Townsend and Bottum, Inc.

TOWNSEND AND BOTTUM, INC. 207 Townsend and Bottum, Inc. and Paul Vander Ploeg lists did not violate the Act. For the reasons set Local 70, United Association of Journeymen and forth below, we find that signing the out-of-work Apprentices of the Plumbing and Pipe Fitting lists was not a requirement at the time the alleged Industry of the United States and Canada, discriminatees requested work and that, under the AFL-CIO and Paul Vander Ploeg. Cases 7- circumstances, their request to be sent out when CA-17861 and 17-CB-4744 work was available was tantamount to a request to November 12, 1981 be placed on the referral lists. We further find that Respondent failed to place them on the lists be- DECISION AND ORDER cause they were not members and, accordingly, such failure or refusal to do so violated Section ZB MEMBERS FANNING, JENKINS, AND 8(b)(1)(A) and (2) of the Act. Briefly, Respondent Union's business manager, On May 28, 1981, Administrative Law Judge Fahl, testified that the Union maintained out-of- Thomas D. Johnston issued the attached Decision work lists which were used for referrals. Those in this proceeding. Thereafter, Respondent Em- employees who were placed on the lists were gen- ployer and the General Counsel filed exceptions erally given priority according to the date their and supporting briefs. names were registered. He testified that, although Pursuant to the provisions of Section 3(b) of the it had been the practice prior to his taking over as National Labor Relations Act, as amended, the Na- business manager in January 19802 to place only tional Labor Relations Board has delegated its au- members of Respondent Union on the lists, he thority in this proceeding to a three-member panel. would have, upon request, placed anyone on the The Board has considered the record and the at- lists regardless of their nonmembership in Respond- tached Decision in light of the exceptions and ent Union. He stated, however, that he had never briefs and has decided to affirm the rulings, find- received such a request from a nonmember. With ings,' and conclusions of the Administrative Law respect to the procedure member-employees fol- Judge to the extent consistent herewith. lowed in order to be placed on the lists, Fahl testi- The Administrative Law Judge found, and we fled that, prior to May 1980 "[a] man would either agree, that Respondent Townsend and Bottum, agree, that Respondent Townsend and Bottum, call or come in and report that he was unemployed Inc., violated Section 8(a)(3) and (1) of the Act by and I would put his name on the list." However, as laying off a number of employees because of their and I would put his name on the list." However, as nonmembership in Local 70, United Association of of May, he began the practice of having employees Journeymen and Apprentices of the Plumbing and sign the lists themselves. Pipe Fitting Industry of the United States and According to the testimony credited by the Ad- Canada, AFL-CIO (hereinafter Respondent ministrative Law Judge, shortly after their layoff Union), and in order to give preference to members on February 8, employees Paul Vander Ploeg, Pat of Respondent Union. However, the Administra- Sorenson, Harvey Cummings, and Robert Knowles tive Law Judge further found that the evidence met with Fahl.3 They told Fahl that they had been was insufficient to establish that Respondent Union, laid off and inquired as to the availability of work. in violation of Section 8(b)(1)(A) and (2), failed or Fahl responded that there was none at present and refused to register certain laid-off employees on its the employees asked if they could go to work referral lists and refer them for employment be- again "when you need help." According to Fahl, cause they were not members. In this regard, he he told them "yes, if the occasion came up and we found that signing the lists was a prerequisite for could use them I would certainly put them to work referral by Respondent Union. He further found because they had done us a good job." At the hear- that, since the alleged discriminatees had merely re- ing Fahl explained that he did not put their names quested Respondent Union's business manager, Otis on any of the out-of-work lists 4 because they did Fahl, to send them out to other jobs when work not ask him to and "I don't solicit names for the was available and had not asked to sign the lists, out of work list." Thereafter, employees whose Respondent Union's failure to place them on these names were placed on the lists on dates subsequent I Respondent Employer has excepted to certain credibility findings 'All dates refer to 1980 unless otherwise indicated. made by the Administrative Law Judge. It is the Board's established ' The record is unclear as to whether Knowles was with the other policy not to overrule an administrative law judge's resolutions with re- three employees when they spoke with Fahl. However, Fahl testified that spect to credibility unless the clear preponderance of all of the relevant he was and that he was told the same thing as the other employees. The evidence convinces us that the resolutions are incorrect. Standard Dry Administrative Law Judge credited Fahl's testimony with respect to this Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. meeting and implicitly found that Knowles was present. 1951). We have carefully examined the record and find no basis for re- ' There were several lists, which essentially grouped employees on the versing his findings. basis of skills; e.g., plumbers, pipefitters, etc. 259 NLRB No. 27 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the above meeting were referred out for reem- Respondent Union, through its agent Otis Fahl, dis- ployment at Respondent Employer. s regarded the requests for referral by Vander Ploeg, The foregoing evidence clearly reveals that, con- Sorenson, Cummings, and Knowles and failed or trary to the Administrative Law Judge's finding, refused to register them on its out-of-work lists and there was no requirement that out-of-work employ- refer them for employment. We further find that ees personally sign the out-of-work lists at the time their request was disregarded because they were the four employees were laid off and contacted Re- not members of Respondent Union. Accordingly, spondent Union. As Business Manager Fahl testi- we conclude that Respondent Union violated Sec- fied, such a procedure was not instituted until tion 8(b)(l)(A) and (2) of the Act' and that the sometime in May, 3 months after Vander Ploeg, aforesaid are unfair labor practices affecting com- Sorenson, Cummings, and Knowles reported that work W e merce within the meaning of Section 2(6) and (7) they had been laid off and wanted work. Whether of the Act. their request to Fahl was sufficient to constitute a request to be placed on the out-of-work lists must AMENDED REMEDY be viewed in this light. As noted above, Fahl testified that, prior to May, Having found that Respondent Union has en- an out-of-work employee "would either call or gaged in an unfair labor practice in violation of come in and report that he was unemployed and I Section 8(b)(1)(A) and (2) of the Act, we shall would put his name on the list." The four alleged order that it cease and desist therefrom and take discriminatees did precisely that, and we find that certain affirmative action to effectuate the policies their conduct in reporting their layoff and indicat- of the Act. We shall order that Respondent Union ing their availability for work was sufficient to en- notify in writing Townsend and Bottum, Inc., and title them to be placed on the out-of-work lists.6 other employers with whom it had or now has ex- With respect to Respondent Union's justification clusive referral agreements, with copies to Paul for not doing so, we reject its explanation that its Vander Ploeg, Robert Knowles, Pat Sorenson, and failure to register these employees was only be- Harvey Cummings, that it has no objection to their cause they did not specifically request it. Rather, employment, and that it will not refuse to register the evidence indicates that this failure was motivat- any of these individuals, or any other job applicant, ed by the employees' lack of membership in Re- through its hiring hall procedures because he lacks spondent Union. Business Manager Fahl's testimo- membership in Local 70. We shall further order ny reveals that unemployed members were not re- that Respondent Union make the above-named in- quired to make such a specific request. They dividuals whole for any loss of earnings suffered by needed only to notify the Union of their status, by telephone or otherwise, without resort to a recita- reason of its unlawful conduct. Backpay shall be tion of any "magic words." In addition, Fahl clear- computed in the manner set forth in F. W. Wool- ly misled these nonmembers when he told them he worth Company,9 with interest thereon computed in would refer them when work was available, know- the manner set forth in Florida Steel Corporation.'0 ing that referrals were made on the basis of priority ORDER on the out-of-work lists. Finally, we note that, by Fahl's own admission, placement on the lists had Pursuant to Section 10(c) of the National Labor been limited to Respondent Union's members, os- Relations Act, as amended, the National Labor Re- tensibly until he took over as business manager in lations Board hereby orders that: January, approximately I month before the incident at issue. Although he testified that he would have placed nonmembers on the list but that no one had spite the ostensible change in its policy barely I month before the inci- ever requested it, the evidence set forth above dent involved herein, has never placed a nonmember on these lists is very belies this assertion. ' On the contrary, we find that ees here. Ind peedo e of its motivation in failing to register the employ ees here. Indeed, Respondent Union's past practice, its misleading state- ments to Vander Ploeg and the others concerning its willingness to refer ' There was some dispute as to whether the alleged discriminatees them for work, and the absence of a single instance in which a non- were qualified for these positions. We shall leave this determination to member was placed on these lists indicate that in failing to register these compliance since, in any event, a finding of a violation does not turn on nonmembers it was continuing its past practice of maintaining "members whether work was available at the time. See, e.g., Pipeline Local Union only" out-of-work lists. No. 38, affiliated with the Laborers' International Union of North America. 'See, e.g., Brotherhood of Teamsters d Auto Truck Driers Local No. 70, AFL-CIO (Hancock-Northwest, J. V.), 247 NLRB 1250 (1980). International Brotherhood of Teamsters, Chauffeurs. Warehousemen d Help- ' We note that there is no indication in the record that the employees ers of America (California Trucking Association), 188 NLRB 305 (1971). even knew of the existence of these lists and Respondent Union did not g 90 NLRB 289 (1950). appear to have been anxious to apprise them of its referral procedure. '° 231 NLRB 651 (1977). See, generally, Isis Plumbing d Heating Co., 7 There is no allegation of discrimination occurring either prior to or 138 NLRB 716 (1962). Member Jenkins would award interest on backpay after the February incident at issue. However, the fact that Respondent in accordance with his dissent in Olympic Medical Corporation, 250 Union maintained "members only" out-of-work lists in the past and, de- NLRB 146 (1980). TOWNSEND AND BOTrUM, INC. 209 A. Respondent Townsend and Bottum, Inc., Ann and all other records necessary to analyze the Arbor, Michigan, its officers, agents, successors, amount of backpay due under the terms of this and assigns, shall: Order. 1. Cease and desist from: (c) Post at its Ann Arbor, Michigan, facility and (a) Laying off or in any other manner discrimi- at the jobsite, if it is still performing work there, nating against any employee in regard to hire or copies of the attached notice marked "Appendix tenure of employment or any term or condition of A."" Copies of said notice, on forms provided by employment because of their nonmembership in the Regional Director for Region 7, after being Local 70, United Association of Journeymen and duly signed by Respondent Employer's authorized Apprentices of the Plumbing and Pipe Fitting In- representative, shall be posted by Respondent Em- dustry of the United States and Canada, AFL- ployer immediately upon receipt thereof, and be CIO, or any other labor organization, or in order maintained by it for 60 consecutive days thereafter, to give preference to the members of said labor or- in conspicuous places, including all places where ganizations except to the extent that such rights notices to employees are customarily posted. Rea- may be affected by an agreement requiring mem- sonable steps shall be taken by Respondent Em- bership in a labor organization as a condition of ployer to insure that said notices are not altered, employment as authorized in Section 8(a)(3) of the defaced, or covered by any other material. National Labor Relations Act, as amended. (d) Notify the Regional Director for Region 7, in (b) In any like or related manner interfering writing, within 20 days from the date of this Order, with, restraining, or coercing employees in the ex- what steps Respondent Employer has taken to ercise of the rights guaranteed them under Section comply herewith. 7 of the Act. B. Respondent Local 70, United Association of 2. Take the following affirmative action neces- Journeymen and Apprentices of the Plumbing and sary to effectuate the policies of the Act: Pipe Fitting Industry of the United States and (a) Offer immediate and full reinstatement to Canada, AFL-CIO, Grand Rapids, Michigan, its Kelly Rose, Ralph Landolf, Giles Buteau, Craig officers, agents, and representatives, shall: Whitlow, Dennis Thornley, Harry Sample, Jessie 1. Cease and desist from: Wilkins, Terry Whitman, Thomas J. Slifko, Wil- (a) Failing and refusing to register on its referral liam L. Slifko, LeRoy Krieger, Ken Huizinga, lists and refer for employment Paul Vander Ploeg, Larry Patton, Mike Hubbard, Donald Ferrell, Robert Knowles, Pat Sorenson, Harvey Cummings, Arthur Ashby, John Ashby, Paul Sniff, Ray or any other applicant, because of nonmembership Schrier, Charles Dunn, Thomas Crawford, Richard in Local 70, or any other union. Warren, Bernard Collins, Charles Bowhan, Larry (b) In any like or related manner restraining or Schaub, Craig Beckwith, Paul Veldman, Dave coercing employees in the exercise of the rights Hammerstrom, Robert Davis II, Walter Roung, guaranteed them by Section 7 of the Act. Paul Vander Ploeg, Robert Knowles, Harvey 2. Take the following affirmative action designed Cummings, Fred Sliter, Pat Sorenson, Robert A. to effectuate the policies of the Act: McCarthy, Kevin Rogler, Richard Sharp, Ken (a) Make whole Paul Vander Ploeg, Robert Bryon, Murray Cohen, Jerry Lucas, Charles Vass, Knowles, Pat Sorenson, and Harvey Cummings for George Steinmetz, Joseph Pielesnik, Robert Howe, any loss of pay they may have suffered because of Joseph Broniecki, Vincent Reynolds, George Pel- the discrimination against them in the manner set lerin, John Higginbotham, Lewis Smith, James forth in the section of this Decision entitled Daughtery, Juan Barrios, and Lawrence Roberts to "Amended Remedy." their former positions or, if those positions no (b) Notify in writing Townsend and Bottum, longer exist, then to substantially equivalent posi- Inc., and other employers with whom it had or tions, without prejudice to their seniority and other now has exclusive referral agreements, with copies rights and privileges, and make each of them whole to the above-named individuals, that it has no ob- for any loss of pay and other compensation they jection to their employment, and that it will not may have suffered by reason of the discrimination refuse to register any of these individuals, or any against them in the manner set forth in that section other job applicant, through its hiring hall proce- of the Administrative Law Judge's Decision enti- dures because he lacks membership in Local 70. tied "The Remedy." (b) Preserve and, upon request, make available to I, n the event that this Order is enforced by a Judgment of a United the Board or its agents, for examination and copy- States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ing, all payroll records, social security payment re- ant to a Judgment of the United States Court of Appeals Enforcing an cords, timecards, personnel records and reports, Order of the National Labor Relations Board." 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Preserve and, upon request, make available to other labor organization, or in order to give the Board or its agents, for examination and copy- preference to their members except to the ing, all records pertaining to employment through extent such rights may be affected by an its hiring halls, and all other records necessary and agreement requiring membership in a labor or- useful in determining the amount of backpay due. ganization as a condition of employment as au- (d) Post at its business office, hiring halls, and thorized in Section 8(a)(3) of the National meeting places copies of the attached notice Labor Relations Act, as amended. marked "Appendix B."12 Copies of said notice, on WE WILL NOT in any like or related manner forms provided by the Regional Director for interfere with, restrain, or coerce our employ- Region 7, after being duly signed by Respondent ees in the exercise of the rights guaranteed Union's official representative, shall be posted by it them under Section 7 of the Act. immediately upon receipt thereof, and be main- WE WILL offer immediate and full reinstate- tained by it for 60 consecutive days thereafter, in ment to Kelly Rose, Ralph Landolf, Giles conspicuous places, including all places where no- Buteau, Craig Whitlow, Dennis Thornley, tices to members are customarily posted. Reason- Harry Sample, Jessie Wilkins, Terry Whitman, able steps shall be taken by Respondent Union to Thomas J. Slifko, William L. Slifko, LeRoy insure that said notices are not altered, defaced, or Krieger, Ken Huizinga, Larry Patton, Mike covered by any other material. Hubbard, Donald Ferrell, Arthur Ashby, John (e) Notify the Regional Director for Region 7, in Ashby, Paul Sniff, Ray Schrier, Charles Dunn, writing, within 20 days from the date of this Order, Thomas Crawford, Richard Warren, Bernard what steps Respondent Union has taken to comply Collins, Charles Bowhan, Larry Schaub, Craig herewith. Beckwith, Paul Veldman, Dave Hammer- strom, Robert Davis II, Walter Roung, Paul "ee rn. 1I, supra. Vander Ploeg, Robert Knowles, Harvey Cum- mings, Fred Sliter, Pat Sorenson, Robert A. APPENDIX A McCarthy, Kevin Rogler, Richard Sharp, Ken NOTICE To EMPLOYEES Bryon, Murray Cohen, Jerry Lucas, Charles POSTED BY ORDER OF THE Vass, George Steinmetz, Joseph Pielesnik, POSTED BY LA3ORDER OF THE RELATORobert Howe, Joseph Broniecki, Vincent NATIONAL LABOR RELATIONS BOARD Reynolds, George Pellerin, John Higgin- An Agency of the United States Government botham, Lewis Smith, James Daughtery, Juan Barrios, and Lawrence Roberts to their former After a hearing at which all sides had an opportu- jobs or, if those jobs no longer exist, then to nity to present evidence and state their positions, substantially equivalent jobs without prejudice the National Labor Relations Board found that we to their seniority and other rights and privi- have violated the National Labor Relations Act, as leges, and WE WILL make each of them whole amended, and has ordered us to post this notice. for any loss of pay or other compensation he The Act gives employees the following rights: may have suffered by reason of our discrimina- tion against him, with interest. To engage in self-organization To form, join, or assist any union TOWNSEND AND BOTTUM, INC To bargain collectively through repre- sentatives of their own choice APPENDIX B To engage in activities together for the purpose of collective bargaining or other NOTICE To EMPLOYEES mutual aid or protection POSTED BY ORDER OF THE To refrain from the exercise of any or all NATIONAL LABOR RELATIONS BOARD such activities. An Agency of the United States Government WE WILL NOT lay off or in any other After a hearing at which all sides had an opportu- manner discriminate against employees in nity to present evidence and state their positions, regard to hire or tenure of employment or any the National Labor Relations Board found that we term or condition of employment because of have violated the National Labor Relations Act, as their nonmembership in Local 70, United As- amended, and has ordered us to post this notice. sociation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the The Act gives employees the following rghts: United States and Canada, AFL-CIO, or any To engage in self-organization TOWNSEND AND BOTTUM, INC. 211 To form, join, or assist any union The amended consolidated complaint, which was fur- To bargain collectively through repre- ther amended at the hearing, alleges that Respondent sentatives of their own choice Company violated Section 8(a)(l) and (3) of the National To engage in activities together for the Labor Relations Act, as amended (herein referred to as purpose of collective bargaining or other the Act), by laying off welding and pipefitting employ- mutual aid or protectionees 3 on or about January 18, 22, 23, 25, 28, 29, and 30 and February 1, 4, 6, 7, 8, 14, and 15 at its West Olive jobsite because of their nonmembership in Respondent such activities. Union and in order to give preference to members of Re- WE WILL NOT fail or refuse to register on spondent Union. our referral list or refer for employment Paul The amended consolidated complaint also alleges that Vander Ploeg, Robert Knowles, Pat Sorenson, Respondent Union violated Section 8(b)(1)(A) and (2) of Harvey Cummings, or any other applicant, be- the Act by advising employees at the West Olive jobsite cause of nonmembership in Local 70, or any that union members were being given preference over other union. nonmembers in admission to Respondent Company's sponsored training classes; by causing Respondent Com- WE WILL not in any like or related manner pany to deny permission to attend Respondent Compa- restrain or coerce employees in the exercise of ny's sponsored training classes to nonmember employees4 the rights guaranteed them by Section 7 of the at the West Olive jobsite and to give preference to mem- Act. bers of Respondent Union, thereby causing Respondent WE WILL make Paul Vander Ploeg, Robert Company to discriminate against employees because of Knowles, Pat Sorenson, and Harvey Cum- their nonmembership in Respondent Union; by dening mings whole for any loss of earnings suffered Ploeg access to study materials for Respondent Union's as a result of the discrimination against them, journeymen's examination because of his nonmembership with interest, in Respondent Union; and by refusing to refer Ploeg and WE WILL notify Townsend and Bottum, other nonmembers5 to jobs with Respondent Company Inc., and other employers with whom we had or to put them on an out-of-work list because of their nonmembership in Respondent Union, thereby causing or may have exclusive referral agreements, in such employees not to be rehired by Respondent Compa- writing, with copies to the above-named indi- ny and thereby causing Respondent Company to dis- viduals, that we have no objection to their em- criminate against employees because of their nonmem- ployment, and that we will not refuse to regis- bership in Respondent Union.6 ter or refer these individuals, or any other job Respondent Company, in its answer dated August 8, applicant, through our hiring hall procedures denies having violated the Act. because he lacks membership in Local 70. Respondent Union, in its answer dated August 8 to the amended consolidated complaint, which also included LOCAL 70, UNITED ASSOCIATION OF the adoption of its original answer dated June 24 to a JOURNEYMEN AND APPRENTICES OF complaint issued against it, denies having violated the THE PLUMBING AND PIPE FITTING Act. INDUSTRY OF THE UNITED STATES The issues involved are whether Respondent Company violated Section 8(a)(l) and (3) of the Act by discrimina- AND CANADA, AFL-CIO torily laying off7 the discriminatees because of their non- DECISION membership in Respondent Union and in order to give preference to Respondent Union's members; and whether STATEMENT OF THE CASE Respondent Union violated Section 8(b)(IXA) and (2) of the Act as alleged by making unlawful statements to em- THOMAS D. JOHNSTON, Administrative Law Judge: ployees, by discriminating against Ploeg by denying him These consolidated cases were heard in Grand Rapids, access to study materials for its Journeymen's examina- Michigan, on December 18 and 19, 1980,' and January tion, by discriminatorily causing Respondent Company 12, 1981, pursuant to a charge filed on June 6 by Paul Vander Ploeg, an individual, against Townsend and 3The names of these laid-off employees (herein referred to as the dis- Bottum, Inc. (herein referred to as Respondent Compa- criminatees) are contained in the General Counsel's response to a more ny), in Case 7-CA-17861, and amended charge2 filed on definite statement. June 6 by Ploeg against Local 70, United Association of I The General Counsel defined "nonmember employees" as used here to mean only Ploeg. Journeymen and Apprentices of the Plumbing and Pipe I The "nonmembers" referred to here and as defined by the General Fitting Industry of the United States and Canada, AFL- Counsel were Pat Sorenson. Harvey Cummings, and Robert Knowles. CIO (herein referred to as Respondent Union) in Case 7- Certain other allegations contained in the amended consolidated com- CB-4744, and an amended consolidated complaint issued plaint alleging that Respondent Union violated Sec. 8(bXI)(A) and (2) of the Act were disposed of either through an informal settlement agree. on July 31 in both cases. ment containing a nonadmission clause or by withdrawal of such allega- tions. 'All dates referred to are in 1980 unless otherwise stated. ' The layoffs themselves. as opposed to the selection of those employ- The original charge was filed on April 8. ees to be laid off, were not alleged to be discriminatory. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to deny Ploeg permission to attend its sponsored training Canada, AFL-CIO (herein referred to as the Internation- classes, and by discriminatorily refusing to refer Ploeg, al), from both the United States and Canada; and non- Sorenson, Cummings, and Knowles to jobs with Re- union employees, also referred to as "permit" or "white spondent Company or to put them on an out-of-work ticket" employees. list, thereby causing Respondent Company to discrimi- Otis Fahl has been the business manager of Respond- nate against them because of their nonmembership in Re- ent Union since about January 10 and succeeded Chester spondent Union. Krupiczewicz, who is now deceased. Robert Ferris Upon the entire record in this case, and from my ob- served as Respondent Union's main steward on the job- servations of the witnesses and after due consideration of site from January 1, 1978, until July 1980. the briefs filed by the parties, I hereby make the follow- ing:8 B. The Exclusive Referral System FINDINGS OF FACT The collective-bargaining agreements between Re- spondent Company and Respondent Union covering I. THE BUSINESS OF RESPONDENT COMPANY work on the jobsite contain referral and hiring proce- Respondent Company, a Michigan corporation with its dures. Under these provisions Respondent Union is re- principal office and place of business located in Ann quired to maintain out-of-work lists for the categories of Arbor, Michigan, is engaged in the construction business plumbers, fitters, welders, refrigeration mechanics, and at various projects in the State of Michigan, including a apprentices. Respondent Company is required to advise project located in West Olive, Michigan, where it is the Respondent Union's business manager of the number of general contractor on the construction of a power plant applicants needed, and Respondent Union is then re- for Consumers Power Company. quired to refer them in the chronological order they reg- During calendar year 1979, a representative period, istered on the out-of-work lists. Respondent Company Respondent Company, in the course of its operations, re- may reject applicants for certain valid reasons, and has ceived gross revenues in excess of $500,000, and pur- the right to recall any former employee who is collecting chased and received goods and materials valued in excess unemployment against its account and to select from of $50,000 which were delivered to it at its West Olive, anywhere on the lists members for service work only. Michigan, job directly from points located outside the The agreements further provide that if, upon request, State of Michigan. Respondent Union is unable within 48 hours to supply Respondent Company is an employer engaged in com- journeymen, including journeymen with special skills, merce within the meaning of Section 2(6) and (7) of the en Act. Respondent Company may secure journeymen from any other source. The 48-hour period (Saturdays, Sundays, II. THE LABOR ORGANIZATION INVOLVED and holidays excepted) shall began at 8 a.m. of the day following the day on which the request is made. Local 70, United Association of Journeymen and Ap- Several nonunion employees, presented as witnesses by prentices of the Plumbing and Pipe Fitting Industry of the General Counsel, who worked on the jobsite as the United States and Canada, AFL-CIO, is a labor or- welders or pipefitters, including Craig Beckwith, ganization within the meaning of Section 2(5) of the Act. Knowles, Cummings, Ploeg, Kenneth Huizinga, David Knowles, Cummings, Ploeg, Kenneth Huizinga, David III. THE UNFAIR LABOR PRACTICES Hammerstrom, and Sorenson, all credibly testified, with- out denial, that before being hired by Respondent Com- A. Background pany they were required to have referral slips from Re- Respondent Company was engaged as the general con- spondent Union. Cummings, Ploeg, Hammerstrom, and tractor on the construction of a power plant located in Sorenson had all contacted Respondent Company initial- West Olive, Michigan, for the Consumers Power Com- ly about being hired after seeing advertisements placed pany (herein referred to as the jobsite). Robert Shilande, by it for employees, but before being hired they were in- who had previously served as piping superintendent, was structed by Respondent Company's representatives, in- its project superintendents Its employees working on the cluding Welding Coordinator John Keenan, to go to Re- jobsite were represented by Respondent Union with spondent Union for referral slips, which they did. which it had collective-bargaining agreements applicable Respondent Company's project superintendent, Shi- to the jobsite covering said employees. lander, as well as Respondent Union's business manager, Included among the employees employed on the job- Fahl, and its steward, Ferris, acknowledged that before site and represented by Respondent Union were mem- being hired by Respondent Company to work on the bers of Respondent Union; members, sometimes referred jobsite all employees were required to, and did, have re- to as "travelers," of other local unions of the United As- ferral slips from Respondent Union. This included mem- sociation of Journeymen and Apprentices of the Plumb- bers of Respondent Union, travelers from other locals of ing and Pipe Fitting Industry of the United States and the International, including those in Canada, and non- union employees. These referral slips were issued by Re- ' Unless otherwise indicated, the findings herein are based on the spondent Union's business manager and given to Steward pleadings, admissions, stipulations, and undisputed evidence contained in Ferris by the employees upon their arrival at the jobsite the record, which I credit. 9 Shilander was a supervisor under the Act. TOWNSEND AND BOTTUM, INC. 213 C. The Discriminatory Layoffs by Respondent Allard, Donald Pinard, Gerard Dionne, Kenneth de Company Cropper, John Goba, Normand LaFlamme, Dennis Her- bert Rejean Savoie Steve Dayah Charles E. Dunn There were approximately 387 employees employede, Steve Dayah, Charles E. Dunn, by Respondent Company at the jobsite during January as David Biledeau, Patrck Russell, Douglas Stewart, reflected by its monthly earnings register. Business Man- Thomas A Crawford, Jean P. Jutras, Ray Schrier Ken ager Fahl estimated that in January and February there Bursey, Jim Young, Len Sullivan, Raymond Chasse, were approximately 80 members of Respondent Union Donald Ferrell, Stan Colton, Avmand Allard, C. J. employed on the jobsite. Chapman, Gabriel Savard, Richard A. Warren, Bernard Respondent Company's records prepared or kept by it Collins, Arthur Ashby, John Ashby, Raymond Dillon, dealing with layoffs, which listed the union status of Paul A. McAree, Angelo Cannata, Roger LaLancette, those employees laid off, reflect that beginning on Janu- Cecil Fobert, Raymond Roussel, Yvon Dion, Michel ary 18 and continuing through February 15 a total of 153 Boudreau, Dennis Thornley," Charles H. Bowhan, and unit employees who had been performing work as pipe- Larry Schaub. All of the employees were laid off on fitters or welders were laid off from work at the jobsite. February 1, from Canada and various Canadian locals On January 18 those employees laid off were Kelley except for certain employees who were either nonunion Rose, Marcel Trudeaux, Garry L. Parks, John R. or members of other locals. Those nonunion employees McCormick, Edward Rogers, Richard Brougham, were Ken Huizinga, Larry Patton, Mike Hubbard, Ronald Gionet, Wade Westline, Hazen Hollis, R. Roy, Donald Ferrell, and Arthur and John Ashby. The mem- Raymond Legault, Mato Brkic, John Y. Coulombe, E. bers of other locals were Paul Sniff and Ray Schrier Huot, Daniel T. Gallagher, Ludwig Diermeier, Richard from Local 154, Charles Dunn from Local 102, Thomas Bibeau, Pierre Marcotte, Rejean Desilets, John W. Crawford from Local 460, Richard Warren from Local Dempsey, Paul Mongrain, Gillis LaBlanc, Pierre Bibeau, 313, Bernard Collins from Local 671, Dennis Thornley Jacques Durand, Pierre Durand, John R. Massey, John from Local 798, and Charles Bowhan and Larry Schaub Newman, Henry Hay, Claude Doyon, Christopher H. from Local 669. Keane, Gilles LeFebvre, Richard Murchie, James Gal- Those employees laid off on February 8 were Craig lacher, Paul J. Peloquin, Marcel DeLongue Epee, Jac- Beckwith, Kevin J. Rogler, Paul Veldman, Dave Ham- ques Pepin, John McGloin, Gary Landry, Charles Beer, merstrom, Murray Cohen, Robert Davis II, Jerry Lucas, Damien Paulin, Willfied Belair, Benoit Gelinas, Gerard Walter Roung, Richard Sharp, Charles Vass, George Chainey, George W. Westline, Phillip Menard, George Steinmetz, Paul Ploeg, Robert Knowles, Joseph Pieles- Auspitz, Mavius Dube, Alain Dumais, Jean L. Theroux, nik, Robert Howe, Harvey Cummings, Fred Sliter, Pat Alain Jutras, Yuan Godan, Roger Dompierre, Dennis Sorenson, Robert A. McCarthy, Joseph Broniecki, Belisle, and Guy Patenaude. With the exception of George Pellerin, John Higginbotham, Juan Barrios, Kelley Rose, who was a member of Local 798, all of the Louis A. Smith, Vincent C. Reynolds, Ken Byron, and other employees laid off on January 18 were from James E. Daugherty. Canada and various Canadian locals. The employees laid off from work on February 8 were On January 23 the only employee laid off was Ralph either nonunion employees or members of other locals. Landolf, who was a member of Local 2. The nonunion employees were Craig Beckwith, Paul On January 25 those employees laid off were Giles Veldman, Dave Hammerstrom, Robert Davis 11, Walter Buteau, Marcel Lemire, Renald Filion, Richard Four- Roung, Paul Ploeg, Robert Knowles, Harvey Cummings, nier, Jean Duval, Michel Caya, Craig Whitlow, Robert Fred Sliter, and Pat Sorenson. The records do not show Lussier, Albert Landry, and Donald E. Stanley. Except the status of Robert A. McCarthy; however, he was not for Giles Buteau and Craig Whitlow, who were members a member of Respondent Union. Insofar as the remaining of Locals 617 and 190, respectively, all of the remaining employees are concerned, Kevin Rogler, Richard Sharp, employees laid off on January 25 were from Canada and and Ken Byron were members of Local 638, Murray various Canadian locals. Cohen was a member of Local 629, Jerry Lucas was a On January 28 those employees laid off were Dennis member of Local 387, Charles Vass was a member of Thornley, Harry Sample, Jessie Wilkins, Luc Gautier, Local 111, George Steinmetz was a member of Local 50, and Craig Whitlow.'O Luc Gautier was from Canada and Joseph Pielesnik and Robert Howe were members of a Canadian local while Dennis Thornley and Harry Local 154, Joseph Broniecki and Vincent Reynolds were Sample belonged to Local 798. Jessie Wilkins was a members of Local 1, George Pellerin was a member of member of Local 640 and Craig Whitlow was a member Local 144, John Higginbotham was a member of Local of Local 190. 195, Lewis Smith was a member of Local 821, James On January 29 those employees laid off were Thomas Daugherty was a member of Local 211, and Juan Barrios J. Slifko, LeRoy Krieger, Terry Whitman, and William was a member of Local 391. L. Slifko. On February 14 the only employee laid off was Law- Terry Whitman was a member of Local 158 whereas rence Roberts, who was a member of Local 821. both Slifkos belonged to Local 27 and LeRoy Krieger On February 15 those employees laid off were Robert was a member of Local 513. Carroll, George Coleson, John W. May, James Vanders Those employees laid off on February I were Paul Heuvel, Kevin Pratt, M. O'Hara, and E. O'Hara. Three Sniff, Ken Huizinga, Larry Patton, Mike Hubbard, Rene " Thornley, as previously noted, was included in the January 28 't Whitlow, as previously noted, was included in the January 25 layoff. layoff. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of these employees, namely, George Coleson, M. Knowles, Ploeg, Huizinga, Hammerstrom, and Soren- O'Hara, and E. O'Hara, were members of Respondent son all credibly testified without denial that at the time Union. Robert Carroll belonged to Local 449 and James they were laid off on February 8, except for Huizinga, Heuvel to Local 190. Neither John May nor Kevin Pratt who was laid off on February 1, the jobs they were were union members. working on had not been completed and there was still Project Superintendent Shilander testified that these work to be performed. layoffs resulted from a gearing down of Respondent Respondent Company's records reflect that prior to Company's operations on the jobsite and that he made the layoffs in issue here Respondent Company, in De- the decision on each layoff. This was accomplished by cember and early January, also laid off from work ap- his first determining the number and classifications of proximately 59 employees"4 who had been performing employees to be included in each layoff, whereupon the work as welders, pipefitters, and subjourneymen pipefit- general foremen along with the foremen then submitted ters on the jobsite. Six of those employees were members to him lists of names of employees they themselves se- of Respondent Union, while the rest of them were either lected to be laid off for his approval. He then reviewed nonunion employees or members of other locals, includ- each of the lists to see whether they were fair, whether ing 20 Canadians from various Canadian locals. there would be any problems with upcoming vacations, Following the layoffs in issue here Respondent Com- and that the layoffs did not include specific areas like hot pany, during the period beginning February 18 and con- welders. Those factors, which Shilander stated were to tinuing through April 4, laid off approximately 119 addi- be considered in selecting the employees for layoff and tional employees. " Thirty-seven of those employees about which he had previously instructed his foremen in were members of Respondent Union, while 6 of them meetings, included absenteeism, productivity, expertise in were nonunion employees and the remaining employees their field, classifications required for upcoming work, were members of other locals. and sometimes areas of work. Shilander's undisputed testimony, which I credit, es- Shilander acknowledged that he did not review the tablishes that all of the Canadians employed on the job- qualifications of each individual selected for layoff or site were working under visas for which Respondent compare them to those employees retained but only Company had applied. Those visas, which were original- looked to see whether there were any glaring inequities ly good for 1 year, expired about Thanksgiving 1979, but concerning whether the names should be included on the at the request of Respondent Company they had been ex- lists. According to him, on these particular layoffs he did tended for an additional 3 months and would have ex- not see any problems with letting the layoffs go through pired about the end of February. No further extensions the way they were requested, stating he trusted the deci- of the visas were requested. All of the Canadians had sions of the general foremen and foremen. Shilander also been laid off by about the first part of February and Shi- acknowledged that no records were kept of the reasons lander explained that it was because their visas were to for laying off the employees. expire. None of the general foremen or foremen who selected Both Shilander and Ferris testified at the time of the the names of the employees to be laid off testified con- hearing that the only employees still working on the job- cerning the reasons they selected those employees whose site were members of Respondent Union. names they submitted to Shilander. Shilander and Ferris estimated that by about the end Shilander denied that he was ever pressured by Re- of February or March all of the nonunion employees spondent Union concerning how to make the layoffs, al- working on the jobsite had been laid off work. Ferris though he stated that former Business Manager Kru- also estimated that from about May until September piczewicz, about October 1979, had informed him he there were approximately 90 employees still employed wanted him to take a hard look at Respondent Union's on the jobsite who, with the exception of a few travelers members before he laid them off and that Business Man- from Michigan locals, were members of Respondent ager Fahl, after taking office, had indicated he did not Union. According to Ferris, the number of employees on want any of the arrangements previously made with the construction crew had dropped to approximately 25 Krupiczewicz changed. in Decmber Robert Knowles, who was one of the discriminatees employed on the jobsite who was laid off from work on D. Respondent Union's Alleged Conduct Concerning February 8, credibly testified without denial that in De- Welding Training Classes cember 1979 or January 1980, upon asking Respondent Company's foreman, Mike Duffy, 12 under whom he Respondent Company sponsors welding training worked, if he knew the order of layoff that would be classes for its employees employed at the jobsite. Based coming up or if he would be laid off since the job was on the undisputed testimony of Respondent Union's ste- slowing down, Duffy replied that he thought it would be ward, Ferris, which I credit, those employees interested subjourneymen,13 then the Canadians, and then the in attending such classes submit their applications to him, permit hands or white tickets in that order. which he in turn gives to Respondent Company's weld- ing coordinator, Keenan. Keenan alone then selects the 12 Although Knowles described Duffy as being a general foreman, he was not among those listed by Shilander, and Stewart Ferris described " The layoffs of these employees were not alleged to be discriminato- him as being a foreman. ry. "' According to Ferris, subjourneymen earn 60 percent of the journey- . The layoffs of these employees were not alleged to be discriminato- man's rate of pay and they are not members of Respondent Union. ry. TOWNSEND AND BOTTUM, INC. 215 applicants to attend the welding training classes and noti- existence, and no evidence was proffered to establish that fies Ferris to have those employees selected to report to any such materials ever actually existed. class. Respondent Union does not participate in the se- I credit Fahl rather than Ploeg, whom I have previ- lection process. ously discredited. Ploeg testified that in the spring of 1979 he asked Ferris whether there were any openings in the welding F. Respondent Union's Alleged Refusal To Refer class. When Ferris informed him there were not any Employees openings he asked if he could be put on a waiting list, Ploeg, Sorenson, Cummings, and Knowles all worked whereupon Ferris told him there was no list. Upon as journeymen at the jobsite performing welding or pipe- asking whether he could get in at a later date, Ferris in- fitting work from 1978 until their layoffs on February 8. formed him that union personnel were given the first op- Respondent Union's records and the undisputed testi- portunity to get into the class. portunity to get into the fallof1979,class. wh mony of Fahl establish that Respondent Union maintains Ploeg further testified that in the fall of 1979, which separate out-of-work lists for plumbers, pipefitters, weld- he subsequently defined to mean August 1979, he again ers, and apprentices, which is also required by the collec- asked Ferris, in the presence of Assistant Steward Jerry tive-bargaining agreements covering work on the jobsite. Patton, 16 about the possibility of getting into the welding Employees are referred to jobs in the order their names class, but was told that it was full. Upon asking again if appear on each list except for those exceptions contained he could get in at a later date, Ferris informed him that in the collective-bargaining agreements such as when an he could not because union members were given the first employee is drawing unemployment benefits from Re- opportunity to get into the class. spondent Company. Initially, Fahl, at the request of the Ferris denied making such statements attributed to him employees who were out of work, would list their names by Ploeg or ever refusing to take applications for the on these out-of-work lists. However, about May the classes. He further stated that he had received applica- practice was changed whereby the employees themselves tions from nonunion employees, including Ploeg,t 7 would sign these lists. Knowles, and Cummings, which he then turned over to Fahl denied that employees had to be members of Re- Welding Coordinator Keenan. According to Ferris' un- spondent Union to have their names placed on the out- disputed testimony, he observed Knowles attending of-work lists. However, he admitted making a statement welding classes about February or March 1979. Cum- in an affidavit given to a Board agent as follows: "If mings acknowledged that in the spring or summer of there is a work shortage we keep an unemployed list and 1979 he had filled out an application for welding school you have to be a member of the local to be put on that which he gave to Ferris. Although he was not accepted, list. Fahl's explanation for making such a statement was he acknowledged that he never pushed it. that it was in response to a question about what the past I credit the testimony of Ferris over that of Ploeg, practices of the Local had been as far as maintaining an whom I discredit, and find that Ferris did not inform out-of-work list. According to him, since taking over as Ploeg or other employees that union members were business manager in January, he had never experienced being given preference over nonmembers in admission to anyone other than members coming in and wanting to be the welding training classes as alleged."' Apart from my placed on the list so the only ones who had been on the observation of the witnesses in discrediting Ploeg, his list would have been members of Respondent Union. testimony was both contradictory and contrary to that of Knowles testified that on the day of his layoff, Febru- other witnesses presented by the General Counsel. ary 8, he went to Respondent Union's hall and talked to Fahl. During the conversation, he asked Fahl if he E. Respondent Union'sAlleged Denial Of Study would send him out on a job in the future when they had work, whereupon Fahl informed him that he would. Ploeg testified that, about the first week in March Knowles stated he believed that he also asked Fahl if during a telephone conversation he initiated with Busi- there would be a signup list or a list for nonmembers and ness Manager Fahl, he asked Fahl about the possibility of Fahl told him no. Upon asking Fahl if he would refer getting in Respondent Union as an apprentice or subjour- him to other business agents since he was not a member neyman, whereupon Fahl informed him that he would of Respondent Union and could not get a travel card, have to have 4 years of experience and would have to and if Fahl would let him know about other jobs, Fahl take some kind of test. Upon asking Fahl if he could get informed him that he would and for him to keep in material for the test, Fahl informed him that he could touch. not unless he was in some way affiliated with the Union Knowles acknowledged that he did not ask to sign an or was referred or accepted as an apprentice. out-of-work list or for Fahl to put his name on such list. Fahl denied making such statements to Ploeg. He fur- Fahl, while stating that he had several discussions with ther denied that there was any such study materials in Knowles about admission to Respondent Union's appren- ticeship program, denied having any discussions with "Patton did not testify. him about putting his name on an out-of-work list or that 7 Ploeg did not deny submitting an application to Ferris. Knowles asked to be placed on a list. " The statements Ploeg alleges Ferris made to him also occurred more I credit the testimony of Fahl rather than that of than 6 months prior to the filing of the charge against Respondent Union in the instant case, and Sec. IO(b) of the Act would preclude finding a Knowles, whom I discredit. Besides my observation of violation even if such statements were credited. the witnesses in discrediting Knowles, he expressed un- 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certainty in his own testimony about what actually tran- that there was nothing he could do for him at least until spired. summer or later. On February 11, Ploeg, Sorenson, and Cummings, Fahl credibly denied having such conversations with who had all been laid off from work on February 8, had Ploeg. a conversation with Fahl at Respondent Union's hall. Respondent Union's out-of-work lists for pipefitters Ploeg, who stated he had heard about the out-of-work and welders reflect that after February 11 it had referred list from members of Respondent Union, testified he employees to Respondent Company for work on the job- asked Fahl about being put on a work list. Fahl informed site, including jobs other than those designated as main- all three he would put them on the work list, but told tenance work. For example, in May or June, M. O'Hara, them that he would not refer any men out anymore as K. Pratt, and J. Knowles were referred as welders and, white ticket or permit men and that the only way he in May, P. Shaffer was referred as a pipefitter. These would refer men to other jobs would be as subjourney- employees were all members of Respondent Union. men; and he also said that their chance of getting em- Respondent Union's records as well as the testimony ployment at that time was slim because he had people of Fahl reflect that the names of Ploeg, Sorenson, Cum- laid off or out of work and he would have them hired mings, and Knowles were not placed on the out-of-work out before he would hire out a nonunion member. Upon lists maintained by Respondent Union and they were not asking Fahl about being referred out to another local or thereafter referred by it to jobs with Respondent Compa- area other than Local 70's area as he did with his union ny. members, Fahl replied he could not do that. Before leav- Although Fahl denied referring anyone to Respondent ing, Ploeg again asked Fahl whether they would be put Company after January within the classifications or skills on the out-of-work list and Fahl replied that they would. of Ploeg, Sorenson, Cummings, or Knowles, Fahl also Ploeg acknowledged that he never asked Fahl if he denied knowing what categories they were in, except could sign the out-of-work list. that two of them were certified welders, and, according Neither Sorenson nor Cummings, called as witnesses to him, the capabilities of the employees are determined by the General Counsel, corroborated Ploeg's testimony, at the jobsite by Respondent Company. and in fact Sorenson contradicted it. All Cummings re- called that was said was that they asked if there was any G. Analysis and Conclusions work in the area or if Fahl knew of any work in Michi- gan where they needed hands, whereupon Fahl told The General Counsel asserts that Respondent Compa- them that at that time he had men on the bench and ny violated Section 8(a)(1) and (3) of the Act by discri- there was no work in the area. While Sorenson initially minatorily laying the discriminatees off from work be- stated that they asked Fahl if he would keep them in cause of their nonmembership in Respondent Union and mind for future reference for a job and asked if there to give preference to Respondent Union's members; and was some kind of list, he subsequently stated that he did that Respondent Union violated Section 8(b)(1)(A) and not remember himself or anyone in the group asking to (2) of the Act by making unlawful statements to employ- have his name put on a referral list or anyone else in the ees, discriminating against Ploeg by denying him access group saying anything about a list and denied that Fahl to study materials for its journeymen's examination and said anything about it. causing Respondent Company to deny Ploeg permission Fahl denied that anyone asked to be put on the out-of- to attend its sponsored training classes, and discrimina- work list or referred to such list. According to him, they torily refusing to refer Ploeg, Sorenson, Cummings, and asked if he would send them out on other jobs when he Knowles to jobs with Respondent Company or to put got additional work and he told them that he would be- them on an out-of-work list causing Respondent Compa- cause they had done a good job. ny not to rehire them and to discriminate against them I credit the testimony of Fahl concerning this conver- because of their nonmembership in Respondent Union. sation rather than that of Ploeg, Sorenson, and Cum- Section 8(a)(1) of the Act prohibits an employer from mings. Besides my observation of the witnesses in dis- interfering with, restraining, or coercing employees in crediting them, they contradicted each other's testimony the exercise of their rights guaranteed in Section 7 of the concerning what transpired and Ploeg has been discredit- Act. Section 8(a)(3) of the Act provides in pertinent part: ed previously. "It shall be an unfair labor practice for an employer ... Fahl explained at the hearing that he did not place by discrimination in regard to hire or tenure of employ- their names on the out-of-work list because they did not ment or any term or condition of employment to encour- ask him to and that he did not solicit names for such list. age or discourage membership in any labor organiza- Ploeg further testified that following this conversation tion." he had two telephone conversations with Fahl. The first Section 8(b)(l)(A) of the Act prohibits a union from occurred on February 18 at which time he called Fahl restraining or coercing employees in the exercise of their and asked whether the laid-off employees were on the rights guaranteed in Section 7 of the Act. Section 8(b)(2) work list, whereupon Fahl informed him that they were. of the Act prohibits a union from causing or attempting Pursuant to his inquiry about the availability of work to cause an employer to discriminate against an employ- Fahl told him that he had men out of work and did not ee in violation of Section 8(a)(3) of the Act. have any work for them. The last conversation occurred The first issue discussed is whether Respondent Com- the first week in March when he called Fahl and asked if pany violated the Act as alleged by discriminatorily there was work available, whereupon Fahl informed him laying off the discriminatees. TOWNSEND AND BOTTUM, INC. 217 The fact that layoffs may be economically justified is Having found that, during the eight layoffs beginning no defense if the selection of those employees laid off is January 18 and continuing through February 14, a total for discriminatory reasons. See N.L.R.B. v. Bedford- of 146 employees comprised solely of nonunion employ- Nugent Corporation, 379 F.2d 528, 529 (7th Cir. 1967), ees or members of other locals of the International from and N.L.R.B. v. Denna Products, Co., 195 F.2d 330, 335 the United States and Canada were laid off from work at (7th Cir. 1952), cert. denied 344 U.S. 827. Direct evi- the jobsite while no members of Respondent Union were dence of discriminatory motivation is not necessary to included in these layoffs; that during this period Fore- support a finding of discrimination and such intent may man Duffy stated that nonunion employees and Canadi- be inferred from the record as a whole. Heath Interna- ans would be laid off first; that the pattern of these lay- tional, Inc., 196 NLRB 318 (1972). Further, where moti- offs was consistent with Duffy's statements; and that vation for discharge is at issue, the General Counsel must some of Project Superintendent Shilander's own layoff make a prima facie showing sufficient to support the in- lists reflect the union status of the employees selected, I ference that protected activity by employees was a moti- am persuaded, and I so find, contrary to Respondent vating factor in an employer's decision to discharge, and Company's position as expressed in its brief, that the the employer then has the burden of showing that the General Counsel has established a prima facie showing employees would have been discharged absent that pro- that the motivating factor in Respondent Company's de- tected activity. Wright Line, a Division of Wright Line, cision to lay these employees off was because of their Inc., 251 NLRB 1083 (1980). nonmembership in Respondent Union and in order to The findings supra, establish that on January 18, 23, give preference to members of Respondent Union. Re- 25, 28, and 29 and February 1, 8, 14, and 15 Respondent Company laid off a total of 153 unit employees who had been performing construction work at the jobsite, includ- tablish the specific reasons these employees, wth the ex- ing the discriminates Except for 3 members of Re- ception of the Canadians, were selected for layoff, failed ing the discriminatees. Except for 3 members of Re- spondent Union who were included in the February 15 to meet its burden of showing that these employees, layoff, the remaining 150 employees laid off were either except for the Canadians, would have been laid off from nonunion employees om bs ote loal ofthe work absent their nonmembership in Respondent Union work absent their nonmembership in Respondent Union nonunion employees or members of other locals of the International from the United States and Canada. During or absent a desire to give preference to Respondent December 1979 or January 1980, Respondent Company's Union's members. Insofar as the Canadians are con- foreman, Duffy, who like other foremen and general cerned, however, since their visas were expiring and foremen who would have been involved in making the would have required them to be laid off anyway, which selections for layoff, indicated to discriminatee Robert Shilander explained was the reason they were no longer Knowles, who was laid off on February 8, that the sub- employed on the jobsite, I find that Respondent Compa- journeymen, Canadians, and nonunion employees would ny has met its burden by showing that it would have be laid off first. This is consistent with what actually oc- taken the same action against the Canadians by laying curred during each of these layoffs except for the Febru- them off in the absence of their nonmembership in Re- ary 15 layoff when three members of Respondent Union spondent Union or in the absence of a desire to give were included among the seven employees laid off from preference to members of Respondent Union. With re- work on that occasion. spect to the February 15 layoff, since only seven em- Although Respondent Company's project superintend- ployees were involved and unlike the other layoffs it in- ent, Shilander, approved the names of the employees to cluded members (three) of Respondent Union, I am per- be included in these layoffs, his own testimony reflects suaded and find that the General Counsel has failed to that the general foremen and foremen upon whose judg- establish a prima facie showing that the selection of the ment he relied actually selected those employees who employees in this layoff was discriminatorily motivated. were then laid off. Not only did these general foremen Therefore, I find for those reasons expressed supra that and foremen not testify concerning their specific reasons Respondent Company violated Section 8(a)(3) and (1) of for selecting the employees to be laid off, but the evi- the Act by discriminatorily laying off Kelley Rose on dence fails to establish what those reasons were. Further, January 18 ; Ralph Landolf on January 23; Giles Buteau it does not appear plausible that had the general foremen and Craig Whitlow on January 25; Dennis Thornley, and foremen applied the criteria as instructed by Shi- Harry Sample, Jessie Wilkins, and Craig Whitlow on lander in selecting employees for layoff that only mem- January 28; Terry Whitman, Thomas J. Slifko, William bers of Respondent Union would have, as here, been re- L. Slifko, and LeRoy Krieger on January 29; Ken Hui- tained, especially in view of the large number of employ- zinga, Larry Patton, Mike Hubbard, Donald Ferrell, ees laid off. Moreover, the evidence further shows that Arthur Ashby, John Ashby, Paul Sniff, Ray Schrier, Respondent Company not only had records reflecting Charles Dunn, Thomas Crawford, Richard Warren, Ber- the union membership status of its employees employed nard Collins, Dennis Thornley, Charles Bowhan, and at the jobsite, but some of Shilander's own lists of those Larry Schaub on February 1; Craig Beckwith, Paul employees to be laid off indicated whether they were Veldman, Dave Hammerstrom, Robert Davis II, Walter Canadians or nonunion employees. However, Shilander Roung, Paul Ploeg, Robert Knowles, Harvey Cummings, also possessed knowledge at the time of the layoffs that Fred Sliter, Pat Sorenson, Robert A. McCarthy, Kevin the visas of the Canadians employed on the jobsite were Rogler, Richard Sharp, Ken Bryon, Murray Cohen, about to expire, and he explained this was why the Cana- Jerry Lucas, Charles Vass, George Steinmetz, Joseph dians had been laid off. Pielesnik, Robert Howe, Joseph Broniecki, Vincent 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reynold, George Pellerin, John Higginbotham, Lewis the absence of any evidence to the contrary that any Smith, James Daugherty, and Juan Barrios on February such study material actually ever existed, I find that Fahl 8; and Lawrence Roberts on February 14 because of did not deny Ploeg access to study materials for Re- their nonmembership in Respondent Union and in order spondent Union journeymen's examination because of his to give preference to members of Respondent Union. nonmembership in Respondent Union as alleged. I further find for the reasons indicated, supra, that Re- The remaining issue to be resolved is whether Re- spondent Company did not violate Section 8(a)(3) and spondent Union violated the Act by refusing to refer (I) of the Act by laying off the remaining discriminatees Ploeg, Sorenson, Cummings, and Robert Knowles to who were either Canadians from Canadian locals or jobs with Respondent Company or to put them on an were included in the February 15 layoff; namely, Marcel out-of-work list, thereby causing Respondent Company Trudeaux, Garry L. Parks, John R. McCormick, Edward not to rehire them and to discriminate against them be- Rogers, Richard Brougham, Ronald Gionet, Wade West- cause of their nonmembership in Respondent Union. line, Hazen Hollis, R. Roy, Raymond Legault, Mato The evidence, supra, establishes that in order to work Brkic, John Y. Coulombe, E. Huot, Daniel T. Gallagher, for Respondent Company at the jobsite employees were Ludwig Diermeier, Richard Bibeau, Pierre Marcotte, required to have referrals from Respondent Union. Such Rejean Desilets, John W. Dempsey, Paul Mongrain, requirement clearly establishes that there was in exist- Gillis LaBlanc, Pierre Bibeau, Jacques Durand, Pierre ence at all times material herein an exclusive referral Durand, John R. Massey, John Newman, Henry Hay, system between Respondent Union and Respondent Claude Doyon, Christopher H. Keane, Gilles LeFebvre, Company covering work on the jobsite. The fact that Richard Murchie, James Gallacher, Paul J. Peloquin, Respondent Company had the right to reject applicants Marcel DeLongue Epee, Jacques Pepin, John McGloin, for certain valid reasons, that it could recall former em- Gary Landry, Charles Beer, Damien Paulin, Willfied ployees who were collecting unemployment against its Belair, Benoit Gelinas, Gerard Chainey, George W. account, that it could select applicants from anywhere on Westline, Phillip Menard, George Auspitz, Mavius Dube, the out-of-work lists for service work only, and that it Alain Dumais, Jean L. Theroux, Alain Jutras, Yuan could secure journeymen from any source if after 48 Godan, Roger Dompierre, Dennis Belisle, Guy Paten- hours Respondent Union was unable to fulfill its requests aude, Marcel Lemire, Renald Filion, Richard Fournier, for journeymen does not detract from finding this to be Jean Duval, Michel Caya, Robert Lussier, Albertsystem Landry, Donald E. Stanley, Luc Guatier, Rene Allard, Donald Pinard, Gerard Dionne, Kenneth de Cropper Under Section 8(b)(2) of the Act when a union pre- John Goba, Normand LaFlamme, Dennis Hererrt, vents an employee from being hired, thereby demonstrat- Rejean Savoir, Steve Dayah, David Billedeau, Patrick ing its influence over the employee and its power to affect his livelihood, there is a presumption that the Russell, Douglas Stewart, Jean P. Jutras, Ken Bursey, Jim Young, Len Sullivan, Raymond Chasse, Stan Colton, effect of such action is to encourage union membership Avmand Allard, C. J. Chapman, Gabriel Savard, Ray- on the part of all employees who have perceived that ex- mond Dillon, Paul A. McAree, Angelo Cannata, Roger ercise of power; however, such presumption may be re- LaLancette, Cecil Fobert, Raymond Roussel, Yvon butted where facts show that the action taken by the Dion, Michel Boudreau, Robert Carroll, George Cole- union was necessary to the effective performance of its son, John W. May, James Vanders Heuvel, Kevin Pratt, function of representing its constituency. International M. O'Hara, and E. O'Hara. Union of Operating Engineers. Local 18, AFL-CIO (Wil- The next issues to be resolved are whether Respondent liam F Murphy), 204 NLRB 681 (1973), enforcement Union violated the Act by causing Respondent Company denied 555 F.2d 552 (6th Cir. 1977). to deny Ploeg permission to attend its welding training An employee's request for employment must be con- classes and whether it denied Ploeg access to study ma- sidered in a lawful nondiscriminatory manner and is not terials for its journeymen's examination. dependent upon the availability of a job when such ap- The evidence, supra, establishes that Respondent plication is made. Master Stevedores Association of Texas, Union's steward, Ferris, did not inform Ploeg or other Houston Maritime Association, Inc., and their Employers- employees that union members were being given prefer- Members, 156 NLRB 1032, 1034 (1966). ence over nonmembers in admission to Respondent Com- The evidence, supra, establishes that in early February pany's welding training classes. Having so found, and following the layoffs of Robert Knowles, Ploeg, Soren- since the evidence further establishes that Respondent son, and Cummings, who had been employed by Re- Company alone determines which applicants will be ac- spondent Company at the jobsite, their names were nei- cepted for its welding training classes, the evidence fails ther placed on Respondent Union's out-of-work lists, nor to establish that steward Ferris caused Respondent Com- were they referred to jobs by Respondent Union al- pany to deny Ploeg permission to attend such classes and though other employees in the same job classifications to give preference to members of Respondent Union as were subsequently referred by Respondent Union to the alleged. With respect to the journeymen's examination, jobsite for employment with Respondent Company. the findings establish that Business Manager Fahl did not These employees referred had signed the out-of-work inform Ploeg that he could not get materials for the test lists after Ploeg, Sorenson, Cummings, and Knowles had unless he was in some way affiliated with the Union or contacted Respondent Union. was referred or accepted as an apprentice. For this However, the credited testimony of Business Manager reason, and in view of Fahl's uncontradicted denial and Fahl establishes, as admitted by both Ploeg and Robert TOWNSEND AND BOTTUM, INC. 219 Knowles and undenied by Cummings and Sorenson, that 4. Respondent Union did not violate Section 8(b)(l)(A) they did not ask Fahl to sign the out-of-work lists, which and (2) of the Act as alleged. is a requirement before employees can be referred by Re- 5. The aforesaid unfair labor practices affect commerce spondent Union. Rather, all Fahl was asked was if he within the meaning of Section 2(6) and (7) of the Act. would send them out to other jobs when he got addition- al work, whereupon he told them that he would. Under THE REMEDY these circumstances, I find that, the evidence is insuffi- Having found that Respondent Company has engaged cient to establish that Respondent Union unlawfully re- in certain unfair labor practices within the meaning of fused to refer Ploeg, Sorenson, Robert Knowles, and Section 8(a)(3) and (1) of the Act, I shall recommend Cummings or to place their names on the out-of-work that it be ordered to cease and desist therefrom and to lists, and that Respondent Union did not violate Section take certain affirmative action to effectuate the policies 8(b)(l)(A) and (2) of the Act as alleged. of the Act. Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES Accordingly, Respondent Company shall be ordered to offer immediate and full reinstatement to Kelley Rose, who was discriminatorily laid off on January 18, 1980; to The activities of Respondent Company set forth in sec- Ralph Landolf, who was discriminatorily laid off on Jan- tion III, above, occurring in connection with Respondent uary 23, 1980; to Giles Buteau and Craig Whitlow, who Company's operations described in section I, above, have were discriminatorily laid off on January 25, 1980; to a close, intimate, and substantial relationship to trade, Dennis Thornley, Harry Sample, Jessie Wilkins, and traffic, and commerce among the several States and tend Craig Whitlow who were discriminatorily laid off on to lead to labor disputes burdening and obstructing com- January 28, 1980; to Terry Whitman, Thomas J. Slifko, merce and the free flow thereof. William L. Slifko, and LeRoy Krieger, who were discri- minatorily laid off on January 29, 1980; to Ken Huizinga, CONCLUSIONS OF LAW Larry Patton, Mike Hubbard, Donald Ferrell, Arthur 1. Townsend and Bottum, Inc., is an employer en- Ashby, John Ashby, Paul Sniff, Ray Schrier, Charles gaged in commerce withhin the meaning of Section 2(6) Dunn, Thomas Crawford, Richard Warren, Bernard Col- and (7) of the Act. lins, Dennis Thornley, Charles Bowhan, and Larry 2. Local 70, United Association of Journeymen and Schaub, who were discriminatorily laid off on February Apprentices of the Plumbing and Pipe Fitting Industry 1, 1980; to Craig Beckwith, Paul Veldman, Dave Ham- of the United States and Canada, AFL-CIO, is a labor merstrom, Robert Davis II, Walter Roung, Paul Ploeg, organization within the meaning of Section 2(5) of the Robert Knowles, Harvey Cummings, Fred Sliter, Pat Act. Sorenson, Robert A. McCarthy, Kevin Rogler, Richard 3. By discriminatorily laying off Kelley Rose on Janu- Sharp, Ken Bryon, Murray Cohen, Jerry Lucas, Charles ary 18, 1980; Ralph Landolf on January 23, 1980; Giles Vass, George Steinmetz, Joseph Pielesnik, Robert Howe, Buteau and Craig Whitlow on January 25, 1980; Dennis Joseph Broniecki, Vincent Reynolds, George Pellerin, Thornley, Harry Sample, Jessie Wilkins, and Craig Whit- John Higginbotham, Lewis Smith, James Daughtery, and low on January 28, 1980; Terry Whitman, Thomas J. Juan Barrios, who were discriminatorily laid off on Feb- Slifko, William L. Slifko, and LeRoy Krieger on January ruary 8; and to Lawrence Roberts, who was discrimina- 29, 1980; Ken Huizinga, Larry Patton, Mike Hubbard, torily laid off on February 14, 1980, to their former jobs Donald Ferrell, Arthur Ashby, John Ashby, Paul Sniff, or, if those jobs no longer exist, to substantially equiva- Ray Schrier, Charles Dunn, Thomas Crawford, Richard lent jobs, without prejudice to their seniority and other Warren, Bernard Collins, Dennis Thornley, Charles rights and privileges.'9 It shall be ordered to make them Bowhan, and Larry Schaub on February 1, 1980; Craig whole for any loss of earnings and other compensation Beckwith, Paul Veldman, Dave Hammerstrom, Robert they may have suffered by reason of the discrimination Davis II, Walter Roung, Paul Ploeg, Robert Knowles, against them in their employment herein found by laying Harvey Cummings, Fred Sliter, Pat Sorenson, Robert A. them off on the dates indicated. Backpay shall be com- McCarthy, Kevin Rogler, Richard Sharp, Ken Bryon, puted in the manner prescribed by the Board in F. W. Murray Cohen, Jerry Lucas, Charles Vass, George Woolworth Company, 90 NLRB 289 (1950), with interest Steinmetz, Joseph Pielesnik, Robert Howe, Joseph Bron- thereon as prescribed in Florida Steel Corporation, 231 iecki, Vincent Reynolds, George Pellerin, John Higgin- NLRB 651 (1977).20 botham, Lewis Smith, James Daugherty, and Juan Bar- [Recommended Order omitted from publication] rios on February 8, 1980; and Lawrence Robert on Feb- ruary 14, 1980, because of their nonmembership in Re- 'This reinstatement order shall not prejudice Respondent Company's spondent Union and in order to give preference to mem- right at the compliance stage to establish whether these employees would bers of Respondent Union, Respondent Company has have since been laid off from work for nondiscriminatory reasons as a result of completion of work on the jobsite. violated Section 8(a)(3) and (1) of the Act. 20 See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).