United Association Of Journeymen

786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Pipefitters Local Union No. 392, AFL-CIO (The Oberle-Jordre Co., Division of the Bishopric Products Co.) ' and Melvin R. Snow. Case 9-CB-5527 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 15 March 1984 Administrative Law Judge Richard A. Scully issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions for the additional reasons set forth below 2 and to adopt the recommended Order as modified and set Out in full.3 • The judge found that the Respondent violated Section 8(b)(1)(A) by its efforts to cause six travel- ers to quit their jobs in order to provide employ- ment for the Respondent's members and Section 8(b)(2) by attempting to cause the Employer to lay off the travelers. The record evidence in this case reveals that the Respondent and the Employer are parties to a project agreement between the Kentucky Utilities Company and certain signatory labor organizations. The agreement contains an exclusive referral provi- The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 In adopting the judge's conclusion that the Respondent coercively requested each of the six employees to quit their employment, we par- ticularly rely on the credited testimony that the Respondent's steward told five of the six employees that he would not want to be a traveler on the job come Monday A sixth employee overheard a conversation wherein the Respondent's steward was relating this admonishment to a group of three employees Accordingly, it is clear that this particular threat was effectively communicated to each of the six employees 3 To help assure that the Respondent's unlawful conduct is remedied, we will require the Respondent to notify the Employer, The Oberle- Jordre Co, Division of the Bishopnc Products Co, that the Respondent has no objection to Oberle-Jordre's rehiring the individuals named in the remedy section We will also require that the Respondent notify those in- dividuals that it has no objection to their working for Oberle-Jordre or any other employer In R H Macy & Ca, 266 NLRB 858 (1983), the Board held the Issu- ance of expunction remedies against unions to be necessary and appropri- ate in all cases where a union causes an employee to be unlawfully dis- charged, laid off, or otherwise discnminated against We have according- ly incorporated an expunction remedy in the Order sion through which the Employer's pipefitters are hired. For some time, prior to 19 November 19824 the Employer had , about 10 pipefitters working on the project. Only the steward and an apprentice were members of the Respondent. The other pipe- fitters were travelers. During the second week of November the Re- spondent's business agent visited the project site and spoke with the Employer's construction man- ager. The business agent advised the construction manager that there were about 450 local members out of work and asked the Employer to lay off the travelers and replace them with local members. The construction manager responded that he could not afford to lay off anyone but if anyone had to go he wanted to keep his welders.5 In the days immediately preceding 19 November the Respondent's steward Charles Murphy had one or more separate conversations with each traveler concerning his continued employment at the project site. The credited testimony shows that the conversations were substantially similar. Each trav- eler was advised that he should plan on making the next day his last day and further advised that anyone who was asked to leave and refused to do so would be sanctioned by the hall. To ensure that this request was not taken lightly Murphy told five of the travelers that he would not want to be a traveler and still be on the job on Monday. All of the travelers ultimately advised Murphy that they would cooperate. None of the six travelers ap- peared for work on Monday, 22 November, and after 3 days of unexcused absences all were termi- nated by the Employer. As noted, the judge found that the Respondent violated Section 8(b)(1)(A) by the efforts of its steward whose threats caused the travelers to leave their jobs. 6 The judge ordered the Respondent to make the travelers whole for any loss of earnings suffered as a result of their compliance with the Respondent's unlawful requests. Our dissenting colleague would reverse the judge's finding of an 8(b)(1)(A) violation as to trav- eler Theodore Linkous. The dissent is predicated on the view that the record does not show that the Respondent "caused" Linkous to lose his job. Al- though the dissent finds that Linkous did not return to work because of a back injury, he ac- knowledges that Linkous was discharged for absen- 4 All dates refer to 1982 5 In refernng to his "welders" the construction manager was speaking of three of the six travelers The judge relied on Sachs Electric Co, 248 NLRB 669 (1980), enfd in relevant part sub nom NLRB v. Electrical Workers IBEW Local 453, 668 F 2d 991 (8th Or 1982) 273 NLRB No. 106 PLUMBERS LOCAL 392 (OBERLE-JORDRE) 787 teeism and argues that the Respondent should not be liable for any of his backpay loss. We disagree. The facts surrounding Linkous' discharge are not in dispute. Linkous was Approached by Murphy on Thursday, 18 November, and asked to make the next day his last day of work. Linkous responded that he would have to think about it and would' let Murphy know the next day. On Friday, 19 Novem- ber, between 8 and 8:30 a.m., Linkous told Murphy that he had decided to leave the job that day. Murphy was pleased with ,Linkous' decisiOn , and in- vited Linkous, as he had the other travelefs, to join him that afternoon for drinks. Linkous explained that he would have to stay until 4 p.m. and told Murphy that he would take a raincheck. 'The two men had no further conversations that day. Later that morning between 10 and 10:30 a.m. Linkous reinjured his back. He then went to the nurse and reported the injury as he had done only a few weeks before. On the previous occasion Lin- kous had no contact with the Employer from 12 October until 26 October when he returned to work. On this occasion Linkous was immediately terminated for absenteeism when he failed to'report for work for 3 consecutive days. - Our dissenting colleague finds that, although the Respondent attempted to have -Linkous quit, the in- tervening back injury prevented the execution' of its plan. It is the dissent's positioti that the fact that Linkous reported his injury before leaving the project site destroyed any inference that he was quitting and joining the ranks of the other travelers who quit work that day. 7 We believe the dissent misconceives the relationships in this case. The complaint alleges a violation of Section' 8(b)(1)(A). This section is concerned with the rights of indi- vidual employees in their relation, with labor orga- nizations. However, the dissent is predicated on Linkous' conduct as it relates to the Employer. The relevant relationship is that of Linkous and the Respondent. All of the evidence in this case as it pertains to the Respondent clearly shows that like the other travelers Linkous was approached by Murphy and advised' to quit his job. Like the other travelers Linkous told Murphy that he wOuld comply with the Respondent's request that he leave the job by failing to report for work On Monday. Like the other travelers Linkous did not report for work for 3 consecutive days and was terminated the follow- .. ing week. Nevertheless, the dissent asserts that- there i g no evidence to show that the Employer actually con- While the record does not show the time that Linkous actually left the project site, it is reasonable to infer that he left before the other trav- elers sidered Linkous to be a part -of the group of travel- ers simply because he was discharged for the same misconduct. Not only does this argument miss the point but ignores the facts of the case. The record establishes that the Employer knew that Linkous was a traveler. The Employer also knew that the Respondent wanted the travelers off the job to make room for its local members. The Employer observed several travelers walk off their jobs that day.. Yet, the dissent would have us believe that, when the Employer terminated the travelers for absenteeism the following week, unlike the other travelers Linkous was singled out and discharged for, an abuse of sick leave. The record contains no evidence that the Employer made this distinction. Indeed, the Employer not only sent Linkous the same termination letter it sent to the other five travelers but also provided to Linkous a- letter stat- ing that he had been discharged for absenteeism and not due to his back injury. Linkous' misfortune in reinjuring his •back does not alter the plain fact that the Respondent success- fully sought Linkous' announced 'compliance with its request that he quit his job. Such conduct by the Respondent violated Section 8(b)(1)(A). More- over, the back injury is relevant only insofar as it affects Linkous' loss of earnings for which the Re- spondent is liable. 8 We would accordingly affirm the judge. In , addition, our colleague expresses concern over the judge's failure to make any findings as to' whether the Respondent's statement constituted' un- lawful threats , within the meaning of Section 8(b)(1)(A). We note, however, that the judge did conclude that the Respondent violated Section 8(b)(1)(A) "[b]y its efforts to cause travelers to quit their jobs in order to provide jobs for Local 392 Members." Absent any, specific findings by the judge, coupled with the absence of any exceptions by the parties themselves, we do not pass on these 8(b)(1)(A) statements. ORDER The National Labor , Relations Board adopts the recommended Order of the . administrative law judge as modified and set out in . full below and orders that' the Respondent, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Pipefitters Local Union No. 392, AFL- CIO, Cincinnati, Ohio, its officers, agents, arid rep- resentatives, shall 8 The recommended Order of the judge provides that the extent to which Lmkous' loss of earnings resulted from his coerced decision to give up his job as opposed to his being injured on the job should be de- termined dunng the compliance proceedings '788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '1. Cease and desist from - (a) Requesting travelers' referred out of the Re- spondent's hiring hall to quit their jobs in order to make jobs available for members of Local 392. (b) Attempting to cause The Oberle-Jordre Co. to terminate or in any other manner discriminate against employees who are not members of Local 392, in 'violation of Section 8(a)(3) of the Act. (c) In any like or related manner restraining or coercing -employees in the exercise of the rights guaranteed them' by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act. (a)_ Make whole Melvin R. ,Snow, Charles Tunny, Gary Holder, Harry J. Smith, Jerry Lut- trell, and Theodore Linkous for any loss of earn- ings they ,may have suffered' because ,of their com- pliance With the Respondent's unlawful requests that they quit their jobs at Oberle-Jordre's Ghent jobsite, in the manner prescribed in the section of the judge's decision 'entitled "The Remedy." (b) Notify The Oberle-Jordre Co. in writing that it .has no objection to its reemployment of Melvin R. Snow, Charles Tunny, Gary Holder, Harry J. Smith, Jerry Luttrell, and Theodore Linkous. (c) Notify in writing 'the above-named individ- uals that it has no objection to their working for The Oberle-Jordre- CO. „ Or any other employer. (d) Remove from its files any reference to the termination of the above-named individuals and notify _them in writing that evidence of their termi- nation by The Oberle-Jordre Co.' shall not be used as a basis for future action against them. (e) Preserve and, on request, make available to the Board or its ageats for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of 'this Order. (f) Post at its business office, hiring halls, and meeting places copies of the attached notice marked "Appendix." 9 Copies of the notice, on forms provided by the Regional Director for Region 9, after' .being signed by the Respondent's authorized representative, shall be posted , by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- 9 If this Order is enforced by a Judgment of a United States Court of -Appeals, the words in the nofice reading "Posted by Order of the Na- tional Labor Relations Board"shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" tices are not altered, defaced, or cOvered - by any other material. - (g) Forward a sufficient number df signed copies of the notice to the Regional Director for Region 9 for posting by The Oberle-Jordre' Co. in places where notices to 'employees are customarily posted and , ask Oberle-Jordre to remove any reference to its termination of Melvin R. Snow, Charles Tunny, Gary Holder, Harry J. Smith, Jerry Luttrell, and TheodOre-Linkous from its files and notify, these in- dividuals that it has asked The Oberle-Jordre COm- pany to do this. ,_ (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the allegation of the complaint not specifically found herein is dis- missed. MEMBER HUNTER, concurring in part- and dissent- ing in part. I disagree with my colleagues' decision to adopt the judge's finding of an. 8(b)(1)(A) violation con- cerning the discharge of traveler Theodore' Lin- kous. Although I would reverse the judge as. to Linkous, I would not disturb his findings as to the other' five discharged travelers, in agreement with my, colleagues. Unlike ,my colleagues, I would dis- miss the complaint as to Linkous' diScharge , be- cause I am persuaded that the record does not show that the Respondent caused , Linkous to lose his job. The record, shows that all travelers were ap- proached by the Respondent's steward to quit their employment to provide jobs for the Respondent's own members. Unlike Linkous, the other travelers walked. off the, job after lunch on 19: November 1982. 1 Earlier that day, Linkous had informed the steward that he would leave the job at the end of his shift. However, at work that day before his shift ended, Linkous suffered a back injury. The record shows, that Linkous told the Employer that he had injured his back and was leaving the job to seek medical attention. Linkous then left the job- site, sought 'medical care, and did not return to work the following week, as did the other travel- ers. After 3 days of.unreported absences, Linkous, as well ,as the travelers who quit, was. terminated for absenteeism.. They all had violated an existing company rule requiring daily reporting of absences from work. , As of the time of the underlying hear- • According to the judge's findings, Lmkous left the project site after the other travelers On the other hand, my colleagues in the majority-find that it is reasonable to infer from the record that Lmkous actually left before the other travelers 'Regardless of which version is correct, the result is the same Linkous did not join the other travelers PLUMBERS LOCAL 392 (OBERLE-JORDRE) 789 ing, Linkous' back injury was still preventing him from returning to full duty work. In my view, the foregoing shows that Linkous never quit his employment at the urging of the Re- spondent, as did the other travelers. Contrary to the judge, I do not infer "quitting" or an intention to quit simply because Linkous never grieved his discharge. At best, I would find that the steward attempted to have Linkous quit but that the inter- vening back injury prevented the execution of any future plans which Linkous may have had to quit. Linkous' back injury necessitated his leaving the jobsite that day, and the only information supplied to the Employer by Linkous was that he was leav- ing because of his back injury. This specific reason given for his leaving, in my opinion, destroyed any inference that Linkous was quitting and joining the ranks of the other travelers who quit work that day. 'Under the majority's reasoning, Linkous' status as a traveler was sufficient to connect him to what- ever the other- travelers did that day and the fol- lowing 'week and for whatever purpose. This con- tradicts Linkous' own record testimony. Linkous himself testified that he left and did not return to work after 19 November 1982 because of the rein- jury to his back. Linkous' testimony further indi- cates that it was his intention to return to work after. his recuperation from his back injury but, meanwhile, he had been discharged. Thus, I fail to see the connection with the other travelers who left and did not return because the Respondent had requested them to quit their employment. • There is also no evidence to show that the Em- ployer actually considered Linkous to be a part of this group of travelers simply because he was dis- charged for the same type of misconduct. Applica- tion of the same company absentee rule is not suffi- cient to establish liabilit, on the part of the Re- spondent on the particular facts of this case. In ad- dition, contrary to the judge's analysis, I do not consider significant the fact that on one prior occa- sion with Linkous, in the case of a previous injury, the Employer was more lenient in the enforcement of its absence reporting rule. The record is insuffi- cient to show that the Employer's alleged stricter enforcement of its work rule was prompted by the Respondent's request to terminate nonmembers. As correctly found by the judge, the Employer had flatly refused such a request. The record shows no ,deviation from this firm stance taken by the Em- ployer. Another area of my disagreement with the ma- jority opinion lies with its failure to find certain statements by the Respondent's steward Murphy to constitute unlawful threats within the meaning of Section 8(b)(1)(A). As found by the judge, during the week preceding 19 November 1982; steward Murphy, had separate conversations with travelers Snow, Tunny, Luttrell, Smith, and Holder. The judge further found that, in the course of these conversations, Murphy made the following state- ments. Murphy told Snow that if the travelers did not leave the job they "would - n6,er work out of 392 again" and that, if Snow wanted to be in good graces with the Respondent, he should leave the job. After Murphy. requested Tunny to quit, Tunny said, "I really don't have much choice, do I?" to which Murphy replied, "[NJ, you really don't." Murphy told Luttrell that, if Luttrell did not leave, he would never work out of Local 392 again. Murphy also told Luttrell that Murphy "would not want to be a traveler on the job on Monday morn- ing" and that the Respondent would not be respon- sible for what happened to Luttrell on, Monday morning if he was on the job. Murphy repeated similar comments to a group of employees, includ- ing Snow, Smith, and Holder. Murphy also told Smith that the Union would not be responsible for travelers who were on the job on Monday morn- ing. Murphy also told Holder that anyone who did not leave the job "would be sanctioned by the hall." The Respondent did not except to any of these statements. The judge did not make any find- ings with respect to , whether these statements were violative even though encompassed by the, out- standing complaint allegations of 8(b)(1)(A) threats made by the Respondent. 2 The General Counsel and the Charging Party did not except to the judge's failure to dispose of these 8(b)(1)(A) allega- tions. Because these matters were fully litigated and without exception to them from the Respond- ent, I would find all the above remarks by steward Murphy to constitute 8(b)(1)(A) threats and would correct the judge's decision to reflect this determi- nation. I also would rely on these threats in sup- port of the judge's conclusion that the Respondent coercively requested the travelers to quit. 2 In substance; the complaint alleged that the Respondent threatened employees that they no longer would work out of Local 392 (the Re- spondent) if they did not quit their jobs and that the Respondent similarly threatened employees with unspecified physical harm The complaint fur- ther alleged these threats to be violative of Sec 8(b)(I)(A) 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT request travelers referred out of our hiring hall to quit their jobs in order to make jobs available for members of Local 392. WE WILL NOT attempt to cause The Oberle- Joidre Co. to terminate or in any other manner dis- criminate against employees who are not members of Local 392, in violation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL Make whole Melvin R. Snow, Charles Tunny, Gary, Holder, Harry J. Smith, Jeri)/ Lut- trell, and Theodore Linkous for any loss of earn- ings they may have suffered because of their com- pliance with our unlawful requests that they quit their jobs, at Oberle-Jordre's Ghent jobsite, with in- terest. WE WILL notify The Oberle-Jordre Co. in writ- ing that we, have no objection to its reemployment of Melvin R. Snow, Charles Tunny, Gary Holder, Harry J. Smith, Jerry Luttrell, and Theodore Lin- kous. WE WILL notify in writing the above-named in- dividtials that we have no objection to their work- ing for The Oberle-Jordre Co. or any other ' em- plOyer. WE WILL remove from our files, and ask Oberle- Jordre to remove from its files, any reference to the termination of the above-named individuals and notify them in writing that evidence of their termi- nation `by The Oberle-Jordre Co. shall not be used as a basis for future action against' them. UNITED ASSOCIATION OF JOURNEY- MEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUS- TRY OF THE UNITED STATES AND CANADA, PIPEFITTERS LOCAL UNION No. 392, AFL-CIO DECISION RICHARD A. SCULLY, Administrative Law Judge. Upon a charge filed on April 4, 1983, and amended on May 3, 1983, by Melvin R. Snow, a complaint was issued on May 11, 1983, by the Regional Director for Region 9 of the National Labor Relations Board (the Board), al- leging that United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, -Pipefitters Local Union No. 392, AFL-CIO (the Union), had committed violations of Section 8(b)(1)(A) and (2) of the National Labor Rela- tions Act (the Act). The Respondent has filed a timely answer denying that it has ccimmitted any violations of the Act. A hearing was held on July 5 and 6, 1983, in Cincin- nati, at which all parties were given a full opportunity to participate, to examine and cross-examine witnesses; and to present other evidence and argument. Briefs submitted on behalf of all parties have been given due consider- ation. On the entire record and from my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER At all times material, The Oberle-Jordre Co., Division of the Bishopric Products Co. (the Employer or 0. J.), was an Ohio corporation engaged in- construction work, including installation of power plant equipment at a facil- ity being constructed at Ghent, Kentucky, pursuant to a contract with Kentucky Utilities Company. During the calendar year 1982, in the course of its performance of that contract and others in Kentucky, the Employer pur- chased goods and materials valued at approximately $125,000, directly from suppliers located outside the Commonwealth of Kentucky. The undontradicted testi- mony of the Employer's president establishes that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.' II THE LABOR ORGANIZATION INVOLVED The Respondent admits and I find that -it is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Rids The Employer has -been working at the Ghent facility since 1977. The Respondent Union is a party to the project agreement covering the Giant project and repre- sents and refers the pipefitters employed there. For some time prior to November 19, 1982, 1 the Employer had about 10 pipefitters working at the project. 'Of these, Union Steward Charles Murphy and an apprentice were the only members of Local 392, the others all being "travelers," union members working temporarily within the geographical jurisdiction of a local other than their own local unions. During the second week of November, Union Business Agent Dave Jeffers visited the Ghent site and spoke with the Employer's construction manager James Bowers. Bowers testified that Jeffers told him 'that because of the shutdown of construction at the- Zimmer Nuclear Power Plant in Moscow, Ohio, the Union had about 450 local people out of work and he asked Bowers if he "could lay the travelers off and rehire with local Hereinafter, all dates are in 1982 PLUMBERS LOCAL 392 (OBERLE-JORDRE) 791 people." Bowers responded that he could not lay anyone off. He told Jeffers that he had too much of a problem getting heavy wall welders who could meet the special qualifications required for the work being done; that he had some qualified welders who had been there a long time; and that, because of the tight schedule he had to meet, he could not go through the delay or expense of getting new people qualified. They discussed the number of heavy wall welds that had to be made and Bowers gave Jeffers a list of the qualified welders who were on the job and told him that if "anybody had to go," he wanted to keep the welders he had: Jeffers denied that he ever asked Bowers to lay off travelers. He recalled a conversation with Bowers, at about the time Bowers indicated, in which he asked Bowers if he was going to build up his crew, but said he did not ask about a layoff. Jeffers could not recall if any- thing was said about the Zimmer plant shutdown and said he would not have brought it up "because it just would not be something I would be talking about." I credit the testimony of Bowers over that of Jeffers 2 and find that Jeffers did request that the Employer lay off the travelers on its crew and replace them with local union members. During the week or so preceding November 19, Union Steward Murphy had separate conversations with each of the travelers on the Ghent job concerning the fact that the Zimmer job had shut down, causing the layoff of many members of Local 392. The Charging Party, Melvin Snow, is a traveler who had worked out of Local 392 off and on for about 5 years, starting at Ghent in July. About a week before Snow left the job on No- vember 19, he spoke with Murphy, who told him "if Zimmer shuts down we are going to have to get rid of all the travelers here at Ghent and put local hands on." On the morning of November 18, Murphy was not at work and Snow was operating a stress machine in place of Murphy. When Murphy arrived on the job after lunch, he asked Snow to step out on the roof to talk to him. Murphy told Snow that he had just come from the union hall where he had talked to Jeffers and that all the travelers at Ghent were going to have to leave to make room for local hands being laid off at Zimmer Murphy told him that if the travelers did not leave the job they "would never work out of 392 again" and that, if Snow wanted to be in good graces with the Union, he should leave the job. Murphy also told Snow that he and Jeffers were trying to get 0. J. to lay them off so that they could draw unemployment compensation and that they were still talking to 0. J. about it. On Friday, November 19, Murphy told Snow that he wanted him to make it his last day and offered to buy lunch for Snow and the other travelers' Theodore Linkous is a traveler who had worked out of Local 392 for 9 years. Linkous testified that, on No- 'vember 18, Murphy came to where he was working with two other pipefitters and asked for a word with him. I found Jeffers' testimony in almost all respects to be unworthy of belief based on his demeanor while testifying and the content of his testi- mony He struck me as having absolutely no regard for the truth of the testimony he gave After they moved about 50 feet away, Murphy asked Linkous to make the next day his last on the job. When Linkous said that if he quit he would not be able to draw unemployment compensation, Murphy told him that he and Jeffers had been trying all week to get 0. J. to lay them off, but that 0. J. would not cooperate with them. This, Murphy said, left him "to do. the dirty work" of going around asking everybody to leave. Linkous told Murphy on the following morning that . he had decided to leave as requested and Murphy offered to buy him a drink. Charles Tunny had Worked as a traveler out of Local 392 for about 5 or 6 years and had been on the Ghent job since October. He had never spoken to Murphy until the afternoon of November 18 when Murphy came to him and said that he wanted the following day to be his last because Murphy had some local men he wanted to put on the job. When Tunny questioned him about un- employment benefits, Murphy told Tunny to get himself fired by not showing up or calling in on the first 3 days of the following week and he would then be able to draw unemployment compensation in 4 to 6 weeks. When Tunny said, "I really don't have much choice, do I," Murphy responded, "No, you really don't" Murphy then mumbled something which Tunny understood to be "if I were a traveler, I would not want to be here Monday morning anyhow." Jerry Luttrell is a traveler who has worked out of Local 392 since 1977 and had been with the employer at Ghent most recently since February. Luttrell testified that, after lunch on November 18, Murphy told him that Murphy had had a meeting with the business agent and that he was going to have to ask Luttrell to "drag up" or quit the job. When Luttrell responded that he would have to give it some thought, Murphy told him that, if he did not leave, he would never work out of Local 392 again. Murphy also said that he "would not want to be a traveler on the job on Monday morning" and that the Union would not be responsible for what happened to him on Monday morning if he was on the job. Harry Smith had worked as a traveler out of Local 392 at Ghent for 4 years. He testified that, on November 17 or 18, Murphy told him that Jeffers was trying to get 0. J. to lay the travelers off, but that 0. J. would not go along with it so that the travelers were going to have to "drag up." He also said that at one point Murphy "blowed his top" and, using rough and foul language, said that the Union would not be responsible for travel- ers who were on the job on Monday morning. When Smith mentioned the possibility of a lawsuit, Murphy re- plied that he had spoken to all the travelers alone with- out witnesses so no one could prove anything. Murphy also said that, if Smith filed a lawsuit against the Union, he would "never work out of Cincinnati again." Gary Holder had worked out of Local 392 as a travel- er off and on since 1981 and had been at Ghent most re- cently since June. Holder testified that, on the afternoon of November 18, Murphy told him that he had asked some people to leave and that anyone who did not leave "would be sanctioned by the hall." On the following day, Murphy told a group including Holder, Snow, 792 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD Smith, and a pipefitter named Barnes that he "wouldn't want to be a fucking traveler and be on the job come Monday." Murphy also told them that the hall had agreed to let two of the three specially qualified hot welders stay on the job and that Holder and Smith could stay. When Barnes objected that he had been on the job longer than Holder and should be permitted to stay, Murphy told them he was going to call the hall and see if he could get it worked out so that all three hot weld- ers could stay. Earlier, when Smith asked when he and Holder were going to be asked to leave, Murphy shout- ed, "You'll leave when I tell you to leave." After two or three telephone calls; Murphy came back and told Holder and Smith "that there was [sic] welders on the bench that wanted to complete those welds that we were doing." That afternoon, Holder, Smith, Luttrell, Snow, and Barnes went to lunch with Murphy who paid for their lunches and told them he appreciated what , they were doing for the Union and that they ",would be given first consideration when work broke, again, as . far as sending out travelers." Snow did not return to the job after lunch and the other travelers, with the exception of Linkous, who ap- parently worked until the end of the day, walked off the job during the afternoon None of the travelers returned to the job the following week and, after 3 days of unex- cused absences, all were terminated by the Employer: Charles Murphy denied that he had ever threatened any 'of the travelers that, if they continued to work past November 19, the Union would not be responsible for them or that they would not be able to work out of Local 392 again. He testified that all he did was ask the travelers to leave the job. He denied having any conver- sations with Jeffers concerning obtaining layoffs for the travelers from the Employer and said he last saw Jeffers at the jobsite 2 or 3 weeks before November 19. The credited testimony of Bowers shows that Murphy came into his office at the end of the meeting in which Jeffers asked him to lay the travelers off and that Murphy and Jeffers left together. Murphy did admit to having been asked by the travelers if the Employer would give them layoff slips and said he "probably told them that 0. J. probably wouldn't give them one." He also told them if they left the job "they could probably collect unemploy- ment." Throughout his testimony Murphy was hesistant, vague, and evasive. I do not credit his testimony 3 insofar as it conflicts with that of Snow, Linkous, Tunny, Lut- trell, Smith, and Holder, who were credible witnesses, and I find that Murphy made the statements attributed to him by those individuals. B. Findings and Conclusions The General Counsel contends that the Respondent violated Section 8(b)(1)(A) of the Act by the actions of Murphy, the union steward on the Ghent job, whose threats caused the travelers to leave the job. The Re- spondent contends that there was no coercion of any of 3 I am convinced that Murphy carned through on a promise he made to Snow in the event that legal action was taken against the Union be- cause of his requests that the travelers leave the job Murphy told Snow, "I'm going to get up and lie like hell" the travelers by the Union and that all voluntarily chose to leave the job as a courtesy to unemployed local union members in accordance with custom or the "golden rule." _The evidence establishes that none of the travelers had any intention of quitting the Ghent job prior to their conversations with Murphy during the week preceding November 19. It also establishes that none of the travel- ers was approached by Murphy about leaving until after Jeffers had been unsuccessful in his attempt to get the employer to lay off the travelers. The evidence in the record does not establish the existence of the custom the Respondent relies on on or that anyone on the Ghent job was aware of it. Even Murphy, who was questioned re-, peatedly about this subject, could not testify to the exist- ence of any such custom.4 Regardless of whether there it was a custom or merely the application of the "golden rule," the evidence is clear that Murphy was not content to rely solely on the moral persuasion of either to get the travelers off the Ghent job. While he may have phrased his remarks to the trav- elers in the form of requests that they leave the job, he added, among other things, that if they did not leave, they would be sanctioned by the hall, they would never work out of Local 392 again, and that the Union would not be responsible for what happened if they showed up on the job after November 19 That Murphy's requests were not simply appeals to the travelers' sense of altru- ism, but were directives, is evidenced by Murphy's care in talking to each traveler individually so there would be no witnesses and his angry statement to Smith that "you'll leave when I tell you to leave." As the deadline Murphy had set for the travelers came closer, he became more and more agitated and less cautious, telling a group of four of the travelers on November 19 that he "would not want to be a fucking traveler and be on the job come Monday." A short time later that day, after the travelers informed him they were leaving, Murphy treated him to lunch and expressed his appreciation for what they were doing. The evidence also establishes that Murphy was acting as an agent of the Union in requesting that the travelers leave and that he made this clear to them. It was Jeffers, the Union's business agent, who initiated the efforts to get the travelers off the job. Jeffers met with Murphy at the jobsite immediately after his unsuccessful attempt to get the Employer to lay off the travelers. 'As job steward and the only local journeyman at the Ghent project, Murphy was the obvious choice for and, by his admis- sion to Linkous, the one selected to do the "dirty work" of asking everyone to leave. Murphy told Linkous and Smith about Jeffers' failure to persuade the employer to lay them off when he asked them to leave. When Murphy came to the job on the afternoon of November 18, he told the travelers he spoke to individually that he had just 'come from the union hall and that they were • • 4 The only evidence in the record concerning industry customs is the testimony of Harry Smith that, if a local man on a job is going to be laid off, "then a traveler will leave" But this custom had no application in the present case because, in Smith's words, "there wasn't no local man on the job, you see, to leave for" PLUMBERS LOCAL 392 (OBERLE-JORDRE) 793 going- to have to leave. That the Union orchestrated the travelers' removal was further evident from- what oc- curred on November -19 when Murphy told the travelers that the hall had determined that two of the travelers who were hot welders, could stay on. When another traveler complained, Murphy made a series of telephone calls to the hall and announced the final decision, that there were local men who wanted the jobs, so all the travelers had to go. Also, Jeffers' failure to take any meaningful action after being informed by Bowers on November 19 that the travelers were leaving the job is further evidence that he instigated and was aware of what Murphy was doing at the jobsite.8 In Sachs Electric Co., 6 the Board considered similar "requests" that travelers quit their jobs so that unem- ployed local members could take their places and found them to be coercive. As in Sachs, the travelers here were "undoubtedly" aware that the "requests" came from "union officials who, by virtue of their responsibilities in administering the hiring hall, control, and will continue to control, .the travelers' livelihoods within the hiring hall's jurisdiction," and were likely to construe them "as more than mere solicitations for 'volunteers." Ibid. I find that the Respondent's efforts to cause the travelers to quit their jobs in order to provide jobs for members of Local 392 were based on impermissible considerations and violated Section 8(b)(1)(A) of the Act. The General Counsel also contends that the Respond- ent violated Section 8(b)(2) of the Act by virtue of Jef- fers' request to Bowers that the Employer lay off the travelers. As noted above, I credit the testimony of Bowers that Jeffers did ask him to lay off the travelers and rehire with local pipefitters prior to November 19, when the travelers left the job. There is no evidence that any threats were made or any inducements offered in order to get the Employer to lay them off or that the Employer had any intention of complying with the re- quest. 7 Notwithstanding the fact that Jeffers made only a "bare request," which was not acceded to by the Em- ployer, I find there was an unlawful "attempt to cause" the Employer to discriminate against the travelers in vio- lation of Section 8(a)(3) because there was no legitimate basis for this request, which was premised solely on the 5 I have previously indicated that I did not believe much of Jeffers' testimony This is particularly true with respect to his claim that he did not direct Murphy to have the travelers leave and that, when they left the job, he figured It was a "nooner," that is, "they go to lunch and do not come back" Equally incredible was his claim that, after he learned the travelers had been discharged for absenteeism, he tned to get the Employer to rehire them, in view of the fact that he never talked to any of the travelers about their leaving and he had done nothing to get them to return to the job after Bowers had requested that he do so Since one of his duties as business agent was to see that the Ghent job was properly manned, his complete lack of concern about the travelers' leaving the job unmanned indicated his knowledge and complicity in getting them off the job 6 248 NLRB 669, 670 (1980), enfd sub nom NLRB v Electrical Work- ers IBEW Local 453, 668 F 2d 991 (8th Cir 1982) Bowers' testimony that he told Jeffers, "If anybody had to go, I'd want to keep my welders," suggests that some kind of deal may have been discussed, but the evidence is not sufficient to establish this Union's desire to employ its local members at the ex- pense of the travelers. Consequently, the Respondent's action violated Section 8(b)(2) of the Act.8 CONCLUSIONS OF LAW I United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Pipefitters Local Union No. 392, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. The Oberle-Jordre Company is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By its efforts to cause travelers to quit their jobs in order to provide jobs for Local 392 members, the Re- spondent violated Section 8(b)(1)(A) of the Act. 4. By attempting to cause the employer to lay off all travelers employed by it at the Ghent, Kentucky jobsite and replace them with Local 392 members in violation of Section 8(a)(3) of the Act, the Respondent violated Sec- tion 8(b)(2) of the Act. 5. The unfair labor practices found herein are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent violated Section 8(b)(1)(A) and (2) of the Act, I shall recommend that it be ordered to cease and desist from such violations and take certain affirmative action designed to effectuate the policies of the Act. I shall recommend that the Respond- ent be ordered to make whole Melvin R. Snow, Charles Tunny, Gary Holder, Harry J. Smith, Jerry Luttrell, and Theodore Lmkous8 for any loss of earnings they may have suffered because of their compliance with the Re- spondent's unlawful requests that they quit their jobs with the Employer at the Ghent project. Backpay shall See Commercial Workers Local 227 (Kroger Co ), 247 NLRB 195 (1980), Electrical Workers IBEW Local 112 (Ajax Electric), 231 NLRB 162 (1977) 9 Linkous credibly testified that he decided to comply with the Re- spondent's request that he leave the job and informed Murphy on the morning of November 19 that It was to be his last day However, later in the day, Linkous remjured his back on the job and, as a result, was unable to work the following week in any event Notwithstanding the fact that Linkous reported his injury to the Employer in the same manner as he had in the case of a previous injury, he was terminated by the Em- ployer for "absenteeism" on November 24, as were the other travelers Consistent with his decision to give up his job, Linkous did not contest what appears to be an arguably erroneous termination As of the date of the heanng in this matter, Linkous had not been cleared to return to work by his physician However, It is possible that, had he not been ter- minated, Linkous might have been able to return to work for the Em- ployer on "light duty status" or "working with pain," even though he might not have been able to obtain new employment, because of his physical condition The extent to which his loss of earnings resulted from his coerced decision to give up his job rather than his injury can be de- termined during the compliance stage of this proceeding 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be computed in the manner prescribed in E W. to be paid on the amounts owing in accordance Woolworth Co., 90 NLRB 289 (1980), with interest with Florida Steel Corp., 231 NLRB 651 (1977).10 [Recommended Order omitted from publication ] ° See generally Isis Plumbing Co, 138 NLRB 716 (1962)