Local Union No. 725, Plumbers

138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 725 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Cana- da, AFL-CIO (Powers Regulator Company 1) and Ronald L. Reik. Case 12-CB-1555 June 24, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On November 28, 1975, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions combined with a supporting brief, the Charging Party filed counter-exceptions and a supporting brief, and Respondent filed an answering brief to the Charging Party's counter-exceptions and the General Counsel's cross-exceptions. 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, as modified herein,' and to adopt his recommended Or- der.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby I The name of this party appears as amended at the hearing 2 The General Counsel and the Charging Party have excepted to the Ad- ministrative Law Judge's failure to find that Respondent's discrimination against Ronald Reik also created a coercive impact on other employees and that Respondent thereby further violated Sec 8(b)(1)(A) of the Act We agree that these exceptions have merit In the circumstances surrounding the selection of Reik by the Employer and Respondent's subsequent refer- rals of other employees for the position, we find that it is reasonable to infer that at least the referred employees were aware of Respondent's discrimina- tory conduct against Reik and that Respondent's discriminatory actions resulted in a coercive impact on these employees violative of Sec 8(b)(I)(A) of the Act 3 Members Fanning and Jenkins would not in any event defer to arbitra- tion in this proceeding for the reasons set forth in their dissents in Collyer Insulated Wire, A Gulf and Western Systems Co, 192 NLRB 837 (1971), and subsequent cases Chairman Murphy finds that under any view of that case, deferral to arbitration would not be appropriate orders that Respondent , Local Union No. 725 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the Unit- ed States and Canada , AFL-CIO, Miami, Florida, its officers , agents, and representatives , shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE JOEL A HARMATZ, Administrative Law Judge: This pro- ceeding was heard in Coral Gables, Florida, on September 11, 12, and 22, 1975, upon a charge filed on April 2, 1975, and a complaint issued on July 3, 1975, alleging that Re- spondent violated Section 8(b)(1)(A) of the Act by threat- ening the Charging Party with bodily harm and exclusion from Respondent's hiring hall if he secured employment with Powers Regulator Company, the Intervenor. The complaint further alleges that Respondent violated 8(b)(2) and (1)(A) of the Act, by refusing to refer the Charging Party to said Intervenor for employment, thereby causing or attempting to cause the latter to discriminate in viola- tion of Section 8(a)(3) of the Act. In its duly filed answer, the Respondent denied that any unfair labor practices were committed. After close of the hearing, briefs were filed by the Respondent, the Intervenor, the Charging Party, and the General Counsel Upon the entire record in this proceeding, and after con- sideration of the briefs of the parties, and from my obser- vation of the witnesses and their demeanor while testifying, I make the following. FINDINGS OF FACT I THE BUSINESS OF THE INTERVENOR Powers Regulator Company is a Delaware corporation with an office and place of business located in Miami, Florida, from which it is engaged in the construction indus- try as a general contractor. During the 12-month period, preceding issuance of the complaint, a representative peri- od, Powers Regulator Company purchased and received materials and supplies valued in excess of $50,000, which were shipped to its Florida jobsites directly from points located outside the State of Florida. The complaint alleges, the answer admits, and I find that Powers Regulator Company is, and, at all times material, has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Respondent, Local Union No. 725 of the United Asso- ciation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 225 NLRB No. 18 LOCAL UNION NO. 725, PLUMBERS 139 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue Principally at stake in this proceeding is the question of whether Respondent Local 725, by failing, under an exclu- sive hiring arrangement, to refer Ronald L. Reik, upon spe- cific request by Powers Regulator Company for his em- ployment, violated Section 8(b)(1)(A) and (2) of the Act. B. The Facts Powers Regulator Company, herein called Powers or the Employer, operates throughout the country, and in its sta- tus as a national contractor, Powers has designated the Pneumatic Control Systems Council, a multiemployer bar- gaining association, as its representative for purposes of negotiating with the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, herein called the International Union. By virtue of its membership in the Pneumatic Control Systems Council, Powers is signatory to and bound by a collective-bargaining agreement, having a term of November 1, 1974, through October 31, 1975, and referred to herein as the national agreement. Powers has no direct contractual relationship with Re- spondent Local 725. However, insofar as material, article VIII of the national agreement requires signatory employ- ers to utilize hiring referral systems of the International's constituent local unions, including Local 725, in obtaining craftsmen within the jurisdictional coverage of the national agreement, by providing as follows: The Employer agrees to be bound by the hiring provi- sions of the agreement of the local union having juris- diction that are not inconsistent with the terms of this agreement. The instant controversy involves the branch office main- tained by Powers in Miami, Florida. Operations conducted by that office are within the geographic jurisdiction of Re- spondent Local 725, which includes Dade, Broward, and Monroe Counties, Florida. Local 725 and the Air Conditioning, Refrigeration, Heating and Piping Association, Inc., herein called ACRA, are parties to a collective-bargaining agreement, referred to as the local agreement, with a term of July 16, 1972, through July 15, 1975. ACRA is an employer association representing local contractors doing business within the ju- risdiction of Local 725 Prior to the instant dispute, the Transit Tube Division of Powers Regulator Company introduced a new product, called the translogic pneumatic tube system. The initial sales effort on the part of the Miami office with respect to the new system led to a determination that the complexity of that system merited an effort by the Powers Miami branch to increase the volume of service contracts sold to its customers, which in turn would require the hire of a new foreman. Management at the Miami office decided that differences between the translogic system and older con- ventional systems required the hire and training of a new foreman to work exclusively on service of the new system, which for the first time would require a knowledge of elec- tronics and computers, and entail such customary respon- sibilities as the reading of blueprints, installing parts, troubleshooting, as well as the servicing of preventive maintenance agreements. He would possess authority to assign work, utilizing independent judgment, with authori- ty to reprimand and discipline employees, and to recom- mend hiring and discharge.) Three members of the management team in the Miami office assumed responsibility for filling the new position. They were: John Mulhall-regional sales engineer; Elmer Reik-regional construction manager; and Norman Pe- kar-construction superintendent. In early January 1975,2 Mulhall, Reik, and Pekar met to discuss the hiring of a translogic pneumatic tube service foreman. After discussing the merits and qualifications of those actively employed by Powers at the time, and follow- ing Mulhall's canvassing of Pekar and Elmer Reik as to their knowledge of anyone available through the Union who could perform the functions of the new position, El- mer Reik mentioned that his brother, Ronald Reik, was available. Ronald Reik, a resident of Broward County, had been a member of Local 725 for about 6 years prior to January 1975. He had at that time been a journeyman for some 2 years. He had no previous employment with Powers and never before had served in a foreman capacity. He was out of work at the time and had registered for referral at Local 725's hiring hall. On January 21 or 22, Ronald Reik met with Mulhall and Pekar. After Mulhall explained the nature of the new posi- tion and the training that would be entailed, Pekar, who, of the three, had primary responsibility for filling the job, in- terviewed Ronald Reik. As a result of Pekar's recommen- dation, he, Mulhall, and Elmer Reik agreed that Ronald Reik was the man they wanted Under the hiring arrangement established by the nation- al agreement and the local agreement, and the practice consistent therewith, the hiring of foreman was subject to the hiring process administered by Local 725, and Powers could not bypass Local 725, and hire Ronald Reik directly. The hiring hall administered by Local 725 was exclusive, and, whether a national or local contractor, under the es- tablished arrangement, no one could be placed on the job until referred by Local 725 Thus, article 4(1) of an addenum to the local agreement between ACRA and Local 725, sets forth as follows: If the Union is requested to furnish a specific employ- ee to be employed as foreman by the employer, a writ- ten confirmation of this request is to be sent to the Union. If the Employer reclassifies a foreman to a journeyman, the Union shall receive notice of the re- classification. John Brown, a business agent of Local 725, who, during the period January 24 through April 1, was its acting busi- The parties stipulated that, though the translogic service foreman would possess authority evidencing supervisory status when hired, such authority would not be exercised until a crew of subordinate employees was assigned to him 2 All dates refer to 1975 unless otherwise indicated 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ness manager 3 and whose conduct furnished the impetus for the allegations against Local 725 in this proceeding, implicitly confirmed that referral by the Union is prerequi- site to the employment of a foreman requested by name. According to Brown, when a national contractor requests a foreman by name, he would effect the referral by first con- tacting the man, and, if the latter agreed to accept, the latter would report to the union hall where a written refer- ral to the company would be completed. Brown relates that: "A man does not leave the hall no matter what posi- tion that he's sent out in without a referral." Based upon the foregoing, I find that under the exclusive hiring arrangement, to which Powers was bound, Powers was not free to fill the new foreman position by directly hiring Ronald Reik, without first obtaining a formal refer- ral from Local 725. On January 24, Powers initiated its efforts to obtain re- ferral of Ronald Reik pursuant to article 4(1) of the adden- dum to the local agreement. On that date Pekar forwarded a mailgram, directed to Local 725, through Business Man- ager LaValley, at its Miami headquarters. The mailgram recited as follows: BY ACTION OF THIS LETTER AND TO BE EFFECTIVE JANUARY 28, 1975 1 AM MAKING FORMAL REQUEST FOR RONALD REIK TO BE SENT ON REFERRAL FOR POSITION OF FOREMAN FOR POWERS RE- GULATOR COMPANY TRANSIT TUBE DIVISION TRUSTING YOU WILL GIVE THIS MATTER YOUR IMMEDIATE ATTENTION HAVE THE MAN REPORT TO THE OFFICE In the next few days, having received no reply from Lo- cal 725, efforts were made by Powers' officials to determine the status of the referral. On January 31, a second mail- gram was sent by Pekar to Local 725 to the attention of "Business Manager or Agents," 4 which set forth the fol- lowing- DEAR SIR, ON JAN 24 1975 WE SENT A MAILGRAM TO THE ATTEN- TION OF TED LAVALLEY JR REQUESTING FORMALLY IN WRITING AS REQUIRED BY ARTICLE 4-J OF THE AMENDMENTS OF LOCAL 725 CONTRACT TO CALL TO EMPLOY OF POWERS REGULATOR COMPA- NY AS FOREMAN MR RONALD REIK WE CALLED THE LOCAL TUES- DAY 28, APPROXIMATELY I ]AM WE AT THIS TIME TALKED TO THE LOCAL UNION SECRETARY WHO CONFIRMED THAT THEY HAVE RECEIVED THE MAILGRAM BUT THAT NO AGENT WAS IN AT THE TIME WE ASK FOR A RETURN CALL BUT RECEIVED NONE ANY- TIME THAT DAY WE CALLED THE LOCAL ON WEDNESDAY THE 29 AT APPROXIMATELY HAM AND TALKED TO BUSINESS AGENT EARL EANY HE INFORMED ME THAT HE WOULD CHECK INTO THIS MATTER AND WOULD CALL BACK TO ME WE RECEIVED NO AN- SWER ANYTIME FROM HIM THAT DAY THURSDAY THE 30 CALLED AND SPOKE TO JOHN BROWN BUSINESS AGENT, MR BROWN IN- FORMED ME THAT HE DID NOT HAVE ANY KNOWLEDGE OF THE MAILGRAM AND WOULD CHECK INTO IT AND CALL ME BACK, I DID NOT HEAR FROM HIM EITHER THAT DAY WE TRIED TO REACH THESE MEN SEVERAL TIMES ON FRIDAY WHICH IS THE 31 BUT TO THIS DATE AND TIME WE HAVE NOT HAD ANY REPLY FOR THIS MAN TO BE SENT TO US ON REFERRAL FROM THE LOCAL AND J During said period, Local 725's business manager , Theodore J LaVal- ley, Jr. as a result of a heart attack, was incapacitated Unlike the January 24 mailgram, this mailgram was not directed to Business Manager LaValley, who earlier had suffered a heart attack AT THIS TIME MUST BELIEVE THE MAN WILL NOT BE SENT WE FURTHER BELIEVE UNLESS WE HEAR BY MONDAY FEB 3 BEFORE 430 WE WILL FOLLOW OTHER STEPS IN ORDER TO COMPLETE THIS MATTER This request also went unanswered.' However, Brown, the principal agent of Local 725 dur- ing the period relevant to the instant complaint, admits that on January 30, Elmer Reik telephoned him, advising that Powers was requesting his brother, Ronald, for referral as a "service tube foreman." In the course of this conversa- tion, Brown mentioned the case of two members of Local 725, Lou Castilloux and Michael Kipple, both of whom had long employment histories with Powers as foremen, but who were then on the out-of-work list because termi- nated by Powers in the second half of 1974.6 Brown, who claims to have at that time interpreted the governing con- tracts as requiring employers to select the man most quali- fied for the foreman position, referred Elmer Reik to the people who had held "this position" with Powers for many years as well as other eligible people on the out-of-work list ahead of Ronald Reik, and asked Elmer Reik to consider interviewing them. According to Brown, he told Elmer Reik that he would refer Ronald Reik "as long as I get an interpretation from the general office (International Union) that stated, one, the man could be jumped over everybody on the hiring list without being properly li- censed to do the function they were asking of, and, two, that they (the International Union) saw nothing wrong with jumping over qualified people ahead of this man on the list that had held the exact capacity that they were requesting." ' The phone conversation ended with Brown indicating he would contact representatives of the Interna- tional Union,8 and Elmer Reik indicating that he would consult with his superiors. On February 14, Pekar wrote Brown concerning certain "administrative errors" warranting correction. The follow- ing paragraph was included in that letter 5 I discredit John Brown's testimony that he had no knowledge of either the January 24 or 30 mailgram Brown was one of Local 725's six elected business agents, and, following LaValley's heart attack of January 26, Brown was designated as acting business manager Aside from my mistrust of Brown, garnered from observing him testify, I consider it highly improba- ble that such documents were not maintained by Local 725 among its regu- lar business records, and that during periods in January and early February when the issue concerning Ronald Reik's referral intensified , that Brown, with knowledge that no referral could be made without written request by a company, would not have checked Local 725's files to determine if this requirement had been met I also note that the failure to respond to the mailgram was consistent with Brown's somewhat intractable position con- cerning the Powers' request during the entire period prior to June 24 a Prior to his layoff, Kipple worked for Powers as a foreman for about 7-1/2 years Castilloux had worked for Powers for about 9 years, serving as foreman during the 2 years preceding his layoff Following these layoffs, a meeting was held at the union hall, at which Local 725 officials requested that Powers provide an explanation as to the reasons for the terminations of Kipple and Castilloux 7 The above testimony by Brown is consistent with his consistently held position and furnishes the explanation for Local 725's inaction with respect to the Powers' request for Ronald Reik until June 24, when a meeting on the issue was held in Washington, D C , in the offices of the International Union 8 Although Brown testified that he subsequently received a call from Ed- win Blair, a representative of the International Union who called at Powers' request, it does not appear that Brown ever took the initiative to obtain an answer from the International Union LOCAL UNION NO. 725, PLUMBERS January 25, 1975, pursuant to and in accordance with Article 4-J of the Amendments of Local 725, we re- quested, by referral, Mr. Ronald Reik for the position of Service Foreman. As of this date we have had no response to our request Therefore , we assume that due to Mr. LaValley's unfortunate illness no assign- ments are being processed by Local 725. Certainly ex- clusion of our request and fulfilling of requests by other companies would be a direct violation of both our corporate rights as a national signer and also the individual's rights as a union member in good stand- ing. As Mr. Reik's referral has not been processed we shall proceed accordingly. Because the efforts to secure referral of Ronald Reik proved unsuccessful, the problem was referred by Powers' officials to Bob Koenig , national construction manager for Powers' Transit Tube Division, headquartered in Denver, Colorado. Koenig contacted Edwin Blair , a representative of the International Union functioning in Georgia, Ala- bama, and Florida. Blair in turn called Brown , and, as a result of their conversation, a meeting between Local 725 and officials of Powers was ultimately arranged by Brown and Koenig. On February 18, a meeting was held at Local 725's head- quarters in Miami. In addition to Mulhall, Pekar, and El- mer Reik, Koenig was also present for the Employer. Brown and a business agent, Marvin Bransma, represented Local 725. Discussion at the meeting centered on interpre- tation of the agreement, with Brown reiterating that Ron- ald Reik was not as qualified as former employees of Pow- ers (Castilloux and Kipple), and stating that he would "See ... [Powers] . . . in Washington before he would give us Ronald Reik." 9 Nonetheless Brown, in response to Koenig's plea that some accommodation be made, pro- posed that if Powers agreed to at least interview other peo- ple who were out of work, he would refer the man selected. Koenig agreed, but advised Brown that the Company would probably select Ronald Reik even after the inter- views. To this Brown, according to the credited testimony of Mulhall, responded "if you call for Ronald Reik, you will get Ronald Reik." In consequence of the February 18 meeting, Local 725 referred for interview Kipple, Castilloux , William Burger, and Michael Loverich, all of whom were on the out-of- work list. The interviews were completed by March 31. By letter of that date, Elmer Reik wrote Brown, as follows. Gentlemen: Pursuant to our meeting of February 18, we have com- pleted interviewing for our open position of Translog- ic Service Foreman . We acknowledge your assistance in scheduling interviews. We have interviewed five men to date: 9 I credit Mulhall, over Brown's denial, in finding that the latter made the quoted statement , which is consistent with Brown 's admittedly having in- formed Elmer Reik that he would not refer Ronald Reik until instructed to do so by the International , as well as his entire course of conduct with respect to the referral dispute 141 1. Ronald Reik 2. Michael Kipple 3. Louis Castilloux 4. Michael Loverich 5. William Burger All interviews were held at our Miami Branch and involved myself, Norman Pekar, Miami Superinten- dent, Transitube Division, and J.F. Mulhall , Resident Sales Engineer, Transitube Division. Based on these interviews and giving due consider- ation to all qualifications presented to us we hereby stand by our request of January 24, 1975 for immedi- ate referral of Mr. Ronald Reik. In accordance with Article 4J, please have Mr. Reik at our Miami Branch 8:30 A.M., April 1, 1975. Mr. Reik's title shall be Service Foreman and he shall function and be compensated within all due regula- tions of the binding National and Local agreements. Sincerely yours, POWERS REGULATOR COMPANY Elmer A. Reik Thereafter Brown telephoned Koenig and raised ques- tions concerning the propriety of the interviews, again as- serting that others were more qualified than Ronald Reik. Koenig told Brown that he would have to support the Pow- ers people in Miami, but, if there was any reason to suspect that the interviews were not handled properly, he would conduct additional interviews personally. F1 According to Koenig, following this conversation he discussed the inter- views with the Miami staff, and, based thereon, concluded that the interviews had been conducted properly. According to Brown, he was informed by Koenig in a subsequent conversation that the decision as to Ronald Reik would be left in the hands of the Miami office. Brown made no further response to the Employer's letter of March 31. On April 2, Ronald Reik filed the unfair labor practice charge on which the instant complaint is based Subsequently on April 21, Brown called Reik offering him a referral as journeyman with Ham-Hebb, another em- ployer operating within Local 725's jurisdiction. Reik ac- cepted the job and, at the time of the hearing, remained in the employ of that firm." In the meantime, Edward Colburn, national construc- tion manager for the control division of Powers , learned that Local 725 declined to refer Ronald Reik despite com- pletion of the interviews . After discussing the matter with the secretary of the Pneumatic Control System Council, Colburn received a telegram from Martin J. Ward, general president of the International Union , proposing a meeting in Washington, D.C. Pursuant thereto, a meeting was ar- ranged for June 24 to be held at the headquarters of the International Union. The meeting was held as scheduled, with Colburn, Elmer Reik, and Koenig attending on behalf of Powers. The 10 Based on the credited testimony of Koenig 11 It does not appear that the Ham-Hebb referral involved a substantially equivalent position to that offered Ronald Reik by Powers 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pneumatic Control System Council was represented by the secretary of its labor relations committee , F. W. Borse. The International was represented by Harold Greiff, and Local 725, by Brown . During that meeting Greiff informed Brown that an employer under the controlling agreements was entitled to request a foreman by name , and was enti- tled to referral of that man, irrespective of the Local'sjudg- ment as to the individual's qualifications in relation to other people on the out-of-work list The meeting ended with an agreement that Powers should renew its request for Ronald Reik , with the understanding that, after the Com- pany did so, Brown would effect his referral. Following the June 24 meeting , Powers did not renew its request as per the understanding reached at that time.12 There is no evidence that Local 725 ever referred Ronald Reik pursuant to Powers' request. B. Concluding Findings The General Counsel, Charging Party, and Intervenor contend that the refusal of Local 725 to refer Ronald Reik, as required by the applicable collective -bargaining agree- ment, constituted a discriminatory application of the exclu- sive hiring hall arrangement to which Powers Regulator was bound, and violated Section 8(b)(1)(A) and (2) of the Act. In support of their position, the record establishes con- vincingly that (1) the hiring arrangement in question re- quired Powers Regulator Company to utilize Local 725 as its exclusive source of apprentices , journeymen, and fore- men employed within that Union's jurisdiction; (2) Powers Regulator Company could not, under said hiring arrange- ment, employ directly and without referral from Local 725, any such individual ; (3) the governing collective-bargain- ing agreement includes a clarification (national agreement, appendix A) which confirms both the right of National Contractors to request foremen by name, and their exclu- sive responsibility for determining qualifications of fore- man selected from the local area; 13 (4) Ronald Reik, a 12 From the testimony of Koenig , Colburn , and Elmer Reik, it appears that Powers, as of June 24, 1975, was no longer interested in filling the position in question , the duties of which were then handled by Pekar and John Meyers, in addition to their other normal duties The testimony indi- cates that because of a downturn in the sales market , it was no longer considered feasible to train a new man for this position On the other hand, there was testimony that if Local 725 had acted promptly on the request of Ronald Reik, he would have been hired , trained , and retained in the posi- tion despite the depressed economic circumstances that faced the Company as of June 24 In my opinion , as shall be seen , infra, the effect, if any, upon any backpay entitlement of Ronald Reik , resulting from the changed posi- tion of the Company as to the hiring of a new transitube service foreman will be appropriate for resolution if and when compliance proceedings should become necessary 13 In addition to art 4(J) of the local agreement, a clarification of the right of national contractors to request foremen by name appears in appendix A, entitled , "Work Rules," and attached to the national agreement Par A thereof, states as follows The selection of craft foremen and general foremen shall be entirely the responsibility of the Employer , it being understood that in the selec- tion of such foremen the Employer will give primary consideration to the qualified men available in the local area After giving such consideration , the employer may select such men from other areas Foreman and general foreman shall take orders from individuals designated by the Employer resident of the local area, was requested as a foreman by Powers repeatedly and continuously prior to June 24; and (5) Local 725 persistently declined to refer Ronald Reik to said foreman position. Under established principles the facts set forth above substantiate the General Counsel's initial proof responsi- bility with respect to the alleged discrimination by Local 725 in this case. Thus, in pointing out that labor organiza- tions, under the Act, are precluded from impairing the job tenure of employees, for reasons other than the nonpay- ment of dues, the Supreme Court, in The Radio Officers' Union of the Commercial Telegraphers Union, A.F.L. v. N L R B., 347 U S. 17, 40-42 (1954), stated in part as fol- lows. The policy of the Act is to insulate employees' jobs from their organizational rights. . . . Thus §§ 8(a)(3) and 8(b)(2) were designed to allow employees to freely exercise their right to join unions , be good, bad, or indifferent members , or abstain from joining any union without imperiling their livelihood. The only li- mitation Congress has chosen to impose on this right is specified in the proviso to §8(a)(3) which authorizes employers to enter into certain union security con- tracts, but prohibits discharge under such contracts if membership "was not available to the employee on the same terms and conditions generally applicable to other members" or if "membership was denied or ter- minated for reasons other than the failure of the em- ployee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." To assure that statutory sanctions are brought to bear effectively upon attempts by labor organizations and their agents to coercively marshall grass root support through manipulation of controls over employment opportunities, with which they have been entrusted, the Board, in Interna- tional Union of Operating Engineers, Local 18, AFL-CIO (William F. Murphy), 14 stated at 681: When a union prevents an employee from being hired or causes an employee 's discharge, it has demon- strated its influence over the employee and its power to affect his livelihood in so dramatic a way that we will infer-or, if you please, adopt a presumption that- the effect of its action is to encourage union member- ship on the part of all employees who have perceived that exercise of power. But the inference may be over- come, or the presumption rebutted, not only when the interference with employment was pursuant to a valid union-security clause, but also in instances where the facts show that the union action was necessary to the effective performance of its function of representing its constituency. Thus the Supreme Court has sanctioned union con- trol over access to employment through hiring hall agreements , even though recognizing that "the very existence of a hiring hall encourages union member- ship." And this Board has found legitimate a union's 14 204 NLRB 681 (1973), remanded to the Board at 496 F 2d 1308 (C A 6, 1974), with the Board reaffirming the original result at 220 NLRB 147 (1975) LOCAL UNION NO 725, PLUMBERS action in causing the layoff of an employee who insist- ed on working without receiving a subsistence allow- ance called for by the collective-bargaining agree- ment. [Millwright's Local Union 1102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Planet Corporation), 144 NLRB 798 (1963)]. In such cases, the union's actions, while inci- dentally encouraging union membership, were never- theless essential to its effective representation of em- ployees. And in Philadelphia Typographical Union No 2 (Tri- angle Publications), 189 NLRB 829, we dismissed a complaint when the union's interference with a member's employment was necessary to deter feloni- ous and egregious conduct which could seriously threaten the union's very financial survival-the offend- ing employee there having embezzled a very substan- tial amount of union funds The proof herein does not reflect an act of discrimina- tion predicated on a member's failure to meet a legitimate condition of referral specified in a collective-bargaining agreement" ' nor was the action taken against Ronald Reik based on misconduct on Reik's part "so inconsistent with ordinary concepts of honesty as to dispel any notion that the Union's interference might be construed as having a forseeable consequence of encouraging union member- ship." ie On the other hand, of direct relevance here is a recent Board decision , which, in reliance upon Murphy, supra, held that under an exclusive hiring arrangement, a labor organization is under a duty to conform with and apply lawful contractual standards in administering registry, preferences, and referrals, and that any departure there- from resulting in a denial of employment to a member falls within that class of discrimination which inherently en- courages union membership . See International Association of Heat & Frost Insulators & Asbestos Workers, AFL-CIO, Local 22 (Rosendahl, Inc), 212 NLRB 913 (1974). There, the Union was held to have violated Section 8(b)(2) and (1)(A) by refusing to refer a member , under a contractual request by name provision , as here, despite the absence of specific evidence that the union, in doing so , was motivated by a desire to encourage union membership Nonetheless , in addition to its claim that the instant pro- ceeding should be deferred to arbitration under the Collyer doctrine, 17 Respondent interposes several defenses in sup- 15 Cf Planet Corporation, supra 16 Cf Philadelphia Typographical Union No 2 (Triangle Publications), su- pra 17 Contrary to Respondent, I find that the issues presented in this case are inappropriate for deferral to arbitration Respondent's contention in this regard is nakedly made, unsupported by any rationale In my opinion aside from doubt as to the right of a union member himself to invoke the contrac- tual grievance machinery involved here with respect to a dispute between himself and his union, the issue of interpretation which lies at the threshold of the statutory discrimination issue in this case was resolved conclusively at the June 24 meeting in Washington, D C That meeting qualified as a "Step I" grievance session as contemplated by art XVII, pars 51 and 53, of the national agreement, and Respondent does not contest the fact that Interna- tional Representative Greiff, at that time, confirmed the right of national contractors to obtain referral of named foreman , without regard for a local union's view as to the named employee's qualifications Brown, of Local 143 port of its position that no violation of the Act inured from Local 725's actions in this case As for Respondent's contention that under the control- ling collective-bargaining agreements, Local 725 was free to deny referral to Reik on the ground that other more qualified members were on the out-of-work list at the time that Powers' requested Reik's referral, no real question can be raised as to the authority of national contractors, such as Powers, to request a foreman by name, and to have that man referred whether or not qualified. Appendix A, sub- section A, of the national agreement, which incorporates terms clarifying the meaning and intention of other por- tions of the national agreement, in clear and unmistakable language, states that "The selection of craft foreman and general foreman shall be entirely the responsibility of the employer . " Although that provision does go on to state that it is "understood that in the selection of such foreman, the employer will give primary consideration to the qualified men available in the local area" and that "af- ter giving such consideration, the employer may select men from other areas," that reference to "qualified men," is plainly inapposite where the employer, as here, has in fact designated by name an individual from the area in which Local 725 has jurisdiction Quite plainly any contractual limitation to be observed by contractors when selecting a foreman from outside of the local area, neither detracts from their exclusive prerogative to determine the qualifica- tions of foreman from a local area who are requested by name, nor gives Local 725 or its sister locals any voice or influence in this determination Contrary to the Respon- dent, the formula set forth in appendix A, paragraph A of the national agreement is not only expressed unambigu- ously, but is consistent with what logically appears as a sensible accommodation between the interest of employers in themselves controlling the selection of those who direct their work force, as against the concern of local unions that those from outside their area not be accorded a preference over residents in the selection process.18 725 was instructed to that effect, and on the face of the instant record it is apparent that the results of that meeting were binding upon Local 725 and that the meaning of the national and local agreements in this respect are any longer subject to question Since the sole issue of contract interpretation involved here has been resolved within the dispute settlement machinery established by the governing collective-bargaining agreements, deferral un- der Co/lyer at this time would constitute an academic gesture, serving no useful purpose, other than to further delay a final decision on the merits 18 The evidence of practice adduced by Respondent does not alter the clear meaning of the national agreement in this respect The testimony of Business LaValley was the most accurate of that offered by the Respondent in its attempt to show a practice at variance with the national agreement LaValley relates that in circumstances where the Union discovers that a foreman requested by name is not qualified, or less qualified than others on the out-of-work list, Local 725 will notify the contractor to that effect, and in most instances the contractor will then agree to conduct interviews How- ever, LaValley concedes that if the contractor remains insistent upon the man requested, it would be Local 725's obligation to send that man out, because at that point the selection is the Company's business Though his testimony indicates that Local 725 would offer its advice in aid of an employer's selection, in no other respect is his testimony significantly incon- sistent with the right of National Contractors to be the exclusive Judge over qualifications of foremen requested by name The testimony of John Duncan, a member of Local 725 and chairman of the latter's labor-management committee , as well as that of various repre- sentatives of local contractors and national contractors , through whom Re- spondent attempted to establish a practice inconsistent with the national Continued 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the foregoing, although I would agree that, as an abstraction, Local 725's concern for the relative qualifi- cations of those on its out-of-work list relates generally to an entirely permissible, nondiscriminatory reason for allo- cating preferences, that observation furnishes no justifica- tion for Acting Business Manager Brown's conduct in this case. For here, Brown in declining to refer Ronald Reik acted in derogation of clear and unambiguous language in the controlling collective-bargaining agreement and by his failure to refer Ronald Reik, unilaterally exercised a veto over the Company's hiring prerogative for reasons which were not only inconsistent with the hiring arrangement, but foreclosed thereby 19 Having found that Brown's failure to act affirmatively on the request was not justified by a reasonable interpreta- tion of the governing collective-bargaining agreements, I further note that no claim, in defense of Local 725, may be maintained on the ground that Powers misled Brown, at any time prior to June 24, concerning the continuing na- ture of its request for Reik 20 There is no question in my mind that the referral of Reik was held up in the period prior to the June 24 meeting, with full knowledge on Brown's part that the request for Reik's referral remained viable. Both documentary and credible parole testimony demonstrate conclusively the diligence with which Powers acted in the repeated steps taken to clear Reik's employ- ment. Any lapse in this effort could only be ascribed to Brown's intransigence , his openly communicated commit- ment to blocking the referral, and the effectiveness of his inaction. Indeed, Brown himself admits to informing Elmer Reik on January 30, that he would not complete the refer- ral until instructed by the International that he was obli- gated to do so. Consistent with this position, at the outset of the February 18 meeting, according to the credited testi- agreement , impressed me as often vague , always opinionated and argumen- tative, and in no sense credible as to the existence of any limitation on the right under the national agreement of national contractors to exercise sole authority , without fear of interference from a local union , to determine who, within the local area , shall serve as its foreman The suspicious nature of the effort on the part of these witnesses to suggest otherwise is confirmed by its contradiction with both the position of the international Union, as ex- pressed by the latter's representative , Greiff, at the meeting in Washington, D C , on June 24, and the more candid testimony of LaValley as to his duty to refer the foreman requested despite his own opinion as to the man's lack of qualification Unlike International Association of Bridge, Structural and Ornamental Iron Workers, Local Union 229, AFL-CIO (Bethlehem Steel Corporation), 183 NLRB 271 (1970), relied on by the Respondent , here the meaning of the contract language is clear, uncomplicated by fine distinctions, and itself demonstrates that Local 725's action involved a willful violation of the agreement in an attempt by Local 725 to compel adherence to its own unilaterally imposed hiring practice Also inapposite is J-M Company, Inc, 173 NLRB 1461 ( 1969), where the alleged discrimination was based on failure of the alleged discriminatees to qualify under a standard specified in the hiring hall agreement requiring area residence and work experience Also distinguishable is New York Typographical Union Number Six, Interna- tional Typographical Union, AFL-CIO (The New York Times Company), 144 NLRB 1555 (1963), where the basis for the alleged discrimination related to specific language in the Union's bylaws and the governing collective-bar- gaining agreement, and the Union's interference with the alleged discriminatee 's employment was predicated on a reasonable construction of those terms 20 Although such a contention was not directly raised in its brief, Respon- dent counsel's examination of witnesses suggested that such an issue might well exist mony of John Mulhall, Brown informed the representa- tives of Powers that he would see them in Washington be- fore referring Ronald Reik. Also indicative of Brown's highhandedness, is the credited testimony of Ronald Reik that in a conversation with Brown in late February at the union hall, after Brown was informed that Reik had ob- tained an attorney in the effort to secure his employment with Powers, Brown stated that if Reik sued local 725 "we got twelve hundred men around here that aren't going to like that very much. Anything can happen you get enough guys mad, anything goes." Brown went on to state "any- time on your way home from work, on the job, going to the job, anything is liable to happen. I'll tell you, furthermore, there is no way you'll ever be referred out of this hall, if you ever get to Powers." 21 Although Powers consented to interview certain other of Local 725's members at the Feb- ruary 18 meeting, Brown's firm opposition left Powers little alternative, other than to assent to whatever Brown asked-that is if Powers wished to resolve the problem with some immediacy. His failure to refer Ronald Reik, following completion of the interviews, despite his agree- ment to do so, and in the face of a renewed formal request by Powers impressed me as an extension of the runaround given the Company in furtherance of Brown's commitment against referral of Reik. Were the inquiry to end here, on the above facts, I would sustain the complaint's 8(b)(1)(A) and (2) allegations on authority of Rosendahl, Inc., 212 NLRB 913 '(1974). How- ever, a substantial question remains. It will be recalled that at the hearing the parties stipulated that if Ronald Reik had been referred, he would have possessed statutory indi- cia of supervisory status, which would not have been exer- cised until assignment of a subordinate crew 22 In Pacific American Shipowners Association, et al., 98 NLRB 582 (1952), applicants denied employment under a hiring hall, which was found to be unlawful on its face, were held not entitled to the protection of the Act because they were ap- plying for supervisory positions. In so finding, the Board stated, at 596-597 We are of the opinion that, when Congress amend- ed the Act to exclude supervisors from the definition of the term "employee," it thereby denied to those seeking and to those holding supervisory jobs the pro- tection of Section 8(a)(3). To hold that the protection 21 1 discredit Brown's denial that such a conversation occurred I have heretofore noted my distrust of Brown as a witness His demeanor demon- strated the evasiveness , argumentation , and indeed bitterness which I am certain he projected as the events giving rise to this proceeding unfolded I regard Ronald Reik as more credible, and believe that Brown made the statements attributed to him 22 The Charging Party, in urging that the supervisory issue ought not bar the unfair labor practices, cites Meyer Super Markets, Inc, 142 NLRB 513, 517, In 8 (1963), and the statement therein that "the Board will not exclude persons as supervisors who do not at present exercise supervisory authori- ty " As I construe that case , the quoted expression has limited application to individuals occupying positions classified identically with similarly situated supervisors, except they work in departments themselves with no present employees and without reasonable expectancy that, on any other than spo- radic basis, subordinates will be hired See, e g, Huntley Industrial Minerals, Inc, 131 NLRB 1227, 1228 (1961) Any other interpretation would collide with well-established Board policy that possession of, rather than the exer- cise of, supervisory authority governs the determination of supervisory sta- tus See, e g, Ohio Power Company v NLRB , 176 F 2d 385, 388 (C A 6, 1949) LOCAL UNION NO 725, PLUMBERS of this section extends to the former but not to the latter would be to undo at the very threshold of the relationship the exempt status accorded to supervisors by Congress. For it would result in the Congressional Regulation of the very Act of recruitment of such su- pervisory personnel. Further, we can not agree that our decision herein affects adversely the rights of nonsupervisory employ- ees in the particular respect which concerns our dis- senting colleague : viz, where a rank and file employee of a particular employer, who applies to his employer for promotion to a supervisory vacancy, is told that he will not receive consideration for the promotion be- cause he has been an active union member A refusal to accord an actual employee the normal consider- ation for promotion to a higher position , albeit that of a supervisor, based on protected concerted activity during such employment , would clearly be a violation of the rights of nonsupervisory employees. Although the logic supporting the distinction made in Pa- cific American Ship Owners, supra, between employees on payroll status and those utilizing services of a hiring hall, who seek to apply for supervisory positions, may be per- suasive in circumstances where employers are charged with unlawful action in the selection process, that distinction may be tenuous in circumstances where , as here, (1) the employer's discretion as to who should be its foreman has been exercised, but frustrated by a labor organization, and (2) the person selected by the employer had never before served in a supervisory capacity Nonetheless, research fails to reveal that Pacific American Ship Owners, supra, has been modified , and, indeed, recent Board precedent ap- pears premised on the general conception that applicants under a hiring hall who seek supervisory positions are not entitled to the protection of Section 8(a)(3). Thus, the Board, while declining to find violations of Section 8(b)(2) in such situations, has found that denials of employment under such circumstances violated Section 8 (b)(1)(A) only if "the discrimination . . . directed by Respondent Union created an impact on other employees, the natural consequence of which was to restrain and coerce them with respect to their Section 7 rights , in violation of 8(b )(1)(A) of the Act." See, e.g., International Photographers of the Mo- tion Picture Industries, et al. (MPO-TV of Calif.), 197 NLRB 1187, 1191 (1972), International Union of Operating Engineers, Local 18, AFL-CIO (C F Braun Company), 205 NLRB 901, 913 (1973). In considering whether a like finding is warranted here, Respondent correctly observes that there is no evidence that the action against Ronald Reik was publicized to other employees or was part of a campaign on the part of the Union to discriminate generally against rank -and-file em- ployees using its hiring hall 23 At the same time, however , here the evidence shows that 23 Cf United Association of Journeymen & Apprenticev of the Plumbing & Pipefitting Industry Local Union No 137 (Hamel Construction & Equipment Co, Inc), 207 NLRB 359 (1973) 145 both Powers and Local 725, pursuant to practice and the governing collective-bargaining agreements, contemplated the referral of foreman as well as rank-and-file employees. Indeed Ronald Reik, himself, in the course of this dispute was referred out of Local 725's hiring hall to a rank-and- file nonsupervisory position and, at the time of the instant hearing, continued to serve in that capacity. Such decisions of the Board as C. F Braun and Company, supra, and Hames Construction & Equipment Co., Inc., supra, recognize that in the construction industry, individuals may be em- ployed as rank-and-file workers on one job and as supervi- sors on the next, and, accordingly, hold that discrimination in their application for supervisory positions violates Sec- tion 8(b)(1)(A) as coercing and restraining them when em- ployees on some other construction project. Accordingly, on the basis of the cited authorities, I find that the refusal to refer Ronald Reik had and will have a sufficient impact on Ronald Reik's exercise of Section 7 rights, as a rank- and-file employee, to warrant the finding that in this re- spect, Local 725 violated Section 8(b)(1)(A) of the Act. The complaint also alleges that Local 725 further violat- ed Section 8(b)(1)(A) by certain threats to Ronald Reik by John Brown. Having credited Ronald Reik, over John Brown, and found that Brown threatened Reik with bodily harm and his exclusion from the hiring hall if he obtained employment with Powers, I find that these coercive state- ments were calculated to restrain Reik in his efforts to real- ize the benefits of the national agreement and to coerce him to yield to the manipulative effort by John Brown to run the hiring hall as he pleased, irrespective of legitimate standards set forth in the agreement. I find that by these coercive remarks, Local 725 coerced and restrained Reik, in a matter which would linger as Ronald Reik continued employment as a rank and file employee, and thereby vio- lated Section 8(b)(1)(A) of the Act. CONCLUSIONS OF LAW 1. Powers Regulator Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Local 725 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Local 725 violated Section 8(b)(1)(A) of the Act by threatening Ronald Reik with bodily harm and exclusion from access to its hiring hall if he persisted in asserting his right to a job with the Employer 4. Respondent Local 725 violated Section 8(b)(1)(A) of the Act by causing Powers Regulator to discriminate against Ronald Reik, by refusing to refer him to employ- ment with Powers Regulator Company on and after Janu- ary 28, 1975. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent Local 725 has engaged in certain unfair labor practices , I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that Respondent Local 725 discriminato- rily denied Ronald Reik referral to Powers Regulator Com- pany, it shall be recommended that Local 725 notify Pow- ers Regulator Company that it has no objection to the employment of Ronald Reik as a foreman and notify Ron- ald Reik that the exclusive hiring hall facilities and job opportunities administered through Local 725 will be avail- able to him on an equal and nondiscriminatory basis with other members, employees, job applicants , and registrants. It shall be recommended further that Respondent Local 725 make whole Ronald Reik for any loss of earnings by payment to him of backpay, computed on a quarterly ba- sis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962).24 I shall further recommend the posting of customary notices and that a copy of said notice be mailed for posting by Powers Regulator Company, should it be willing to do so.25 Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended. (d) Post at its business offices, its hiring halls, and meet- ing places in Broward and Dade counties , Florida, copies of the attached notice marked "Appendix." 27 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by the Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Additional copies of the attached notice marked "Appendix" shall be signed by an authorized representa- tive of the Respondent, and forthwith returned to the aforesaid Regional Director for posting by Powers Regula- tor Company, if said Employer is willing, at its places of business in Miami, Florida, where notices to its employees are customarily posted. (f) Notify the Regional Director for Region 12, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ORDER 26 The Respondent, Local Union No. 725, of the United Association of Journeyman and Apprentices of the Plumb- ing & Pipefitting Industry of the United States and Cana- da, AFL-CIO, Miami, Florida, its officers , agents, and rep- resentatives, shall, 1. Cease and desist from- (a) Coercing and restraining employees by threatening them with bodily harm or a denial of access to the exclu- sive hiring hall maintained by it because they pursue em- ployment under nondiscriminatory standards uniformily applicable to all employees under the terms of a governing collective-bargaining agreement. (b) Causing an employer to discriminate by refusing to refer an employee under an exclusive hiring hall where the governing collective-bargaining agreement in unambiguous terms requires such referral. (c) In any like or related manner restraining or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act. (a) Make whole Ronald Reik for any loss of earnings which he may have sustained by reason of the discrimina- tion against him in the manner set forth in the section of this Decision entitled "The Remedy " (b) Notify, in writing, Powers Regulator Company that it has no objection to the employment of Ronald Reik as translogic service foreman and notify, in writing, Ronald Reik that the Union's exclusive hiring hall facilities and job opportunities will be available to him on an equal and non- discriminatory basis with other members, employees, job applicants, and registrants. (c) Maintain and, upon request, make available to the Board or its agents, for examination and copying, all hiring hall records and other documents necessary to compute and analyze the backpay due under the terms of this Order 24 As heretofore indicated, questions were raised at the hearing as to whether or not Ronald Reik, if referred on a timely basis by Local 725, would to date remain in the employ of Powers Regulator Company in the position of translogic service foreman Those questions in my opinion have not been litigated to a degree permitting conclusive determination and are more appropriate for resolution during the compliance stages of this pro- ceeding 25 The Charging Party claims that as part of the recommended Order, it should be awarded attorney fees and litigation costs Contrary to the Charg- ing Party , neither the position of Local 725 with respect to the merits of the unfair labor practice issues , nor the presentation of the defense as manifest- ed on the instant record was characteristic of the limited circumstances under which the Board deems such extraordinary relief appropriate See Heck's, inc, 215 NLRB 765 (1974) 26 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 27 1n the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order 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 employees with bodily harm or a withdrawal of hiring hall services if they persist in seeking employment under nondiscriminatory hiring hall standards on an equal basis with other employees pursuant to our obligations under applicable collec- tive-bargaining contracts. WE WILL NOT discriminatorily refuse to grant a job referral from our exclusive hiring hall facility to Ron- LOCAL UNION NO 725, PLUMBERS 147 aid Reik, or any other applicant , by refusing such re- ferral though required by our collective -bargaining obligations. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed by Section 7. WE WILL make Ronald Reik whole for any loss of earnings he may have suffered by reason of the dis- crimination against him. WE WILL notify , in writing, Powers Regulator Com- pany that the Union has no objection to employment of Ronald Reik as translogic service foreman, and we will notify, in writing, Ronald Reik that our exclusive hiring hall facilities and job opportunities will be available to him on an equal and nondiscriminatory basis with other members, employees, job applicants, and registrants. LOCAL UNION No. 725 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA , AFL-CIO