United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 119 (Kamtech, Inc.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 119 and Kamtech, Inc. United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 659 and Kamtech, Inc. Cases 15-CB-2389 and 15-CB- 2399 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On May 18, 1982, Administrative Law Judge Irwin Kaplan issued the attached Decision in this proceeding. Thereafter, Respondents Local 119 and Local 659 and the General Counsel filed exceptions and a supporting brief and the Charging Party filed cross-exceptions and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondents, United Associ- ation of Journeymen & Apprentices of the Plumb- ing and Pipefitting Industry of the United States and Canada, Local Union 119, Mobile, Alabama, and United Association of Journeymen & Appren- tices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 659, ' Respondent and the General Counsel have excepted to certain credi- bility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolu- tions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Although we agree with the Administrative Law Judge's statement that, under the proviso to Sec. 8(bXI)(A) of the Act, a union may impose fines upon members in order to secure their compliance with its constitu- tion, bylaws, or other rules, we note that it is not the province of the Board to determine the reasonableness of such fines. N.L.R.B. v. Booster Lodge No. 405. Intl. Assn. of Machinists and Aerospace Workers IBoeing Co.], 412 U.S. 67 (1973). a Member Jenkins would award interest on backpay in accordance with his dissent in Olympic Medical Corporation, 250 NLRB 146 (1980). 264 NLRB No. 94 Monroe, Louisiana, their officers, agents, and rep- resentatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE IRWIN KAPLAN, Administrative Law Judge: These consolidated cases were heard on September 25 and Oc- tober 14 and 15, 1981, in Mobile, Alabama, and Novem- ber 17, 1981, in New Orleans, Louisiana. The underlying charges and amended charges were filed by Kamtech, Inc. (herein also the Charging Party, Kamtech, or the Employer), giving rise to several complaints and amend- ments thereto and on February 27, 1981, and order con- solidating cases and notice of hearing. The essence of the allegations is that on or about No- vember 12, 1980, the United Association (UA) of Jour- neymen & Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 119 (herein also Respondent Local 119) and Local 659 (herein also Respondent Local 659), inter alia, threatened David Cannon (herein Cannon) and June C. Platt, Jr. (herein Platt-,-both of whom were members of Respond- ent Local 659 and statutory supervisors in the service of Kamtech, in the presence of other Local 659 members employed by Kamtech, with the filing of internal union charges and consequences flowing therefrom, thereby violating Section 8(b)(1)(B) and (A) of the National Labor Relations Act, as amended (herein the Act). Fur- ther, that Respondent Local 119 and Respondent Local 659 (herein collectively Respondents) additionally violat- ed Section 8(b)(1)(B) and (A) of the Act by threatening all of the aforenoted individuals employed by Kamtech with bodily harm and internal union charges because they provided services for said Kamtech, a nonunion contractor on a jobsite within the jurisdiction of Local 119 without, inter alia, having obtained the appropriate travel cards in violation of the UA's constitution, as well as violating other union regulations and work rules. In connection with the aforenoted alleged unlawful acts and conduct, it is alleged that Business Manager Walter Wilson of Respondent Local 119 and Business Agent Charles Holloway of Respondent Local 659 acted as agents for their respective locals, as well as agents for each other's local. Respondent Local 119 and Respondent Local 659 filed separate answers (amended at the hearing) admitting, inter alia, jurisdiction and status as labor organizations but denying that each served as agent for the other and the commission of any unfair labor practices. Upon the entire record, including my observation of the demeanor of the witnesses, and after careful consid- eration of the post-trial briefs,' I find as follows: Counsel for the General Counsel argued orally 688 PLUMBERS LOCAL 119 FINDINGS OF FACT I. JURISDICTION The Employer, Kamtech, Inc., is a New York corpo- ration, and engaged in business as an industrial and me- chanical engineering contractor. At all times material herein, Kamtech was engaged in industrial and mechani- cal engineering for McMilliam Bloedell Paper Company on a jobsite located in Pine Hill, Alabama. During a ma- terial 12-month time frame, Kamtech purchased and re- ceived goods and supplies valued in excess of S50,000 di- rectly from points located outside the State of Alabama. All parties admit, the record reveals, and I find that Kamtech is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 119 admits, and I find, that it is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. Local 659 admits, and I find, that it is now and has been at all times material herein a labor organization with the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events The Charging Party, Kamtech, Inc., a general piping and mechanical contractor, was engaged by McMilliam Bloedell Paper Company to make repairs to a damaged vessal at its Pine Hill, Alabama, plant. Kamtech arrived at the Pine Hill site on or about August 18, 1980, and was scheduled to complete its work on or about Febru- ary 1, 1981. In mid-October 1980,2 Kamtech's general piping superinten;dentWilson Murray, hired David Cannon and Joe Platt to work at the Pine Hill site as general piping foremen.3 Both Cannon and Platt at the time they were hired by Kamtech were long-time mem- bers of Plumbers and Pipefitters Local Union 659 in Monroe, Louisiana. Kamtech, however was an open- shop employer and as such did not maintain any collec- tive-bargaining relationship with Local 659 nor with any other labor organization.4 Over the next several weeks Cannon and Platt hired nine Local 659 members: Eugene Aaron, Clyde Barkley, Charles Canterberry, Hugh Cole- man, Don Gregory, Charles James, Bobby Kirkham, Ricky Statham, and David Young. On or about November 3, Walter Wilson, business manager of Plumbers and Pipefitters Local 119, testified that he learned from an unnamed welder at the entrance to the Kamtech project that Cannon, Platt, and other in- dividuals from Monroe, Louisiana, were working for said Kamtech at that jobsite. Wilson testified with corobora- tion from Local 659 Business Agent Charles Holloway All dates hereinafter refer to 1980, unless otherwise indicated. I The parties stipulated, the record discloses, and I find that at all times material herein Cannon and Platt were supervisors and employer representatives within the meaning of Sees. 2(1 1) and (8)(bXIXB) of the Act. 4 Cannon and Plait knowingly worked for Kemtech, a nonunion con- tractor under terms and circumstances in violation of the union constitu- tion. that he phoned the latter and asked him to come to Ala- bama to identify Local 659 members who were working for Kamtech at the Pine Hill site. On November 11 at approximately 7 p.m. Holloway joined Wilson in Ala- bama and, after the two men had dinner, they drove to the only motel in Pine Hill, the Pine Forest Motel, to in- vestigate whether Local 659 members were staying at the motel. This fact was confirmed by Holloway who observed the group of cars in the parking lot with Lou- isiana tags and recognized these cars as belonging to members of his local union. On the morning of November 12 Wilson and Holloway drove to the Kamtech jobsite. Holloway re- mained in the car to observe members of his local enter the jobsite and record their names. Wilson proceeded to the gate where he soon came upon the group of Kam- tech's employees and called out for Cannon, who came over while the other members of the group continued walking to their working area. Wilson, who was dressed in working clothes, identified himself and gave Cannon his business card while informing him that the Local 659 members were in violation of the United Association (UA) constitution, by working for a nonunion contrac- tor, and that he was going to take this matter to the ex- ecutive board in Mobile. Cannon pointed out to Wilson that this could not be done because there was not any picket line on the job but Wilson repeated his threat to bring the matter before the executive board. Cannon turned around and quickly caught up to the rest of the group and told them of his brief encounter with Wilson. The group members appeared particularly concerned about the union charges leading to fines. Cannon and Platt told the others that they would bring the matter to the attention of higher management and left word that they were not to work until they returned from the office with instructions. While these employees were gathered at the fence near their working area waiting for Cannon and Platt to return, they were spotted by Wilson and Holloway who proceeded to the fence and then en- gaged the group in conversation about internal union charges and advised them to leave the job and go home. According to Canterberry, Barkley, and Young, during the encounter at the fence, Wilson and Holloway threatened them with bodily harm. They testified that they were told, inter alia, that, if they failed to leave the job, they would be met that evening at the Pine Forest Motel by a welcoming committee of some 70 members to escort them to the state line and remove them from Alabama. Wilson and Holloway denied the essence of such testimony and in particular denied any threats of bodily harm. According to Holloway he told his local union members that they were working in Local 119's jurisdiction in violation of the Union's rules and regula- tions and as their "friend" he advised them to go home. While Holloway conceded that he told these Kamtech employees that Local 119's members "could cause trou- ble," he denied that he intended to convey a threat of physical or bodily harm. Barkley inquired whether charges would still be preferred if they left the jobsite. Wilson responded affirmatively and promised to see them all before the executive board. Holloway also ad- 689 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vised Local 659 members that the executive board would determine the outcome of the charges. The union agents then departed, with Holloway returning to Monroe. Cannon and Platt returned in time to see Holloway and Wilson leave the fence and the employees already in the process of removing themselves from the jobsite. Cannon and Platt testified with corroboration that they were told by the employees that they were threatened by the union agents, that unless they left the jobsite by 5 p.m. they would be faced with a welcoming committee of approximately 70 union members to escort them out of Alabama. Platt, Cannon, and the other Local 659 members quit the job on November 12, assertedly for fear of bodily harm and because they expected to be fined. They went back to the motel that evening and de- parted for Monroe, Louisiana. Cannon, Platt, Kirkham, James, Coleman, Young, and one or two others met with Holloway at the union office in Monroe the following morning (November 13) to discuss the matter further. The former Kamtech employees wanted to know more about the charges and fines. Cannon told Holloway, inter alia, that if he were going to be fined he might as well go back to work for Kamtech and give up his union book. According to Cannon and Platt, Holloway assert- ed that he was at the Pine Hill project to persuade them to leave and prevent them from getting hurt, because he had learned from Wilson that his members were going to form a welcoming committee to cause them (Local 659 members) problems. According to Holloway, he told Cannon, Platt, and the others on November 13 that Wilson phoned and asked him to come to Pine Hill project to identify the members of the Monroe local which he agreed to do for the good of the Union. Fur- ther, he asserted that he told them that he hated to do this and did not want to get anybody in trouble but that they had gotten themselves in trouble and they were going to face the consequences. Holloway stated that he did not believe that he had "ever mentioned the fact that they would be subjected to bodily harm." Rather, Holloway asserted that it was the former Kamtech em- ployees who made "references to being killed," and boasting, that "we've got guns too." He acknowledged discussing with those present the probability of Local 119 referring charges to Local 659 arising out of their employment for Kamtech. Subsequently, Cannon, Platt, and the other nine former Kamtech employees were charged by Local 119 for violating sections 162, 201, 205a and b, and 230a of the UA's constitution.s These charges with the exception of those related to travel card violations were referred to Local 659. The membership of Local voted to refer these charges to the executive board which conducted hearings and found these men guilty of certain of the charges and assessed fines (Jt. Exhs. 5, 6, 10, 11, 14, 20- 26, and 28). 6 These charges describe the nature of the offenses in relevant part as follows: "Working contrary to the U.A. Constitution, hiring in and work- ing for a contractor, Kamtech . .. not signatory to any agreement wor..- ing for less than pay scale, no travel pay, not presenting a travel card to Local 119, working with men who are not members of the Association." See JR. Exhs. 3(a) and (b), 4(a) and (b), 18(a) and (b), and 26(a) and (b). Local 119's business manager, Wilson, testified that on November 14 he learned from the president of a sister local that a representative of Kamtech had contacted one of its members in Pensacola, Florida, about coming to work for Kamtech in Pine Hill, and bringing a crew of other pipefitters to work with him. According to Wilson, this was the entree used by him to organize Kamtech's employees. By letter dated November 20 Wilson wrote to Garry Olsen, project manager of Kamtech, requesting recognition for the pipefitter's unit on the Pine Hill project. (G.C. Exh. 5.) On November 21 Local 119 filed a representation petition in Case 15-RC-6733 seeking an election in the same unit. (G.C. Exh. 2.) The petition was dismissed on December 9 on the basis that the work on the Pine Hill jobsite would soon be completed and there- fore further proceedings were not warranted at that time. (G.C. Exh. 30)6 B. Discussion and Conclusions i. Agency and other threshold issues As noted previously it is alleged that Respondent Local 119 and Respondent 659 (collectively Respond- ents), by Business Manager Wilson, jointly threatened Cannon and Platt (admittedly statutory supervisors and employer representatives within the meaning of Sec. 8(b)(l1)(B)) in the presence of other employees, with in- ternal union charges and bodily harm, because of their involvement with Kamtech, a nonunion company. Fur- ther, it is alleged that Respondents jointly, by Agents Wilson and Holloway, restrained and coerced all Local 659 members employed by Kamtech, by threatening them with bodily harm unless they quit their jobs. Addi- tionally, counsel for the Charging Party contends that Respondent engaged in the aforenoted acts and conduct, because at all times material herein, Respondent Local 119 was attempting to secure recognition as the bargain- ing agent for Kamtech's employees. While Respondent Local 119 and Respondent Local 659 conceded the agency status of Wilson and Holloway for their respective locals, both Unions denied that the acts and conduct of Wilson and Holloway were binding on the other's local or that either Union served as agent for the other. Moreover, both Unions denied that Cannon, Platt, and the other Local 659 members were threatened with bodily harm or otherwise restrained and coerced within the meaning of Section 8(b)(1)(B) or (A) of the Act. With respect to any organizational or recognitional object, Respondent Local 119 denied, inter alia, that it was connected with its efforts to eliminate Local 659's presence from the Pine Hill jobsite. 6 According to counsel for Kamtech, Wilson manifested an interest to represent Kamtech's pipefitters as early as September (as testified by Olsen and denied by Wilson), when Wilson called Olsen and asked for a contract for the pipefitters at the Pine Hill, Alabama, project. The timing and significance of Respondent Local 119's organizational efforts will be treated more fully infra. 690 PLUMBERS LOCAL 119 (a) Agency It is undisputed that Holloway joined Wilson, in Ala- bama, at the latter's request, in order to identify Local 659 members who were working for Kamtech on the Pine Hill jobsite. It is also undisputed that neither Holloway nor Wilson wanted any of Local 659 members to remain working at the aforenoted jobsite. As testified to by Holloway, "I wanted the men to leave the job and not make it worse than it was, because I felt sure that Local 119 would have to file charges against these men." Thus on November 12, Holloway and Wilson drove to- gether to the Pine Hill project. There, Holloway remind- ed Local 659 members that they were working "illegal- ly" on a nonunion job within the jurisdiction of Local 119. Holloway told his members that Local 119's busi- ness agent, Wilson, asked him (Holloway) to come to the jobsite to identify them, and added, "I hate to have to do this but it's my duty, and I've identified each one of you to Mr. Wilson." Further, Local 659 members were told by Holloway and Wilson that they faced internal union charges and consequences flowing therefrom, even if they departed immediately, but warned that matters could get worse if they remained. In this regard the credited testimony (for reasons discussed infra) disclosed that Wilson told them (in the presence of Holloway) that unless they quit work- ing for Kamtech, a welcoming committee of 60 to 70 Local 119 members would greet them at their motel at 5 o'clock that evening to help them pack and to escort them from Alabama. The credited testimony disclosed that on the following day, November 13, Holloway also made reference to Local 119's welcoming committee. In this connection, Holloway told Cannon, Platt, and sever- al other former Kamtech employees at the union hall at Monroe, Louisiana, that if he had not asked Wilson to hold off the welcoming committee and to give him the opportunity to get Local 659's members to leave the job, some of them were going to get hurt. In these circumstances and on the basis of the entire record noting particularly that Holloway admittedly told the Kamtech employees that he was at the Pine Hill job- site because it was his "duty" having been asked by Wilson to identify them; these employees were told by both Wilson and Holloway that they faced internal union charges; Wilson in the presence of Holloway threatened Local 659 members with bodily harm unless they left the jobsite; Wilson's remarks were not disavowed by Holloway; Holloway communicated a similar message the following day at the union hall persuade me, and I find, that Wilson and Holloway acted in concert to remove Local 659's presence from the Pine Hill, Ala- bama, jobsite. As such, I find that they acted as agents for their respective locals and for each other's local and that each union served as agent for the other as alleged. See International Longshoremen's Association, AFL-CIO (Shipside Packing Company), 227 NLRB 659 (1976); La- borers' International Union, Local 245 (Apex Contracting, Inc.), 219 NLRB 142, 146-147 (1975). (b) Alleged threat of bodily harm The disputed threat is alleged to have occurred on No- vember 12, when Wilson and Holloway converged on 8 of the 11 Local 659 members then employed by Kam- tech. In support of this allegation, the General Counsel adduced testimony from three of the employees: Canter- berry, Barkley, and Young. While these witnesses were not entirely consistent, I find that this was due largely to the time lag from the event in question and some confu- sion as to which remarks were made by Wilson as op- posed to those made by Holloway. In any event they corroborate each other with regard to the critical facts. Thus a composite of the credited testimony discloses that Wilson told them, inter alia, that, unless they quit work- ing for Kamtech, a welcoming committee of some 70 Local 119 members who were out of work would await them at their motel to help them pack and remove them from Alabama. While Wilson denied that he made any reference to "welcoming committee" or that he threatened Local 659 members with bodily harm, I find that his testimony re- garding the encounter with Kamtech employees at the fence was uncertain, inconsistent, equivocal, and, in part, actually supportive of the General Counsel's witnesses. For example, when asked whether he (Wilson) told Kamtech employees at the fence whether he "had a committee of any kind that was coming to threaten them or do any harm," Wilson answered in the negative. However, Wilson's testimony immediately following his denial comports favorably with the version supplied by Barkley and persuades me that Wilson uttered the words "welcoming committee" or words clearly conveying that meaning. Thus Wilson testified as follows: I did tell Barkley this: That at the [Local 119] meet- ing our people were very upset about them being up here and I probably did mention the fact that we had a group of people out of work and that some of them wanted to come up and greet them at the gate. Wilson's explanation for telling Barkley (in the pres- ence of other Kamtech employees) that he had some members who wanted to greet them at the gate is not plausible and reflects adversely on his overall credibility. As testified to by Wilson: I don't have any particular reason for telling him (Barkley) that other than the fact that he asked about what I was going to do, and certainly I had to have witnesses to come up there and to identify them people. Given the fact that Local 659's Business Agent Holloway was in his presence and that the latter had agreed to identify Local 659 members, there was no ap- parent need to have these members further identified. Thus, I am persuaded that Wilson's reference to his members being upset and unhappy about Local 659's presence at the jobsite and linking that with certain of Local 119's members wanting to greet them was intend- ed to convey the impression that unless Local 659 mem- 691 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bers quit the job they could expect to be removed phys- ically by Local 119. In this connection I have credited the General Counsel's witnesses ascribing to Wilson that he told them that Local 119 members were going to help them pack and remove them from Alabama. As noted above, I also find that Holloway told Local 659 members at the union hall on November 13, inter alia, that had he not appeared at the jobsite they would have faced Local 119's welcoming committee and some- body might have gotten hurt. In arriving at this conclu- sion it is noted, inter alia, that Holloway, first denied tell- ing them that had they not left the Kamtech site they would have been subjected to bodily harm, then retreat- ed somewhat stating, "I don't believe I told them that they would-I had ever mentioned the fact that they would be subjected bodily harm." Further, it is doubtful that Holloway did not caution his members vis-a-vis pos- sible bodily harm because elsewhere he testified that on November 12 he told them "that it was possible that some of these (Local 119's) men could cause trouble." Holloway explained "I certainly don't have any control over the members of Local 119. And there's always a possibility that the Manager of (Local) 119 could not keep trouble under control." A moment later Holloway testified that he was not worried about the physical well being of these men because he felt Wilson had the situa- tion under control. When asked to describe the kind of trouble he anticipated, Holloway responded, "Anything from verbal harrassment to someone that is irrational doing something worse." Holloway when pressed further on this matter responded in relevant part as follows: I've seen many things on different jobs. There could be somebody [sic] cut a tire on a automobile. Any- thing that would cause problems to an individual .... I don't know what would have happened I was certainly not worried about the physical being of these men. Holloway testified that a few of his members at the hiring hall in Monroe made "reference to being killed." According to Holloway "I was beyond belief that the story had gotten blown out of proportion." 7 While the remarks of Wilson and Holloway might have been "blown out of proportion," vis-a-vis a "kill- ings," I am persuaded in the circumstances of this case that they clearly conveyed to Local 659 members, the specter of physical interference unless they left the job- site. Accordingly, I find that the them Kamtech employ- ees were threatened with physical harm as alleged. (c) The timing of Local 119's recognitional object Counsel for the Charging Party contends that Local 119's acts and conduct in seeking to eliminate Local 659's presence at the Pine Hill project should be exam- ined in the context of an earlier and continuing recogni- 7 In assessing Holloway's credibility and in rejecting his denials it is noted, inter alia, that his testimony on other matters was also inconsistent. For example, Holloway first testified that he learned that the status of Cannon and Platt as supervisors was an issue was when they brought the matter up at there own trial. A moment latter he admitted that Cannon and Platt made reference to their supervisory status to him on November 13 at the union hall but that he did not do anything with this information. tional claim. In support thereof, Kamtech's project su- perintendent, Olson, testified that he had his first contact with Business Manager Wilson in early September when the latter phoned to advise that Local 119 had jurisdic- tion in the Pine Hill area and asked for a contract which he, Olson, refused to provide. Further, testimony was ad- duced from Frankie Reynolds, a nonunion ironworker employed by Kamtech, who testified that Olson told him in September about Wilson's phone call and request to be the bargaining agent at the Pine Hill project.8 Olson testified (without corroboration) that his next contact with Wilson was at the Pine Hill jobsite, ap- proximately 2 weeks after the initial phone call. Accord- ing to Olson, Wilson identified himself and presented his business card but was refused permission to enter the jobsite by Russel Dove, an official of McMilliam Bloe- dell Paper Company. Olson also testified that neither he, nor Wilson, made reference to the earlier phone call and nothing was said about a contract. On the other hand, Wilson asserted that his first con- tact with Kamtech was in early November and denied either phoning or speaking with Olson in September or October. Wilson's assertion that had he wanted to orga- nize the Kamtech employees before November 13, he had a "lock on the job, " has much appeal, noting par- ticularly that these employees were already members of Local 659, a sister local. It is noted that Supervisors Cannon and Platt and the other Local 659 members had not seen Wilson prior to November 12 which tends to further militate against any finding of an organizational or recognitional object prior thereto. As for Olson's testi- mony placing Wilson at the jobsite in September (2 weeks after the initial phone call), it is noted that even Olson does not contend that Wilson made any reference to a contract at that time. In these circumstances, and on the basis of the entire record, I credit Wilson over Olson and reject the contention that Respondent Local 119 had any organizational or recognitional object prior to No- vember 13.9 2. Alleged restraint and coercion within the meaning of Section 8(b)(1)(B) t' It is undisputed that Respondent Local 119 instituted charges against Cannon and Platt for violating various sections of the United Association constitution and that all such charges, with the exception of one dealing with the failure to obtain a travel card when working in an- 8 I found Reynolds less than forthright as a witness and was unim- pressed with his overall demeanor. I also found it unlikely that Olson would actually name Wilson as testified to by Reynolds, given the fact that the latter was not a member of Local 119 and was employed as a nonunion employee. Further, it is noted that while Reynolds asserted that he and Olson were close friends and frequented the bars together after work, Olson denied that they were close friends and denied associating with Reynolds after work. In short, I find Reynolds' testimony unreliable and reject it in all critical respects. 9 For reasons discussed, infra, however, I find that Respondent's ef- forts to keep Cannon and Platr from working for Kamtech corresponded in point of time with Respondent Local 119's bid to organize Kamtech's employees after November 12. '0 Sec. 8(bXl)(B) makes it an unfair labor practice for a union "to re- strain or coerce . . an employer in the selection of his representatives for the purpose of collective bargaining or the adjustment of grievances." 692 PLUMBERS LOCAL 119 other local's jurisdiction, were referred to Respondent Local 659 for further processing. In connection there- with the membership of Respondent Local 659 voted to accept the charges and refer them to the local executive board for trial. The executive board of Local 659 tried Cannon and Platt and found them guilty of certain of the charges including section 205(a) which prohibits mem- bers from "working within the work jurisdiction of the United Association for an employer who is not a party to a collective-bargaining agreement entered into either by a Local Union or the United Association," and each was assessed a fine of $300. " It is now well settled that not all fines or other penal- ties invoked by a union on its supervisor-members are violative of Section 8(b)(l)(B).' 2 Thus in Florida Power & Light, the Supreme Court in upholding the Union's right to fine its supervisory-members for performing unit work during a lawful strike observed as follows: Nowhere in the legislative history is there to be found any implication that Congress sought to extend protection to the employerfrom union restraint or coer- cion when engaged in any activity other than the selec- tion of its representative for the purpose of collective bargaining and grievance adjustment. The conclusion is thus inescapable that a union's discipline of one of its members who is a supervisory employee can constitute a violation of § 8(b)(1)(B) only when that discipline may adversely affect the supervisors con- duct in performing the duties of, and acting in his capacity as, grievance adjuster or collective bar- gainer on behalf of the employer. [Emphasis sup- plied.]' 1 In International Brotherhood of Electrical Workers, Local Union No. 73 (Chewelah Contractors, Inc.), 231 NLRB 809 (1977), a post Florida Power & Light case, it was held that the union violated Section 8(b)(1)(B) of the Act by preferring charges, imposing fines, and suspend- ing from membership a supervisor-member and grievance adjuster for a nonunion company. Respondents in the in- stant case, rely heavily on the Ninth Circuit's denial of enforcement in Chewelah, on the basis that the Union did not have any contract with the employer and had not manifested an interest in representing the employer's em- 1t Business Manager Wilson testified that Respondent Local 119 has not tried Cannon and Platt for working in that Local Union's jurisdiction without obtaining a travel card in violation of sec. 230(a) because of questions raised regarding their supervisory status and the matter has been held in abeyance. According to Wilson, his attorney advised him "not to prefer charges against the two (Cannon and Platt)--or not to have a hearing on the two because they were classified as supervisors." i1 Florida Power & Light Ca v. International Brotherhood of Electrical Workers, Local 641, 417 U.S. 790, 804-805 (1974): see also Local Union No. 46 Metallic Lathers and Reinforcing Iron Workers (Cement League), 259 NLRB 70 (1981) i3 Florida Power e Light Co. v. International Brotherhood of Electrical Workers, Local 641, supra at 804-805. Cf. American Broadcasting Compa- nies. Inc v. Writers Guild of America West, Inc., 437 U.S. 411 (1978), where the Union violated Sec. 8(bXI)(1)(B) for fining its supervisor-member for performing supervisory (as opposed to unit) work during a lawful strike. ployees.1 4 1 find that Respondents' reliance on Chewelah is misplaced as the circumstances (noted below) in the in- stant case are materially different. In Chewelah, the Respondent Union learned that its su- pervisor-member, William Anderson, was then working for a nonunion contractor and by letter invited him to explain his position. A few weeks later, Anderson met with certain members of Respondent Union's executive board and was instructed to cease working for the em- ployer. These instructions were ignored by Anderson and he was subsequently charged, fined, and suspended for membership for I year, all because he worked for a nonunion contractor. The Administrative Law Judge in finding that the Union violated Section 8(b)(l)(B) (af- firmed by the Board) compared the situation in Chewe- lah, as identical to New Mexico District Council of Car- penters and Joiners of America (A.S. Horner, Inc.), 177 NLRB 500 (1969), enfd. 450 F.2d 1166 (10th Cir. 1972), where essentially the same discipline was invoked against a supervisor-member, also as a result of working for a nonunion contractor in violation of a union's constitu- tion. The Ninth Circuit, in denying enforcement of the Board's order in Chewelah, observed: "In every decision that has come to our attention the Union charged with violating Section 8(b)(1)(B) represented or demonstrated an intent to represent the complaining company employ- ees." So, too, in Horner (as argued by Respondents in the instant case), the Union disciplined a supervisor-member who refused to stop working for an employer which the union had unsuccessfully sought to organize. See Horner, supra, 177 NLRB at 502, fn. 7. While applying the Board's holdings in Horner and Chewelah to the instant case requires finding that Re- spondents, by preferring internal charges and then proc- essing said charges through various stages including the assessment of fines, to cause its supervisor-members to quit and remain off a nonunion job, is restraint and coer- cion within the meaning of Section 8(b)(l)(B), the record herein disclosed (as discussed previously) credible evi- dence of more direct restraint and coercion by Respond- ents. Thus, I have previously found that Wilson threat- ened the supervisor-members, inter alia, with physical abuse1 5 (repeated by Holloway on November 13), unless they quit working for the nonunion employer. Respondents' reliance on the Ninth Circuit's decision in Chewelah, and efforts to distinguish Horner, are mis- placed for the additional reason that, in the case at hand, internal charges were instituted and actively processed against supervisor-members Cannon and Platt, contempo- raneously with Respondent Local 119's efforts to orga- 1 N.LR.B. v. International Brotherhood of Electrical Workers Local Union No. 73 (Chewelah Contractors), 621 F.2d 1035 (9th Cir. 1980), re- hearing denied 106 LRRM 2020. 1s While the threat on November 12 was not made directly to Cannon and Platt, in the circumstances of this case, it was clearly foreseeable that the message would be conveyed to them. Cannon. Platt, and the other Local 659 members not only worked at the same jobsite, but also lodged at the same motel, which fact was known by Wilson and Holloway. Where, as here, the threat was certain to become known, to others the restraint and coercive effects are also transferred. See, e.g., District 2a0 United Mine Workers {Harbert Construction Company). 192 NLRB 565, 566 (1971). 693 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nize their nonunion employer. Thus it is noted that Re- spondent Local 119, by letter dated November 19, noti- fied supervisor-members Cannon and Platt of internal union charges filed against them and an upcoming trial before the Local executive board arising out of their em- ployment with the nonunion contractor (Jt. Exhs. 3(a) and (b) and 4(a) and (b)). As testified to by Wilson, he began his organizing efforts on or about November 13. These efforts supported a representation petition which was filed with the Board on November 21 in Case 15- RC-6733. In these circumstances, Respondents' conten- tion that internal union charges were processed in a con- text free of any organizational or recognitional object is contrary to the facts and is rejected. Under all the circumstances, noting particularly that Respondents by Holloway and Wilson visited the jobsite for the express purpose of inducing Cannon and Holloway to quit working for their nonunion employer backed by, inter alia, threats of internal union charges and physical interference, I find that Respondents by such acts and conduct clearly restrained and coerced the employer in the selection of its grievance representatives, thereby violating Section 8(b)(1)(B) of the Act.'6 Ac- cordingly, I find that Respondents engaged in acts and conduct violative of Section 8(b)(1)(B) as alleged. 7 3. Alleged restraint and coercion within the meaning of Section 8(b)(l)(A)8S It is undisputed that Respondent Local 119 preferred internal charges against Local 659 members: Aaron, Barkley, Canterberry, Coleman, Gregory, Janes, Kirk- ham, Statham, and Young for working for a nonunion contractor, in violation of various sections of the UA's constitution. Further, all these charges except one deal- ing with the failure to obtain a travel card when working in another local's jurisdiction, were transferred to Re- spondent Local 659 for further processing. In connection therewith, the above-named Local 659 members were subsequently tried and assessed fines by the Local execu- tive boards of Respondent Local 659 and Respondent Local 119, respectively. It is not contended that the fines were unreasonable, nor that such action taken, without more, is restraint and coercion within the meaning of Section 8(b)(l)(A) of the Act. In this connection, it has long been established that unions may impose reasonable 's While it is noted that Respondents did not threaten or otherwise apply economic pressure directly to Kamtech officials, it is well settled that restraint or coercion under Sec. 8(bXIXB) "can be accomplished by internal union discipline which reasonably tends to deprive an employer of the right to select its representative." See Local Union No. 46 Metallic Lathers and Reenforcing Iron Workers (Cement League), supra. 17 See International Brotherhood of Electrical Workers, Local Union No. 323 (Drexal Properties. Inc.), 255 NLRB 1395 (1981); New Mexico District Council of Carpenters (A.S. Horner, Inc.), supra. Cf. N.L.R.B. v. Electrical Workers, Local 73 (Chewelah Contractors), supra. 18 It is an unfair labor practice under Sec. 8(bXIX(A) for a union to "restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act." Sec. 7 of the Act states that employees have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection and also have the right to re- frain from any and all such activities. A proviso to Sec. 8(b)(1)(A), how- ever, permits a union "to prescribe its own rules with respect to the ac- quisition or retention of membership." fines on their members in order to secure compliance with their constitutions, bylaws, or other properly adopt- ed rules under the proviso to Section 8(b)(1)(A) of the Act.1 9 In the case at hand, had Respondents confined the dis- cipline to internal charges and the consequences flowing therefrom, I would find that the Union had a legitimate interest in enforcing the provisions of the UA's constitu- tion within the meaning of the proviso to Section 8(b)(1)(A). However, as noted previously, Respondents did much more. Thus the credited testimony disclosed that Respondents, by Wilson and Holloway, threatened the above-named Local 659 members with physical inter- ference unless they quit working for their nonunion em- ployer. These threats ensured Respondents' objective to eliminate Local 659's presence from the jobsite, as the then Kamtech employees quit their jobs the very same day. In any event the threats of physical harm alone comprised restraint and coercion within the meaning of Section 8(b)(l)(A). 2 °0 In these circumstances, I find that the acts and conduct of Wilson and Holloway on No- vember 12 and 13 restrained and coerced employee- members within the meaning of Section 8(b)(1)(A) as al- leged. CONCL USIONS OF LAW 1. The Employer, Kamtech, Inc., is now, and has been at all times material herein, an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent Local 119 and Respondent Local 659 (collectively Respondents) are now, and have been at all times material, labor organizations within the meaning of Section 2(5) of the Act. 3. David Cannon and June C. Platt, Jr., at all times material, have been employer representatives within the meaning of Section 8(b)(1)(B) of the Act. 4. Respondent Local 119 and Respondent Local 659, at all times material, served as agents for each other within the meaning of Section 2(13) of the Act. 5. By preferring and processing internal union charges against Cannon and Platt which involved a trial and as- sessment of fines, and by threatening them with physical harm, Respondents restrained and coerced the Employer in the selection and retention of its representatives for the purposes of collective bargaining or the adjustment of grievances, and thereby have engaged in, and are en- gaging in, unfair labor practices within the meaning of Section 8(b)(l)(B) of the Act. 6. Respondents restrained and coerced employee-mem- bers of Respondent Local 659 by threatening them with physical harm thereby violating Section 8(b)(1)(A) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 19 See Scofield, ert a [Wisconsin Motor Corp.] v. N.L.R.B., 394 U.S. 423 (1969); N.L.R.B. v. Allis-Chalmers Manufacturing Co., et al., 388 U.S. 175 (1967); Amalgamated Transit Union, District No. 825 (Transport of New Jersey), 240 NLRB 1267, 1269 (1979). 20 N.L.R.B. v. Bridge, Structural and Ornamental Iron Workers, 600 F.2d 770 (9th Cir. 1979), cert. denied 445 U.S. 915; International Brother- hood of Electrical Workers Local Union No. 453 (National Electrical Con. tractors Association), 258 NLRB 1427 (1981). 694 PLUMBERS LOCAL 119 THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the operations of the Employer named and described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices within the meaning of Section 8(b)(l)(A) and (B) of the Act, I shall recommend that they be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondents restrained and coerced Kamtech, Inc., in the selection of its representatives for purposes of collective bargaining or grievance adjust- ments by threatening Cannon and Platt with bodily harm and by preferring internal union charges, holding a trial, 21 fining, and otherwise disciplining them, all in vio- lation of Section 8(b)(1)(B), I shall recommend that they cease and desist therefrom, and they be ordered to notify Cannon, Platt, and Kamtech, Inc., that they have no ob- jections to them serving as supervisors or otherwise as employer representatives within the context of Section 8(b)( )(B).2 2 Further, I shall recommended that Respondent Local 119 and Respondent Local 659 be jointly and severally liable to make Cannon and Platt whole for any loss of earnings and benefits they may have suffered by reason of having unlawfully forced them to quit their jobs.23 Still further, I shall recommend that Respondents rescind and expunge from their records all disciplinary action taken against Cannon and Platt, including the fines, be- cause of their employment for Kamtech, Inc., and notify them, in writing, that the fines levied against them have been rescinded and that all records of disciplinary ac- tions against them have been expunged. See Painters Dis- trict Council No. 36 (Brown & Co. Painting Contractor), 259 NLRB 804 (1981). Having also found that Respondents restained and co- erced certain employees 2 4 by threatening them with 2' As noted previously only Respondent Local 659 has actually con- ducted a trial and assessed fines; Local 119 has processed the remaining charges just short of the trial stage where further processing has been held in abeyance pending the outcome of the instant unfair labor prac- tices. 22 While the record disclosed that the Employer has long since left the Pine Hill, Alabama, jobsite, the Employer should be notified in writing that it is free to use Cannon and Platt in their previous capacities should said Employer elect to return to an area within the geographic jurisdic- tion of Respondents. See, e.g., Local Union Na 46 Metallic Lathers and Reinforcing Iron Workers (Cement League)., supra. 2s Backpay shall be computed in the manner set forth in F W Wool- worth Company, 90 NLRB 289 (1950), and interest thereon as set forth in Florida Steel Corporation, 231 NLRB 651 (1977). See. generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 24 The former Kamtech employees are: Eugene Aaron. Clyde Barkley, Charles Canterberry, Hugh Coleman, Jr., Donald Gregory, Charles Janes, Jr., Bobby Kirkham, Richard Statham, and David Young. bodily harm, I shall recommend Respondent Local 119 and Respondent Local 659 be jointly and severally liable to make said employees whole for any loss of earnings and benefits they may have suffered by reason of having unlawfully forced them to quit their jobs. Backpay shall be computed in the manner previously set forth in this section. While broad remedial injunctive language has been re- quested, I shall recommend for reasons stated in Hick- mort Foods, Inc., 242 NLRB 1357 (1979), that Respond- ents be ordered to cease and desist in any like or related manner from restraining or coercing Kamtech, Inc., in the selection of its representatives for the purpose of col- lective bargaining or the adjustment of grievances and from interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record herein, I hereby recommend the following: ORDER 2 5 Respondent United Association of Journeymen & Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 119, and Re- spondent Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 659, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing Kamtech, Inc., in the selec- tion of its representatives for the purpose of collective bargaining or the adjustment of grievances by preferring charges, holding a trial, fining, threatening physical harm, or attempting otherwise to cause the removal of such representatives from performing supervisory, execu- tive, or managerial functions for said employer. (b) Restraining and coercing employees by Kamtech, Inc., by threatening them with bodily harm or similar physical interference. (c) In any like or related manner restraining or coerc- ing Kamtech, Inc., in the selection of its representatives for the purpose of collective bargaining or the adjust- ment of grievances and from interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Jointly and severally make Eugene Aaron, Clyde Barkley, David Cannon, Charles Canterberry, Hugh Coleman, Sr., Donald Gregory, Charles Janes, Jr., Bobby Kirkham, June Platt, Jr., Richard Statham, and David Young whole for any loss of earnings and benefits suffered by reason of the unfair labor practices commit- 25 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 695 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ted against them, in the manner described in the section of the Decision entitled "The Remedy." (b) Notify, in writing, David Cannon, June Platt, Jr., and their former Employer, Kamtech, Inc., that they have no objection to these named individuals serving as supervisors. (c) Rescind and expunge from your records all disci- plinary action taken against David Cannon and June Platt, Jr., including fines because they were employed by Kamtech, Inc., and notify said named individuals, in writing, that the fines levied against them have been re- scinded and that all records of disciplinary action against them have been expunged. (d) Post at their offices and meeting halls the designat- ed attached notices marked "Appendix A" (Respondent Local Union 119), and "Appendix B" (Respondent Local Union 659), respectively.2 6 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by their respective authorized representative, shall be posted by each immediately upon receipt thereof, and be maintained by each for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by each Respond- ent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Deliver to the Regional Director for Region 15 signed copies of said notices in sufficient number for posting by Kamtech, Inc., said Employer willing, at all locations where notices are customarily posted. (f) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 26 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WIl.l. NOT restrain or coerce Kamtech, Inc., in the selection of its representatives for the purpose of collective bargaining or the adjustment of griev- ances by preferring charges, holding a trial, fining, or attempting otherwise to cause the removal of such representatives from performing supervisory, executive, or mangerial functions for said employer. WE WILL NOT restrain and coerce employees em- ployed by Kamtech, Inc., by threatening them with bodily harm or similar physical interference. WE WILL NOT in any like or related manner re- strain or coerce Kamtech, Inc., in the selection of its representatives for the purpose of collective bar- gaining or the adjustment of grievances and WE WILl NOl in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL jointly and severally with Respondent Local Union 659, make Eugene Aaron, Clyde Bark- ley, David Cannon, Charles Canterberry, Hugh Coleman, Jr., Donald Gregory, Charles Janes, Jr., Bobby Kirkham, June Platt, Jr., Richard Statham, and David Young whole for any loss of earnings and benefits suffered by reason of the unfair labor practices committed against them, with interest. WE WILL notify, in writing, David Cannon, June Platt, Jr., and their former employer, Kamtech, Inc., that we have no objection to these individuals working as supervisors. WE WILL rescind and expunge from our records all disciplinary action taken against David Cannon and June Platt, Jr., including fines because they were employed by Kamtech, Inc., and WE WILL notify said named individuals, in writing, that the fines levied against them have been rescinded and that all records against them have been expunged. UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES OF THE PLUMBING AND PI- PEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL UNION 119 APPENDIX B NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAl LABOR REIATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce Kamtech, Inc., in the selection of its representatives for the purpose of collective bargaining or the adjustment of griev- ances by preferring charges, holding a trial, fining, or attempting otherwise to cause the removal of such representatives from performing supervisory, executive, or mangerial functions for said employer. WE WILL NOT restrain and coerce employees em- ployed by Kamtech, Inc., by threatening them with bodily harm or similar physical interference. WE WILL NOT in any like or related manner re- strain or coerce Kamtech, Inc., in the selection of its representatives for the purpose of collective bar- gaining or the adjustment of grievances and WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL jointly and severally with Respondent Local Union 119, make Eugene Aaron, Clyde Bark- ley, David Cannon, Charles Canterberry, Hugh Coleman, Jr., Donald Gregory, Charles Janes, Jr., Bobby Kirkham, June Platt, Jr., Richard Statham, and David Young whole for any loss of earnings and benefits suffered by reason of the unfair labor practices committed against them, with interest. WE WILL notify, in writing, David Cannon, June Platt, Jr., and their former employer, Kamtech, 696 PLUMBERS LOCAL 119 Inc., that we have no objection to these individuals working as supervisors. WE WILL rescind and expunge from our records all disciplinary action taken against David Cannon and June Platt, Jr., including fines because they were employed by Kamtech, Inc., and WE Wlltl notify said named individuals, in writing, that the fines levied against them have been rescinded and that all records against them have been expunged. UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICtS OF THE PLUMBING AND PIPErITTI[NG INDUSTRY OF THE UNITED STATFS AND CANADA, LOCAL UNION 659 697