Fruin-Colnon Corp.

FRUIN-COLNON CORPORATION 59 Fruin-Colnon Corporation and William E. Miller Laborers International Union of North America, AFL- CIO, Local 282 and William E. Miller and Owen Innis. Cases 14-CA-8891, 14-CB-3066, and 14- CB-3078 December 7, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On June 3, 1976, Administrative Law Judge Eugene George Goslee issued the attached Decision in this proceeding. Thereafter, counsel for Respondent Fruin-Colnon Corporation and for Respondent La- borers International Union of North America, AFL- CIO, Local 282, each filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority-in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge, after detailing the violent and coercive conduct of Respondent Union's president, Fred Kelley, concluded that Respondent Union had committed numerous violations of Section 8(b)(1)(A) and (2) of the Act by causing Respondent Employer to lay off various discriminatees and had independently violated Section 8(b)(1)(A) through numerous acts of violence perpetrated by its agent, Fred Kelley. To remedy such unlawful conduct, the Administrative Law Judge ordered the posting of a notice, as well as reinstatement and backpay for the discriminatees and, to assuage the acts of violence which Kelley had committed, the Administrative Law Judge further required that Respondent Union mail to each of its members a copy of the notice. However, inasmuch as Kelley has demonstrated a proclivity to violate the Act in both this proceeding and another,2 we do not believe that the Administrative Law i Both Respondents have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. With respect to the discharge of employee Leroy Lukefahr, the Adminis- trative Law Judge found that action proscribed as he concluded that Lukefahr was let go for activities under the terms of a contract, and which were both protected and concerted The Administrative Law Judge also 227 NLRB No. 16 Judge's recommended remedy here goes far enough. Accordingly, in view of the violent means used by Fred Kelley to restrain and coerce employees in the exercise of their statutory rights, we shall order, in addition to those remedies proposed by the Adminis- trative Law Judge, that Kelley personally sign the notice required of Respondent Union and read that notice at assembled meetings of all Respondent Union's members. The record in this case reveals that, for all practical purposes, Kelley had complete authority over the work performed by Respondent Union's members on the Respondent Employer's Charmin Paper project. Pursuant to the provisions of the collective-bargain- ing agreement between -Respondent Employer and Respondent Union, Kelley appointed all the foremen who supervised the employees on the project. Fur- thermore, Respondent Employer permitted Kelley to select those laborers to be laid off when conditions necessitated a reduction in work force. Possessed with these powers, Kelley clearly had a duty as an elected union official to administer Respondent Union's affairs, which here so greatly affected the employees' working conditions, in an equitable and orderly manner for the benefit of each and every member of Respondent Union. Instead, Kelley served as a virtual dictator while presiding over the affairs of Respondent Union, brooking no opposition to his authority. In this regard, the record shows that Kelley caused the discharge or layoff of seven employees for reasons personal to him and all in contravention of the Act. Moreover, when Kelley's efforts failed to quash the employees' opposition to his position, Kelley then resorted to violent conduct, including the throwing of a baseball bat at employees, and later shooting at union members who were attempting to secure signatures on a petition for a new election of union officers, a right clearly guaranteed them by Section 7 of the Act. From the evidence herein, it is clear that Fred Kelley has little or no respect for the various rights guaranteed employees under the National Labor Relations Act. As Fred Kelley was the guiding force in the massive unfair labor practices found herein, the remedies provided by the Administrative Law Judge do not sufficiently reach the root of those violations. We note that Fred Kelley has served as an officer of found that the discharge was based on irrelevant, invidious, and unfair considerations. As we adopt the Administrative Law Judge's latter conclu- sions, we do not pass on his comments that Lukefahr's activities were protected by the terms of the existing bargaining agreement. 2 We note that Kelley was also a prune mover in Respondent Union's unlawful actions in Alberici-Fruits-Colnon, 226 NLRB No. 189 (1976). Although the Administrative Law Judge found therein that Kelley's conduct in threatening an employee with physical violence violated Sec. 8(b)(l)(A) of the Act, he there entered only the usual cease-and-desist order against Respondent Union. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Union for approximately 17 years. The record further shows that he is well versed in the field of labor relations. Yet, faced with a legitimate internal union dispute over his authority, Kelley in order to retain his position - plotted, directed, and caused discrimination against the employment status of Respondent Union's members, and used violence to force their allegiance to him and to dissipate support for the employees' petition. In effect, Kelley tried to control - the labor policies of Respondent Employer for his own personal benefit. Kelley's attitude towards fair representation of the - union members is succinctly described by his blatantly unlawful-remarks (before causing two of the discrimi- natees to be fired) that "We're getting rid of these sons of a bitch that's not with us." We conclude that such deliberate and violent violations ofthhe Act by so informed a labor official as Kelley warrant the inclusion of additional remedies. We note that in fashioning its remedies the Board is authorized by Section 10(c) of the Act "to take such affirmative action ..: as will effectuate the policies of the Act." Furthermore, the Supreme Court has long recognized that the Board's power in the area of fashioning effective remedies is "a broad discretion- ary one, subject to limited review." 3 Mindful of these concepts and under circumstances similar to the instant case, the Board in The Loray Corporation4 found that its "usual remedies . . . [were] insufficient to dissipate the effects of the Respondent's extensive and flagrant unfair labor practices." The Board therefore required the employer's president there to personally sign ' copies of the "-Notice to All Employ- ees" and to read same to the employees to remedy the egregious unfair labor practices committed under his specific direction.5 , We think the remedies the Board denoted for the corporation president in The Loray Corporation are equally suitable for Kelley here, as he was clearly the principal actor in Respondent Union's outrageous conduct. We are including these additional remedies not out of any desire to punish or embarrass Kelley. However, in the light of the vengeance Kelley has directed against all union members who oppose him, we are of the opinion that unless Kelley personally signs the notice as president and unless members of Respondent Union hear from Kelley himself that he will conform his conduct to the requirements of the Act, the coercive and restraining effects of Kelley's unlawful activities will not be dissipated. Accordingly, in view of the violent means used by Fred, Kelley to restrain and coerce Respondent Union's members' in the exercise of their statutory rights, we will order, in addition to those remedies the Administrative Law Judge proposed, that Kelley personally sign the notice required of Respondent Union and read that notice at an assembled meeting of all Respondent Union's members. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of - the Administrative Law Judge as modified below and hereby orders that Respondent Fruin-Colnon Corporation, Cape Girardeau, Missou- ri, its officers, agents, successors, and assigns, and Respondent Laborers International Union of North America, AFL-CIO, Local 282, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as modified herein: 1. Substitute the following for paragraph A, 2(e): "(e) Post at its offices and meeting hall frequented by its members and employees it represents from Fruin-Colnon Corporation, copies of the attached notice marked `Appendix A.'12 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent Union's president, Fred Kelley, shall be posted by it immediately upon receipt thereof, and be maintained by the Respondent Union for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material." 2. Add the following as paragraph A, 2(h) and reletter the subsequent paragraphs accordingly: "(h) Convene its members and employees it repre- sents from Fruin-Colnon Corporation at its meeting hall, where President Fred Kelley shall read at an assembled meeting of all Respondent Union's mem- bers and employees it represents from Fruin-Colnon Corporation the contents of the attached Appendix A." 3 See, e.g, Fibreboard Paper Products Corp v. N.L.R.B., 379 U.S. 203, 216 (1964); Virginia Electric and Power Company v. N.LR.B., 319 U.S. 533 (1943); N.LR B v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). 4 184 NLRB 557, 558 (1970) 5 Previously, in Southern Athletic Co., Inc., 157 NLRB 1051 (1966), the Board had ordered another corporation president to mail to employees and personally sign copies of the "Notice to Employees." DECISION STATEMENT OF THE CASE EUGENE GEORGE GOSLEE, Administrative Law Judge: These consolidated cases came on to be heard before me at Cape Girardeau, Missouri, on January 12 through 14, 1976, FRUIN-COLNON CORPORATION 61 and thereafter resumed on February 24 through 26, 1976, upon a complaint' issued by the General Counsel of the National Labor Relations Board and answers filed by the Respondent Fruin-Colnon and the Respondent Union. The issues raised by the pleadings relate to whether or not Respondent Union violated Section 8 (b)(1)(A) and (2) of the Act, and whether, or not Respondent Fruin-Colnon violated Section 8(a)(3) and (1) of the Act. Briefs have been received from the General Counsel , Respondent Fruin- Colnon, and Respondent Union, and the briefs have been duly considered. Upon the entire record in this proceeding, and having observed the testimony and demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT I. PRELIMINARY MATTERS (COMMERCE, JURISDICTION, AND LABOR ORGANIZATION) The complaint alleges, the Respondents' amended an- swers admit, and I find that ( 1) Respondent Fruin-Colnon is engaged in the construction industry ; (2) at times material to these cases Fruin-Colnon was engaged as a general contractor on a project at Cape Girardeau, Missou- ri; (3) Fruin-Colnon's purchases of goods and materials in interstate commerce are sufficient to satisfy the Board's standard for the assertion of jurisdiction ; and (4) Fruin- Colnon is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint also alleges, the answers admit, and I fmd that Laborers International Union of North America, AFL-CIO, Local 282, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES ALLEGED The General Counsel alleges that Respondent Union violated Section 8(b)(I)(A) and (2) of the Act by causing employee William E. Miller to be denied a foreman's job, and Respondent Union violated the same provisions of the Act by causing Fruin-Colnon to lay off or discharge employees William E. Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom Lukefahr, Jim Schoen, and Henry Durham. General Coun sel also alleges that Respondent Fruin-Colnon violated Section 8(a)(3) and (1) of the Act by continuously moving employee William E. Miller from one undesirable job to another, and violated the same sections of the Act by laying off or discharging Miller, Leroy Lukefahr, Sachse, Innis, Tom Lukefahr, Schoen, and Durham. General Counsel further alleges that Respondent Union violated Section 8(b)(1)(A) of the Act by acts of violence committed by its agents at Cape Girardeau on October 23, 1975. Respondents' answers generally deny all the 'substantive allegations of the consolidated complaint. ' A consolidated complaint involving these and other cases was issued by the General Counsel on November 26, 1975, upon a series of charges filed between the dates of September 22 and November 21, 1975. Respondents herein admit the filing and timely service of the charges applicable to them On April 13, 1976, I granted the General Counsel's motion to sever the matters of Blount Brothers Corporation , Case 14-CA-8917, and Laborers International Union of North America , AFL-CIO, Local 282 ( Blount Bros A. Background At times material to these cases Respondent Fruin- Colnon has been engaged in the construction of the Charmin Paper plant at Cape Girardeau, and employed an extensive number of laborers represented by Respondent Union. Respondent Fruin-Colnon is signatory to a collec- tive-bargaining agreement between-National Constructors Association and the Building and Construction Trades Department, AFL-CIO. As a part of National Construc- tors agreement, Fruin-Colnon is also signatory to a collec- tive-bargaining agreement with Laborers' International Union of North America, which in turn incorporates by reference a collective-bargaining agreement with Respon- dent General Laborers Local 282. An essential element in these cases concerns the extent to which Fruin-Colnon has delegated to the Union certain authority with respect to personnel matters, including the imposition of discipline and the right to select employees for layoff in the event of a reduction in force. The issue is additionally complicated by the manner in which certain of Fruin-Colnon's supervisory personnel were selected, and the question of whether they acted as agents of Respondent Employer, Respondent Union, or both. Contrary to the specific provisions of both the National Constructors agreement and the agreement with Laborers' International Union, the- local bargaining agreement be- tween Fruin-Colnon and Respondent Union, authorizes, Local 282 to select both the labor foremen and the general foreman on the Charmin project. Article II of the agree- ment provides, inter alia: Foremen: One foreman is required for every eight (8) men. Foremen to be paid at the rate of 45¢ per hour over highest paid semi-skilled men. General foremen to be paid 450 per hour over all other labor foremen. Foremen and General Foremen to be appointed by the Union on all jobs over $2,500, 000. General Foremen and foremen to be appointed by Contractor on jobs under $2,500,000. [Emphasis supplied.] The record here does not reveal whether the Charmin project had a dollar volume in excess of $2,500,000, but it does reveal that the contractual provision relating to the appointment of foremen and the general foreman was adhered to and applied. Pursuant to the terms of the provision, albeit upon a 'name request by Fruin-Colnon, Respondent Union, through its President and Business Manager Fred Kelley, appointed Bill Kitchen as general foreman on the Charmin project. Fred Kelley also appoint- ed Jim Bollinger as a foreman on the project, and simultaneously appointed Bollinger as job steward under the provisions of article IV of-the local collective-bargain- ing agreement. By its amended answer Respondent Fruin- Colnon admits' that Kitchen is its agent and ' supervisor within the meaning of Section 2(11) of the Act. In part by Corporation), Case 14-CB-3087, for purposes of settlement. Thereafter, by an Order and Decision (JD-285-76) issued on April 30, 1976, 1 granted the motion of the several Respondents to sever the above-captioned matters from the matters ofAlbenci-Frum-Colnon, Case 14-CA-8914 and Laborers International Union of North America, AFL-CIO, Local 282 (Albenci- Frum-Colnon), Case 14-CB-3085. [226 NLRB No. 189.1 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD virtue of his appointment by Respondent Union, but in greater part by virtue of his acts and conduct on behalf of Local 282 as found below, I also fmd that Kitchen acted as an agent of the Respondent Union in matters germane-to the unfair labor practices alleged in these cases. Contrary to the Respondent Union's denial by answer, I find on the totality of the record that Jim Bollinger acted as an agent of the Union within the meaning of Section 2(13) of the Act. My finding in this respect is predicated not so much on Bollinger's appointment as foreman and job steward by Fred Kelley, but rather on the evidence that Bollinger acted as Respondent Union's conduit to carry out Fred Kelley's orders to remove certain employees from the Fruin-Colnon payroll. I further find, on the basis of the issue as litigated, that Bollinger is a supervisor and agent of Respondent Fruin-Colnon. As a foreman, even though appointed by Respondent Union, Bollinger supervised a crew of eight or more employees, and with Fruin-Colnon's knowledge he exercised authority to grant time off to other employees. More important, Bollinger played a significant part in the selection of employees for termination when Fruin-Colnon directed a reduction in force, and he played an equally significant role in effecting the termination of employees for cause. The record in these cases reveals that some of the members of Local 28-2, including members employed by Fruin-Colnon, were dissatisfied with the manner in which the affairs of the local union were being conducted. The dissatisfaction centered in major part on a past election of union officers and the manner in which Fred Kelley and Business Manager Paul Menz were elected to office. Sometime in mid-July 1975,2 Bollinger and employees Owen Innis, Joe Sachse, and William Miller met at the 61 Club and discussed the possibilities of obtaining a new election of union officers. Other members of Local 282 employed by other concerns were also present, and either at the meeting or as a result of the discussions Bollinger drafted a petition, which was duplicated in about 30 copies and circulated to members on the Fruin-Colnon and other projects. The petition expressed dissatisfaction with Kelley and Menz, and specified six separate reasons why their election to office was illegal. Louis J. Ebbesmeyer, superintendent for Frum-Colnon on the Charmin project, testified that about 3 weeks prior to September 4 he received a call at his home from Fred Kelley. Kelley told Ebbesmeyer that he was dissatisfied with Joe Sachse, Bill Miller, and,Owen Innis, that they were in a tavern blowing their mouths off, and that the Union would like to have them laid off. On cross-examination Ebbesmeyer added to his testimony that Kelley stated that the employees had been "stirring up bullshit" by shooting their mouths off at'the tavern about how they didn't like the way the Union was! being run. Fred Kelley was also questioned about the conversation during his appearance as a witness for Respondent Union. According to Kelley his telephone call to Ebbesmeyer was prompted by a complaint made by Bollinger that Sachse, Innis, and Miller ^ were not doing their work and were creating trouble on the job. On cross-examination, how- ever, Kelley denied that he asked -Ebbesmeyer to remove the employees from the job, but admitted that he called Ebbesmeyer because the three employees had been stirring up trouble by shooting off their mouths in taverns. B. The Discharge of William Miller and Leroy Lukefahr William Miller, a member of Respondent Union since 1974, was employed by Fruin-Colnon on the Charmin project on June 10. Miller was hired by Kitchen, and at the time he reported for work on the project there were seven laborers, in addition to General Foreman Kitchen and Steward Jim Bollinger. Miller was assigned as a laborer on the pipefitters crew, and he continued to work until his discharge on September 4. Leroy Lukefahr, also a member of Respondent Union, was employed by Fruin-Colnon on June 17 as a laborer, and continued to work on the project until September 4, when he was terminated by Respondent Employer. During some or all of his tenure on the project Leroy Lukefahr worked under the supervision of Claude Kelley, who was appointed to a foreman's job by his nephew, Fred Kelley. William Miller testified that about August 25 the laborers on the Fruin-Colnon job were told by Kitchen to remain in the change shed after they had finished lunch. Subsequent- ly, Kitchen explained to the employees that Fred Kelley had sent subscription cards for the United Fund drive to the jobsite, and had recommended that each member contribute a day's wages. Miller told Kitchen that he would not contribute a day's wages, that he hadn't worked during 3 months of the year, and he could not afford to make that contribution. Later on the same day Miller told Steward Bollinger that he would not contribute a day's wages. Bollinger agreed that a day's pay was rather steep, but that was what Kelley recommended. When Miller persisted that he could not afford to contribute a day's wages, Bollinger cautioned, "You know probably what will happen." Miller did not contribute to the United Fund drive. Bollinger testified that he was involved in the subscrip-' tions for the United Fund drive. Bollinger testified that Fred Kelley gave him the subscription forms, stated that he wanted the men to contribute a day's pay because he was on the United Fund board and wanted to look good. Bollinger was present at the meeting when Kitchen solicited contributions, and he corroborated Miller's testimony that the latter told Kitchen that he could not afford to give a day's pay. Bollinger also confirmed that he cautioned Miller to contribute, and told Miller that he wouldn't have a job if he persisted in his refusal. Subsequently, Bollinger reported to Kelley that Miller had refused to contribute to the United Fund drive, and. Kelley replied that he would run Miller's ass off the job the first chance he got. In his testimony as a witness for the Respondent, Fred Kelley admitted that he was active in the United Fund drive, but denied that any pressures were exerted, or that he threatened to cause Miller's termination because of his failure to contribute. I was not impressed with Fred Kelley's testimony in this, or any other ,respect, and I have 2 All dates hereinafter are in 1975, unless specified to the contrary FRUIN-COLNON CORPORATION 63 credited him in this decision only to the extent that his versions of events and circumstances have been corrobo- rated by other testamentary or documentary evidence. I do credit Miller's testimony, and I similarly credit the testimony of Bollinger as it relates to the United Fund matter, as well as his testimony as it relates to other aspects of these cases. In arriving at the credibility resolution on Bollinger I have taken into consideration the evidence that he initially gave the Board's agent false information pertaining to Miller's absence from the Charmin project on September 4. Bollinger, nevertheless, rectified this situation in subsequent statements given to the Board, and he voluntarily resigned his job with Fruin-Colnon because of the dispute between the Respondent Union and its mem- bers. I find Bollinger credible in all respects. Up to August 25, Miller's regular job was grading for the pipe crew. However, after his refusal to comply with the request to contribute to the United Fund, Kitchen switched him from job to job, and gave him the least ,desirable jobs on the project. There is nothing in the record to refute Miller's testimony about the change in his assignments after his refusal to contribute to the United Fund , and I find that the assignments were made by Kitchen , with the knowledge and connivance of Fred Kelley, in retribution for Miller's refusal to comply with Kelley's demand. Bollinger testified that he had a request from Lou Payne, superintendent of a subcontractor's crew performing piping work, that 'Miller be appointed foreman for the crew of laborers assisting the pipefitters. Bollinger passed the request on to Fred Kelley. Kelley became very -angry, and replied, "No, I know there's a conspiracy out there .. . hell, no, he'll never be a foreman out there ." Kelley also repeated his prior threat that he would run Miller off the job at the first opportunity. Bollinger also testified that Fred Kelley appointed his nephew, Curtis (Skipper) Kelley, to the foreman's job, notwithstanding Skipper Kelley had been employed on the project for only a few days . At a later time, Bollinger was called in by Fred Kelley and interrogated about who had complained about his nephew and the manner in which he supervised the crew . Bollinger accompanied Fred Kelley to the office of Ward Smith, Fruin-Colnon's project manager, where the discussion continued in the presence of Smith and Lou Payne . Kelley answered the complaint about his nephew with the comment that they had- better get along with Skipper Kelley because that was his nephew and' his favorite nephew. Fred Kelley added that Skipper Kelley would continue as foreman and he would not change the assignment. On September 4 Miller informed Bollinger that he would have to leave at noon to obtain some insurance papers to put his son in the hospital. Bollinger approved and Miller asked if he should report his intended absence to Kitchen. Bollinger replied that this would not be necessary, and that he would take care of the matter. Nevertheless, before Miller left the jobsite he informed Kitchen of the reason for his intended absence, and Kitchen replied, "Whatever it takes to take care of the boy." Bollinger corroborated Miller's testimony that the latter requested permission to leave work at noon on September 4, and he also testified that he informed Kitchen of Miller's intended absence. Kitchen replied, "It's no problem." Later on the same day, as he did nearly every day, Bollinger called Fred Kelley to report who was on the job. In response to Bollinger's information that Miller left the job at noon, Kelley responded , "Get his check." When Bollinger also informed Kelley that Leroy Lukefahr had not reported to work that day, Kelley replied , "Get his check, too." Kelley also directed that Bollinger get final paychecks for Owen Innis and Joe Sachse. Bollinger protested, "That's a lot of checks to get, how are we going to cover for them." Kelley replied that Bollinger was not to worry, and Kelley would take care of it . However, Bollinger continued to protest the discharges of Innis and Sachse. Kelley relented as to those two members,,but insisted that Miller and Lukefahr were to be terminated . Kelley added the reasoning, "We're getting rid of these sons of a bitch that's not with us." Bollinger, however, continued to question Kelley on the wisdom of discharging Miller and Lukefahr, and told Kelley that Miller had permission to leave the job. Kelley replied, "Just say that Mr. Miller never told you he was leaving." When Bollinger insisted that Miller had informed him he was leaving, Kelley replied, "Well, we're just going to have to he like a bunch of dogs." After the telephone conversation Bollinger went to the office and reported Fred Kelley's directions to Kitchen, Bollinger reported that Kelley wanted Miller and Lukefahr discharged, but that he had changed his mind about Innis and Sachse. Bollinger told Kitchen that Kelley had directed he and Kitchen to say that Miller had not reported his intended absence from the job, and ' Kitchen replied that they would have to go along with Kelley and he about the matter. Bollinger and Kitchen reported to the office of Superin- tendent Ronquist, and, in the - presence of both Ronquist and Ebbesmeyer, Bollinger stated that he wanted final checks for both Miller and Leroy Lukefahr. Bollinger explained that Fred Kelley wanted the employees laid off. Ronquist asked how Bollinger and Kitchen were going to cover for the discharges, and Bollinger replied that Fred Kelley would take care of the matter through Ronquist. Ronquist stated that Fruin-Colnon didn't want to get caught in the middle, but, if Kitchen and Bollinger were satisfied, "We have to be or we might go down the road ourselves." Ebbesmeyer also expressed concern about the proposed discharges of Miller and Lukefahr, and expressed concern that Fruin-Colnon would be caught in the middle. Ebbesmeyer also expressed concern that Bollinger and Kitchen would be run off the job. After Miller filed a charge with the Board, Bollinger had a further conversation with Fred Kelley about the discharg- es. Bollinger asked how they were going to cover for the discharges, and Kelley answered, "We are just going to have to lie like a bunch of dogs." Kitchen testified concerning the discharges of Miller and Leroy Lukefahr, and generally contradicted the version of events given by Bollinger. According to Kitchen he discovered that Miller was absent from the job on the afternoon of September 4. Kitchen discussed the matter with Bollinger, and with Bollinger reported the matter to Ronquist and requested that Miller be terminated. In the 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same conversation Kitchen requested that Leroy Lukefahr be terminated for excessive absenteeism . Kitchen particu- larly denied that he gave Miller permission to leave work on the afternoon of September 4, and denied that Bollinger informed him of Miller's intended absence. According to Kitchen, Bollinger had no authority to grant time off, but other evidence in the record reflects that Kitchen was aware that Bollinger had exercised such authority in the past without warning or reprimand. Ronquist and Ebbesmeyer also testified concerning the termination of Miller and Lukefahr, and conceded that the discharges were requested by Kitchen and Bollinger. In most respects , however, both denied all the salient facts adduced through the testimony of Bollinger. I find no compelling reason to credit any of the testimony of Bill Kitchen. His whole demeanor as a witness in this proceeding exemplified his dual role as a double agent, seeking to satisfy his obligations as an agent of his employer, while at the same - time seeking to protect his other, master, Fred Kelley. 'Demeanor, appearance, and responsiveness aside, Kitchen's version of the events surrounding the discharges of Miller and Lukefahr is suspect on the facts . If, as he testified, Kitchen discovered Miller's unauthorized absence from the job , there is no credible explanation why he felt compelled to discuss the matter with Bollinger, and there is even less evidence to explain why he felt compelled to bring Bollinger into the meeting with Ronquist and Ebbesmeyer . Neither Miller nor Lukefahr worked under the supervision of Bollinger, and it is clear that Bollinger was consulted by Kitchen and brought to the meeting in his capacity as the Respondent Union's job steward. Ronquist and Ebbesmeyer3 were somewhat more credi- ble than Kitchen, and I am inclined to credit their testimony in some limited extent. It appears from all of the relevant testimony that Kitchen and Bollinger did not inform Ronquist and Ebbesmeyer of all the facts concern- ing Fred Kelley's demand for the discharges. Nevertheless, even on the version of the facts adduced through Ronquist and Ebbesmeyer, it is patently clear that both were curious about the requests for the discharges, and concerned that Fruin-Colnon would be caught in the middle of a dispute between the Respondent Union and its members. The reason for the curiosity and the concern is obvious . About 3 weeks prior to September 4, Fred Kelley had demanded of Ebbesmeyer that Miller and two other employees be terminated, and Ebbesmeyer was aware that Kelley's demand was predicated on the employees' complaints about how Local 282 was being run. In the light of that background information, and in the further light of a demand for the discharges by the Respondent Union's Steward and the ' Union's appointed general foreman, Ronquist and Ebbesmeyer had every valid reason to question whether the demand for the discharges was for the reasons asserted, With respect to Leroy Lukefahr, there is no evidence in the record that he was privy to, or participated in, the plan to oust Fred Kelley and Paul Menz from union office. There is evidence, however, that Lukefahr incurred the wrath of Fred Kelley through other activity, and it was this activity which motivated Kelley's order that Lukefahr be terminated on September 4. Leroy Lukefahr worked as a laborer under the supervi- sion of Claude Kelley, an uncle of Fred Kelley, and appointed to a foreman's job by his nephew. On the whole of the record it is clear that Lukefahr had a history of absenteeism from work, and he was probably not the most reliable employee on the project. Approximately a week before his discharge Lukefahr was criticized by Claude Kelley for pushing work off on another employee. Lukefahr protested the accusation, undoubtedly in words unfit for polite company, and Claude Kelley responded, "If I can't take care of you, Jim Bollinger [and] Fred Kelley will." Lukefahr countered, "Well, bring them on, I'm not afraid of them." During a lunch period break in the change shed, and in the presence of Bollinger, Kitchen, Fred Kelley, and several employees, Lukefahr told Bollinger and Fred Kelley, "I'm not a god damned bit afraid of either of you." Bollinger confirmed the run in between Lukefahr and Claude Kelley, and he also confirmed Lukefahr's remarks to Fred Kelley in the change shed. Bollinger further testified that when he walked out the door with Kitchen and Fred Kelley, the latter threatened, "We're getting rid of that son of a bitch." There is no dispute that Leroy Lukefahr was not the most agreeable or cooperative laborer on the Fruin-Colnon project, and his absenteeism was no doubt cause for termination by the Company. But Lukefahr's termination was not brought about by Fruin-Colnon's dissatisfaction with his job performance. On the contrary, there is no evidence that the Company contemplated Lukefahr's discharge until it was directed to do so by Bollinger and Kitchen. Bollinger and Kitchen were acting at the, express direction of Fred Kelley and, in the absence of any other explanation afforded by Respondent Union, the conclusion is required that the demand for Lukefahr's discharge stemmed from his conflict and exchange of words with Fred Kelley in the change shed. C. The Discharge of Joe Sachse Sachse, a member of Local 282, was employed by Fruin- Colnon on the Charmin project from July 14 to the date of his discharge on September 16. Sachse testified, and his testimony was corroborated by Bollinger, that he was present at the 61 Club meeting in mid-July, and there is other evidence that he helped in distributing the petition drafted by Bollinger. As found above, Sachse was one of three employees whose termination was demanded by Fred Kelley in his telephone call to Ebbesmeyer, and there is additional evidence that Fred Kelley told Bollinger that he wanted to get rid' of Sachse because of his criticism about how the Union was being run. Sachse admitted in his testimony that he entered the project site on September 15, with the intent of departing immediately, that he was asked by the guard to show his pass and refused to do so. Sachse reported to Kitchen and Bollinger and told them that he was leaving. Both tried to 3 1 do not credit Ebbesmeyer's demal that he was not present in Ronquist's office on September 4, as it is contradicted by both Bollinger and Kitchen. FRUIN-COLNON CORPORATION 65 persuade Sachse to remain, but he immediately left and again refused to show his pass to the guard. Bollinger testified that Sachse came- up before starting time on September 15, and reported that he had to leave because of personal problems. Bollinger attempted to persuade him to remain, but Sachse refused. The guard walked up and reported to Bollinger and Kitchen that Sachse had refused to show his pass. Sachse again refused Bollinger's order to show his pass, and walked out the gate. Bollinger reported to work, but shortly thereafter he was called to the office by Fred Kelley. Kelley asked if Sachse had shown his pass and Bollinger answered that the guard reported that he had not. Kelley ordered, "Well, get rid of him because-we've got to show our passes and he's no better than we are." Kitchen testified that he was informed by the guard as he entered the project site on September 15 that Sachse had refused to show -his pass. Kitchen agreed that he would inquire into the matter. While Kitchen was talking to Sachse the guard came up, and Kitchen told Sachse to show his pass or pick up his pay. Sachse refused and walked out. Kitchen then reported the matter to Bollinger and they went to the office. Kitchen was not sure whether he reported the incident to Ronquist or Ebbesmeyer, but he recommended to one or the other that Sachse be dis- charged. It is clear in the record that Ronquist did not participate in the discharge of Sachse. Ebbesmeyer testified, however, that he was informed by Ward Smith, project manager, that an employee had refused to show his pass to the guard. As Ebbesmeyer left his office to make an inquiry Kitchen came up and reported the incident about Sachse. Ebbesmeyer told Kitchen that such conduct could not be permitted and suggested that they go to the office to effect the termination. According to Ebbesmeyer, Kitchen talked to Ronquist and it was agreed to discharge Sachse. Fred Kelley's total testamentary contribution to the defense against the discriminatory discharge of Sachse consisted of an expres- sion of awareness that a pass must be shown to the guard as a condition of entering the Fruin-Colnonjobsite. I find no conceivable way to credit the testimony of Respondents' witnesses concerning the discharge of Sachse. Bollinger testified that Fred Kelley was on the jobsite and in the office on the morning of September 15. There was no testimony adduced through Kelley, Kitchen, or Ebbesmey- er to rebut the fact established by Bollinger, and from the record as a whole I find that both Respondents carefully evaded the issue. Kitchen was unsure whether Ronquist or Ebbesmeyer ordered Sachse's discharge, but Ebbesmeyer testified that Kitchen reported to Ronquist and Ronquist approved the termination. Ronquist testified, however, that he did not participate in the discharge of Sachse. I do credit the testimony of Fruin-Colnon's witnesses that all employees on -the project were obligated to show a pass when entering the jobsite. I-similarly credit Fruin-Colnon's contention that the failure of an employee to abide by the rule is grounds for discharge. However, I also find that Sachse's adamant refusal to abide by the rule was not the cause for his termination. - I-credit Bollinger's testimony that Fred Kelley was at the jobsite on September 15, and that he directed the discharge of Sachse. From the findings reviewed above it is clear that Kelley's motive had nothing to do with Sachse's violation of the Company's work rules. Ebbesmeyer was apprised of Sachse's refusal to show his pass, and I find he approved Kitchen's request for the discharge. Ebbesmeyer was aware, however, that Sachse was one of three employees on Fred Kelley's hate list, but he nevertheless approved the dis- charge without any attempt to independently investigate the facts. Finally, Respondent Fruin-Colnon's contention that the aggravated nature of Sachse's conduct mandated his immediate discharge is completely negated by its admission that Sachse was rehired on the following day as a cement finisher. - The lack of credence attending Respondent Fruin-Col- non's defense on the Sachse allegation is highlighted by the testimony of Project Manager Ward Smith. Smith testified that the guard called and reported that Sachse had refused to show his pass, and Smith directed Ebbesmeyer to effect Sachse's discharge. Smith's participation in the Sachse discharge was not -even alluded to in the testimony of Kitchen, Ebbesmeyer, or Ronquist. Nevertheless, Smith admitted in his testimony that on September 16 he complied with the request of the business agent for the cement finishers, and, over the objection of his subordi- nates, put Sachse back on the payroll. The whole of the part played by Respondent Union in the discharge of Sachse is highlighted and exemplified by Smith's further testimony of the telephone call he received from Fred Kelley after he approved Sachse's rehire. According to Smith, Kelley was very angry and told Smith he had made a bad and serious mistake. D. The Terminations of Owen Innis, Thomas Lukefahr, Jim Schoen, and Henry Durham Shortly before October 10, Project Manager Ward Smith ordered a reduction in force for the laborers on the Charmin project. Smith passed the order down to Ronquist, and Ronquist directed General Foreman Bill Kitchen to make up the list. Kitchen made up a layoff list, but admittedly consulted with Bollinger in doing so. Kitchen denied, however, that the list was shown to Fred Kelley at any time, or that Kelley participated in the selection process. Insofar as the Respon- dent Fruin-Colnon's records reflect, seven employees were selected for termination, including Owen Innis, Thomas Lukefahr, and Jim Schoen. A second layoff followed on October 22, and insofar as the record reflects the same procedures were followed. In the second layoff approxi- mately 18 laborers were selected, including Henry Durham, who the General Counsel alleges was selected for reasons prohibited by the Act. Owen Innis, a member of Local 282, was hired by Fruin- Colnon at the Charmin project on July 14, and worked continuously until terminated on October 10. Innis was a participant in the July meeting at the 61 Club, and he also participated in several later meetings devoted to the subject of a new election of union officers. It is clear from the evidence and findings above that Innis' activities were known to Fred Kelley, and Kelley had targeted Innis for termination upon the first opportune occasion. Innis also testified that there were discussions on the jobsite about a 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD new election for union officers. Innis identified William Miller and Jim Schoen as participants in these on-the-job conversations, and he also -testified that Bill Kitchen was present on some of-these occasions. On one such occasion Kitchen told the employees that they ought to keep the talk down, it could cause a lot of trouble, and it would be best to keep it quiet so it wouldn't cause a bunch of trouble. Jim Schoen, a member of Local 282 for 12 years, was first employed on the Charmin project on July 3, and he continued to work until his termination on October 10. Like William Miller, Schoen was among those solicited by Kitchen for a contribution to the United Fund. Schoen told Bollinger and Kitchen that he would not contribute, but the record reflects that he subsequently did so. At the time of his termination Schoen was assigned to a crew assisting the cement finishers. Prior to that time, however, Shoen had been assigned as a truck helper, but suffered an accident and was given light duty on cleanup. Schoen continued on light duty for approximately a week, but Fred Kelley came to the jobsite, removed an employee from duty_as a truck helper, and assigned Schoen to take his place as a cement finisher. Schoen continued to work on the cement finishers labor crew for a week or more, until- Kelley again visited the jobsite. Kelley called'Schoen over to where he was talking to Kitchen and asked, "What's this man doing off the truck ... I want him back on the truck." Kitchen complied, but after 2 or more weeks returned Schoen . to the concrete crew. None of the foregoing testimony was rebutted by either Respondent. Tom Lukefahr, also a member of the Respondent Local 282, was first employed on the Charmin project on July 14 and continued to work until October 10. There is no evidence that Tom Lukefahr was privy to, or participated in, the rump movement to oust Fred Kelley and Paul Menz from union office. However, like his brother Leroy, Tom Lukefahr incurred the wrath of Fred Kelley, albeit in a less direct and abrasive manner. On two or more occasions Lukefahr complained to Kitchen and Bollinger that he was not being paid the additional 32-1/2 cents per hour when he operated special tools. Bollinger passed the complaint on to Fred Kelley, who gave the terse and pointed reply, "To hell with him." Henry Durham did not testify in this proceeding, and the most the record reflects is that he -was hired by Fruin- Colnon on June 16, and terminated on October 22. There is no evidence that Durham was a party to the plan to unseat Fred Kelley and Paul Menz, and no evidence that he engaged in any other conduct which would incur the dislike of Kelley or other union officials. There is other evidence, however, that Durham was selected by Fred Kelley for layoff, and that Kelley's selection was predicated on invidious, unfair, and arbitrary considerations. It is clear from the testimony of Kitchen that Bollinger participated in the selection of the employees who were laid off on October 10 and 22. No cogent reason was advanced by either Respondent to explain why the Union's steward was consulted in the selection process, and I am unable to find any thing in the several bargaining agreements that Frum-Colnon ceded to Respondent Union authority over the tenure or terms or conditions of employment. In addition I credit Bollinger's testimony that Kelley partici- pated in the selection process for the layoffs on October 10 and 22, as he participated in the selection process in all cases of a reduction in force. The process used was that Kelley and Bollinger sat down with the roster of laborers assigned to the job, struck off a sufficient number of employees to reach the desired figure, and then copied the names on a separate sheet of paper. Fruin-Colnon simply accepted the list as a fait accompli, and there is no evidence that the choices made by Kelley and Bollinger were ever questioned. In the selection process for the October 10 layoff, Fred Kelley immediately picked out the names of Owen Innis and Jim Schoen, with the comment to Bollinger, "We want to get rid of them two for sure." Kelley also told Bollinger, "They'll never work out of the hall again." In the case of the October 22 layoff, Lou Payne came into the room while Kelley and Bollinger were making the selections and told the Union's agents that he wanted to keep Henry Durham because he was the best guy he ever had to lay grade for pipe. When Kelley reached the stage in the selection process where one additional employee had to be included, and the names of Henry Durham and Lloyd Kelley were still unchecked, Kelley stated to Bollinger, "Well, I can't lay my uncle off because he owes money to the bank and I am on his note." Kelley then added Henry Durham to the list of employees to be laid off. There- is no evidence in this record to support a finding that Henry Durham was less than a completely satisfactory employee. To the contrary, the request made by Lou Payne reflects exactly the opposite. The same may not be said for Lloyd Kelley. Ebbesmeyer testified that there were more desirable laborers on the job than Lloyd Kelley, and he acknowledged that he tried on more than one occasion to have Lloyd Kelley fired. Nevertheless, Lloyd Kelley re- mained on the Fruin-Colnon payroll until November 14, long after most of the laborers had been terminated. Except for a cursory denial by Fred Kelley that he played any part in selecting the employees to be laid off, which I do not credit, Respondent Union offered little or no defense to the allegation of having caused the Company to discrimi- nate in the October 10 and 22 layoffs. Even if I should credit Kelley's testimony that Frum-Colnon was solely responsible for the selections under a delegation from Smith to Ronquist to Kitchen, the record affords no explanation of why Bollinger was allowed to participate in the process. The only evidence presented by Respondent Fruin-Col- non as to why certain employees were selected for layoff was the testimony of Bill Kitchen. Kitchen testified that employees were selected according to the type of work they were performing, and that Innis, Tom Lukefahr, and Schoen were selected because the grading and carpentry work were in the process of completion. Even if I were to credit Kitchen's testimony that he made the selections without input from Fred Kelley and Bollinger, I would be obligated to reject Kitchen's proffer on why he selected Innis, Lukefahr, Schoen, and Durham. Lou Payne's request for the continued services of Durham was predicated on the employee's skill in performing grading work for the pipe crew. Schoen was not employed in either grading or carpentry work, but at the time of his layoff he was, assigned FRUIN-COLNON CORPORATION 67 as a helper to the cement finishers. Accordingly, I reject Kitchen's testimony that the employees alleged to have been discriminated against were selected because there was no longer any need for the function they performed. E. The Events of October 23 On the morning of October 23, Joe Sachse and Owen Innis, accompanied by member Dallas Dover, visited a construction-project in Cape Girardeau for the purposes of soliciting signatures for the petition for a new election of union officers. The three members parked Innis' truck and entered the jobsite, where they talked to some of the laborers and obtained some .signatures on the petition. During the course of the visit, Sachse appears to have had an exchange with an individual named John Cason, and Sachse, Innis, and Dover left the site soon thereafter. As they neared Innis' truck, Fred Kelley started to walk toward them carrying a baseball bat under his arm. The members hurried into the truck, but found that one tire was flat. Nevertheless, they drove off toward a service station, but as they departed Kelley threw the baseball bat and hit the top of the truck. As they neared a service station located at some distance Sachse observed that they were being followed by a red Cadillac driven by Paul Menz. As Menz passed Innis' truck, Fred Kelley stuck his hand out from the Cadillac and fired shots from a revolver at the truck. Sachse saw Kelley fire two shots, heard three, and later examina- tion of the truck revealed that it had been hit three times. The Respondent Union presented no testimony to rebut or refute the evidence of the assault and violence perpetrated by Fred Kelley and Paul Menz on October 23 .4 In summary I find and conclude that the Respondent Union violated Section 8(b)(1)(A) of the Act by the assaults and acts of violence perpetrated by Fred Kelley and Paul Menz on the persons and property of Joe Sachse, Owen Innis, and Dallas Dover on October 23. I also find and conclude that Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by causing Fruin-Colnon to discriminate against William Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom Lukefahr, Jim Schoen, and Henry Durham with respect to their tenure and terms and conditions of employment. Miller, Sachse, Innis, and Schoen were participants in the move with other members of Respondent Union to oust Kelley and Menz from union office by a petition for a new election. With respect to all of these employees Fred Kelley threatened retribution, both in his conversations with Bollinger, and as exemplified by his earlier demand of Ebbesmeyer that employees Miller, Sachse, and Innis be removed from their employment on the Charmin project. The motive of Respondent Union is even more clearly exemplified by the conduct of Kelley and Menz on October 23, when they used a baseball bat and a revolver to deter and dissuade Sachse and Innis from obtaining signatures on the petition from employees on 4 Kelley and Menz were indicted before the Federal District Court for the Eastern District of Missouri, for the willful use of force and violence to restrain, coerce and intimidate members of a labor organization in violation of 29 U.S.C. §530. At the time the hearing in this proceeding was closed the convictions of Kelley and Menz were pending on appeal. 5 Miranda Fuel Company, Inc., 140 NLRB 181, 183 (1962), enforcement denied 326 F.2d 172 (C.A. 2, 1963). another construction project. The activities of Miller, Sachse, Innis, and Schoen with -respect to the petition for a new union election are clearly encompassed within the scope of employee rights guaranteed by Section 7 of the Act, and by causing Fruin-Colnon to discharge, and otherwise discriminate against the employees in retaliation for these activities, the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act: I have found no evidence in these cases that Leroy and Tom Lukefahr and Henry Durham were privy to or participants in the petition for a new union election. There is a plentitude of evidence, nevertheless, that both of the Lukefahrs incurred the vehement dislike of Fred Kelley by questioning his authority to manage the Fruin-Colnon project and by complaining about nonpayment of estab- lished contractual wage benefits. In the case of Henry Durham, there is no evidence of any overt act on his part to invoke retaliation by the Union' s agents. Durham was simply laid off by Fred Kelley as an alternative to the layoff of one of Kelley's close relatives. It is well established that the proscriptions of Section 8(b)(1)(A) and (2) of the Act extend beyond the prohibition on unions and their agents to cause discrimination because of the -employees' union membership -or activities.5 The Board has held that, "The privilege of acting as an exclusive bargaining representative derives from Section 9 of the Act, and a union which would occupy that statutory status must assume `the responsibility to act as a genuine representative of all the employees in the bargaining unit.' "6 By its selection as the bargaining representative for Fruin-Col- non's employees Respondent Union became "the agent of all the employees charged with the responsibility of representing their interests fairly and impartially." 7 The collective-bargaining agreement here accords to Respon- dent Union the right to designate foremen, and it is clear from the whole record that through the collective-bargain- ing agreement or otherwise, Fruin-Colnon ceded authority to the union to discipline employees for alleged infractions of the Employer's work rules, and to select employees for layoff in the event of a reduction in'force. Under similar extension of authority, the Board has held that the varying treatment accorded to the employees must be related to "relevant" differences, because Section 7 gives employees the right to be free from unfair, irrelevant, or invidious treatment by their exclusive bargaining representative.8 Leroy Lukefahr-questioned the authority of Fred Kelley to discipline him because of a job-related complaint about his work performance, and Tom Lukefahr complained of being deprived of the payscale under the contract. The activities of the two employees arose under the terms of the bargaining' agreement, and were both protected and con- certed. Beyond that, however, Fred Kelley's demand for Leroy Lukefahr's -discharge and his selection of Tom Lukefahr for layoff were actions based on irrelevant, invidious, and unfair considerations. The same finding, on 6 Miranda Fuel, supra citing Die and Tool Makers Lodge No. 113, International Association of Machinists, AFL (Peerless Tool and Engineering Co.), 111 NLRB 853 (1955), enfd 231 F.2d 298 (C.A. 7,1956), cent denied 352 U.S 833. 7 The Wallace Corporation v. N LR.B., 323 U.S. 248,255 (1944). S Miranda Fuel, supra, citing Steele v Louisville & Nashville Railroad Co., et al., 323 U.S 192,202 (1944). 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the same rationale, is equally applicable to William Miller, whose discharge was demanded, at least in part, by reason of his refusal to accede to Fred Kelley's demand for a contribution to the United Fund. A similar finding is applicable to the layoff of Henry Durham. Selection of an employee to continue his employment by reason of rela- tionship by blood or marriage and the existence of a private money obligation is an unfair, irrelevant, and invidious consideration. As to Respondent Fruin-Colnon, I have found above that the Company, both by contract and other cessions of authority, ceded to Respondent Union control over hire, tenure, and terms and conditions of employment. Upon the whole of the record it is clear, and I find that Fruin-Colnon knew that the Union's demands for the discharge of Miller, Sachse, and Innis were unrelated to their job performance, and predicated solely on Fred Kelley's hostility. The same finding and conclusion is required on the Union's failure to appoint William Miller as foreman and the evidence that Miller was singled out by General Foreman Bill Kitchen for assignment to arduous and undesirable jobs. Further, Respondent Fruin-Colnon had sufficient knowledge, which any reasonable employer would have exercised, to question why Leroy and Tom Lukefahr, Jim Schoen, and Henry Durham were selected for termination. In spite of knowl- edge, Respondent Employer raised no question, but simply acceded to the Union's demands. As the Board held in Miranda Fuel, supra: The right to hire and fire and to control tenure of employment is an' employer's alone; and where an employer does delegate or surrender hiring and firing and related authority to a labor organization, the employer is responsible, so far as this act is concerned, for the unlawful manner in which the union exercises the delegation.9 THE REMEDY Having found that the Respondent Union and the Respondent Fruin-Colnon have engaged in certain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom, and take certain affirmative actions to remedy the unfair labor practices and to effectuate the policies of the Act. As I have found that the terminations of William Miller, Joe Sachse, Owen Innis, Leroy Lukefahr, Tom Lukefahr, Jim Schoen, and Henry Durham violated Section 8(b)(1)(A) and (2) and Section 8(a)(3) and (1) of the Act, I shall order the Respondents to take the following affirma- tive actions. I shall order Respondent Union to notify Respondent Fruin-Colnon, in wasting, with a copy to each employee found to have been discriminated against herein, that it has no objection to the employment of Miller, Sachse, Innis, Leroy and Tom Lukefahr, Jiro Schoen, and Henry Durham, and that Respondent Union simultaneous- ly request Fruin-Colnon to reinstate the employees to their former positions of employment. I shall also order that Respondent Fruin-Colnon offer immediate and full rein- statement to Miller, Sachse, Innis, Leroy and Tom Lukefahr, Jim Schoen, and Henry Durham, without prejudice to their seniority or other rights or privileges previously enjoyed, or, if their jobs are no longer available, Respondent Fruin- Colnon is required to offer the employees reinstatement to substantially equivalent positions. In the case of William Miller, who I have found was discriminated against for the additional reason that he was deprived of a foreman's job, the Union has sole authority under the collective-bargaining agreement to appoint foremen. Accordingly, I shall order that Respondent Union appoint William Miller as a foreman on Respondent Fruin- Colnon's Charmin project, replacing, if necessary, any foreman appointed on or after the date Miller would have been appointed as a foreman except for Respondent Union's act of discrimination. With respect to the liability for the employees' loss of earnings, I shall order that Respondent Union and Respon- dent Fruin-Colnon, jointly and severally make William Miller, Joe Sachse, Owen Innis, Leroy and Tom Lukefahr, Jim Schoen, and Henry Durham whole for any loss of earnings they have sustained by reason of the discrimina- tion against them. In addition I shall order that Respondent Union make William Miller whole for any loss of earnings he sustained by reason that he was deprived of a foreman's job. The backpay shall be computed in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and shall bear interest as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Further, because the unfair labor practices committed by Respondent Union go to the very core of employee rights protected by the Act, I shall order Respondent Union to cease and desist in any other manner from restraining and coercing its members in the exercise of the rights guaran- teed them by Section 7 of the Act. I shall similarly order Respondent Fruin-Colnon to cease and desist in any other manner from interfering with, restraining, and coercing employees in the exercise of their rights under Section 7 of the Act. Finally, in view of the violent means used by Respondent Union's agents to coerce and restrain its members in the exercise of their statutory rights, some additional affirma- tive remedy is required. I have found above that Fred Kelley and Paul Menz physically assaulted the persons and property of three of Respondent Union's members on October 23, using a deadly weapon. A similar finding and conclusion was made in Laborers International Union of North America, AFL-CIO, Lgcal 282(Alberici-Fruin-Col- non), in which f issued a decision (JD-285-76) on April 30, 1976. As it is apparent here, as in the prior case, that the Respondent has engaged in wholesale acts of restraint and violence extending beyond the confines of the Fruin- Colnon construction project, some remedial measure is required to assure all of the Union's members that such acts of assault and violence will not be repeated. Accordingly, I shall order that the Respondent Union mail to each of its members a copy of the attached notice marked "Appendix A." 9 Miranda Fuel, supra 188, citing Morrison-Knudsen Company, Inc. v. NLRB, 275 F.2d 914 (C A. 2, 1960). FRUIN-COLNON CORPORATION 69 CONCLUSIONS OF LAW 1. Respondent Employer Fruin-Colnon Corporation is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union Laborers International Union of North America, AFL-CIO, Local 282, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By failing and refusing to appoint William E. Miller as a foreman under the provisions of its collective-bargain- ing agreement with Respondent Fruin-Colnon, Respondent Union violated Section 8(b)(1XA)-and (2) of the Act. 4. By causing Respondent Fruin-Colnon to discrimi- nate against William E. Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom Lukefahr, Jim Schoen, and Henry Durham in violation of Section 8(a)(3) of the Act, Respon- dent Union violated Section 8(b)(1)(A) and (2) of the Act. 5. By physically--assaulting the persons and property of Joe Sachse, Owen Innis, and Dallas Dover on October 23, 1975, Respondent Union violated Section 8(b)(1)(A) of the Act. 6. By jointly, through their dual agent, Bill Kitchen, transferring William Miller from his regular duties to onerous and undesirable jobs, Respondent Union violated Section 8(b)(1)(A) and (2) of the Act, and Respondent Fruin-Colnon violated Section 8(a)(3) and (1) of the Act. 7. By acceding to Respondent Union's demands to discharge or lay off its employees William E. Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom Lukefahr, Jim Schoen, and Henry Durham, thereby discriminating against said employees in the tenure and terms and conditions of their employment, Respondent Fruin-Cohion violated Section 8(a)(3) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record in this proceeding, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: ORDER10- A. The Respondent Union, Laborers International Union of North America, AFL-CIO, Local 282, Cape Girardeau, Missouri,-"its officers, agents, and representa- tives, shall: - 1. Cease and desist from: (a) Refusing under the terms of its collective-bargaining agreement with Fruin-Colnon to appoint William E. Miller as a foreman because he engaged in activities protected under Section 7 of the National Labor Relations Act. (b) Causing Fruin-Colnon to discriminate against Wil- liam E. Miller by transferring him from his regularly assigned duties to onerous and undesirable jobs because 10 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. , Miller engaged in activities protected by Section 7 of the Act. (c) Causing Fruin-Colnon to discriminate against Wil- liam E. Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom Lukefahr, Jim Schoen, Henry Durham, or any other member, because said members engaged in activities protected by Section 7 of the Act. (d) Through the use of force and violence with deadly weapons, assaulting the persons or property of Joe Sachse, Owen Innis, Dallas Dover, or any other member, to restrain and coerce said members in the exercise of their rights guaranteed by Section 7 of the Act. (e) In any other manner restraining or coercingmembers in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action to remedy the unfair labor practices and to effectuate the policies of the Act: (a) Notify Respondent Fruin-Colnon, in writing, with a copy to each of its members named herein, that it has no objection to the employment of William E. Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom Lukefahr, Jim Schoen, and Henry Durham, and simultaneously request Respondent Fruin-Colnon to reinstate the said employees to their former positions of employment. (b) Pursuant to the terms of its collective-bargaining agreement with Respondent Fruin-Colnon, appoint Wil- liam E. Miller as a foreman on Fruin-Colnon's Charmin project, replacing, if necessary, any foreman on that project who was appointed on or after the date Miller would have been appointed foreman in the absence of Respondent Union's discrimination. (c) Jointly and severally with Respondent Fruin-Colnon, make William E. Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom Lukefahr, Jim Schoen, and Henry Durham whole for any loss of earnings incurred by reason of having caused Respondent Fruin-Colnon to discharge or lay off said employees in violation of Section 8(a)(3) of the Act. The backpay is to be' computed and bear interest as provided for in the section of this Decision entitled "The Remedy," and the liability of Respondent Union for backpay shall continue until it has complied with the requirements of paragraph 2(a) of this recommended Order. (d) Make William E. Miller whole for any loss of earnings he may have sustained by reason of Respondent Union's failure to appoint him as-a foreman under the authority contained in its collective-bargaining agreement with Respondent Fruin-Colnon. - (e) Post at its offices and meeting hall frequented by its members and employees it represents from Fruin-Colnon, copies of the attached notice- marked "Appendix A."" Copies of said notice, on forms to be provided by the Regional Director for Region 14, after being duly signed by Respondent Union's representatives, shall be posted by it immediately upon receipt thereof, and be maintained by 11 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." 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Union for 60 consecutive days thereafter, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (f) Mail to the Regional Director for Region 14, addition- al copies of the attached notice marked "Appendix A" for posting by Respondent Fruin-Colnon. (g) Mail to each of its members a copy of the attached notice marked "Appendix A." (h) Preserve and, upon request, make available to the Board and its agents, copies of its current membership roster, together with the home address for each member. (i) Notify the Regional Director for Region 14, in writing, within 20 days of the date of this Order, what steps have been taken to comply herewith. - B. The Respondent, Fruin-Colnon, Cape Girardeau, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) In concert with Respondent Union, removing William E. Miller, or any other employee, from his regularly assigned duties and transferring him to onerous or undesir- able jobs because said employee engaged in activities protected by Section 7 of the Act. (b) Acceding to the demand of Respondent Union to discharge or lay off William E. Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom Lukefahr, Jim Schoen, Henry Durham, or any other employee, because said employees engaged in activities protected by Section 7 of the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action to remedy the unfair labor practices and to effectuate the policies, of the Act: (a) Offer to William E. Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom Lukefahr, Jim Schoen, and Henry Durham, immediate and full reinstatement to their former positions of employment, together with all seniority and rights and privileges previously enjoyed, or, if those jobs are no longer available, offer said employees substan- tially equivalent positions. (b) Jointly'and severally with Respondent Union, make William E. Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom Lukefahr,' Jim Schoen, and Henry Durham whole for any loss of earnings they may have sustained because of its discrimination against them, said backpay to be computed and to bear interest as provided in the section of this Decision entitled "The Remedy," section hereof. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and 'reports, and all other records necessary to analyze and compute the amounts of backpay due under this recommended Order. (d) Post at its offices on the Charmin project in the County of Cape Girardeau, Missouri, copies of the attached notice marked "Appendix B." 12 Copies of said notices, on forms provided by the Regional Director for Region 14, after having been signed by Respondent Frum-Colnon's representatives, shall be posted by it immediately upon receipt thereof, and shall be maintained by Respondent Fruin-Colnon for 60 consecutive days thereafter , in conspi- cuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent Fruin-Colnon to insure that said notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director for Region 14 addition- al signed copies of the attached notice marked "Appendix B" for posting by the Laborers International Union of North America, AFL-CIO, Local 282. (f) Notify the Regional Director for Region 14, in writing, within 20 days of the date of this Order, what steps-have been taken to comply herewith. is See fn. 11. APPENDIX A NOTICE To MEMBERS , POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to appoint William E. Miller, or any other employee, as a foreman for Fruin-Colnon Corporation because the said member engaged in activities protected by Section 7 of the Act. WE WILL NOT cause Fruin-Colnon Corporation, or any other employer, to discriminate against William E. Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom Lukefahr, Jim Schoen, Henry Durham, or any other member, because said members engaged in activities protected by Section 7 of the Act. - . WE WILL NOT, with deadly weapons, or by any other means, physically assault the persons or property of Joe Sachse, Owen Innis, Dallas Dover, or any other member, to restrain and coerce said members in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL NOT in any other manner restrain or coerce our members, or employees we represent for the purposes of collective bargaining, in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL notify Fruin-Colnon Corporation, in writ- ing, with a copy to each member named herein, that we have no objection to the employment of William E. Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom Lukefahr, Jim Schoen, and Henry Durham, and we will simultaneously request Fruin-Colnon Corporation to reinstate the said employees to their former positions of employment. WE WILL, pursuant to the provisions of our collec- tive-bargaining agreement with Fruin-Colnon Corpora- tion, appoint William E. Miller as a foreman on Fruin- Colnon's Charmin project. WE wn.L make William E. Miller whole for any loss of earnings he may have sustained by reason of our failure and refusal to appoint him as a foreman for Fruin-Colnon Corporation. WE WILL, jointly and severally with Fruin-Colnon Corporation, make William E. Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom Lukefahr, Jim Schoen, FRUIN-COLNON CORPORATION and Henry Durham whole for any loss of earnings they may have sustained by reason that we caused Fruin- Colnon Corporation to discharge or lay off said employees in violation of the National Labor Relations Act. WE WILL mail to each of our members, at their home addresses, copies of this notice. LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, LocAL 282 APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, in concert with Laborers International Union of North America, AFL-CIO, Local 282, dis- criminate against William E. Miller, or any other employee, by removing him from his regular duties and assigning him to onerous and undesirable jobs because the said employee engaged in activities protected by Section 7 of the National Labor Relations Act. 71 WE WILL NOT accede to the request of Laborers International Union of North America, AFL-CIO, Local 282, to discharge or lay off William E. Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom Luke- fahr, Jim Schoen, Henry Durham, or any other employ- ee, because said employees engaged in activities pro- tected by Section 7 of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer immediate and full reinstatement to William E." Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom Lukefahr, Jim Schoen, and Henry Durham to their former positions of employment or, if those jobs are no longer available, we will offer employment to the said employees in substantially equivalentpositions. WE WILL, jointly and severally with Laborers Inter- national Union of North America, AFL-CIO, Local 282, make William E. Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom, Lukefahr, Jim Schoen,_and Henry Durham whole for any loss of earnings they may have sustained by reason that we acceded to the demands of Local 282 to discriminate against said employees. FRUIN-COLNON CORPORATION