discharge for union-related reasons (lack of membership being the most obvious), and the employer then discharged the individual, a violation by the union existed without regard to the fact that the employer acquiesced in a bare request. The other operative portion of Section 8(b)(2)-"attempt to cause"-is on a different footing, and it is with respect to the attempt-to-cause portion that there still seems to ex- ist a distinction between a bare request (not an "effica- cious" or "successful" one by definition, because the em- ployer has not acceded to it), and a request accompanied by threats, express or implied, even though the employer does not capitulate. This distinction was set forth shortly after the Taft-Hartley amendments, in Sub Grade Engineer- ing Co., 93 NLRB 406 (1951), enfd. sub. nom. International Union of Operating Engineers, Hoisting and Portable Local No. 101 of Greater Kansas City and Vicinity, A.F. of L. 216 12 And it seems to me that the Board in most of the earlier cases inferred an "implied threat" with little more than the union involved having advised or asked the employer for the discharge. CARPENTERS, LOCAL 1092 F.2d 161 (C.A. 8, 1954). The importance of this distinction is germane to this case in considering the General Counsel's allegation of an 8(b)(2) violation with respect to two subsequent (to August 7) layoffs, as discussed below. In sum, I find that Local 1092 Business Agent Vaughan successfully requested the layoff of employees McClellan, Darnell, Turner, Lampson, and Halmagyi, that his motiva- tion was to save the jobs of Local 1092 members at the expense of District Council members, and that Respondent thereby violated Section 8(b)(2) of the Act. D. The Alleged 8(b)(2) Violations in October 1974 There were two layoffs by Walsh following the August 7 layoff, on or about October 10,1974, and on October 18, 1974. Darnell, who had resumed working for Walsh, was in each instance the subject of an alleged violation of Section 8(b)(2) by Respondent. The first time, Local 1092 Assistant Steward Herman "Bones" Bruns said to Ramsey, at the time the layoff was being discussed, "Why don't you get rid of this guy here" (pointing to Darnell's name on a list). Ramsey replied that he "wasn't going to lay off . . . Dar- nell because Darnell was a good man and he was at the top of his . . . foreman's list ...." On October 18, Bruns, in a conversation with Ramsey concerning another impend- ing layoff, asked Ramsey if he "could lay off any more men," saying "you have two good permit men down in the field, and if you lay those two men off plus Darnell then I will see the President of the Local, Bill Hicks, and have them rehired back the following Monday morning." Ram- sey said, "No, I am not going to make any kind of deals like that, Darnell is a good man and I am going to keep him." Bruns did not deny either of the foregoing conversa- tions. These are the situations, referred to above, where a bare request, which is not acceded to by the employer, does not amount to "attempt to cause" within the meaning of Sec- tion 8(b)(2) of the Act, as I understand Board law. Accord- ingly, I dismiss these allegations of the complaint. E. The Alleged 8(b)(1)(A) Violations A series of events after the August 7, 1974, layoff, begin- ning about August 12 and ending the second week in No- vember, are alleged to have violated Section 8(b)(1)(A) of the Act. According to Darnell, on August 12, he attempted to clear into Local 1092. When he handed Vaughan his clearance card and union book, Vaughan said "I can clear you in but you're just going to make it rough on yourself." When Darnell asked Vaughan what he meant by that, Vau- ghan said that neither he nor his men "like other guys com- ing in clearing that Local just for that job out at the power plant." Two days later, Darnell again went to Local 1092's union hall. At that time, Vaughan refused to accept Darnell's union book and clearance card, telling Darnell he was just going to hurt himself trying to clear into Respondent's Local. Local President Hicks and Vaughan, using abusive language , stated that no one was going to clear into their Local if Hicks didn't want them to, and that they were "tired of being screwed by other locals," and were "going to take care of . . . local men." 377 About August 19, Halmagyi telephoned Vaughan, after being informed that there was a job for him. Vaughan told Halmagyi that he did have the job, but before he sent Hal- magyi out, he wanted him to "stop in his fucking office and he was going to wipe Halmagyi's ass up with the floor." This alleged incident occurred 5 days after the first charges in the instant case were filed. On September 4, the day Halmagyi, Darnell, and Lampson returned to work for Walsh, Vaughan met them at the union hall, and asked them if they were going to drop the charges. They re- sponded that they would not, and Vaughan stated "You boys are on your own." On September 30, Herman Bruns told Halmagyi that if he won his case he could "build his own shanty," that win- ning would cause union dues to go up $4 per month, and "if they raise our dues $4 a month we are going to get together and beat your fucking ass with a baseball bat." On October 9, Bruns again asked Halmagyi if he had dropped the charges, and said that it did not matter to him but "you are getting a lot of guys pissed off more or less and if I go through with the charges . . . the guys will get me one way or another." Later that same day, Bruns met Halmagyi, and told him he "better drop those goddamn charges or somebody is going to beat your brains in." Halmagyi reit- erated his intention to proceed with the charges, whereup- on Bruns said, "if you win this case you better not show your ass out here on company property or anywhere else around me or I will personally get your ass," that Halma- gyi would be "one dead mother fucker." Also on the same day, about 4:30 in the afternoon, Bruns again approached Halmagyi, and much the same sort of conversation oc- curred, with Bruns this time telling Halmagyi not to tell his lawyer about the threats or he would "beat in Halmagyi's fucking brains," and other remarks of a similar nature. Also on the same day as the preceding incidents a car- penter named Ted Haynes, accompanied by Bruns, met Darnell. Haynes grabbed Darnell in a bear hug, and said, "Are you the one that is suing the Local?" In the course of a conversation, with Haynes holding Darnell in the bear hug all during it, Bruns asked Darnell why he didn't drop the charges now that he had his job back, with Darnell answering that if he did, it would be just like it was before. Haynes said "Okay, let's get him," with Darnell then reaching for his hammer, at which point Haynes released Darnell. Just prior to the scheduled October 10 layoff, re- ferred to earlier, Holiday and Bruns approached Darnell, and asked him if he would drop the charges, telling him that they could keep his job for him, and guarantee him a job for I to 4 years if he would drop the charges. After some further conversation, with Darnell repeating that he would not drop the charges, Bruns said he knew "of a few men who have done this before and they were black- balled," and added "you know what happens when you're blackballed . . . you can not get a job as a carpenter no more." On November 4, 5, and the following week, three further incidents occurred with respect to Darnell, which are al- leged as violations of Section 8(b)(1)(A). On the first day, a bolt barely missed Darnell as he was walking near a well at the construction site. Bruns was standing about 25 feet above him, but did not, according to Darnell, give the nor- 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mal warning of "headache or heads up," that is given when there is danger from falling objects at a construction site. The next day, a large panel missed Darnell by a narrow margin. There were two men working above him at the time, who gave no warning to Darnell, but whom he could not identify. The next week, Darnell was riding on a panel, with Bruns responsible for giving the crane operator, who could not see Darnell, signals. The panel, according to Darnell, suddenly dropped about a foot, with Foreman Sheridan then yelling at Bruns to be careful or he would get somebody killed. The foregoing incidents are based on the testimony of Darnell and Halmagyi, whom I found to be credible wit- nesses. I do not credit the denials of Vaughan, Holiday, and Bruns with respect to the ones in which they were involved. With respect to the final three incidents involving Bruns, and, with respect to the second, two unidentified employees, I do not find any violation of the Act. There is no showing that Bruns actually saw the object fall on No- vember 4, and therefore no basis for concluding that he deliberately failed to warn Darnell. The second incident, involving only unidentified men, cannot in any event be attributed to Respondent. As to the third, there again is no showing that the drop of 1 foot was other than accidental, even though Foreman Sheridan warned Bruns to be care- ful. The crane operator could have been at fault. With respect to the remaining incidents, however, the illegality of the threats and intimidations to Halmagyi and Darnell are, as the General Counsel correctly states, "so obvious as to need no argument." Aside from contending that I should believe the denials of its witnesses, the alleged perpetrators of the acts in question, Respondent contends that "none of the allegations substantiate a violation of the Act . . . all revolved around petty nit picking bickering and that, in any event, they are de minimis." I do not agree. Coercive statements designed to prevent employees from pursuing their rights under the Act, even if small in num- ber, cannot lightly be sloughed off. I find, accordingly, that Respondent violated Section 8(b)(1)(A) in those respects. CONCLUSIONS OF LAW 1. Respondent Local 1092, by causing the Company to layoff employees McClellan, Darnell, Turner, Lampson, and Halmagyi, because they were not its members, en- gaged in unfair labor practices within the meaning of Sec- tion 8(bX2) of the Act. 2. Respondent Local 1092, by restraining and coercing employees for filing charges against it and refusing to with- draw them, has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and from like or related conduct, and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlaw- fully caused the Company to layoff five employees, it is recommended that it be ordered to notify the Company that it does not object to their reemployment by the Com- pany.13 It is further recommended that Respondent be or- dered to make these employees whole for any loss of earn- ings they may have suffered by reason of its unfair labor practices. Respondent's liability for backpay shall termi- nate 5 days after notifying the Company, as set forth above, that it has no objection to the reemployment of the five employees. Loss of pay shall be computed in accor- dance with the formula in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as described in Isis Plumb- ing & Heating Company, 138 NLRB 716 (1962). Upon the foregoing findings of fact and conclusions of law, upon the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDER 14 Respondent, International Brotherhood of Carpenters and Joiners, Local 1092, Seneca, Illinois, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing employees of Walsh Con- struction Company, by threats or other intimidatory con- duct, in the exercise of their rights guaranteed in Section 7 of the Act, and in the exercise of their right to file charges with the National Labor Relations Board, and to pursue those charges. (b) Causing Walsh Construction Company to layoff or otherwise discriminate against employees in violation of Section 8(a)(3). (c) In any like or related manner restraining or coercing employees in the exercise of their rights under the National Labor Relations Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Notify Walsh Construction Company, in writing, that it has no objection to the reemployment of McClellan, Darnell, Turner, Lampson, and Halmagyi. (b) Make the. aforesaid employees whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the section hereof entitled "The Remedy." (c) Post at its office and meeting hall in Seneca, Illinois, copies of the attached notice marked "Appendix." 15 Cop- ies of said notice, on forms provided by the Officer-In- 13 To the extent that some of the discriminatees have already been re- called, and the record shows that this is the case for some of them, this provision of the order will not apply 14 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. 15 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" CARPENTERS, LOCAL 1092 379 Charge for Subregion 38, after being duly signed by a rep- customarily posted. Reasonable steps shall betaken by the resentative of the Respondent, shall be posted by it imme- Respondent to insure that such notices are not altered, de- diately upon receipt thereof, and be maintained by it for 60 faced, or covered by any other material. consecutive days thereafter, in conspicuous places , includ- (d) Notify the Officer-In-Charge for Subregion 38, in ing all places where notices to employees and members are writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.