Plumbers, Local Union 136

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plumbers and Steam Fitters Local Union No. 136, United Association of Journeymen and Apprentices of Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Sandleben Plumb- ing Company) and James A. Ashley. Case 25-CB-1979 September 29, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On May 15, 1975, Administrative Law Judge Mau- rice S. Bush issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel and the Re- spondent filed exceptions, briefs, and answering briefs. 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 except as modified herein. Glenn Ashley, the Charging Party's father, was a member of the Respondent Union and a past vice president and finance committee member of Respon- dent. In March 1974, he was being considered for appointment by Respondent's business manager, Smith, as a business agent. In July 1974, after the Charging Party had filed the charge in the instant case, Smith told Glenn Ashley, "Glenn, about this business agent's job; of course, I am not trying to tell you to have him [the Charging Party] drop his case, but if he wins you know I couldn't appoint you that job." Smith did not deny making such a statement, but he testified that he was fearful of not being re- elected as business agent in the forthcoming internal union election in the event that he appointed Glenn Ashley as business agent and the latter's son pre- vailed in the instant proceeding. The Administrative Law Judge found that Smith was fearful that the appointment of Glenn Ashley as business agent would jeopardize his reelection possi- bilities and that Glenn Ashley, who was knowledg- able in internal union politics, was aware of Smith's predicament. In this context, the Administrative Law Judge concluded that Smith' s statement did not con- We disavow the personal comments of the Administrative Law Judge in the next to last paragraph of Sec . III, B of the attached Decision. stitute an unlawful threat but that Smith was merely telling Glenn Ashley, and the latter understood Smith to mean, that politically Smith would have trouble from the membership if he were appointed. We disagree. Rather, we find that Smith's state- ment to Glenn Ashley constituted an unlawful threat. Thus, the import of the plain language of Smith's statement was that Smith would withdraw Glenn Ashley from consideration for a position in the Respondent Union if his son were successful in his use of the Board's processes. It is immaterial whether Smith acted out of internal political consid- erations or out of vindictiveness. The threat was made and, aside from any consideration of Smith's motives,2 the making of the threat constituted a vio- lation of Section 8(b)(1)(A) of the Act. AMENDED CONCLUSIONS OF LAW Having made the above findings, we shall substi- tute the following paragraphs for the second para- graph in the Administrative Law Judge's Conclu- sions of Law: "By threatening its member, Glenn Ashley, that it would withdraw his name from consideration for a position or office in the Respondent if Respondent was found guilty of conduct alleged in charges pend- ing before the Board in the instant proceeding, the Respondent has violated Section 8(b)(1)(A) of the Act. "The aforementioned unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders the Respondent, Plumb- ers and Steam Fitters Local Union No. 136, United Association of Journeymen and Apprentices of Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Evansville, Indiana, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Threatening its members that it would with- draw their names from consideration for a position with the Respondent if Respondent was found guilty of conduct alleged in charges pending before the Board. (b) In any like or related manner restraining or coercing member employees in the exercise of their rights guaranteed by Section 7 of the Act. 2 Even assuming, arguendo, that Smith's motives were not improper, it is pure speculation whether Glenn Ashley understood this. 220 NLRB No. 131 PLUMBERS, LOCAL UNION 136 851 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act: (a) Post at its offices and hiring halls, copies of the notice attached marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Re- spondent's authorized representatives, shall be post- ed by Respondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (b) Notify said Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 3 In the event that this 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." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our members that we will withdraw their names from consideration for a position or office with Plumbers and Steam Fitters Local Union No. 136, United Associa- tion of Journeymen and Apprentices of Plumb- ing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, if said Union is found guilty of conduct alleged in charges pend- ing before the National Labor Relations Board. WE WILL NOT in any like or related manner restrain or coerce our members in the exercise of their rights under Section 7 of the National La- bor Relations Act, as amended. PLUMBERS AND STEAM FITTERS LOCAL UNION No. 136, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO DECISION STATEMENT OF THE CASE MAURICE S. BUSH, Administrative Law Judge: Charging Party James A. Ashley, a 22-year-old white apprentice plumber and pipefitter, wears his long, blond, and curly hair in a conspicuous, typically bushy and full-blown, Afro-style hairdo. On April 24, 1974, when Ashley was halfway through his 5-year apprenticeship, he was termi- nated from his apprenticeship and apprenticeship job. Under the above-skeletomzed but undisputed facts, the principal issue in the case is whether the Respondent Union acting through its alleged agent, the Joint Appren- ticeship Committee, unfairly I caused Ashley' s termination from a joint employer-employee apprenticeship program and the consequent loss of his apprenticeship job in viola- tion of Section 8(b)(1)(A) and (2) of the National Labor Relations Act because he refused to conform to the maxi- mum hair length standard adopted by the Committee. More comprehensively the issues under the pleadings, as amended, are (1) whether the Joint Apprenticeship Com- mittee is and was an agent of the Respondent Union within the meaning of Section 2(13) of the Act with respect to the action it took in terminating Ashley from his apprentice- ship and thereby causing him to lose his apprenticeship job, so as to make the Union legally responsible for any unfair labor practices involved in his termination from the apprenticeship program; (2) whether the Respondent Union by its agent, the Joint Apprenticeship Committee, promulgated and enforced arbitrary hair length standards and rules for apprentices which serve no legitimate purpose of the Union; (3) whether the Respondent Union, by its alleged agent, the Joint Apprenticeship Committee, com- mitted an unfair labor practice by denying to Ashley a periodic apprenticeship pay raise in February 1974 because of his failure to comply with the Committee's hair length standards; (4) whether the Respondent Union by its al- leged agent, the Joint Apprenticeship Committee, commit- ted an Unfair labor practice by terminating the apprentice- ship of Ashley and causing his discharge by his Employer on April 24, 1974, for reasons other than his failure to maintain his membership in the Respondent Union by the tender of periodic dues and initiation fees as a condition of acquiring or retaining membership and specifically because of the length of his hair;2 and (5) whether the Respondent Union, by its agent Robert A. Smith, threatened its mem- bers, more particularly Ashley's father, Glenn Ashley, that it would withdraw their names from consideration for a position or office in the Union if the Union was found guilty of discriminatory action against young Ashley be- cause of his failure to conform to the hair length standards of the Joint Apprenticeship Committee. The Union's first line of defense as developed at the hearing is that the Joint Apprenticeship Committee is not 1 In Miranda Fuel Company, Inc, 140 NLRB 181 (1962), enforcement denied 326 F.2d 172 (C.A. 2, 1963), both the Board and the court took cognizance of a long-established doctrine that fair dealings are demanded of unions in their dealings with employees. 2 Heretofore identified as the principal issue in the case. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its agent and that accordingly it is not legally responsible II. THE LABOR ORGANIZATION INVOLVED for the Committee's refusal of a periodic wage raise for Ashley and for the Committee's subsequent termination of Ashley from the apprenticeship program and the conse- quent loss of his job as an apprentice plumber and pipefit- ter. The Union's second line of defense is that in any event Ashley was nondiscriminatorily terminated from the ap- prenticeship program (1) because of his poor record at the apprenticeship school; (2) because his Afro hairdo appear- ance was not acceptable to employers for whom the Union acts as an exclusive referral agent under the master collec- tive-bargaining agreement ; and (3) because his extraordi- narly long hairdo constitutes a safety hazard from constant electric sparks emitted from welding torches which appren- tices learning the trade of a pipefitter must learn to use. The complaint herein was issued on October 11, 1974, pursuant to an original and an amended charge filed on May 9 and October 1, 1974, respectively, copies of which were duly served on the Respondent Union. The Union's answer denies the alleged unfair labor practices. The case was heard before me on November 19, 20, and 21, 1974, at Evansville, Indiana. Briefs duly filed by coun- sel for the General Counsel and the Respondent Union on January 21, 1975, have been carefully reviewed and consid- ered.' For reasons hereinafter indicated, I find the Respondent Union not in violation of the Act as alleged in the com- plaint as amended. Under the entire record in the case and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Robert Sandleben, an individual proprietor doing busi- ness under the trade name and style of Sandleben Plumb- ing Company, hereinafter sometimes called the Employer, with principal office and place of business at Evansville, Indiana, is engaged in the business of a mechanical con- tractor in the construction industry and as such he pro- vides and sells plumbing supplies and services and related products and services. During the past 12 months, a repre- sentative period, Sandleben, in the course and conduct of his business operations, purchased, transferred, and deliv- ered to his Indiana jobsites and his Evansville, Indiana, facility goods and materials valued in excess of $50,000 which were transported to his jobsites and facility directly from States other than the State of Indiana. During the same representative period, Sandleben , in the course and conduct of his business operations, performed services val- ued in excess of $50,000 in States other than the State of Indiana wherein his business operations are located. The record shows and the pleadings admit that Sandleben has been at all times here material an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3It is noted that counsel for General Counsel filed a 3-1/2-page brief as against the Respondent Union's 68-page brief. The above-named Respondent Union is a labor organi- zation within the meaning of Section 2(6) and (7) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Facts Charging Party James A. Ashley was accepted into the 5-year apprenticeship program of the Joint Apprenticeship Committee in September 1971. At that time, he was 19 years of age and wore his long hair in an Afro-style hairdo. At his preacceptance interview with the Joint Committee, he was asked if he would cut his hair if he were accepted into the program and he readily agreed that he would. At that time and at the hearing herein, Ashley wore his hair in an Afro-style hairdo. The hair on top of his head is 3 to 4 inches in length, and at the sides and back of his head his hair descends about 12 inches to the collar of his coat and covers both ears. In addition, he wears sideburns from his ears down to his neck and around most of his chin, but does not wear a beard in the usual sense of that word or a moustache. Ashley is unmarried and has no religious mo- tive for wearing his hair in the manner he does. A recent photograph of Ashley showing his Afro-style haircut is of record as Respondent Union's Exhibit 2. Ashley and 9 other young men were accepted simulta- neously into the apprenticeship program out of more than 100 applicants. When the group showed up at the Union's exclusive hiring hall in September 1971 for their first job referrals, they were reminded by Robert A. Smith, the Local's business manager, that they were expected to cut abnormally long hair to normal length. About a week after he started his first apprenticeship job, Ashley had his hair shortened somewhat to a more or less acceptable manner. He kept his hair cut that way for a period of about 8 to 12 months and thereafter allowed his hair to grow some 2 inches longer which gave him pretty much the same Afro hairdo he had when he was accepted into the apprenticeship program. At work his Afro hairdo had a more unkempt appearance than in his dressed-up appearance in his leisure hours , as depicted in his afore- mentioned photograph. From time to time members of the Joint Apprenticeship Committee and the Local's business manager, Smith, re- quested Ashley to get a shorter haircut, but he steadfastly declined. Earlier, Ashley's father, Lloyd Glenn Ashley, who is himself a journeyman pipefitter member of the Re- spondent, sought to get his son to cut his hair but, finding that he could not persuade him, he became resigned to his son's Afro-style haircut. On January 9, 1974, the Joint Apprenticeship Council unanimously adopted a maximum length hair standard for all apprentices, effective immediately, which permitted rea- sonably long hairdos of the mode currently in vogue, but in effect prohibited the apprentices from having Afro-style hairdos, such as Ashley wore, and the long hair some young men wear that extends down over the shoulders and is tied at the nape of the neck. The Committee entitled the PLUMBERS, LOCAL UNION 136 maximum hair standards "appearance standards." The text of the standards read as follows: All Apprentices Will Conform to the Following Ap- pearance Standards: Hair will be no longer than the collar line of a mans work shirt. Hair will not protrude at any point more than 1 1/2" from the head. Hair will not cover the ears. Hair will not protrude past the eyebrows. Face Hair (Side Burns) will be no lower than the bot- tom of the ear lobes. Hair on the upper lip shall not cover the entire upper lip or extend past the corners of the mouth. No hair (beards of any type) will be permitted on the lower jaw. The new appearance standards also provided a penalty for failure to comply therewith under which apprentices would lose the periodic increases they would normally re- ceive every 6 months during their apprenticeships. Following the posting of the above hair length stan- dards, all apprentices whose hair lengths exceeded the standards conformed to the standards except Ashley. Many of the young men in the trade who testified herein had haircuts in the attractive longish hairdos allowable un- der the appearance standards here under discussion. Ashley's father, Lloyd Glenn Ashley, who testified herein, also wore his hair in an attractive hairdo allowable under the standards, although as a journeyman pipefitter he was not subject to the appearance standards adopted by the Joint Apprenticeship Committee for apprentices. At a meeting of the Joint Apprenticeship Committee held on February 6, 1974, Ashley was told by the Commit- tee that he would be denied the periodic wage increase then about due to him if he did not comply with the Committee's appearance standards by getting a haircut. Ashley refused to cut his hair and as a result of his refusal the Committee notified Ashley's employer that Ashley was not to be granted the periodic pay raise. Accordingly, Ash- ley did not receive the wage increase in February 1974 he normally would have. Following the Committee's denial of the periodic pay raise to Ashley, the Committee began an investigation into Ashley's apprenticeship school record. Under the appren- ticeship program, every apprentice is required to attend two night school vocational sessions for a minimum of 252 hours during each year of the 5-year apprenticeship pro- gram.4 The two night sessions are devoted to both book study and actual shop performance. Pertinent provisions of the "Plumbers and Pipe Fitters Apprenticeship and Training Standards" as sponsored by the Plumbing and Heating Con- tractors Association of Evansville , Indiana, and The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry, Local Union No. 136, as administered by the Plumbers and Pipe Fitters Joint Apprenticeship Committee, Evansville, Indiana (G.C. Exh. 5), read as follows: 9. RELATED SCHOOL INSTRUCTION Apprentices will be required to attend the vocational school seven hours weekly for a minimum of 252 hours during each year of their apprenticeship. 853 The Committee's investigation into Ashley's school rec- ord showed the following: In classroom tests given in Octo- ber and December 1973, on the contents of required read- ing, Ashley's grades of 44.5 and 63 were the lowest in the class and his test grade of 66 in February 1974 was the next lowest in the class. The record also shows that for the same 3 months he was required to turn in five homework assign- ments, but only turned in one. Ashley' s class attendance record for the period January 1 to April 24, 1974 (when Ashley was terminated from the apprenticeship program), shows that he failed to attend two night school sessions in a class instructed by Gilbert A. Childers 5 and six night school sessions in a class instructed by Daniel B. Harrison. For the year 1973, Ashley's attendance record shows that he was absent seven times from classroom work and four times from shopwork. But the attendance records of other apprentices in Ashley's class, particularly that of Stephen Riggs, show that they missed a comparable, or greater, number of classes, but continued in the program. The Joint Apprenticeship Committee also caused an in- vestigation to be made of Ashley's work record with his last employer as an apprentice plumber and pipefitter for the period May 13, 1973, to his termination on April 24, 1974, for the purpose of determining whether he put in a full 40-hour workweek in all weeks he worked during that period. In that period, he was employed by the aforemen- tioned Robert Sandleben, a plumbing and pipefitting con- tractor, who is also a member of the Joint Apprenticeship Committee. Under date of April 8, 1974, Sandleben sub- mitted Ashley's payroll record to the Joint Committee for the aforementioned approximately 11-month period. That payroll record as augmented by Sandleben's testimony shows that "there were many weeks between May 13, 1973, and January 1, 1974, in which Ashley worked less than 40 hours each week, some of which were due to lack of work and some of which may have been for excused illness or other personal reasons. Ashley's credited testimony shows that he suffers from asthma which at times causes him to lose time from work. However, the evidence shows that in the last 12 weeks of his employment with Sandleben prior to his termination Ashley worked 40 hours each week ex- cept that in 1 week he missed 2 hours of work and on the week ending March 17, 1974, he missed 4 days of work for which there is no explanation of record and accordingly no inference is drawn from that absence that Ashley did not 12. PERIODIC EXAMINATION Before the expiration of each six month period, the apprentice may be called before the Joint Apprenticeship Committee for examination, the apprentice to have a statement from his instructor as to his attendance and progress in related subjects The committee shall examine the ap- prentice and determine whether the work for that period has been com- pleted in a satisfactory manner if the committee is satisfied with the progress of the apprentice, then, and not until then, shall the apprentice be advanced to the next period The employer shall have the right to appear at any and all examinations. (p 12) 18. DISCIPLINE Apprentices who are absent from school two (2) times without a valid excuse must appear before the committee and if absent three (3) times in any one school year, without valid excuse, shall show cause why his apprenticeship should not be terminated. Incorrectly spelled "Childes" in Resp. Exh. 3(d) which reflects atten- dance records for all members of Ashley's class G C Exh. 10 reflects test scores for all members of Ashley's class 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have good reason for the absence. Until April 8, 1974, when Sandleben received Ashley's payroll record pursuant to his special request from his pay- roll clerk, he was totally unaware that there were quite a number of weeks during Ashley's employment with him in which Ashley worked less than 40 hours per week. Al- though Sandleben employs some six or seven foremen, there is no evidence that any of them ever complained to Sandleben that Ashley was not putting in all the hours they asked him to put in per week. In the minutes of the Joint Apprenticeship Committee, dated April 24, 1974, which re- cords the action to terminate Ashley from the apprentice- ship program, there is no indication that Ashley's work attendance record with Sandleben played any part in Ashley's termination. From the record as a whole I infer and find that Ashley's work record with Sandleben was not a factor in his termination from the apprenticeship pro- gram. Sandleben's testimony shows that he considered Ashley's work performance and skill as good. Similarly other workers who worked with Ashley deemed him to be a good apprentice . Likewise Ashley's instructors in the ap- prenticeship program had no criticism of his actual shop- work in the school's shop. Although Ashley signed up for a plumber apprentice- ship, after he was in the program for 6 months he switched his apprenticeship to that of a pipefitter and was employed by Sandleben primarily as an apprentice pipefitter. On April 24, 1974, the Joint Apprenticeship Committee, consisting of three union members and three contractor members, called Ashley in for a conference . There it con- fronted him with the results of its investigation into his vocational school record, which as noted in greater detail above showed very poor test scores in his classwork, failure to turn in most of his homework assignments , and a num- ber of unexcused absences from school classes. In his own words of defense, Ashley replied that "I only said that I had started the program with the intention of finishing it, because I wanted to be a pipefitter, and just that, that I wouldn't have started it unless I wanted to finish it and that I didn't know what else they wanted me to say in defense of myself, what they expected me to say. They told me I was excused. So, I left the room." He did not deny the Committee's accusations about his poor classroom school record and his school absences except that he told the Committee that he thought three of the seven absences charged against him were allowable for all apprentices and that he took exception to the Committee's accusation that his participation in classwork was poor. With respect to that latter accusation, Ashley replied that he " . . . took as much part in class as any other member of the class." Some 15 minutes after the Committee excused Ashley from its meeting, it called him back and informed him that he was being terminated from the apprenticeship program effective immediately because of his poor school record. The Committee's minutes show that its action to termi- nate Ashley was the unanimous decision of all six members of the Committee. As a result of the termination of his apprenticeship, Ashley also immediately lost his job with Sandleben who, as a contractor member of the Joint Ap- prenticeship Committee, voted with the other Committee members for Ashley's termination from his apprenticeship. Before his termination from the apprenticeship program on April 24, 1975, Ashley had no prior notice or warning that the Committee was dissatisfied with his school record. At the time of his termination from both the Apprentice- ship Program and his job with Sandleben, Ashley was in good standing with the Union, with all his union dues paid up. From 1971 to 1974, the Joint Committee terminated only five apprentices. Three of these were terminated because they lost interest in their apprenticeships and dropped out and one was terminated because of a conviction for mur- der. Ashley was the only apprentice in this group of five to be terminated for the alleged reason of poor grades and poor attendance at the apprenticeship school although there were two other apprentices, Cole and Ice, who had test records substantially no better than Ashley's. For the month of February 1974, Ice's test grade was lower than Ashley's. Ashley's credited testimony shows that some 4 months prior to his apprenticeship termination the chair- man of the Joint Committee since 1965, Robert E. Ewers, a contractor, told Ashley, "You know, there are other ways, that we can get rid of you besides long hair." Not long after Ewer's above remark, the aforementioned business manager of the Union, Robert Smith, made a similar re- mark to Ashley. Although there is no direct indication in the minutes of the Joint Committee for April 24, 1974, that Ashley's Afro- style hairdo had anything to do with his termination from the apprenticeship program, there is recurring evidence throughout the record that Ashley was terminated from the apprenticeship program because of his refusal to conform his Afro hairstyle to the appearance standards of the Com- mittee as adopted on January 9, 1974. The Respondent itself alludes to this repetitive theme of the record in its brief as follows: There seems little point in proceeding to again set forth the evidence concerning the charging parties' hair-do in this cause. The record is clear that the mem- bers of the Joint Apprenticeship Committee, the Respondent's business representative [the aforemen- tioned Robert A. Smith], other employees in the trade, the present and past members of the Joint Apprentice- ship Committee all testified and obviously believed that the appearance standards adopted in the early part of 1974 were related to valid business and safety reasons. All of those persons were of the honest opin- ion that not just Ashley's but any unusual hair style, would cause the loss of customers or prospective cus- tomers to the employer. . . . They all testified that they felt that the long hair of Ashley and others, as well as long facial hair, was a safety hazard and most of them had experiences from their past upon which to base their opinion... 6 Under the collective-bargaining agreement here in- volved, the Union's headquarters functions as the exclusive hiring hall for both journeymen and apprentices, subject, 6 The omissions in the above quotation from Respondent's brief are sup- porting page references in the transcript of the testimony in the case. PLUMBERS, LOCAL UNION 136 however, to the right of employers to reject any applicants for employment referred by the Union. The agreement further provides that "Apprentices shall be employed and referred according to . . . and in con- formity with the rules established by the Joint Apprentice- ship Committee." One of the Committee's rules is its afore- said hair length appearance standards adopted some 4 months before Ashley's termination from the apprentice- ship program. These standards allow apprentices to have reasonably long haircuts in conformity with the present trend, but in effect prohibits extremes in hair lengths and appearance such as Ashley's Afro hairstyle. The record shows through the testimony of Business Manager Smith that the Local is under an implied obliga- tion as the exclusive employee referral agent for the Em- ployers under its collective-bargaining agreement to fur- nish them with reasonably groomed apprentices. Similarly, the record shows through the testimony of the employer representatives on the Joint Apprenticeship Committee that employers also expect their apprentices to have reasonably groomed appearances and generally do not want their apprentices to have extravagant appear- ances such as an Afro-style hairdo gives a man. The record further shows that some customers of plumb- ing contractors would refuse admission to their homes of young plumbers of bizarre appearance due to their extreme hairstyles because of prejudice or fear . There is no evi- dence, however, that any of the employers Ashley has been referred to for employment, or any of the customers of contractors Ashley worked for, have declined to have him work for them because of his extreme hairdo. However, Ashley has been subject to a good deal of ribbing by his fellow workers because of the extremity of his hairstyle. The record also shows that the Joint Committee was fear- ful that the hairstyle Ashley affected might influence other apprentices to follow his example. Wholly aside from the appearance factor, the record is conclusive that Ashley's long hair, which extends 12 inches down the sides of his head to the collar of his coat and shoulders and completely covers his ears, could be a safety hazard if he were called on to do a lot of welding, but his trade as a pipefitter calls for very little welding. The act of welding causes sparks to fly in all directions. In ordinary welding the only protec- tion the welder has is a hood which covers his face, a pair of goggles to protect his eyes, and a hard hat that covers his head. As the hard hat or helmet does not protect the ears and the hair that extends downward from the rim of the helmet, sparks which fly in all directions may hit the top or sides of the hat and from there fall into hair below the helmet where they could cause serious burns, more espe- cially in the case of workers who have a superabundance of hair such as Ashley has. On some jobs, a welder must use a welding torch in order to burn metal. On such jobs, the welder does not use a hood and his only protection against sparks are goggles and a hard hat. In that kind of welding, long hair constitutes an especial fire hazard. However, Ashley's apprenticeship is for training as a pipefitter not as a welder, which is an entirely different trade classification. Smith testified that for every 240 pipe- fitters in the Local there are 50 welders. In the 2- 1/2 years Ashley worked as an apprentice plumber and pipefitter, 855 there were only two occasions when his job required him to do some welding. On one of these occasions he wore a cotton liner which attached to the hatband of his hard hat and descended over his ears and most of his neck line ex- cept for the hair that sticks out from the back of his neck. The liner affords extra protection against sparks from welding but appears to be used mostly in the winter to protect the welder's ears from the cold. The Appearance Standards adopted by the Joint Ap- prenticeship Committee several months before Ashley's termination from the apprenticeship program deal exclu- sively with permissible hair lengths for apprentices and does not mention or in any way tie in hair length with safety hazards. (G.C. Exh. 5.) Similarly, the Committee's minutes of January 9, 1974, merely noted that the "Com- mittee agreed to a set of appearance standards . . .," but do not state directly or indirectly that the proscribed ap- pearance standards had any connection with safety haz- ards. Likewise, at the April 1974 meeting of the Joint Appren- ticeship Committee at which Ashley was terminated, no member of the Committee told Ashley that he was being terminated because the Afro hairdo he sported constituted a fire hazard in his work as a pipefitter. Similarly, the min- utes of that meeting do not attribute Ashley's termination to possible safety hazard attendant to his hairstyle. Although disputed by the Union, there is evidence tend- ing to show that the sole reason for the termination of Ashley from the apprenticeship program was his refusal to cut his hair to give him a more normal appearance. The credited testimony of Lloyd Glenn Ashley, a member of the Union and the father of young Ashley, shows that 2 weeks after his son was terminated he discussed the termi- nation with Gary Murphy, a member of the Joint Appren- ticeship Committee, who told the senior Ashley that his son's attitude was poor, "but I believe if he had his hair cut they [the Joint Committee] would have forgotten the whole thing." There is similar evidence of record from Barbara Taylor, who, as office manager of the Union, has a close relation- ship to the Union's business manager, Smith, who appoints the three union members to the Joint Apprenticeship Com- mittee. She testified that Smith told her that "he was fairly certain" that the Committee "were going to let Mr. Ashley go." At that point the following colloquy took place be- tween Barbara Taylor and myself: JUDGE BUSH : Did he [Smith] indicate why he thought the committee would let Mr. Ashley go? THE WITNESS: Because he would not co-operate. JUDGE BUSH: In what respect? THE WITNESS: By getting his hair cut. There is evidence that if Ashley even now would agree to cut his hair and try to better his classroom performance that the Union's business manager, Smith, who wields a great deal of influence, would recommend to the Commit- tee that Ashley be taken back into the apprenticeship pro- gram as appears from the following colloquy: JUDGE BUSH: Suppose Ashley came to you now and has his hair cut as short as yours and asked for a reinstatement as an apprentice, what would you rec- 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ommend? What would you recommend to the com- mittee? THE WITNESS [Mr. Smith]:... If he [Ashley] would upgrade his grades and get his hair cut I would rec- ommend to the committee ... to take him back into the program. Almost immediately after the above colloquy, I turned to Ashley who was sitting at the counsel table. Making reference to Mr. Smith's above testimony, I engaged Ash- ley from where he stood under his original oath in the following colloquy: JUDGE BUSH : Would you be willing to cut your hair? MR. JAMES ASHLEY: No, Sir. JUDGE BUSH : You would not be willing to cut your hair? MR. JAMES ASHLEY : No, Sir. JUDGE BUSH. And apply to the local union for re-in- statement? Your answer is no? The record is undisputed that because of Ashley's termi- nation from the apprenticeship program, the Respondent Union has at all times since his termination refused to refer him out for employment under its authority under the col- lective-bargaining agreement as the exclusive source for re- ferrals of journeymen and apprentices to be hired by em- ployer parties to the collective-bargaining agreement. Discussion and Conclusions From the Evidentiary Facts The complaint alleges two unfair labor practices by the Joint Apprenticeship Committee, as the alleged agent of Local Union No. 136, against young Ashley, the appren- tice. The issue of whether the Joint Apprenticeship Com- mittee is the agent of Local 136 is deferred to a later sec- tion of this Decision. This section will deal solely with the question of whether the acts charged to the Joint Appren- ticeship Committee did in fact occur, but the issue of whether such acts constitute unfair labor practices is like- wise reserved for a later section of this Decision. The first act charged by the complaint against the Joint Committee is that it denied Ashley a pay raise because he failed to conform to a standard or rule adopted by the Committee. As heretofore shown that standard required all apprentices to conform the length of their haircuts to pro- scribed limits. I find and conclude, as admitted by the Union, that the Joint Apprenticeship Committee did adopt the hair length standards for apprentices here under con- sideration and that it did deny Ashley a periodic wage in- crease that he would otherwise have been entitled to be- cause of his failure to conform with that standard. The Union's defense that these actions were nondiscriminatory and were "related to valid business and safety reasons" will be discussed in a later section of this Decision. The second or only other charge of the original com- plaint is that the Joint Apprenticeship Committee termi- nated Ashley from its apprenticeship program "because of the length" of his hair. There was a factual controversy over whether the length of Ashley's hair was the only rea- son for his termination from the program. The Respondent Union admits that Ashley's hairstyle was one of the rea- sons for his termination , but contends that there were addi- tional reasons for his severance from the program , namely, the safety or fire hazard his long hair presents when he welds, "his poor performance in tests and classes at the apprenticeship school, his failure to turn in all but one of six assignments at the school , absenteeism at the school, and absenteeism at work." I It is Respondent's position that Ashley was terminated for the totality of these rea- sons. With reference to the "safety hazard," I find that it played no genuine part in Ashley's termination from the apprenticeship program. This is evident from the fact that the Joint Apprenticeship Committee never even mentioned the safety factor when it promulgated and posted its hair length standards which it actually described in its minutes as "Appearance Standards." Similarly, it is evident that as a pipefitter apprentice and not as a welder apprentice Ash- ley was very seldom called upon to do any welding and accordingly was subject only to the barest minimal chance of injury to his person by reason of his long hair from the rare occasions he is called upon to do some welding. There is no evidence that on the only two occasions in his 2-1/2 years of apprenticeship that he was called on to do welding that he suffered any injury to his hair and head from flying sparks. With reference to Ashley's poor school record, there is evidence that the Joint Apprenticeship Committee, having failed to get Ashley to comply with its Appearance Stan- dards, dug into his school records for a pretext for termi- nating him from the apprenticeship program because of his long hair. Ashley's credited testimony shows that both Ewerts, a contractor member of the Joint Committee, and Union Business Manager Smith, told Ashley, "You know, there are other ways, we can get rid of you beside long hair." The record further shows that two of the apprentices in Ashley's class, Ice and Cole, had grades substantially as low as Ashley's but that they were not terminated for that reason or, as far as the record shows, were ever warned that their grades were not satisfactory or put on notice that they would be terminated if they did not improve their grades. Another significant fact of record is that, of the five ap- prentices terminated by the Joint Committee for the period 1971 to 1974, Ashley was the only one dropped from the apprenticeship program because of low school grades and more than the allowable absences from attendance at the apprenticeship school. Of the four others who were termi- nated, one was because of a murder conviction and the other three because they lost interest in their apprentice- ships and dropped out of the program. The record shows, as heretofore noted, credited testimony that a member of the Joint Apprenticeship Committee, Murphy, and the Union's business manager, Smith, admitted that Ashley's hair length was the moving cause for his termination from the apprenticeship program. There is no evidence or claim by the Joint Committee that Ashley was terminated be- cause his job performance as an apprentice pipefitter was not satisfactory or that his actual shopwork in the appren- ticeship school was not satisfactory. On the contrary, the record shows that Ashley's actual work performance and his shopwork at the school was good. For all of these rea- sons, I find and conclude that the Joint Committee used 7 The quotation is from Respondent's brief PLUMBERS, LOCAL UNION 136 857 Ashley's apprenticeship school record as a pretext for his termination from the apprenticeship program. Respondent's final stated reason for Ashley's termina- tion from the apprenticeship program was that in the 11 months or so he worked as an apprentice for contractor Sandleben, who is also a member of the Joint Apprentice- ship Committee, there were many weeks, but not in the last 3 months of his employment, in which he did not work a full 40-hour week. The significant fact here, as shown in the findings above, is that Sandleben was totally unaware of any significant attendance problem on Ashley's part un- til at the Committee's suggestion he called for and looked at Ashley's record. There is evidence that some of Ashley's less-than 40-hour workweeks were due to lack of work and that others were due to personal reasons, such as absences necessitated by asthma attacks. There is no evidence that any of Ashley's foremen ever complained to Sandleben about his work attendance record. I find and conclude that Ashley's work attendance record in connection with his job as an apprentice with Sandleben was another pretext for his discharge. In summary I find that all of the reasons advanced by the Respondent for Ashley's ouster from the apprentice- ship program are pretextual except for his failure to con- form with the appearance standards of the Joint Appren- ticeship Committee with reference to hair length . From the record as a whole, I find that Ashley was terminated from the apprenticeship program solely because he refused and still refuses to shorten his hair to conform with the Committee's appearance standards . I also reiterate the ad- mitted fact and conclusion that Ashley was denied a peri- odic wage increase in February 1974 solely because he re- fused to cut his hair to conform to the Committee's appearance standards. As these two actions involve ques- tions of legal validity common to both, their validity will be determined as a single question in a subsequent section of this Decision. The next section of this Decision will deal with the issue of whether the Joint Apprenticeship Committee is an agent of the Respondent Union and whether the Union is legally responsible for the actions the Committee took against Ashley as set forth above. B. Facts Relating to Question of Whether Joint Apprenticeship Committee is an Agent of the Union As heretofore noted, the Joint Apprenticeship Commit- tee is composed of six members . Three of these represent employers and are appointed by the multiemployer bar- gaining association. The other three members are journey- men representing the Union who formerly received their appointments from the president of the Union but are now appointable by the Union's business manager, the afore- mentioned Robert A. Smith. The three journeymen on the Committee are also removable at the will of Smith. The members of the Committee serve indefinite terms ; many of the members of the Committee have served many years. The Joint Apprenticeship Committee has charge of and administers a 5-year training program for apprentices in the trades here involved under standards sponsored by the parties to the collective -bargaining agreement , to wit, the Union and the Association of Plumbing and Heating Con- tractors. Applications for admission to the program are submitted to the Union, but the actual selection of candi- dates for acceptance into the program is by the Committee. The 5-year program incorporates classroom work, school shopwork, and on-the-job training. The Union's business manager, Smith, has full authority under the collective-bar- gaining agreement to place apprentices on jobs with em- ployers, but in practice the Committee selects the contrac- tor for whom the apprentice is to work and Smith generally goes along with that practice by sending apprentices to the contractor selected by the Committee. On rare occasions, when Smith thinks nepotism is involved in the Committee's selection of a contractor for an apprentice, he exercises his original authority under the collective-bargaining agree- ment to assign the apprentice to another contractor. The Respondent herein is the double personality of the Local Union and the United Association 8 of which the Local is a constituent part. The constitution of the United Association under section 127 therein provides that "All Local Unions of the United Association shall establish an apprentice system and related training that will afford craft or trade covered by the jurisdiction of the Local Union." The next sentence of the same section of the Association's constitution provides that "The Business Manager of the Local Union shall appoint a Committee on Apprentice Training whose duties shall be to establish an apprentice training program ...: ' Although as seen from the above quotation, the constitu- tion appears to call for an apprenticeship committee whose members are to be solely selected and appointed by the Local's business manager, that provision by agreement of the parties 9 has been altered since 1945 to call for the ap- pointment of a Joint Apprenticeship Committee of six members, three members who are appointed by the Associ- ation of Contractors and three appointed by the Local as shown above. The collective-bargaining agreement provides for the ex- penses of the Joint Apprenticeship Committee by the es- tablishment of a Joint Apprenticeship and Training Fund "Which shall be the depository for all funds contributed for the expense and maintenance of the Apprenticeship and Training Program." The bylaws of the Respondent list the Joint Apprentice- ship Committee of Local No. 136 as one of its standing committees. Discussion and Conclusions All the evidence of record shows as alleged in the com- plaint that the Joint Apprenticeship Committee is "an ad- junct of the hiring procedure" of the collective-bargaining agreement which gives the Local the exclusive right for referrals of journeymen and apprentices to contractors. The original apprenticeship committee was a creature of the Respondent's constitution. Its character as an adjunct of the Respondent Union was not changed when the 8 The full title of the United Association is as shown in the caption, Unit- ed Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO 9 As set forth in the training standards as agreed to by the Association of Contractors and the Respondent (G C. Exh. 4) and also by the collective- bargaining agreement of the parties (Jt. Exh. 1). 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union by agreement with the employers reconstituted the committee as a Joint Apprenticeship Committee . The Joint Committee is named in the Local's bylaws as one of its standing committees. The business manager of the Local has the authority to appoint the three union representatives to the Committee and the right to take them off the Com- mittee. While the Committee is charged with the duty to administer the apprenticeship program, it does this as the agent of the Local as well as that of the employers. The Local has the exclusive right to refer all apprentices under the supervision of the Joint Committee to employers who seek the services of apprentices, although in practice the Local's business agent will almost invariably refer appren- tices to employers recommended by the Committee. From all the evidence of record, I find and conclude that the Joint Committee in its disciplining of young Ashley by denying him a periodic wage increase in February 1974 and terminating him in April 1974 because he failed to cut his hair to conform with the Committee 's appearance stan- dards was functioning as an agent and was the agent of the Respondent and that the Respondent is legally responsible for such acts if they constitute unfair labor practices. Throughout its brief, Respondent complains that Ashley has not made use of the appeals committee provided for in the collective-bargaining agreement for the airing of his complaint that he was unfairly denied a periodic wage in- crease and unfairly dropped from the apprenticeship pro- gram by the Joint Committee. It appears that Ashley could have used the appeals provision of the agreement for a resolution of his complaints as article IV of the agreement states that "It shall be the function of the Appeals Commit- tee to consider any complaint of any employee or applicant for employment arising out of the administration by the Local Union of Article III" and deals with Hiring Proce- dure for apprentices as well as journeymen. Moreover, the appeals committee under the agreement by a majority vote has the "power to make a final and binding decision on any such complaints." However, there is nothing in the collective -bargaining agreement or in Board law which requires Ashley to use the arbitration machinery of the collective -bargaining agreement for the resolution of his complaints against the Respondent Union. The dispute he has is with the Union itself, not with an employer because it was the acts of the Union by its agent, the Joint Apprenticeship Committee, that caused him a denial of a periodic pay raise and the termination of his apprenticeship and consequent loss of his job as an apprentice with an employer. The Collyer doctrine,10 under which the Board defers to arbitration questions that arise under collective-bargain- ing agreements that have arbitration clauses, is not here applicable because the Collyer doctrine applies only to dis- putes between an employer and a union and not, as here, a dispute solely between a union and one of its members. Discussion and Conclusions on Issue of Whether Respondent's Denial of a Periodic Wage Increase for Ashley, and its Subsequent Termination of his Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). Apprenticeship, was Discriminatory and in Violation of the Act As heretofore shown and found, Respondent's sole cred- ited reason for denying a wage increase to Ashley, and shortly thereafter terminating him from his apprenticeship, was his failure to comply with the appearance standards or more precisely stated the hair length standards adopted by Respondent's agent, the Joint Apprenticeship Committee. The Committee's termination of Ashley's apprenticeship in turn led immediately to the termination of his job as an apprentice by his employer, Sandleben. The complaint alleges and General Counsel contends that the appearance standards adopted by its agent, the Joint Apprenticeship Committe, are "arbitrary standards and rules applicable to apprentices which rules and stan- dards serve no legitimate purpose of the Respondent." A subsequent paragraph of the complaint more fully alleges that the appearance standards were adopted "for arbitrary, unfair, and capricious reasons , to wit, because of the length of James A. Ashley's hair, notwithstanding that no legiti- mate purpose of the Respondent was served thereby. General Counsel relies on the well-established doctrine that a union owes a statutory duty to fairly represent all employees covered under a collective-bargaining agree- ment. As stated by the Supreme Court in 1967 in Vaca v. Sipes, 386 U.S. 171, 177 (1967) this doctrine of "statutory duty of fair representation was developed over 20 years ago in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act . . . and was soon extended to unions certified under the N.L.R.B.... Under this doc- trine, the exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obli- gation to serve the interests of all members without hostili- ty or discrimination toward any , to exercise its discretion with complete good faith and honesty, and to avoid arbi- trary conduct." The Board in 1962 in Miranda Fuel Company, Inc., 140 NLRB 181 (1962), enforcement denied 326 F.2d 172 (C.A. 2, 1963), under the statutory authority of Section 8(b) of the Act, enacted in 1947, officially embraced the above- noted court-developed doctrine of the obligation of unions to fairly represent all members of a designated unit. In Miranda Fuel, the Board held that Section 7 of the Act "gives employees the right to be free from unfair or irrele- vant or invidious treatment by their exclusive bargaining agent in matter affecting their employment," and "that Section 8(b)(1)(A) of the Act accordingly prohibits labor organizations, when acting in a statutory representative ca- pacity, from taking action against any employee upon con- siderations or classifications which are irrelevant, invidi- ous, or unfair." Under Miranda Fuel, the ultimate question for decision in the present case is whether the imposition of Respondent's appearance or hair length standards for ap- prentices on Ashley and the resulting penalties for his fail- ure to conform to such standards constitute "taking action against any employee upon considerations or classifica- tions which are irrelevant, invidious, or unfair." Upon the entire record I find and conclude that the Re- PLUMBERS, LOCAL UNION 136 spondent Union by the adoption and enforcement of its appearance or hair length standards did not establish clas- sifications or considerations which are irrelevant , invidi- ous, or unfair. In arriving at this conclusion, I rely on a number of factors. Among such factors is the fact that the Respondent's appearance standards were adopted and pro- mulgated to apply to all apprentices and not only to Ash- ley. In other words the Respondent did not establish a clas- sification that was applicable to Ashley only. A second factor is that the Respondent, as the exclusive referral or hiring agent for the contractors with whom it has a collec- tive-bargaining agreement, is under an implied contractual obligation not to refer to contractors' young apprentices of unconventional appearances such as the appearance Ash- ley has by reason of his bushy Afro-style hairdo. A third factor is that the evidence shows that some homeowners would refuse or be reluctant to admit into their homes for plumbing repairs apprentices of bizarre appearances such as Ashley's appearance. A fourth factor is that the appear- ance standards adopted by the Respondent do not impose any real hardship on apprentices because they permit a wide latitude of hairdos in the current long hair mode. For the above reasons I find that the Union's appear- ance standards for apprentices as adopted by its agent, the Joint Apprenticeship Committee, are not unfair, irrelevant, or invidious. In my opinion the appearance or grooming standards adopted by that Committee, composed of an equal number of mature men representing both the Union and employers, should have precedence over the personal and unconventional grooming standards of 22-year-old Ashley. The record shows that the Committee gave Ashley more than ample opportunity to comply with its grooming standards before imposing the penalties that caused him the loss of a periodic wage increase and shortly thereafter his very apprenticeship and job. It was Ashley's choice to keep his unconventional haircut as against keeping his ap- prenticeship and attaining eventual journeyman status. The record shows that the Union's business manager and the members of the Joint Apprenticeship Committee are kindly men who would have preferred to keep Ashley in the apprenticeship program if he had only agreed to be less bizarre and more conventional in his hairstyle. The record also gives strong indication that the Joint Committee would even now give kindly consideration to taking Ashley back into the apprenticeship program if he agreed to cut his hair and showed some contriteness of spirit. Sooner or later Ashley will realize that he has made a mistake in giving his present hair style precedence over the opportuni- ty to complete his apprenticeship and attain a trade that will give him financial independence. I urge Ashley to con- form his hairdo to the Committee 's liberal appearance standards and to make reapplication for readmission to the Union's apprenticeship program and urge the Committee to give him another chance in view of his youth, as the evidence shows that Ashley has the potentialities for be- coming a first-rate journeyman. In conclusion I find that the Respondent is not in viola- tion of Section 8(b)(1)(A) and (2) of the Act by reason of the actions it has taken against Ashley as alleged in the complaint and set forth in the above findings of fact and, accordingly, I will recommend that the portion of the com- plaint that relates thereto be dismissed for failure of proof. 859 C. Facts Relating to New Issues Raised by Amendment to Complaint At the hearing pursuant to motion by counsel for Gener- al Counsel, paragraph 7 of the complaint was orally amended by addition of the following paragraph:" 7. (a) On or about July 1974, the Respondent, by its agent Robert A. Smith, threatened its members that it would withdraw their names from consideration for a position or office with the Respondent if Respondent was found guilty of conduct alleged in the charges pending before the Board in Case No. 25-CB-1979, and for the purpose of discouraging its members and other persons from filing charges or giving testimony under the Act. The above-noted amendment to the complaint is factual- ly related to the difficulties James Ashley has had with the Respondent over his unconventional hairstyle which was resolved above in favor of the Union and against James Ashley. Although the amendment alleges that Union Business Agent Smith "threatened its members" with reprisals if young Ashley prevailed in his charges against the Union, the record shows that there was an alleged threat made to only one member of the Union, to wit, Ashley's father, the aforementioned Lloyd Glenn Ashley, commonly called Glenn, rather than Lloyd. The senior Ashley, a pipefitter journeyman member of the Union for 25 years, has known and had cordial rela- tions with Union Manager Smith for many years. Glenn Ashley's credited testimony shows that in March 1974 he had a telephone conversation with Smith over vari- ous matters, but that during the course of their conversa- tion Smith inquired if he would consider a position as busi- ness agent for the Local, as it was planning "to put on another man for organizational purposes." Ashley replied that he would be honored to take the position. At that time and up to the time of the hearing herein, the Local had only two business agents, Smith, as its elected business manager, and an appointed business agent who worked under Smith. Although Glenn Ashley held no office in the Union at the time Smith felt him out as to whether he would take a position with the Local as a business agent, Ashley in earlier years had been a member of the Union's finance committee for a year and had been its vice presi- dent for 4 years. His testimony shows him to be an attrac- tive, able, and articulate person. At the time of the conver- sation between Glenn Ashley and Smith in March 1974, James Ashley, Glenn's son, had not filed his charge against the Union; the filing of his charge did not take place until May 9, 1974. Smith testified that he could not recall the above-de- scribed telephone conversation with Glenn Ashley in March 1974, but did not deny that such a conversation took place. He admitted, however, that for some months prior to the filing of young James Ashley's charges he had been giving serious consideration to selecting an additional 11 Later the amendment was reduced to writing and received in evidence as G C. Exh 9. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business agent for the Local through the process of select- ing the 10 best prospects from the membership of the Local and comparing in his own mind their qualifications for the job. Glenn Ashley was one of the possible candidates he considered as he regarded him as a "good" man. Although Smith has the authority to appoint a business representa- tive without the vote of the membership , his credited testi- mony shows that he had to be careful not to select a new business agent who would not be unpopular for any reason with the membership, and was mindful that if he selected an unpopular or a controversial member to the job, that could cause his (Smith) defeat when he came up again for reelection to the office of business manager of the Local. Both Smith and Glenn Ashley recall a latter conversa- tion they had in July 1974 at a jobsite in Petersburg, Indi- ana, at which the subject of Glenn's selection for the posi- tion of business agent came up ; that conversation occurred after young Ashley had filed his charges with the Board against the Local. According to Ashley's testimony, Smith said to him, "Glenn, about this business agent's job; of course, I am not trying to tell you to have him [his son James Ashley] drop this case [meaning the charges that led to the issuance of the complaint herein ], but if he wins you know I couldn't appoint you to that job." Smith's recollection of his conversation with Glenn at Petersburg is very close to Glenn's version . Smith admits bringing up the subject of a job for Glenn as an assistant business agent. Smith further admits he told Glenn that he "didn't know what this trial [involving the charges of Glenn's son, James Ashley, against the Union], you know, how or what the members [of the Local] would think about it, if I did appoint him [Glenn Ashley to the job of assistant business agent]." Smith's credited testimony also shows that while he con- sidered Glenn Ashley a "good man" for the post of assis- tant business agent , he put off the possible appointment pending the outcome of the charges of Glenn's son against the Local because he was fearful that if young Ashley pre- vailed in his charges against the Local, and if he had prior thereto made Glenn Ashley an assistant business agent, both he and Glenn could be "scalped" by the membership when he (Smith) came up for his periodic reelection to his position as business manager of the Local. I credit Smith's testimony that he did not engage in any attempt to prohibit or restrain Glenn Ashley from testify- ing in the case involving his son James. Smith is 58 years of age and has held the elective position of business manager of the Local for the past 12 years; I find that at his age if he failed to be reelected and had to revert back to the manual work of a journeyman, he would find it difficult to regain the physical vigor required of a working journeyman. For these reasons I find that Smith was anxious to avoid creat- ing any situation that would jeopardize his job as the Local's business manager for which his long experience and skill in handling men best qualified him. There is additional testimony on whether Smith had Glenn Ashley under consideration for appointment as an assistant business agent and his reasons for withholding the appointment pending the outcome of James Ashley's charges against the Local. The credited testimony of Bar- bara Taylor, formerly Smith's personal secretary for many years and in recent months the Local's office manager, shows that Smith had given consideration to the appoint- ment of Glenn Ashley, among other potential candidates, to the office of assistant business manager of the Local since February 1974, and that in June 1974, he told her that "he was still considering it, that he wasn 't going to do anything yet at this time, that he had considered Mr. Ash- ley for the job, but with the National Labor Relations Board Lawsuit [re James Ashley]; . . . he didn't feel that the membership would approve of him putting Mr. [Glenn] Ashley in the job. So, he just wasn't going to do anything about it at the time." Counsel for General Counsel in his brief described Barbara Taylor as a "clearly disinterested witness." I infer and find from the combined testimony of Glenn Ashley, Business Manager Smith , and Barbara Taylor, his confidante and former secretary, that Smith was very fear- ful that if he appointed Glenn Ashley to the position he wanted in the Local and it later developed that Glenn's son, James, prevailed on his charges against the Local, the membership of the Local would hold it against him (Smith) that he gave an appointment to the father of an apprentice who caused a suit to be started against the Local that could cause it to become indebted to James Ashley for a consid- erable amount of backpay. I further infer and find that Smith was also fearful that if that situation developed, he could become the target of severe criticism and attack when he sought reelection to his post of business manager at the next membership election for that office, and that such criticism and attack could cause him to lose his post as business manager. I also infer and find that Glenn Ashley, who was knowl- edgeable of the reality of the internal politics in the Local by reason of having been its vice president for 4 years, was fully aware of the danger that faced Smith as outlined above if he gave him an appointment to the job of assistant business manager; and it later turned out that his son, James, won a substantial amount of backpay as the result of his charges against the Local. From the record as a whole , I find that Glenn Ashley knew that Smith's statement to him that, "I am not trying to tell you to have him [James Ashley] drop this case," was not in the context of the entire conversation intended as a threat against him but that Smith was merely telling him that if he gave him the appointment then , he (Smith) could have trouble with the membership for doing so. In conclusion, I find that General Counsel has failed to sustain his burden of proof under the amendment to para- graph 7 of the complaint here under consideration. CONCLUSIONS OF LAW The Respondent has not engaged in unfair labor practic- es in violation of Section 8(b)(1)(A) and (2) by causing James Ashley not to receive a periodic wage increase from his Employer in February 1974, by its subsequent termina- tion of Ashley from the joint apprenticeship program, by causing him to lose his job with his Employer, and by its refusal thereafter to refer him out for employment. It is further concluded that General Counsel has not sus- tained his burden of proof under the allegations of para- graph 7 of the complaint as amended at the hearing. [Recommended Order for dismissal omitted from publi- cation.]