Carpenters Local 607

62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenters Local 607, United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO (Massman Construction Co.-Cannon Dam Project) and Daniel W. Bybee. Case 14-CB-3096 September 20, 1976 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER On June 14, 1976, Administrative Law Judge Rob- ert M. Schwarzbart issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Carpenters Local 607, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, New London, Missouri, its officers, agents, and representatives, shall take the action set forth in the said recommended Order as so modified: 1. Substitute the following for paragraph 1(b): "(b) In any other manner interfering with, re- straining, or coercing employees of Massman Con- struction Co.-Cannon Dam Project in the exercise of rights guaranteed-in Section 7 of the Act, except to the extent that such rights may be affected by an i We find no merit in Respondent's exceptions since, in our view, the matters raised therein can be more appropriately considered at the compli- ance stage of the proceeding In par 1 (b) of his recommended Order the Administrative Law Judge uses narrow cease-and -desist language, "like or related manner," rather than the board injunctive language "m any other manner," which the Board traditionally provides in cases involving serious 8(b)(2) discrimination conduct . See Glaziers and Glassworkers Local Union No 513, affiliated with International Brotherhood of Painters and Allied Trades, AFL-CIO (Joseph J Cermak d/b/a Southern Glass Company), 200 NLRB 617 (1972). Morrison Knudsen Company, Inc, 122 NLRB 1147 (1959). Accordingly, we shall modify the Order to require Respondent to cease and desist from in any other manner mfrmging upon employee rights. This change is also made in the revised notice. agreement requiring membership in a labor organiza- tion as condition of employment in accordance with Section 8(a)(3) of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides were represented by their attorneys and presented evidence, it has been found that we have violated the'National Labor Re- lations Act in certain respects. To correct and reme- dy these violations, we have been directed to take certain actions and post this notice. WE WILL NOT cause or attempt to cause Mass- man Construction Co.-Cannon Dam Project to discriminate against Daniel W. Bybee, Gerald Phillips, or any other employees, in violation of Section 8(a)(3) of the Act. - WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights guaranteed in Section 7 of the National Labor Relations Act, except to the ex- tent that such rights may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment in ac- cordance with Section 8(a)(3) of the Act. WE WILL notify Massman Construction Co.- Cannon Dam Project, in writing, that we have no objection to the employment of Daniel W. Bybee and Gerald Phillips with all their former rights and privileges, and we will furnish them with copies of such notification. WE WILL make whole Daniel W. Bybee and Gerald Phillips for any loss of pay they may have suffered by reason of our discrimination against them. CARPENTERS LOCAL 607, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO DECISION STATEMENT OF THE CASE ROBERT M. SCHWARZBART, Administrative Law Judge: Upon a charge and an amended charge filed on November 24 and December 15, 1975,' respectively, by Daniel W. All dates hereinafter are within 1975, unless stated to be otherwise CARPENTERS LOCAL 607 63 Bybee, an individual, a complaint dated December 18 was issued by the Regional Director for Region 14, on behalf of its General Counsel, alleging that Carpenters Local 607, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein the Respondent Union, has engaged in, and is engaging in, unfair labor practices within the mean- ing of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, herein the Act. Respondent duly filed an answer denying that it has engaged in the alleged unfair labor practices . A hearing in this proceeding was held on January 19, 1976, in St. Louis, Missouri. Coun- sel for the General Counsel and the Respondent have filed briefs which have been carefully considered. Upon the entire record in the case and from my observa- tion of the witnesses and their demeanor , I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Massman Construction Co., a Missouri corporation, and Land Equipment Co., at all times material herein, are and have been partners doing business under the trade name and style of Massman Construction Co: Cannon Dam Pro- ject, herein the Employer. At all times material herein the Employer has main- tained its principal office in Kansas City, Missouri, and has operated a field office in Center, Missouri, where it is pres- ently engaged in the construction of the Clarence Cannon Dam. During the year ending November 30, which period is representative of its operations during all times material herein, the Employer, in the course and conduct of its busi- ness operations, performed services valued in excess of $500,000, and purchased and caused to be transported and delivered at its Center, Missouri, field office goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its Center, Missouri, field office directly from points located outside the State of Missouri. The complaint alleges, the answer as amended at the hearing admits, and I find that the Employer is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. At all times material herein, the Respondent Union through its International Union and Central Missouri Dis- trict Council has been a party to a collective-bargaining agreement with the Associated General Contractors of Missouri,2 to which the Employer had agreed to be bound. This contract provides that the Union shall refer job appli- cants to the worksite through the operation of its exclusive hiring hall. However, article IV, section 2,A, states as fol- lows: "[T]he Employer may bring in to any_ job from any place or union jurisdiction the first and all other odd num- bersof the crew until a total of five (5) transferred men and five (5) local men is reached. Thereafter, one (1) man may be transferred for each three (3) additional local men em- ployed. Furthermore, the unions agreed to give due consid- eration to any Employer's request for additional men con- sistent with the purpose of this section." In the event of layoff, the ratio of one company man for each three (union) men who had come to the jobsite through the hiring hall is maintained and, contractually, as will be discussed, infra, was to be a factor in any layoff affecting carpenters at the Cannon Dam site. Daniel W. Bybee 3 and Gerald Phillips, lifelong acquain- tances, applied directly to the Employer for employment as carpenters on separate dates in September. On September 15, when Bybee, accompanied by Clinton A. (Rusty) Lav- erack, requested employment at the Cannon Dam jobsite, the two men were referred to Lowell Nester, Jr., the Employer's carpenter foreman. In the response to their in- quiry, Nester replied that men were needed as the Union was having difficulty, in supplying the necessary help. However, they first would have to clear through the Union. The Respondent Union's business representative and fi- nancial secretary, George N. Mundell, coincidentally, was on the jobsite at the time and Nester told him about Bybee and Laverack. Thereafter, Mundell sold the two men work permits,' telling Bybee and Laverack that he was glad to see them come out because of the difficulty he was having in supplying men. Bybee began work on September 17, with the day shift.' On September 29, Phillips, too, visited the jobsite and asked Nester if he could go to work. Nester replied that when Phillips had cleared through the Union he would be employed on the swing shift, the second shift with hours from 4:30 p.m. until midnight. That evening Phillips went to Mundell's home, purchased a work permit, and thereaf- ter began work on the jobsite 6 II. THE LABOR ORGANIZATION INVOLVED The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts The complaint alleges that on or about November 18 the Respondent Union caused or attempted to cause the Em- ployer to discriminatorily discharge or lay off Daniel W. Bybee and Gerald Phillips, employed by the Employer as carpenters, from the Cannon Dam project because of their nonmembership in the Respondent Union. 2 Although the contract in evidence was executed on December 28, 1971, to be effective retroactively from July 12, 1971, through April 30, 1974, and, therefore, would have expired prior to the time of the events of this proceed- ing, it is not disputed that the terms of this agreement were still in effect in 1975 when the incidents described herein occurred 3 For 2 years prior to June 1974, Bybee had been a member of Carpenters Local 1792, a sister local to the Respondent Union based in Sedalia, Mis- souri However, his membership had lapsed and by September 1975, when he applied for employment at the Cannon Dam project, he was not a union member Phillips has never been a union member 4 Work permits are valid for 30 days, after which they must be renewed, and were priced at the same amount as I month's union dues 5 There were three shifts operating at the time on a 24-hour basis During his period of employment at the jobsite, Bybee continued to work on the day shift. 6 Mundell testified that it was his practice to tell those individuals to whom he sold permits that the Union conducted its regular meetings on the Continued 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Both Bybee and Phillips testified that together they at- tended the Respondent's monthly meeting on the evening of Monday, October 6, at the Laborers' hall in Hannibal, Missouri. They stated that they had gone to the meeting to vote on an assessment that had been proposed for the pur- pose of raising the business agent's salary. Neither had at- tended the meeting for the purpose of becoming members of Respondent Union at that time' While the meeting was in progress behind closed doors, Bybee, Phillips, and other nonmembers congregated in an anteroom. Presently, Mun- dell emerged from the meeting room and began to take information from various membership applicants waiting in the anteroom with Bybee and Phillips, which informa- tion he used to complete their respective application forms. That night, 11 new union members were signed up by Mundell. However, Bybee and Phillips both left the union hall before Mundell could reach them.' During the week following the October 6 meeting, Mun- dell, encountering Bybee, asked him why he and Phillips had not remained at the meeting to buy their books. Bybee replied that he had had no money. On October 15 and 29, Bybee and Phillips, respectively, bought their new work permits from Mundell. On October 31, 17 carpenters were laid off by the Employer for eco- nomic reasons. The next union meeting was held on Monday, Novem- ber 3.9 Bybee and Phillips attended that meeting for the purpose of joining the Union, together with six other appli- cants. As had been the case at the earlier meeting, the ap- plicants waited in the anteroom while the meeting proceed- ed behind closed doors. Presently, Mundell came out and completed the application forms on behalf of those who had presented themselves for membership, including Bybee and Phillips. When this was done, Mundell reentered the meeting. He thereafter emerged and informed the appli- cants that the-membership had voted to hold them over for a 7-day investigation.10 Mundell initially implied that the membership, on its own initiative, had voted to hold over first Monday of each month at which time they could buy their membership books. Consistent with this practice, he believed that he had so informed Bybee and, Phillips, particularly the latter. 7 Neither Bybee nor Phillips was specific as to his reasons for believing that he might be able to vote when he was not a member. 8 It was a practice at the monthly union meetings to consider new appli- cants for membership. Under the existing procedures, after the start of the meeting, when the question of membership applicants was raised, Mundell customarily would enter the anteroom with the membership application book and complete the applications on the behalf of the candidates who were waiting in the anteroom who had not already done so He would then reenter the meeting chamber where the members would vote on the new applicants. On the same night, following a favorable vote, the new members would be required to pay a $165 initiation fee and 1 month's dues of $15 10, and would immediately thereafter receive their membership books Howev- er, the Union's bylaws also allowed the issuance of books upon payment of one-third of the initiation fee with the balance to be submitted within 90 dais Bybee testified that shortly before the November 3 meeting, in the con- text of the layoff that had just occurred, he had asked Mundell if the Union was going to force the layoff of permit men first Mundell had replied that he had gone to the Company's office and told them that they would have to lay off permit men first, but that he was not going to hold them to it. 10 Sec 44 of the Union's bylaws, governing the admission of members provides in relevant part, as follows. the eight applicants for a 7-day investigation. However, un- der closer questioning, Mundell related that Emmett Stolte, the Respondent Union's president, and two or three trus- tees had reviewed the Union's bylaws during the meeting, after which Stolte had read to the membership the provi- sion which related to the 7-day investigation: Stolte had assured the membership that that procedure was legal and had recommended that the membership vote that it be ap- plied to the applicants. The membership, following this rec- ommendation, had so voted. Thereafter, Mundell reen- tered the anteroom and informed the eight applicants, including Bybee and Phillips, of the results of the vote. ll One evening shortly after the November 3 meeting," By- bee telephoned Mundell at the latter's home and told him that he was coming down to buy a book that evening. Mundell replied that he was not authorized to sell a book at his home. Bybee replied that he had heard that Mundell was selling books at his home all the time. Mundell an- swered that he had never sold a book at home and that he sold them only at the union hall.13 The application of the candidate must be presented to the Financial Secretary, with the full initiation fee, which except for apprentices and applicants for non-beneficial membership in beneficial Local Unions, shall be not less than . a sum equal to the current month's dues, and before the candidates can be obligated shall lay over one week for investigation and shall be referred to a special committee of three, who shall in the meantime, inquire into the candidate's qualifications to become a member and report at the next regular meeting of the Local Union making such recommendations as they deem proper, or the can- didate may be elected and initiated at the same meeting if the investi- gating committee reports favorably. The Union's bylaws provide that membership books may only be sold during the monthly union meeting which, as noted, in the absence of a holiday, is conducted on the first Monday of each month. Accordingly, the practical effect of the Respondent Union's determination on November 3 to hold over the applicants for a 7-day investigation was to prevent them from receiving their membership books before the next monthly meeting on De- cember 1 i2 As Mundell recalls, the telephone conversation took place on or about November 1, shortly after the October 31 layoff, but before the November 3 meeting. 13 Mundell's conceded statement to Bybee that he could not sell him a membership book at his home was inconsistent with Mundell's general testi- mony Mundell's office, where he maintains his records, is in his home. From there, he also issues work permits, as applicable. Mundell sought to explain the relevant difference between the sale of a work permit and a membership book by noting that the applicants for a book are required under the Respondent Union's bylaws to appear at a union membership meeting to obtain them as they must take an oath before the flag and pay their initiation fees in the prescribed manner after theii applications had been voted on by the membership There are no such requirements relating to the sale of permits. Mundell testified, however, that in his view an excep- tion to that rule existed with respect to the eight applicants of November 3, who had been held over for a 7-day investigation. On that night a three-man investigation committee had been appointed to,review the qualifications of the applicants Mundell testified that the committee had instructed him that, if it did not report negatively to him, the candidates would not have to await the next monthly meeting and he would be authorized to issue membership books to the eight applicants at the conclusion of the 7 days following that meeting As far as Mundell had known, this committee never issued a report and Mundell had never checked back with the committee to find out if it had reached a decision. Accordingly, as Mundell had not received an unfa- vorable report from the committee, he assumed that he was authorized to issue the books to the eight applicants starting '7 days after the November 3 meeting. However, Mundell was vague as to which of those applicants, if any, he had told that they could get their books early. He conceded that he did not so inform the candidates at the time of the union meeting when he told them of the membership's vote to delay action on their bids. Similarly, during his above-described telephone conversation with Bybee around the time of the November 3 meeting, Mundell admitted that he had refused to CARPENTERS LOCAL 607 On November 4, on the day after the second union meet- ing, while on the jobsite, Bybee and Phillips related the results of their efforts at obtaining membership to the car- penter superintendent, Nester. Nester's reaction was sym- pathetic. During that conversation Bybee asked Nester if he would lay off permit men first, should additional layoffs be required. Nester opined that he might have to, adding that he did not believe that it would be right, but that if the Company did not do so the possibility existed that the job would be shut down. On November 14, the Employer laid off .54 carpenters. In the early morning of that day, Bybee was approached by Chris Lemler, then his foreman.14 Lemler told Bybee that he was on permit and was going to be laid off that day. However, at 10 a.m., Lemler returned and informed Bybee that he was going to get to stay. Accordingly, Bybee was not laid off, on that day. Also on November 14, Bybee bought his third work per- mit from Mundell. On that occasion, Bybee asked Mundell why he and the others had not been sold their books on November 3. Mundell replied that the members had voted on it and that it had been their decision. Mundell initially testified that he could not recall the conversation with By- bee at the time that he had sold him the November 14 permit. He later recalled that he had offered to sell Bybee a book, but that Bybee had been interested only in pressing charges -against him and the Union.15 On November 14, Bybee learned that all the members of his crew except himself, two bookmen, and Lemler had been laid off. Lemler, however, as a result of the reduction in force, thereafter worked in a nonsupervisory status and was-replaced as foreman of Bybee's crew by Tom Rogers. Employees were transferred in from other crews to fill the depleted ranks of Bybee's and Phillips' crews.16 On November 18, as part of a furlough affecting approx- imately 25 employees, Bybee and Phillips were laid off. Bybee learned of his situation at the conclusion of that day when Tom Rogers, his foreman, handed him his notice of termination and informed him that he was being laid off. The reason set forth on the termination notice was sell Bybee a book at_his,home and before the next membership meeting. Mundell's testimony that at various times during November, while at the Cannon Dam ,jobsite, he had informed certain applicants that they could pick up their membership books before the December I meeting was also quite unspecific as to details, including the relevant dates. As his testimony progressed, Mundell became more inconclusive as to whether he was actual- ly prohibited from selling membership books between the November and December meetings because of the bylaw, provision that books could only be sold at the monthly membership meetings, or whether, as he testified, he, in fact, had been authorized to convey books to the applicants before the December 1 meeting. It is noted that, by December 1, the seasonal layoffs had been completed. 14 Bybee had begun his employment on thejobsite in the carpenter shop, however, after the October 31 layoff, he was transferred to a crew at the dam site powerhouse where, on November 14, he was part of a nine-man crew working under Lemler. 15 Mundell and Phillips had no direct communication with each other except on September 29 and October 29, when Mundell sold Phillips his respective work permits, and, on November 3, when Phillips tried to become a union member. However, there were no separate discussions between Phil- lips and Mundell as to why Phillips' application had not been favorably received on November 3. 16 During Phillips' employment period at the jobsite, he was assigned to a crew at the powerhouse under Ken Goodin, foreman. 65 "Reduction in force." After receiving his layoff notice, By- bee collected his tools and went to the gang box to pick up his toolbox. While there he spoke to Nester, asking him when the Company would be starting up the job again. Nester replied, "After first of the year." Bybee asked whether he was being laid off because of a reduction in force or because he was on permit. Nester told Bybee that he had wanted to keep him and Phillips but that the Union had made him terminate them. Bybee asked if he could use what Nester had said. Nester told him that he could and, if needed, promised to testify on Bybee's behalf in any subse- quent proceeding relevant to his layoff. Bybee then went to the warehouse to check his hardhat. At the warehouse, Bybee asked the Respondent's union steward, Lonnie Fredrick, if it would do him any good to get on the (out-of-work) list. Fredrick stated that he doub- ted it. Bybee asked Fredrick if any of the members who had joined the Union earlier in the summer had been held over for a 7-day investigation. Fredrick said that they had not been and could give no reason why the applicants of November 3 had been placed on a 7-day investigation." Phillips received his notice of termination, also marked "Reduction in force," from his foreman, Goodin, after which he left the jobsite. Neither Bybee nor Phillips has been employed at the jobsite since November 18. The General Counsel's contention that Bybee and Phil- lips had been laid off on November 18 because they were working on permits from and were not members of the Respondent Union is supported by the testimony of Lowell Nester, Jr., the Employer's carpenter superintendent.18 Nester testified that, on his arrival at the project, it had been necessary for him to increase the number of carpen- ters employed on the dam project from about 52 to approx- imately 160. Accordingly, in August and September, the Employer had asked the Union to refer many carpenters. The Union had had difficulty in meeting the Company's requirements, for, while it had registered on its hiring hall referral list a number of experienced unemployed carpen- ters, there were an insufficient number who had the spe- cialized experience required in dam construction: Accord- ingly, an unusually large number of -referred carpenters were subsequently rejected by the Employer. However, it had become necessary in late October to begin a series of layoffs to reduce the work force. The sea- sonal work limitation was based on a specification con- tained in the contract between the Employer and the U.S. Army Corps of Engineers, which serves as the administra- tive agent for the project. The contract provided that, after December 1, it would- be necessary for the Employer to undertake cold weather procedures for the protection of concrete when it is poured. Because of this provision, the Employer limited the work performed in colder months to certain narrowly defined priority items. In compliance with his instructions from the Employer, Nester reduced the carpenter staff at the Cannon Dam site to 24 before 17 It is undisputed that no applicant during the course of the Cannon Dam job had been held over for a 7-day investigation except for one other individual who had applied before Bybee and Phillips, but who did not have tools. 18 Nester, who started with the Employer on September 23, 1973, had come to the Clarence Cannon Dam project on August 11. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thanksgiving Day. This reduction in force necessitated an additional employee layoff on November 24, after Bybee and Phillips were no longer on the job. The criteria used in the layoffs were the ratio of compa- ny men to bookmen 19 and work proficiency. Seniority is not a factor in determining the order of layoff. It should be noted, however, that even the company men hired under the 1-to-3 ratio must be cleared through the Union from which they must purchase permits before they may be em- ployed. Nester explained that, in advance of each layoff, he would ask his foremen-to prepare lists of men for layoff. Nester would then review the lists submitted to him, either combining the various lists into one master list or else f as- tening the separate-lists together. In either event, when the lists were assembled, the least proficient men were marked for initial layoff. Before submitting the layoff list to the office for action, Nester would discuss the names with Mundell and the-Respondent Union's steward, Fredrick. Layoffs became official when the affected employees were handed their checks at the end of their shifts by their re- spective supervisors, following approval of the list by the Employer's office. On November 14, Nester followed the foregoing proce- dures and conferred with Mundell with respect to the con- solidated layoff list. Also present at the time were Ron Moyle, the general carpenter foreman, and Fredrick. ,Nes- ter testified that, during that meeting, Mundell stated that the Employer still had permit men, on the job ands that whichever permit men were not laid off on that date were going to, have to be laid off before the Employer could lay off any more union members. Nester did not reply and the layoff proceeded as planned. _ On November 17, Nester, advised Mundell that there would be a layoff on the following day to further reduce the carpenter' staff. Nester also requested his foremen to give him lists of those they proposed for layoff, which he received on the morning of November 18. On that occasion Nester prepared a master list from the foremen's lists. He testified that Bybee and Phillips were not on that list. On the morning of November 18, Nester, Mundell, Moyle, and Fredrick met again to discuss the layoff list. At that time, according to Nester, Mundell stated, "You will not have any permit men left on the job and you will lay them off before you lay off any bookmen. The permit men will go ' before the bookmen go." There was no discussion concerning the layoff ratio of company men to bookmen. Mundell simply went down the list and indicated various permit men, telling Nester that he had to lay them off. Mundell also informed Nester that Bybee and Phillips had to be laid off because they, too, were permit men. Accord- ingly, names were changed around to put Bybee and', Phil- lips and one other unidentified permit man, also noted by 19 As was noted above, under the relevant collective-bargaining agree- ment, the Employer is not obliged to obtain all of its carpenters from the Respondent Union's hiring hall. Individuals called in by name by the Em- ployer are termed company men, whether or not they have membership books in the Union. Bookmen are individuals who had been referred to the job through the hiring hall When layoffs occur, one company man must be laid off for every three bookmen, thereby preserving the ratio as established in the collective-bargaining agreement Mundell, on the layoff list. Nester testified that, if it were not for the position taken by Mundell, Bybee and Phillips would still be employed on the fob 20 Nester testified that, although he had not known either Bybee or Phillips before hiring them in September, he had been reluctant to lay them off because both men were very good workers and had had prior experience at the Truman Dam project in south central Missouri, an area that had proved to be a source for experienced dam builders. Dam building requires carpentry techniques which are not char- acteristic of other types of construction in that different forming systems and principles are utilized and the proce- dures are more dangerous. Nester characterized the labor source local to the area of the Cannon Dam, in general terms, as not being adequately trained or motivated to be utilized as a principal source of labor or of potential lead- men and foremen. It, therefore, had been necessary for him to obtain men from outside that area to develop a suffi- cient number of qualified foremen, leadmen, and workmen to complete the project.21 Besides Bybee and Phillips, Nes- ter had employed several other men from the Truman Dam area on the Cannon Dam job. He testified that Bybee and Philhps had been well recommended by carpenters whom Nester knew and respected.21 Nester testified that, following the November 18 layoff, no permit men continued to work on the job 23 Mundell, corroborated by Steward Fredrick, denied that he had in- structed, or in any other way indicated to Nester during any of the prelayoff conferences, that permit men should be laid off before bookmen, or that Bybee and Phillips, specifically, should be laid off by the Employer, contend- ing that Bybee and Phillips, and all other affected employ- ees, had been laid off at the Employer' s initiative . Mundell answered that, during those meetings,,he had restricted his attention and comments merely to the maintenance of the 20 Prior to acceding to Mundell's- demands, Nester had consulted with David Kucera, the general superintendent and his immediate superior. Kuc- era told Nester that, if Mundell wanted him to lay off the men, he should do so 21 During the summer of 1975, Nester had had approximately 19 foremen working under him 22 Mundell testified that Kenny Goodin, Phillips' foreman, who frequent- ly discussed individual work performance with him, had twice told Mundell, at the time of the October3l and November 14 layoffs, respectively, that, because of the poor quality of Phillips' work, he had twice listed him for layoff. Nester, however, denied that Goodin had criticized Phillips' job per- formance or that Phillips had been listed for layoff Contrary to Mundell, Nester asserted that Goodin had praised Phillips' work. Mundell testified that he had not heard any criticism directed at Bybee. Goodin did not appear at the hearing. Noting that it would more readily be within the normal course of business for Goodin to report to Nester than to Mundell as to the work performance of his men, that Bybee, whose work record had not been criticized, was laid off at the same time as Phillips, and the credi- bility resolutions to be noted herein, I find no basis for concluding that Phillips' job performance was a factor in his layoff 23 Mundell, however, testified that one permit man, Bill Gibbons, re- mained on the job until the November 24 layoff Gibbons, who received work permits from Mundell on September 29 and October 29, had never applied for union membership Gibbons was a foreman on the swing shift until either the layoff of October 31 or November 14, after which he contin- ued in a nonsupervisory status Nester, in explanation of this discrepancey, stated that he had no personal knowledge as to which of the employees were company men, bookmen, or permit men. During the various conferences with Mundell at which layoffs were discussed, he had relied on Mundell to indicate the status of each. Accordingly, he had no information as to wheth- er Gibbons was a company man or a bookman CARPENTERS LOCAL 607 67 ratio. He also denied that Bybee, Phillips, and the six other applicants for union membership on November 3 had been placed on 7-day investigation that night in an effort to make them more susceptible to future layoff than were the bookmen, noting that no pattern existed whereby the per- mit men were laid off in advance of bookmen. It is not disputed that bookmen in substantial numbers had been included among those laid off on October 31 and Novem- ber 14, before Bybee and Phillips had been released.24 It was Mundell's position that no deliberate effort had been taken by the Respondent Union on November 3 to deny the applicants their books. The invocation of the scarcely used 7-day investigation procedure had been pred- icated on a desire to "save the applicants money. As layoffs were about to occur, it had been the membership's general sentiment that it would be a disservice to the applicants to accept their money when they were about to face unem- ployment. He noted that, subsequently, dung the next monthly union meeting on` Monday, December 1, the two individuals who had applied for membership on November 3, and had continued to express interest, received their books.25 -The testimony of Bybee and Phillips, as supported by Nester, is credited. These witnesses testified forthrightly and generally with consistency. On the other hand, Mun- dell appeared to be considerably less candid. Only -after repeated questioning did he describe in detail the sequence of events leading to the invocation of the 7-day investiga- tion procedure, thereby revealing, that its application had been recommended by the Respondent Union's president and trustees. Mundell's testimony in other areas contained several inconsistencies. For example, in. describing the ef- fect of the decision to utilize the 7-day investigation, he testified that it would not have been necessary for the ap- plicants to wait until the next monthly meeting since he had been authorized to sell membership books to interest- ed applicants 1 week after the November 3 union meeting. He stated that, in fact, he had offered to sell Bybee a book on November 14, when he issued Bybee's third work per- mit. On the other hand, Mundell also testified that, when Bybee had called him with an offer to purchase a book shortly after the October 31 layoff, he had informed Bybee that he could sell books only at the membership meetings and not at his home. Mundell also testified that, although the bylaws apparently precluded the sale of membership books except at monthly membership meetings, he had at- tempted to notify various employees on the jobsite of their right to obtain books before the December 1 monthly membership meeting. Fredrick's testimony that Mundell, during the prelayoff conferences with Nester on November 14 and 18, had restricted his attention' to the ratio of layoff of the permit men to company men was also unconvincing as his testimony was restricted to conclusions, Fredrick not 24 Mundell's son, Norris, a bookman, was laid off on November 18, on the same date as were Bybee and Phillips Another son, Mark, also a book- man, had been injured on the job prior to November 18, and had not been able to return to work 25 Mundell identified the successful applicants of December 1 as David W. Cain and Larry E. Hayes. Cain, who previously had been employed at the Cannon Dam project, was laid off on November 14. Hayes had never worked at that jobsite. being able to recall anything that actually had been said at either of those meetings. Fredrick's testimony was further compromised by his admission that, on November 18, he, too, had helped spread a rumor that permit men would be laid off that day. B. Analysis and Concluding Findings The General Counsel's position that the Respondent Union had compelled the layoffs of Bybee and Phillips on November 18 because of their nonmembership in the Re- spondent Union, rather than, as was contended by the Re- spondent Umon, that they had been laid off for economic reasons in a manner consistent with the terms of a lawful collective-bargaining_agreemeiit, appears to be supported by the credited evidence. Thus, Nester testified that Bybee and Phillips were val- ued employees who had specialized experience required for dam construction, not readily obtainable in the vicinity on the Cannon Dam jobsite. Nester also stated affirmatively that he would have retained Bybee and Phillips on the pay- roll were it not for Mundell's firm insistence during their November 18 meeting that Bybee and Phillips be laid off on that date. The Respondent Union contends in its brief that, even were Nester to be credited as to his account of the Novem- ber 18 meeting, Mundell had not actually compelled the Employer to lay off Bybee, and Phillips as his words con- tained no threat of reprisal nor described any union action that would be taken in the event that Nester did not-lay off the two men. There is no legal merit to this position. Re- gardless of how Mundell's remarks to Nester are character- ized, it is clear that they caused the Employer to lay off Bybee and Phillips on November 18. The Board has consis- tently held, with judicial concurrence, that a labor organi- zation need not make a specific demand upon some con- cerned employer to terminate a worker for illegal reasons before 8(b)(1)(A) and (2) violations may be found. As the court stated in N.L.R.B. v. Jarka Corporation of Philadel- phia,26 "This relationship of cause and effect, the essential feature of Section 8(b)(2), can exist as well where an induc- ing communication is in terms courteous or even precatory, as where it is rude and demanding." 27 In agreement with the General Counsel, I find grounds, to suspect-that the Respondent Union's effectuation of the scarcely used 7- day investigation procedure on November 3 was intended to protect its existing members in the jobs with the Em- ployer, while leaving outside permit men in more vulnera- ble positions. As noted, the use of that procedure was a departure from the Respondent Union's practice, as illus- trated at the meeting of October 6 and December 1, of routinely bestowing immediate membership at the time of application. The November 3 action followed the recom- mendation of the Respondent Union's top leadership, and had proceeded in the context of a series of layoffs, past and anticipated. However, the complaint properly does not al- lege and I do not find that the use of the 7-day investiga- tion procedure, in and of itself, was violative of'the Act. 26 198 F 2d 618, 621 (C.A 3, 1952) 27 See R-M Framers, Inc, 207 NLRB 36, 43-44 (1973), Yellow Freight System, Inc, 197 NLRB 979, 981 (1972) 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The incident was germane in that it helped to set the stage for the unlawful layoffs that followed. Although the Respondent Union has adduced evidence that bookmen were laid off before and concurrently with Bybee and Phillips and that another permit man, Bill Gib- bons, continued to work after Bybee and Phillips were laid off, the central issue herein is whether' the `Respondent Union had caused Bybee and Phillips to be laid off on November 18 by its demand upon the Employer on that date. While evidence as to the circumstances of other em- ployees on the jobsite is helpful in evaluating the instant record, as such evidence may tend to show that alleged conduct did or did not occur, it is not a prerequisite to a finding of a violation herein that all other permit men must have been laid off before or concurrently with the alleged discriminatees. In the instant case, the Respondent Union's unlawful conduct was ' directly established through the credited testimony of Nester. I also find no merit to the Union's argument that Bybee and Phillips, in any event, were susceptible to layoff as they had been working in contravention of the union-security clause contained in the collective-bargaining agreement conditioning continued employment upon membership in the Union after a grace period which, in their cases, had long since expired. The terms of that contract provision required that the _ Union affirmatively demand the dis- charge of noncompliant employees in writing and it is es- tablished that such a demand had never been made. Ac- cordingly, as Respondent Union did not timely invoke the union-security clause in the manner prescribed in the con- tract while Bybee and Phillips were still employed by the Employer, this position is of no relevance in the present proceeding. For the foregoing reasons, I find and conclude that, on November 18, the Respondent Union caused the Employer to lay off Bybee and Phillips in violation of Section 8(b)(1)(A) and (2) of the Act, because they were not mem- bers of the Respondent Union. Phillips, that it has no objection to the employment of By- bee and Phillips with all their former rights and privileges and that the Respondent make them whole for any loss of pay they may have suffered by reason of the discrimination against them, with backpay to be computed -on a quarterly basis in the manner established by the Board in F. W. Woolworth Company,28 with interest at 6 percent per annum as provided in Isis Plumbing & Heating Co.29 The evidence provides no basis to support a finding that the-Employer would have laid off Bybee and Phillips on November 24, the date of the final layoffs 30 After the November 24 lay- off, approximately 24 carpenters continued to work on the jobsite. In addition, the order in which the carpenters were laid off was not governed by seniority, but by work profi- ciency and by the ratio between company men and union men. As noted, Nester had developed a high regard for the job performance and specialized experience of Bybee and Phillips and these men had survived the layoffs of October 31 and November 14. Although the possibility exists that Bybee and Phillips, in any event, might have been laid'off on November 24 in order to maintain the contractual ratio between company men and bookmen , such a finding at this time would necessarily be based upon speculation. This is particularly true as the Respondent Union, by its unlawful conduct on November 18, had upset this ratio by its insistence that permit men be laid off prematurely. Ac- cordingly, there is no basis for concluding from the instant record that the Employer would have laid off Bybee and Phillips on November 24 or at any time prior to the com- pletion of the carpenter work on the Cannon Dam project, which work was still in progress at the time of the hearing. See Local Union 29, Bricklayers, Masons' and Plasterers' International Union, AFL-CIO (M. L. Masonry Co., Inc.).31 Upon the basis of the foregoing findings of fact and upon the entire record, I make the following: _ CONCLUSIONS OF LAW IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Union set forth in section III, above,,to the extent found unlawful, occurring in con- nection with the operations of the Employer described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent Union has violated Section 8(b)(1)(A) and (2) of the Act, it shall be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that the Respondent caused the Em- ployer to discriminate with respect to the tenure of employ- ment of Daniel W. Bybee and Gerald Phillips, I shall rec- ommend that the Respondent Union be compelled to notify the Employer, in writing, with copies to Bybee and 1. Carpenters Local 607, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, is a labor orga- nization within the meaning of Section 2(5) of the Act. 2. Massman Construction Co,-Cannon Dam Project is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By causing and attempting to cause the Employer to discharge and discriminate against Bybee and Phillips in violation of Section 8(a)(3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 28 90 NLRB 289 (1950) 29 138 NLRB 716 (1962). 30 There were no additional layoffs after November 24 and, after the start of 1976, the Employer began to hire additional carpenters 3 1 203 NLRB 506, 507-508 (1973). CARPENTERS LOCAL 607 69 Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER32 Respondent Carpenters Local 607, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, New London, Missouri, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Massman Construc- tion Co.-Cannon Dam Project to discriminate against Dan- iel W. Bybee, Gerald Phillips, or any other employees, in violation of Section 8(a)(3) of the Act. (b) In any like or related manner, restraining or coercing employees of Massman Construction Co: Cannon Dam Project in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affect- ed by an agreement requiring membership in a labor orga- nization as a condition of employment in accordance with Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Notify Massman Construction Co: Cannon Dam Project, in writing, that the Respondent Union has no ob- jection to the employment of Bybee and Phillips, with all 32 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. their former rights and privileges, and furnish Bybee and Phillips with copies of such notification. (b) Make whole Bybee and Phillips for all loss of pay which they may have suffered as a result of the discrimina- tion against them in the manner set forth in the section of this Decision entitled "The Remedy." (c) Post at its offices, meeting halls, and all other places where notices to members are customarily osted copies of the attached notice marked "Appendix.- 3? Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by an authorized repre- sentative of Respondent Union, shall be posted by Re- spondent Union immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days there- after, in conspicuous places, including all places where Re- spondent Union customarily posts notices to its members. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Deliver to the Regional Director for Region 14 signed copies of the said notices, in sufficient numbers to be posted by Massman Construction Co.-Cannon Dam Project, the Employer being willing. (e) Notify the Regional Director for Region 14, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 33 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."