Plumbers' Local Union No. 83

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No. 83, AFL-CIO (Power City Plumbing & Heating, Inc.) and Glen W. Mullett. Case 6-CB-3426 February 14, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On May 20, 1976, Administrative Law Judge Nancy M. Sherman 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 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. We agree with Respondent that the Administrative Law Judge erroneously concluded that Respondent, Local 83, was responsible for the discharge of Glenn W. Mullett and thereby violated Section 8(bX2) and 8(b)(1)(A) of the Act. Mullett, the Charging Party, was hired by Bettistelli, the Employer's president and sole owner, to work at its Allied Chemical jobsite on May 27, 1975, and was laid off on May 29. Mullett's employment was a cause of concern to the members of Local 83 because he was not a member of Local 83, and members of Local 83 were unemployed at the time. During the evening of May 28, union members Patrello and Speidel called other members of the Local to request them to refuse to work for Bettistelli as long as Mullett remained employed. Patrello called Stiglich and Varvorosky, who worked at the Allied site along with Mullett, as well as Ramsey and Schramm who worked at other jobsites of the Employer. Ramsey advised that he did not know what he would do, and Schramm stated that he would not refuse to work because of his responsibility to his family and his employer. Speidel, who had been laid off by Bettistelli in April, called Geimer who was working for the Employer at another jobsite. On the morning following Patrello's phone calls, Stiglich and Varvorosky rode to the Allied jobsite together during which time they discussed the Mullett matter. Upon arrival at the site, they told the foreman that they were going to take a couple of days off. At the same time, Geimer told Bettistelli on the morning of May 29 that he was quitting because of Mullett. At this 228 NLRB No. 27 point Bettistelli showed Geimer a letter from Powell, Local 83's business agent, stating that Bettistelli had the right to hire Mullett. Notwithstanding this, Geimer told Bettistelli that it was not right having Mullett working while members of Local 83 were "loafing," and continued to refuse to work. When Bettistelli was informed that Stiglich and Varvorosky would not work, he discharged Mullett. Relying on the facts that it was the unwritten policy of Local 83 for its members not to work with nonmembers, that Patrello was a member of Local 83's conference board and negotiating committee, and that Stiglich was acting steward at the Allied jobsite, the Administrative Law Judge concluded that Patrello and Stiglich were agents of Local 83, and that Local 83 was responsible for the discharge of Mullett in violation of Section 8(b)(2) and 8(b)(1)(A) of the Act. We disagree with the Administrative Law Judge's conclusion that, through the agency of Patrello and Stiglich, Local 83 was responsible for the discharge of Mullett. Patrello was apparently most active in soliciting other members of Local 83 to stop work because of Mullett's employment. As a member of the Union's conference board and negotiating committee (both of which consist of the same seven members) his duties include participating in the negotiation of collective- bargaining agreements and being a member of a bipartite committee, together with Employer repre- sentatives, which attempts to resolve disagreements with respect to contract interpretation. There is no evidence that his union office had any function related to encouraging a work stoppage to protest the hiring of nonmembers of the Local, that he had such authority in any other capacity, or that, as an agent of the Union, he solicited members of the Local not to work. With regard to Stiglich, the testimony shows that when the Allied Chemical job began he was designat- ed acting steward by Business Agent Powell pending selection of the regular steward. The steward's primary function is to collect dues from out-of-town members and bring to the attention of the Employer matters that appear to be in violation of the contract terms. Powell testified that only the business agent has the authority to ask the men to stop working and there is no contrary evidence. Thus, with regard to both Patrello and Stiglich, there is no evidence to support the conclusion that either of them was authorized to act as an agent of Local 83 in encouraging union members to refuse to work. The extent of the solicitation and work refusal also supports the conclusion that the conduct com- plained of was undertaken by the individuals acting on their own. Although the Employer employed approximately 40 members of Local 83 at various PLUMBERS' LOCAL UNION NO. 83 217 jobsites at the time of Mullett's employment, there is testimony that only 5 employees were solicited to stop work and that only 3 did in fact stop. This hardly has the earmarks of a union effort. Geimer, as noted above, refused to work notwithstanding the fact that Bettistelli showed him a letter from Business Agent Powell to the effect that Bettistelli had the right to hire Mullett under his contract with Local 83.1 In addition, Geimer was the only member at his jobsite who was solicited while several other members of Local 83 employed at the site were not solicited and continued to work. The insubstantial results of Patrello's solicitations are also hardly indicative of a voice of authority. Patrello solicited four employees but only two of them, Stiglich and Varvorosky, engaged in the work stoppage. Moreover, if Stiglich was the union agent at the Allied Chemical jobsite, as found by the Administrative Law Judge, there is no rational basis for attributing to the Union Patrello's soliciting of Stiglich. As to Stiglich's activity as the union's agent in this connection, the only evidence is that he "impliedly" requested Varvorosky to refrain from work. In these circumstances, we conclude that Patrello and Stiglich were not agents of Local 83, and that their conduct was undertaken in their individual capacities. Thus, Local 83 cannot be held responsible for their actions even though the individuals solicited and engaged in a work stoppage in furtherance of an unwritten union policy.2 Accordingly, we conclude that Respondent Local 83 did not violate Section 8(b)(2) and 8(b)(1)(A) of the Act, and we shall dismiss the complaint herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I Geimer was solicited by Speidel, whom the Administrative Law Judge found not to be an agent of Local 83 , and Speidel testified that Bettistelh had laid him off 2 or 3 weeks earlier, telling him that he would call him back as soon as work was available. Bettistelli's subsequent hiring of Mullett plainly gave Speidel a motive for being involved in this matter as an individual. 2 International Brotherhood of Electrical Workers, Local Union No. 43, AFL-CIO (Execulone of Syracuse, Inc), 172 NLRB 621 (1968) DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This proceeding was heard at Wheeling, West Virginia, on February 2, 1976, pursuant to a charge filed on July 25, 1975, and a complaint issued on November 26, 1975. The question presented is whether Respondent United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No. 83, AFL-CIO (the Union or Local 83) violated Section 8(b)(2) and 1(A)' of the National Labor Relations Act, as amended (the Act), by causing and attempting to cause Power City Plumbing & Heating, Inc. (the Company) to discharge the Charging Party, employee Glenn W. Mullett. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by the Union, the Charging Party, and counsel for the General Counsel, I make the following: FINDINGS OF FACT I. JURISDICTION The Company is a West Virginia corporation with its sole place ofbusiness located in Wheeling, West Virginia, where it is engaged as a plumbing and heating contractor in the construction industry. During the year preceding the issuance of the complaint, the Company performed services valued in excess of $50,000 outside West Virginia, and in excess of $50,000 in West Virginia for employees which are themselves directly engaged in interstate commerce. I find that, as the Union concedes, the Company is engaged in commerce within the meaning of the Act, and that assertion of jurisdiction over the instant case will effectuate the policies of the Act. The Union is a labor organization within the meaning of the Act. IT. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Glenn W. Mullett has never been a member of Local 83. In late 1974 or early 1975, he applied to the Company for a job. Company President Benny Battistelli said that yes, he needed somebody. Battistelli then found out from Mullett that he was a member of one of Local 83's sister locals, Local 789. Battistelli told Mullett, "for your own protec- tion, being that you are a union member, you should go down and clear with" Local 83. Mullett then went to Local 83's hall, told Union Business Agent William A. Powell 2 that Mullett had "a local contract to employ him" (but not the employer's identity), and asked to be referred to employment. Powell replied that he had no work at the time, admittedly meaning work for out-of-town people. About March 15, 1975,3 Mullett applied for membership in Local 83. This application was never favorably acted on. On March 20, he filed a charge (Case 6-CB-3310) against Local 83, alleging that Local 83 had refused to refer him to the Company. In consequence of this charge, by letter dated May 8, 1975, with courtesy copies to the Company and the Board's Regional Office, Powell advised Mullett: 1 The complaint contains only 8(bX2) allegations. However, counsel for the General Counsel sets forth his 8(b)(IXA) allegations at the outset of the hearing. Moreover, such additional allegations were fully litigated and, indeed, turn on precisely the same evidence as the 8(bX2) allegations. 2 Powell is sometimes referred to in the record as "Jim" Powell. The Union concedes that Powell is its agent. 3 All dates hereafter are in 1975 unless otherwise stated. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ... Plumbers Local Union No. 83 has never, nor does it now, have any objection to your obtaining employment with [the Company] or any other contrac- tor working within the territorial jurisdiction of the Union. our Agreement with [the Company] provides that [the Company] may hire whomever it pleases without the necessity of obtaining Union approval prior to hire. Thereafter, on May 27, Mullett's charge in Case 6-CB-3310 was administratively dismissed . That same day, Mullett returned to Battistelli, who hired him and sent him down to the Allied Chemical job. B. Events Allegedly Leading to Mullett's Discharge 1. Conversations while Powell was on the Allied Chemical Job On May 27, Mullett's first day on the Allied Chemical job, Local 83 Business Agent Powell came to that job in connection with another matter and saw him working there. Employee Cavichitti, a Local 83 member, approached Powell and (perhaps in the presence of acting steward Joseph Stiglich) asked if Powell had referred Mullett to the job. Powell replied either that Mullett did not have a Local 83 book or that Powell had not referred him. Stiglich asked Powell if he had written a letter to Battistelli that Mullett could come on the job. Powell said that he had. Powell further told Cavichitti, Stiglich, and employee Frank Varvorosky (a Local 83 member for 29 years), "if you want to work with him, work, if you don't want to, that's up to you." 4 Powell did not tell any of these employees that Mullett had requested referral. 2. Incident involving employee Geimer The complaint alleges, and the answer denies, that union member James G. Speidel was an agent of the Union at times material herein. On the evening of May 27, Speidel telephoned union member Robert Geimer , who at that time was working for the Company at the Wheeling Hospital jobsite. Speidel had been laid off in April by Battistelli, who had asked Speidel not to sign the Union's unemployment list because, Battistelli said, he was going to have more work and would call Speidel back for it . Speidel, who had never signed the unemployment list, was still on layoff status, and he testified that he was trying to find out from Geimer whether any vacancies were likely to open up on the Wheeling Hospital jobsite.5 Speidel said that he himself was not working, that Battistelli had hired Mullett, and that Mullett was working without a referral slip.e Geimer then called Union Business Agent Powell and asked him if it was 4 My findings in this sentence are based on Stiglich's and Varvorosky's mutually corroborative testimony. Powell and Stighch testified that Powell also told Stighch that the Union's contract with the Company provided that the Company could hire whom it pleased. Varvorosky denied that Powell made this remark , and Cavichitti did not testify. For demeanor reasons, I credit Varvorosky. S As discussed infra, Local 83's internal rules require members to obtain all their jobs through Local 83. When asked why he called rank-and-file member Geimer about job prospects, Speidel explained, "when you're unemployed you have a tendency to call a lot of guys, if you find out for true that Mullett was working without a referral slip. Powell replied that this was true and that there was nothing Powell could do about it. On the following morning, May 28, Geimer told Battistel- li that Geimer was quitting. Battistelli asked why, and Geimer said, "you know why." Battistelli said, "no, I don't, tell me why." Geimer said that he had had "several calls ... over the Mullett matter" from persons whom Geimer refused to identify.r Battistelli then showed Geimer Po- well's May 8 letter regarding Battistelli's right to hire Mullett. Geimer replied, "as long as it was legal [Battistelli ] could hire him, but morally [Geimer] didn't think it was right and [Geimer] wasn't going to work for" Battistelli. Geimer then went home.8 Of the Company's 6 to 10 employees then working on the Wheeling Hospital job, Geimer was the only one who left. He did not discuss with any of them the fact that he was going to leave. 3. Patrello's telephone calls and subsequent events on the Allied Chemical job a. The telephone calls The complaint alleges, and the answer denies, that union members Philip E. Patrello and Joseph Stiglich were union agents at times material herein . On May 28 (see infra), about 11 p.m., Patrello, who was then working for an employer not involved in this proceeding, telephoned Stiglich, who was the acting union steward on the Allied Chemical job where Mullett was working. For the reasons stated infra, I do not believe most of the testimony of either of them about what was said during this conversation. However, I do believe Patrello's statement, to some extent corroborated in this respect by Stiglich, that Patrello brought up the subject of Mullett's employment on the Allied Chemical job. Later that same evening, Patrello telephoned union member Varvorosky, who was also working for the Company on the Allied Chemical job, and related "the trouble that was going to result from Mullett being on the job." Patrello asked what the employees were going to do about Mullett's being on the job, and Varvoro- sky replied that they were going to leave the job. Patrello further stated that he had already talked to Stiglich. Still later that same evening, Patrello telephoned union member Ramsey, who was working for the Company on a job (not the Allied Chemical job) unidentified in the record, and said that Patrello understood Mullett was working in the Local. Ramsey replied that he did not know for sure that Mullett was working and did not know what Ramsey was going to do. Still later that same evening, Patrello tele- phoned union member Everet Schramm , the sole company employee at the Harrisville Clinic job. Patrello asked Schramm if he "could see his way clear to stay home for a example, if one job is going to be doing some hiring, maybe you'll not take a job out of town and wait for thatjob to break, so that you can go to thatjob." 6 This finding is based on Geimer's testimony, to a large extent corroborated by Speidel. For demeanor reasons, I credit Geimer to theextent their testimony conflicts. 7 However, there is no direct probative evidence that Geimer received any calls from anyone except Speidel. 8 My findings as to the substance of this conversation are based on a composite of Battistelli's and Gainer's testimony. PLUMBERS' LOCAL UNION NO. 83 219 few days to force Mr. Battistelli to fire" Mullett. Schramm replied that his responsibility to his family and the Company would not permit him to do this.9 Patrello testified that he telephoned Stiglich, Varvorosky, Ramsey, and Schramm in that order and late in the evening on a single day. His testimony in this respect is partly corroborated by the testimony of Stiglich and Varvorosky. I credit Patrello's testimony to this extent. For the reasons stated infra, I do not believe Schramm's testimony that Patrello telephoned him about 6 or 6:30 p.m. Varvorosky and, in effect, Stiglich testified that Patrello telephoned them the day before they refused to work on the Allied Chemical job because Mullett was working there, a refusal established by the undisputed evidence as having occurred on May 29. I credit their testimony in this respect and find that Patrello's telephone calls were made on May 28. I do not credit Schramm's testimony that Patrello called him after Schramm heard that Mullett had been dis- charged, in view of Schramm's inherently improbable testimony that Patrello's request that Schramm stay home to compel Mullett's discharge was made after Schramm told Patrello that Mullett had already been discharged. Nor do I believe Patrello's testimony that all four of these conversations occurred on the evening of May 29. Patrello was an extraordinarily unpersuasive witness whose testimo- ny was riddled with inconsistencies and improbabilities. Thus, he initially testified that he first heard about Mullett's hire from someone on the job where Patrello was then working (for Dravo, 8 or 10 miles from the Allied Chemical job); then testified that he first heard about Mullett's hire during his telephone conversation with Stiglich or Varvoro- sky, both of whom were working with Mullett on the Allied Chemical job; and then testified that he telephoned then. to find out whether Mullett was working there. Further, when asked to explain why he called Varvorosky for the alleged purpose of finding out whether Mullett was working on the Allied Chemical job, Patrello gave the improbable explana- tion that during his earlier conversation with Stiglich, who was acting union steward on the Allied Chemical job, Stiglich had failed to tell him "one way or the other" whether Mullett was working there. Nor do I believe Stiglich's testimony that his May 28 conversation with Patrello consisted in its entirety of mutual inquiries and affirmative responses about whether the other was working the next day. Stiglich did not explain his alleged interest in the work plans of Patrello, who was not working for the Company. Moreover, Stiglich conceded that Patrello had never called him before, but nonetheless gave the inherently unlikely testimony that he never gave Patrello a chance to tell him the reason why Patrello was calling him. Further- more, when asked whether he had ever been previously instructed what to do when local men were on the bench and someone from outside came on the job, Stiglich 9 My findings in the last two sentences are based on Schramm's testimony, which I credit to this extent. Patrello testified that he was "looking for an opinion to see if [Schramm ] felt that there could be anything done about it," and that Schramm "didn't think there could be anything done about it." For demeanor reasons, I accept Schramm's version of the contents of this conversation io My finding that Suglich and Varvorosky both told Witsberger that they were leaving because of Mullett's employment is based on Stiglich's testimony and on Varvorosky's testimony before being initially excused and then recalled to the stand at the instance of union counsel. On the basis of testified, "No, phone calls what I had with Patrello, that's all I had, that's all was said." I regard this testimony as an implicit admission that during their telephone conversation Patrello told Stiglich, in effect, to walk off the job because Mullett was working. b. The refusal to work on the Allied Chemical job Stiglich and union member Varvorosky usually drove to the Allied Chemical job in Foreman Jerry Witsberger's truck, which Witsberger (unlike rank-and-file employees) was permitted to drive into the plant itself. On the morning of May 29, Stiglich told Witsberger to drive to the job without Stiglich, because he was going to take a couple of days off. Instead, Stiglich and Varvorosky went to work in a vehicle driven by Stiglich. Stiglich testified that during the drive he said that he was going to go off the job because Mullett was on the job and Stiglich did not think this was right. Varvorosky testified that during this drive he and Stiglich discussed what to do and decided to leave the job "before any trouble blew." When Stiglich and Varvorosky reached the Allied Chemi- cal plant, Foreman Witsberger was waiting there with his truck to drive them in. During this ride, Stiglich told Witsberger that Stiglich was going to take a couple of days off "on account of this Mullett deal." Varvorosky said that he was "going fishing" because of Mullett.10 Witsberger replied, "It's up to you folks." Stiglich told Witsberger, probably outside Varvorosky's hearing, that Stiglich would come back to work if Witsberger got Mullett off the job. Mullett then approached Varvorosky and asked what the matter was. Varvorosky replied, "you ought to understand why we're leaving," and he and Stiglich left the job. The three remaining members of the Company's work force on that job, all of them union members, stayed on the job. Two of these were apprentices.11 The third was Foreman Witsberger, who explained to Battistelli that Witsberger did not leave the Allied Chemical job because the Union would not refer him to any jobs.12 After leaving the Allied Chemical job, Stiglich and Varvorosky drove to the union hall and told Union Business Agent Powell that they had left the jobsite because Mullett was on the job. P o w e l l replied, "okay ... I'm busy," that he had to drive down to the airport at once to pick someone up. Stiglich asked Powell to put the two employees to work on another job. Powell said that he would not be able to do that for a couple of weeks. The employees told him that they could take 2 or 3 weeks off before going back to work. In the meanwhile, Foreman Witsberger telephoned Battistelli that Stiglich and Varvorosky were going to take a couple of days off, and that, although they would not give him the reason, Witsberger thought they were doing this Varvorosky's demeanor, I do not credit his later implied testimony that he and Stigltch did not tell Witsberger why they were leaving. li Battistelh testified that, if the Union had reassigned apprentices to another job, the Union would have had to explain the reasons therefor to the apprenticeship committee and thereby admit the Union's own guilt However, Battistelh conceded that this was his own surmise, and that nobody had ever advanced this explanation to him. 12 Union Business Representative Powell testified that, so far as he knew, the Company was the only employer in the Union's territorial jurisdiction which had ever hired a plumber without union referral. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of Mullett. Battistelli told Witsberger to send Mullett to Battistelli's office because "I'm going to lay him off ... I can't take that." When Mullett came to Battistelli's office, Battistelli said, "I got work but I got too many commitments, I can't afford to be losing all my manpower like I did on two previous other occasions.13... I have lost enough money through Local Union 83 and I can't tolerate it . . . for your own safety, contact your attorney." Immediately thereafter, Battistelli telephoned Witsberger and said "get ahold of the men that left and tell them that I have laid Mullett off and see if they'll come back." Battistelli credibly testified that he discharged Mullett because Battistelli feared that otherwise over 20 of the 40 company employees who were union members would leave the Company's 8 to 10 jobs then in progress. C. Employees' Testimony About Why They Left the Company's Jobs Geimer testified that he left the job on his own, because he thought it was morally wrong to have Mullett working while members were unemployed or working out of town, and not because anyone asked, told, or forced him to leave. Varvorosky testified that his decision not to work with Mullett was his own personal decision and was made of his own free will. Stiglich testified that his leaving the job was his own individual and voluntary decision, made of his own free will, and was not made in concert with anyone else other than Varvorosky. While I do not believe that any of these employees was consciously misrepresenting his mo- tives, I give their testimony in this respect little weight in view of their dependence on the Union and on Powell's referrals for jobs and their strong personal interest in the maintenance of the Union's traditional policy, implement- ed by Powell, of giving members preference in employment over nonmembers like Mullett (see infra, sec. II, D). See Radio Officers' Union of the Commercial Telegraphers Union, AFL [A. H. Bull Steamship Company] v. N.LR.B., 347 U.S. 17,50-51(1954). D. Aftermath of Mullett 's Discharge The next day, May 30, Geimer, Varvorosky, and Stiglich all came back to work. Geimer testified that he returned to work because "Joe Stiglich called me up and told me [Battistelli ] had gotten rid of Mullett, we was going back to work." Varvorosky and Stiglich each testified that he returned because Witsberger telephoned him that Mullett had left the job. Varvorosky never received any compensa- tion for the I day's worktime he missed because of this incident; nor is there any evidence that such compensation was received by Geimer or Stiglich. The Union never disciplined Patrello, Speidel, or Stiglich for their involvement in Mullett's discharge ; nor did it ever discipline Geimer or Varvorosky, so far as the record 13 Battistelh testified, in effect, that he was referring to a previous union strike to compel the Company to execute a contract negotiated by an employer association of which the Company was not a member , and another strike because the Company had a nonunion foreman. 14 Accordingly, I need not and do not consider the effect that Local 83's referral policy would have on any such contractual obligation. 15 The record fails to show the exact language of Local 83 's union- shows. In early June 1975, Powell told Battistelli that the Union was not taking any part in Mullett 's discharge, and that Battistelli "was taking it on himself, that he could have [Mullett] back, hire him back on his own." Battistelli replied that Powell had no control over the men and that Battistelli could not depend on not having any interference. E. Analysis and Conclusions The undisputed evidence shows that Battistelli dis- charged Mullett because Mullett's employment by the Company had led three Local 83 members to withdraw their services from the Company and Battistelli, who knew that Mullett was not a Local 83 member, feared that if he was retained more Local 83 members would likewise withdraw their services. The evidence further shows that these three Local 83 members objected to Mullett's employ- ment because he was not a Local 83 member and/or had not been referred to the job by Powell, who had refused to refer him (although without knowing that Mullett wanted referral to the Company) because Mullett was not a Local 83 member and members were unemployed. The Company was under no contractual obligation to hire through Local 83,14 and Local 83 does not and cannot contend that Local 83 membership could be required as a condition of Mullett's employment on the day he was discharged.15 Accordingly, the instant 8(bX2) and (1)(A) complaint must be sustained if Local 83 is answerable for these members' action in withholding their services from the Company. Local 83's rules provide, "The Business Manager ... shall furnish all members of this Local to employers. Any member found guilty of soliciting his own job will be brought before the Executive Board and fined" between $25 and $150. Union Business Representative Powell, whom the Union admits to be its agent, testified as follows: Q. [By Mr. Cassidy]: Did you hear the testimony [see infra] concerning a union policy that when people, Local people are on the bench, outsiders cannot work? A. Yes, sir, I heard that testimony. Q. How is that policy implemented? A. That policy is implemented by, I'll refer the people that are unemployed out first, the Local people that are unemployed. Q. [By Mr. Bums]: Now, it is normal for Employ- ers in this area to get their men from the Union, is that not right? A. Correct. Q. Except for Power City, there have been no other Employers who have hired a plumber without Union referral? A. Right. Q. That you know of? A. Right. security contract with the Company. The testimony suggests that it contains a 30-day grace period and, in any event , such a clause could not require union membership less than 8 days after hire (see Sec. 8(f) of the Act). Moreover, there is no claim that Local 83's refusal to grant Mullett's application for membership involved any failure by him to tender dues and initiation fees. See NLRB v. General Motors Corporation, 373 U.S. 734 (1963). PLUMBERS' LOCAL UNION NO. 83 Powell further testified that it was he who had initiated both of the two charges brought in the last 3 years against members for soliciting their own work. Both of these members were eventually disciplined by the Union for working for the Company without a union referral. Acting Union Steward Stiglich and employee Varvorosky both corroborated Union Business Agent Powell's testimo- ny that Local 83 had a policy that, if Local people are on the bench, people from outside locals cannot work. Both of them testified that this had been the policy as long as they had been Local 83 members - 29 years in Varvorosky's case and 25 years in Stiglich's. Moreover, Stiglich credibly testified without contradiction to a "general understanding within the brotherhood," although not incorporated in any collective-bargaining agreement or in the bylaws, that any Plumbers local would give first preference to Local people in obtaining work. In short, any action by alleged Union Agents Stiglich, Patrello, and Speidel in causing Local 83 members to withhold their services from the Company because of nonmember Mullett's employment furthered a union policy which admitted Union Agent Powell not only recognized as such, but also implemented through his administration of the referral system which written union rules required him to operate, and of the internal disciplin- ary procedure enforcing the written union rules which required members to use that system as the sole means of getting jobs. Such commonality of purpose provides some support for the contention that the Union is answerable for any such conduct by Stiglich, Patrello, and Speidel. Combustion Engineering, Inc., 130 NLRB 184, 200-201 (1961), enfd. sub nom. International Brotherhood of Boiler- makers, Iron Ship Builders, Blacksmiths, Forgers and Hel- pers, Local No. 83, AFL-CIO, 321 F.2d 807 (C.A. 8, 1963); cf. International Brotherhood of Electrical Workers, Local Union No. 43, AFL-CIO (Executone of Syracuse, Inc.), 172 NLRB 621, 624 (1968). Further, acting steward Stiglich credibly testified without contradiction that it was an unwritten "union policy" to have telephone calls made to other employees to advise them when "someone without a good book would be working," that "We have been doing this for years," and that "everyone" knew about this policy, specifically includ- ing Union Business Agent Powell. The existence of the Union's policy in this respect affords some weight to the contention that the Union would be answerable for a series of telephone calls to this effect made by Patrello, who was then working for another employer. Combustion Engineer- ing, supra, 200-201. Furthermore, I infer that during 16 I so infer from the fact that Patrello made such requests during all three of the May 28 calls he made after talking to Stiglich that evening ; and from the demeanor of and improbabilities in the testimony of Patrello and Stiglich, from which circumstances I conclude that they were trying to conceal what they really said. N.LR.B. v. Walton Manufacturing Company & Loganville Pants Company, 369 U.S. 404 (1962). My basis for concluding that Patrello's conversations with Varvorosky and Ramsey constituted implied requests to stop working is Varvorosky's undenied and credible testimony that it was a "known fact" among "union people" that they would stay off work if they found out that someone from another Local was working while Local men were on the bench. 17 Stiglich testified that upon learning that Mullett did not have a Local 83 "book," Stiglich told Varvorosky, "well then, we ain't going to work with [Mullett]." However, Varvorosky, a more reliable witness than Stiglich, 221 Patrello's May 28 telephone call to Stiglich, during which Mullett's employment on the Allied Chemical project was admittedly mentioned, Patrello asked Stiglich, either ex- pressly (as with Schramm later that evening) or impliedly (as with Varvorosky and Ramsey, also later that evening), to stop working because Mullett was on the job.16 Also, I conclude that such telephone calls by Patrello played a part in Varvorosky's and Stiglich's decision not to work the following day. Although both Stiglich and Varvorosky testified that they found out before the close of the May 28 workday that Mullett was not a Local 83 member, there is no evidence that before Patrello's telephone call Varvoro- sky had reached even a tentative decision not to work the next day, and Stiglich's testimony in this connection is equivocal.17 Further, Powell's knowledge of the union policy calling for such telephone notifications about the employment of nonmembers not only lends weight to the contention that he condoned, approved, and ratified Patrello's calls when Powell admittedly failed to reprimand him therefor after learning about them (Local 347, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, (D. L. Harrison Company,) 134 NLRB 776, 785 (1961)),18 but also negates Powell's testimony that Patrello had no authority to make such calls. Furthermore, Varvorosky testified without contradiction that it was a "known fact among the union people" that upon being advised that a particular fellow employee had a "bad book" while union members were unemployed, other union members would stay off work.19 Such testimony lends weight to the contention that Stiglich's and Varvoro- sky's refusal to work because of Mullett was ratified by Powell's course of conduct in (1) telling them, in connection with Mullett's failure to have Local 83 membership or referral, that it was up to these union members whether they worked or not; (2) failing to tell any of the employees on the job where Mullett was working (including acting steward Stiglich, who by Powell's own testimony was supposed to enforce the contract) that the Company was contractually entitled to hire Mullett; (3) failing to reprimand either Stiglich or Varvorosky when Powell learned that Mullett's employment had caused them to leave the Allied Chemical job; and (4) failing (so far as the record shows) to send anyone else to that job when he learned that they had left it. I regard this fourth factor as particularly significant. Because a sixth of Local 83's members were then on the bench, it seems to me highly probable that Powell would ham promptly moved to fill any vacancies due to employee protests against the Company's exercise of contractual testified that on May 28 there was no discussion about leaving the job, and, in effect, that they did not find out until late that day that Mullett did not have a Local 83 book. Moreover, Stiglich testified that late in the evening of May 28 he told Patrello that Stighch planned to go to work the next day. 18 Powell's testimony is: I have told [Patrello] that there was nothing that the union could do on that, it was not a union matter. I explained to him that in the contract the Employer could hire whomever he wanted to and I told him about the letter that I sent ... I didn't know anything in the rules and bylaws that I could reprimand him on. 19 Varvorosky explained, "united you stand, divided you fall, you got to stick together." 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights which the Union had no objection to the Company's exercising. The General Counsel contends, and the Union denies, that Stiglich was the Union's agent in connection with his role in causing Mullett's discharge. When the Allied Chemical job began about May 1, 1975, Stiglich told Powell that Stiglich would act as steward until Powell "gets somebody" to serve as the regular steward. Under the Union's rules, the steward is to be selected by the Union's executive board from three journeymen members (other than the foreman) on the job. So far as the record shows, the Allied Chemical job never had more than two eligible journeymen. Stiglich was still the acting steward at the time of the February 1976 hearing, 8 months after the job started.20 There is no contention or evidence that his duties and responsibilities differed from those of a steward appointed in the manner described in Local 83's bylaws. I conclude that his status as an agent is unaffected by the fact that he was an acting rather than a regular steward. N.LR.B. v. Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO [New York Telephone Com- pany], 467 F.2d 1158, 1160 (C.A. 2, 1972). Business agent Powell testified that if an employee on thejob complained that the employer was violating the contract, or about other trouble with the employer, it was Stiglich's responsibility to bring the problem up with the employer's representative, and try to settle the matter at that level.21 The contract was otherwise enforced and administered by the business agent. Stiglich's duties included the protection of the Union's work jurisdiction. He also collected assessments and out-of- town dues. He was not paid and did not receive free dues for his services as acting steward,22 nor did that status afford him special seniority. Business Agent Powell testified that the steward did not have the authority under the bylaws to ask the men to stop working and that only the business agent had that authority; but nothing in the bylaws so provides. I agree with the General Counsel that requesting mem- bers to refrain from working with nonmembers lay within the general area where the Union empowered Stiglich to represent it.23 In so finding, I rely particularly on the union policy and the membership's conviction that nonmembers should not work when members are employed, on the fact that none of the other employers in the area was pressing any contract right to hire directly, and on the absence of credible testimony that the Company's contract right in this respect was drawn to the attention of Stiglich or Mullett's other fellow employees on the Allied Chemical job. I regard as inapposite here the cases recognizing that any employee has the right to withhold his services as an individual, and the mere fact that such an employee happens to be a steward does not render the Union answerable for such 20 Indeed, he testified that he "just took" the stewardship "on a trial basis, dust temporary until I get appointed." 21 Powell's testimony in this respect was to a substantial extent corrobo- rated by Stighch . In any event, I regard Powell as a more authoritative witness than Shghch with respect to this matter. 22 The Union's bylaws gave free dues to stewards on projects which employ 30 or more UA members. The Allied Chemical job employed only five members 23 See International Longshoremen 's and Warehousemen 's Union, CIO, Local 6 (Sunset Line and Twine Company), 79 NLRB 1487, 1507-9 (1948); International Brotherhood of Boilermakers , Iron Shipbuilders, Blacksmiths, individual action.24 In the instant case, Stiglich did not limit his conduct to withholding his own services Rather, notwithstanding Stiglich's May 29 statement to Foreman Witsberger to drive to the job without Stiglich because he planned to take a couple of days off, Stiglich drove to the jobsite with Varvorosky (who was normally Witsberger's other passenger), thereby giving Stiglich the opportunity, in management's absence, impliedly to request Varvorosky to refrain from working because of Mullett, and giving Varvorosky access to immediate transportation away from the jobsite if he acceded to Stiglich's request. Moreover, on the following day Stiglich telephoned employee Geimer, who did not work on the Allied Chemical jobsite and who (so far as the record shows) had had no prior contact with Stiglich about the Mullett matter, to tell him that Mullett had been discharged and "we was going back to work." I conclude that Stiglich intentionally played a role in others' refusal to work because of Mullett and that, therefore, his status as acting steward made the Union answerable for his conduct. Bricklayers, Masons and Plasterers' International Union of America, Bricklayers Local No. 2, AFL-CIO (Glenshaw Glass Company, Inc.) 176 NLRB 434, 435-437 (1969); Truck Drivers & Helpers Local Union No. 728, aff/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and He pers ofAmerica [Overnite Transport Co.] v. N.L.R.B. 332 F.2d 693, 697 (C.A. 5, 1964), cert. denied 379 U.S. 913. I reach a like conclusion with respect to the conduct of Patrello, who was a member of the Union's conference board and of the Union' s negotiating committee (both of which had the same seven members). The "offices" of the conference board are elected by the membership for 3 years, the same term served by, inter alia, the Union's president, vice president, recording secretary, financial secretary, business manager, and treasurer. The members of the conference board receive 2 months' free dues in the negotiating year. The members of the negotiating commit- tee/conference board participate, on the Union's behalf, in the actual process of negotiating collective-bargaining agreements, and are also members of a bipartite committee, composed half of employer and half of union representa- tives, which as part of the grievance procedure considers the meaning of particular contract clauses on whose interpreta- tion the union business agent and the contractor are unable to agree. I infer that the practice of all area contractors (except the Company) in hiring all their plumbers through the Union is based at least partly on the contract provisions negotiated and/or the contract interpretations made by the negotiating committee/conference board 25 Further, be- cause the Union refers members before nonmembers, this exclusive hiring practice effectuates the union policy offended by Mullett's hire. Moreover, Patrello was working Forgers and Helpers Local Lodge No. 169, AFL-CIO (Riley Stoker Corpora- tion), 209 NLRB 140, In. 1(1974). 24 Building and Construction Trades Council of Tampa and Vicinity, AFL- CIO (Tampa Sand and Material Co.), 132 NLRB 1564, 1569 (1961); Twin City Carpenters District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (August Cederstrand Company), 152 NLRB 887,889 (1%5). 25 Thus, Battistelli testified that in 1973 the Company withdrew from the local contractors' association and tried to negotiate its own contract to "get the hiring procedure corrected," among other things. PLUMBERS' LOCAL UNION NO. 83 223 for another employer at the time he requested several employees of the Company to refrain from working and, therefore, had no immediate personal interest in seeking such action. In view of the foregoing considerations, and the fact that both Patrello's purpose and his technique were called for by union policy, I conclude that the Union was answerable for Patrello's conduct as well. For the foregoing reasons, I conclude that the Union caused and attempted to cause the Company to violate Section 8(a)(3) of the Act by discharging nonmember Mullett. I find that by such conduct the Union violated Section 8(b)(2) and 8(b)(1)(A) of the Act. This conclusion is further supported by the fact that Powell's failure to make any substantial affirmative efforts to procure a rescission of Mullett's discharge, which Powell must have known to constitute a company unfair labor practice, would have constituted a breach of the Union's 8(b)(1)(A) and (2) duty of fair representation if Mullett had requested the Union to process a grievance against the Company on his behalf.26 The relief afforded him should not be less because Mullett sought to pressure the Union through the invocation of Board procedures rather than directly approaching the Union which benefited from the conduct complained of.27 In finding that the Union unlawfully caused and attempt- ed to cause Mullett's discharge, I do not find that Speidel was rendered a union agent by virtue of his position as a member of the Union's rules and bylaws committee, a seven-member committee appointed by the Union's presi- dent and whose members serve at his pleasure.28 The members of this committee receive no remuneration for their committee service, and their sole function is to put into appropriate language any changes in the bylaws which are proposed by the membership. Moreover, Speidel had a strong personal interest in procuring Mullett's discharge. The Company had laid off Speidel and had tendered him rehire promises sufficiently strong to cause him to refrain from seeking work elsewhere through the union hall. Accordingly, although I believe that Speidel impliedly asked Geimer to stop working for the Company because of Mullett, I do not regard Speidel's position on the rules and bylaws committee as affecting the Union's responsibility for such conduct. CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 28 Peerless T o o l and Engineering Co, I I I NLRB 853, 858 (1955), enfd. 231 F 2d 298 (C A 7, 1956), cert. denied 352 U S 833, TIME -DC, Inc, v N L R B, 504 F 2d 294, 303 (C A 5, 1974); Local 485, International Union of Electrical, Radio & Machine Workers, AFL-CIO (Automotive Plating Corp), 170 NLRB 1234, 1238 (1968 ), supplemental decision, 183 NLRB 1286 (1970); original order enforced and supplemental order denied enforcement 454 F 2d 17 (C.A 2, 1972), see also Emporium Capwell Co v Western Addition Community Organization, 420 U.S 50, 64-65 (1975); International Association of Machinists and Aerospace Workers, Local Union No 697, AFL- CIO (The H.O Canfield Rubber Company of Virginia, Inc), 223 NLRB 832 (1972) 27 Cf Local Union No 12, Untied Rubber, Cork, Linoleum & Plastic 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Union violated Section 8(b)(2) and (1)(A) of the Act by causing and attempting to cause the Company to discharge Glenn W. Mullett in violation of Section 8(a)(3). 4. This unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Union has violated the Act in certain respects, I shall recommend that it be required to cease and desist therefrom and from any like or related conduct. Because all employers in the area other than the Company obtain all their plumbers from the Union, because Powell admittedly refers members in preference to nonmembers, and because the Union caused Mullett's discharge for nonmembership and failure to obtain union referral, I conclude that the Union's unfair labor practices with respect to Mullett are potentially related to unfair labor practices against other employees and with respect to other employers, and the danger of their commission in the future is to be anticipated from the Union's conduct in the past. Highland House Nursing Center, Inc., 222 NLRB 123 (1976), fn. 2. Accordingly, the cease-and-desist order will also reach union conduct with respect to employers other than the Company and employees other than Mullett. In addition, I shall recommend that the Union take certain affirmative action necessary to effectuate the policies of the Act. The Union will be required to request the Company, in writing and with a copy to Mullett, that the Company offer reinstatement to Mullett. I shall also recommend that the Union be required to make Mullett whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment of a sum of money which he normally would have earned from May 29, 1975 (the date of his discharge by the Company), until 5 days after the aforesaid written request and copy have been delivered, less net interim earnings. Backpay shall be computed on a quarterly basis in the manner described in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as described in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In addition, the Union will be required to post appropriate notices. [Recommended Order omitted from publication] Workers of America AFL-CIO [Goodyear Tire & Rubber Co ], 150 NLRB 312 (1964), enfd 368 F 2d 12 (C.A. 5, 1966), cert. denied 389 U S. 837 (1967), Southwestern Pipe, Inc, 179 NLRB 364, 375-376, 384 (1969), modified and remanded 444 F.2d 340 (C A 5, 1971); Local 703, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers ofAmerica (Dominick's Finer Foods, Inc), 188 NLRB 873 (1971), enfd. 81 LRRM 2488 (CA 7, 1972), N LR B v. Local Union 396, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [United Parcel Service], 509 F 2d 1075 (C A. 9, 1975) 28 The Union's vice president, elected (as is the president) by the membership, is an ex officio member of this committee