Montgomery Elevator Co.

MONTGOMERY ELEVATOR CO. 871 Montgomery Elevator Company and D. Webb Rob- bins International Union of Elevator Constructors, AFL- CIO and D. Webb Robbins. Cases 10-CA- 20626 and 10-CB-4453 28 February 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 9 October 1985 Administrative Law Judge Lawrence W. Cullen issued the attached decision. Respondent International Union of Elevator Con- structors, filed exceptions and a supporting brief, and the General Counsel filed an answering brief to the Respondent Union's exceptions. 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 briefs and has decided to affirm the judge's rulings, fmdings, I and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that Respondent Montgomery El- evator Company, Knoxville, Tennessee, its officers, agents, successors, and assigns, and Respondent International Union of Elevators Constructors, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Order. I The Respondents have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive 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 re- versing the findings. Frank J. Rox Jr., Esq., for the General Counsel. Daniel F. Murphy Jr., Esq. (Putney, Twombly, Hall & Hirson), of New York, New York, for Respondent Montgomery Elevator Company. Robert Matisoff, Esq. (O'Donoghue & O'Donoghue), of Washington, D.C., for Respondent International Union of Elevator Constructors, AFL-CIO. DECISION ary 1985. The complaint is based on a charge filed by D. Webb Robbins, an individual, on 4 December 1984, and alleges that Respondent International Union of Elevator Constructors, AFL-CIO (the Union) violated Section 8(b)(1)(A) of the National Labor Relations Act (the Act) about 15 October 1984 by threatening employees of Re- spondent Montgomery Elevator Company (the Employ- er) by telling them that the Union had not abandoned its demand that employees working for the Employer be members of the Union, and that it violated Section 8(b)(2) of the Act about 23 October 1984 by causing the Employer to demote its employee D. Webb Robbins from the position of temporary mechanic to helper, and also violated Section 8(b)(2) of the Act about 24 October 1984 by causing the Employer to lay off its employee D. Webb Robbins. The complaint also alleges that the Em- ployer violated Section 8(a)(1) of the Act about 16, 23, and 24 October 1984 by threatening its employees with layoff because they were not members of the Union and that the Employer violated Section 8(a)(3) of the Act by demoting its employee, D. Webb Robbins, about 23 Oc- tober 1984 from the position of temporary mechanic to helper and by laying off the employee about 24 October 1984 because he was not a member of the Union. The complaint is joined by the answers of Respondents wherein they deny the commission of the alleged viola- tions of the Act. On the entire record in this proceeding including my observation of the witnesses who testified herein and after due consideration of the positions of the parties and briefs filed by the parties, I make the following FINDINGS OF FACT AND ANALYSIS I. JURISDICTION The complaint alleges, Respondents admit, and I find, that the Employer is, and has been at all times material herein, an Illinois corporation with an office and place of business located at Knoxville, Tennessee, where it is en- gaged in the installation, repair, and maintenance of ele- vators and that during the past calendar year prior to the filing of the complaint, which period is representative of all times material herein, the Employer purchased and received at its Knoxville, Tennessee facility materials and supplies valued in excess of $50,000 directly from suppli- ers located outside the State of Tennessee, and that the Employer is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The complaint alleges, the answer admits, and I find, that Respondent is, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me on 22 and 23 May 1985 at Knoxville, Tennessee. The hearing was held pursuant to a complaint issued by the Regional Director for Region 10 of the National Labor Relations Board on 20 Febru- III. THE ALLEGED UNFAIR LABOR PRACTICES This case is concerned with the alleged discrimination having been practiced against the Charging Party, D. Webb Robbins, by the Employer and the Union. The Employer and Union are signatories to a standard labor 278 NLRB No. 122 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement which is bargained between the Union and the National Elevator Industry, Inc. (NEII), an employer bargaining group of which the Employer is a member. The current standard agreement sets out two basic classi- fications of elevator constructor workers. The first and lower of the two is the elevator constructor helper. The other classification is that of mechanic. The helper is paid at, a lesser rate of pay than the mechanic and the standard agreement sets out certain restrictions on the work which a helper may perform without the supervi- sion of a mechanic. In order to obtain the position of the higher ranking classification of mechanic, an elevator constructor helper must complete an education program jointly administered by the Union and the Employer who are signatories to the standard agreement. The pro- gram is designated the National Elevator Industry Edu- cation Program (NEIEP). On completion of the required courses or "modules," a helper is required to pass a writ- ten mechanic's examination in order to become a me- chanic. The standard agreement also provides that a helper may work as a "temporary mechanic" performing the same work as a mechanic and at the same rate of pay provided that the employer and the union agree. In addi- tion to be entitled to work as a temporary mechanic, the helper is to comply with requirements established by NEIEP, the education program. A helper who fails the mechanic examination is specifically prohibited from working as a temporary mechanic for a 1-year period thereafter. Charging Party Robbins is an elevator constructor helper who initially joined the elevator industry in 1966 in Birmingham, Alabama, and was a member of a local union of the International Union (Local Union 24 in Bir- mingham, Alabama). In June 1979, he accepted a posi- tion with the Employer in Knoxville, Tennessee. Ac- cording to the unrebutted testimony of Robbins as cor- roborated by that, of his brother-in-law Joe Baccus, who is, employed as a mechanic and is a member of another local of the International Union (Local 64 in Knoxville, Tennessee), Robbins cleared in as a union member with the then business agent of Local 64 in June 1979 by tele- phone as a helper to work as a temporary mechanic with the Employer. Additionally, Robbins testified that he was told by his supervisor, Kenneth Lane, who hired him that he would clear him for work with the Local Union as a temporary mechanic. Additionally, in two documents sent out by the Employer to the Union one of which is a complaint to the Union concerning an inci- dent which occurred with respect to Robbins between Doyle Lumpkins, then business agent of Local 64, and Robbins and the Employer's management at the office and another of which is an answer to a grievance con- cerning Robbins working as a temporary mechanic for the Employer, the Employer contended to the Union that Robbins had been properly cleared in as a tempo- rary mechanic with Local 64 in June 1979 when he was initially employed. I credit the unrebutted testimony of Robbins and Baccus that Robbins was cleared in with Local 64 as a helper to work as a temporary mechanic in June 1979. Thereafter, -Robbins worked in the Knoxville, Tennes- see area" as a temporary mechanic for the Employer and engaged primarily in servicing elevators for the Universi- ty of Tennessee. The record clearly establishes, and it is undisputed, that Robbins was considered a valued em- ployee by both the Employer and its customer , the Uni- versity of Tennessee. In January 1983 , Robbins was carded by then Local 64 Business Agent Doyle Lump- kins who requested to see his card while Robbins was working on the job . Robbins presented Lumpkins with a card which showed him to be a mechanic from Local 24 in Birmingham, Alabama, According to the testimony of Rocky Jones, a helper working with Robbins at the time, and Lumpkins, Robbins told Lumpkins that he was a me- chanic. According to Robbins' testimony, he did not tell him that he was a mechanic but told him that this was an old card. Lumpkins subsequently checked with the Inter- national Union and verified that Robbins was a helper working out of Birmingham's Local 24. Shortly thereaf- ter on the same date, he confronted Robbins in the pres- ence of Jones with this information . According to the testimony of Lumpkins and Jones, Robbins contended that he was a mechanic . According to the testimony of Robbins, he, at that point, did not contend that he was a mechanic but told Lumpkins that the card was incorrect. I credit the testimony of Lumpkins as supported by Jones who I find to be a disinterested witness. I find Robbins' testimony that he initially only told Lumpkins that it was an old card and only subsequently told him that it was an improperly issued card or an incorrect card is implausible. Subsequently on 13 January 1983 , Lumpkins came to the office of the Employer in Knoxville, Tennessee, and became embroiled in a dispute with Robbins and local management concerning Robbins' employment as a tem- porary mechanic. This prompted a letter dated 26 Janu- ary 1983 from Brint Adams, the Employer's Knoxville branch manager, to Harold Smith, a regional director of the Union, in which Adams complained about the , con- duct of Lumpkins in questioning the legitimacy of the mechanic's card of Robbins and the disruption of the office for conducting union business . In this letter Adams also stated that "as far as Montgomery is concerned, Robbins was properly cleared to work for us in Knox- ville starting in 1979 when he checked in with the Local." On 17 January 1983 Robbins directed identical letters to John N. Russell, general secretary-treasurer of the International Union, and to B . R. Shadwick, business agent of Local 24, and to William A. Daye, recording secretary of Local 64 informing them that he was resign- ing his membership in the International Union and would withdraw from the Union on 2 May 1983 but that he in- tended to retain his employment with Montgomery Ele- vator and in compliance with paragraph 3 of article III of the standard agreement, he would pay the required service fee after his resignation. This followed the inci- dent and a grievance that had been filed on 13 January 1983 by Lumpkins concerning Robbins working as a me- chanic since June 1979 without an agreement with the Local and which was responded to by the Employer on 7 February 1983 in which the Employer also stated that "when Robbins arrived, he properly checked in with the previous business agent as a ' helper and was properly MONTGOMERY ELEVATOR CO. 873 cleared to work for Montgomery as a temporary me- chanic and has continued to do so until the present." The letter further states that Ken Lane, the Employer's su- perintendent in its Knoxville branch, properly cleared Robbins to work in the Local with a previous business agent in 1979 prior to Robbins' moving into the local ter- ritory. As a result of the illness of Harold Smith , the regional director assigned to handle local union matters in the Knoxville area, Regional Director Mike Mullett of De- troit was sent to Knoxville to attempt to resolve the matter and met with Robbins and Lumpkins. As a result of that meeting, an agreement was reached whereby the following provisions were agreed to between Robbins and the Union: (1) Robbins would rescind his letter of resignation from the Union; (2) Robbins would request a clearance card from Local 24; (3) Local 64 would accept Robbins into their Local; (4) Robbins would be allowed to write the mechanic's test at the next mechanic's exam held for Local 64; (5) all charges against Robbins would be dropped and the grievance against Montgomery re- solved; (6) Robbins would retain his temporary mechan- ic's card, issued to him by Local 64, until the mechanic's exam. It would be reviewed each month; (7) upon pass- ing the mechanic's exam, he would receive a mechanic's card; failing, he would revert to helper. Following this agreement, Robbins took and failed the mechanic's exam in July 1983. On 9 August 1983 the di- rector of NEIEP informed Mullett that Robbins had failed the examination. On 23 August 1983 Mullett di- rected a letter to Tim L. Duin , vice president of the Em- ployer at its home office in Moline, Illinois, and informed him that Robbins had taken and failed the examination on 28 July. The letter further stated that Mullett had no- tified Adams, the Knoxville branch manager and Lump- kins, the business agent for Local 64, that Robbins should revert to the status of helper as stated in item 7 of the memorandum of understanding and that Robbins could continue to be employed by the Employer as a helper. The letter further stated that the Union and Local 64 expected the action to be carried out immedi- ately as adequate time had elapsed since the notification to Robbins that he had failed the mechanic's exam. On 8 September 1983 Robbins directed a letter to John N. Russell, general secretary-treasurer of the Union, inform- ing him that he would resign his membership in the Union effective 16 December 1983 but that he intended to retain his employment with the Employer and would pay the required service fee under the terms of the stand- ard agreement and that he expected that Local 64 would advise him of the amount and the manner of payment. On 6 October 1983 E. A. Treadway, general president of the Union, directed a letter to Robbins acknowledging receipt of his letter of 8 September 1983 and informing Robbins that under Tennessee law he was permitted to resign and that his resignation would not prevent him from continuing employment with Montgomery Elevator in Tennessee but that he would have to continue as an elevator constructor helper and not as a temporary me- chanic because of his failure to pass the mechanic's exam. Following his resignation from the Union, Robbins con- tinued to work as a temporary mechanic for the Employ- er until October 1984 when he was involuntarily laid off. Robbins testified that on 15 October 1984 approximate- ly around noon of the workday he went to the office of the Employer to pick up parts that he needed for the University of Tennessee where he was assigned and Su- perintendent Ken Lane, an admitted supervisor, told him that he wanted to tell Robbins that they (the Employer's management) had had a meeting in Moline (the Employ- er's home office) that morning with the Union, and had said they were going to challenge the right -to-work law and to challenge his job and it would cost him his job. Robbins testified further that a few days later, he was drinking coffee at the work place with Bill Daye, the then recording secretary for the Union for Local 64, and that Daye was a friend of his. Robbins testified that Daye told him that the Union was challenging the right- to-work law and challenging his job . Robbins testified that the day after his conversation with Ken Lane, he was called into the office by his beeper shortly after lunch and walked in the front door and Ken Lane, his superintendent, and General Manager Brint Adams (also an admitted supervisor) walked into Lane's office and Adams told him that he would have to bring himself back in good standing with Local 64 if he were to con- tinue his employment with the Employer . Robbins told Adams that it would cost him $500 for a reinitiation fee plus about a year and a half of back union dues and that he was not paying any more good money after bad. Rob- bins testified that Adams immediately got on the phone and called someone in Moline and he heard Adams state that Webb Robbins is not going to get back in the Union. This terminated the meeting and Robbins was told to go back to work. On 23 October 1984 Robbins met with Lane and Adams and Adams told Robbins, "you are not going to like what I've got to tell you," and then told him that they (the Employer's management) had met in Moline with union officials and they, the Employer, were going to have to put him back to helper for a year and that Adams then told him that "this is off the record,.Moline decided to go with the Union's decision on some conces- sions down the line for the Union-for the company." He asked Adams and Lane what was happening and Lane stated that Jim Kuriger, the Employer's assistant vice president and general construction manager, told them to put this man back to helping and make certain that there is not a job for him. At that time, Adams stated that if Robbins were going to sue he would have to sue the Company to get to the Union. Adams then stepped out and Robbins inquired of Lane what Adams had meant by this statement and Lane stated he did not know but when Adams came back to ask him again. When Adams returned, Robbins asked him what he had meant by that statement but Adams merely repeated the statement. The following day Robbins returned to the Company to get his tools and asked Lane if there were a helper's job available where it would be and at that point Lane told him Jim Kuriger had said to lay Robbins off and not to find him any work. Although both Adams and Lane were in the courtroom, neither was called by 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents to refute these alleged statements as testi- fied to by Robbins. I thus credit Robbins' testimony which stands unrebutted on the record . I reject Respond- ent's contentions that it must be rejected because Rob- bins was not a credible witness or on grounds of its im- plausibility. James Kuriger, an assistant vice president and general construction manager with responsibility for the entire United States operations of the Employer , testified that on 22 October 1984 he was present at a meeting attended by Tim Duin, the Employer's vice president and risk manager for the Employer, and Jim Hale, the regional business agent for the Union . He testified that when he came into the office that morning , Duin came to him and told him that Hale wanted to see him about some prob- lems and that they all sat down in Kuriger's office. He testified further that Hale told him that we had a prob- lem down in Knoxville, that a man had taken the me- chanic's test but had not passed it, and that Hale wanted to know why the Company was not going to live up to the standard agreement. Kuriger testified that Hale told him at the meeting that Robbins had taken the test and failed it and was supposed to have gone back to the helper position for 1 year but that Hale had found out later that the Employer had never cut his pay , and that he had remained at the mechanic's rate. Robbins handed Kuriger a letter which encompassed the agreement of February 1983 written by Mullett . Kuriger verified, in the presence of Hale and Duin, with the payroll depart- ment that the pay of Robbins had not been reduced. Kuriger then told Hale he would check into the matter further, that the Company would live up to the standard agreement and that if in fact Robbins had taken the test and failed it, he would be set back to helper. The parties then went on to discuss other problems . He testified fur- ther that there was no deal or agreement made whatso- ever with Hale concerning Robbins and that Hale had not offered him any inducement to enter the decision that he did concerning Robbins. After Hale left, Kuriger talked to Duin and also did some additional checking and found out that Robbins had taken the test and failed it and based on that told Duin that they would have to honor the standard agree- ment. He then called Adams and told him that he had not been aware of what had happened but that Robbins would have to be set back on that Wednesday which would have been 24 October which meant to demote him to helper for 1 year starting Wednesday, 24 October. According to Kuriger, Adams pleaded with him that they needed the man, that they had a customer that de- manded that he stay there and that he could not be re- placed and it would put the Company in a bind if Rob- bins were let go. Kuriger told Adams he was sorry but he had to follow the standard agreement , that he wanted it taken care of on Wednesday, and told him that he would send a letter confirming the telephone call. He also told him that the man should be set back as a helper whether it be a service or construction helper for the period of a year. Kuriger sent a letter dated 26 October 1984 to Adams confirming the telephone conversation of 22 October 1984 in which Adams was instructed to set Robbins back to the helper status as of 24 October 1984 and to pay him at 70 percent of the mechanic 's rate be- cause Robbins had failed to pass his mechanic's test. Kuriger denied ever having instructed Adams to make sure that Robbins was bumped down to helper classifica- tion and that there was no work available for him. On 30 October 1984 Kuriger received a notice of the termina- tion of Robbins. He called Adams and asked why Rob- bins had been terminated. Adams told Kuriger that there was no work at this time so that Robbins had been laid off. Kuriger then told him that "I want you to call the man today and tell him that there is an opening in con- struction or whenever you have the first opening, he is to be put back on if he wants the job and confirm that in writing and send me a copy thereof." By his letter of 31 October 1984 Adams confirmed a telephone conversation on 30 October 1984 wherein he had informed Robbins that there would be construction work available in the next 2 to 3 weeks for projects in Roanoke , Virginia, and near Greensboro, North Carolina, and that there would be a possibility of working in the Chattanooga local area on a hotel project and that he would have Lane get in touch with Robbins to discuss these upcoming work op- portunities. The Employer's termination form of Robbins states that Robbins had been laid off because he had been a helper working as a service mechanic with a tempo- rary permit, had taken and failed the mechanic 's test in July 1983 and as part of Respondent's agreement with the Union, Respondent was required to reduce his status to helper for 1 year following the test failure and that the 1 year took effect as of 24 October 1984 with no helper work available. On cross-examination, Kuriger testified that he did not know whether there were any helper jobs available in the Knoxville area and that the nonmembership of Robbins in the Union had been dis- cussed at the meeting between Duin , Hale, and himself but that Robbins' resignation of his membership in the Union had nothing to do with his decision. He also testi- fied that Hale did not mention that Robbins had not been paying his service fees . Robbins was shortly thereafter hired by the University of Tennessee as an elevator in- spector and had occasion to work with employees from the Employer and sign their time tickets. Robbins testified additionally that union members David Arwood and Jack Sellars are helpers who are as- signed to work as temporary mechanics. Arwood has been in business in Knoxville for 17 years and Sellars has been in the elevator business for 15 years. He also testi- fied that union member Jerry Latrell is a helper who has worked at the University of Tennessee campus since he has been an inspector and has worked as a mechanic. All three men are members of Local 64. He testified further that all three were serving as temporary mechanics when he came to Knoxville in 1979 and that Respondent Em- ployer brings them in when they have repair work to be done on the campus. Union member Joe Baccus; who is a ' mechanic and works in Johnson City (the tri-cities area) testified that he is aware of several employees working for Montgomery who are classified as, helpers but receive mechanic's wages. He named David Arwood and Jack Sellars who are Montgomery employees. He also testified that Gerald Trent is a member of Local 64 MONTGOMERY ELEVATOR CO. 875 and has been employed for the past 3 years in the tri- cities area and classified as a helper but works as a tem- porary mechanic and receives mechanic wages and he does not go up and down from helper to temporary me- chanic but has held the temporary mechanic's position for the 3 years he has been there . He also testified that Jeff Robbins, the son of Charging Party D. Webb Rob- bins, works for Montgomery Elevator in the tri-cities area and is classified as a helper but received a mechan- ic's wage. He acknowledged, however, that the tri-cities area was not, until the week prior to the hearing, a part of Local 64's territory but was regarded as open terri- tory rather than under Local 64 's jurisdiction. Addition- ally, George Patrick Miles who is a business partner of Charging Party D. Webb Robbins in an elevator compa- ny testified further that David Arwood , Jack Sellars, and Jerry Latrell are all classified as helpers but had not taken the mechanic's exam. Former Local 64 Business Agent Lumpkins acknowl- edged that on 23 December 1983, he filed charges against Local 64 members David Arwood, Mike Lauder- dale, Meril Morton, and Steve Cleek for working as me- chanics although all were classified as helpers in the ab- sence of an agreement between the business agent and the supervisor in violation of the standard agreement. He also acknowledged that these charges were not proc- essed from December 1983 to December 1984 when he withdrew them on the understanding that these members were in the school program although they had not ap- plied for or taken the test in this period of time. He ac- knowledged furthermore that he had never made specific inquiries concerning the participation in the school's pro- gram by these members although he believed they had gotten back into the school program and had started doing their modules again. He had neither requested nor received the letter from the NEIEP concerning these employees although he had done so with respect to Rob- bins. William A. Daye, who at the time of the hearing was the business representative of Local 64 and in October 1984 was then the recording secretary of Local 64, ac- knowledged that he had a conversation with Robbins in October 1984. He testified he considers Robbins a friend but denied the specific statements attributed to him by Robbins and stated he did make the statement to Robbins "not as a recording secretary, not as any union official by any means, but as a friend, and emphasized that I was not making it as a union official , that I felt the Union would not allow the standard agreement to be violated, and I emphasized and stressed to him irrespective of any union affiliation or the lack of union affiliation-that was not the issue. The issue is whether or not the Union would allow to go unchallenged the violation of the standard agreement pertaining to working as temporary mechanic or working out of your class. This is the state- ment I made." Daye acknowledged that he was certain the subject of the right-to-work law had come 'up in this conversation and that his recollection was that he was aware of what the right-to-work laws were and stressed that membership or nonmembership in the Union had no affect on your job nor on benefits. He testified that Rob- bins had asked him about the pension and how his non- membership would affect his pension and Daye told him it would not be affected as it was his understanding that Tennessee is a right-to-work state. The Issues (1) Whether the Employer violated Section 8(a)(1) of the Act by threatening to lay off Robbins because he was not a member of the Union; (2) Whether the Union violated Section 8(b)(1)(A) of the Act by telling Robbins that the Union was insisting that he be a member of the Union in order to continue his employment with the Em- ployer; (3)Whether the Employer violated Section 8(a)(3) and (1) of the Act by demoting and laying off Robbins; (4) Whether the Union violated Section 8(b)(2) of the Act by causing the demotion and layoff of Rob- bins. Analysis The General Counsel contends that the Union violated Section 8(b)(1)(A) by the statement made by Daye to Robbins in October 1984 concerning the Union challeng- ing the right-to-work law and his job. The Union con- tends initially that Daye was an official of Local 64 and not of the International Union and therefore was not an agent of the Union and the Union (the International) cannot be held responsible for the acts of a local official. The General Counsel contends that as the standard agreement indicates, the International Union has delegat- ed many duties and functions to the various locals in- cluding initial resolution of work disputes on the local level, local responsibility in setting wage adjustments, re- tention by the local of unpaid holidays, local control over the establishment of the shift work, and resolution of grievances on the local level, and that the contract specifies the Local must consent to a helper working as a temporary mechanic, all of which establish that Daye was an agent of the International Union. I find that the delegation of duties to the Local as set out in the labor agreement clearly establishes that Daye as an officer of Local 64 was an agent of the Internation- al Union with respect to statements involved here. I thus fmd that the International Union is responsible for Daye's statements concerning the effect of Robbins non- membership in the Union. Steelworkers Local 15167 (Memphis Folding Stairs), 258 NLRB 484, 485 fn. 1 (1981); Mine Workers (Garland Coal), 258 NLRB 56, 59 (1981). See also Cosmetic Workers' Local 300 (Cosmetics Components), 257 NLRB 1335, 1338 (1981). The Union also contends that Robbins' testimony should be discredited as he was not a credible witness as a result of several inconsistencies in his credibility and on the ground that the statement attributed to Daye that the Union was challenging the right-to-work law and chal- lenging Robbins' job made no sense. The General Coun- sel contends that Daye's testimony wherein he volun- teered that he had told Robbins he was talking to him only as a friend and not as an official of the Union and his alleged stilted denials of having told Robbins that his job and the right-to-work law were being challenged demonstrate that Daye's testimony was not credible. I fmd that Robbins' testimony should be credited over that 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Daye in this regard. At the outset I am aware of sev- eral inconsistencies in Robbins' testimony and I specifi- cally discredited his testimony with respect to his earlier conversation with Lumpkins in the presence of Jones. However, in this instance, I found Robbins' testimony to be specific, clear, and believable, and I found Daye to be hesitant on the stand in this regard , and his unprompted volunteering that he had told Robbins that he was talk- ing to him as a friend and not as a union official does not impress me as a credible recounting of the actual conver- sation between Daye and Robbins. I find it far more likely that he did, as Robbins testified, tell Robbins that his job was being challenged and the Union was chal- lenging that aspect of the right-to-work law and Rob- bins' right-to-work as a nonmember of the Union. I find that this demonstrates that the Union was treating Rob- bins differently as a result of his nonmembership in the Union. It may be that Robbins' membership in another local initially triggered the investigation into his status as a temporary mechanic or as a mechanic vis-a-vis helper, however, that investigation had gone on for a long period of time and the Union's subsequent actions appear tied to Robbins' nonmembership in the Union. I further reject the Union's contention that its actions were moti- vated in part by Robbins' failure to pay his service fees. While it is clear from the Union's letter that he in fact was in arrears for these service fees, it is equally clear from the testimony of Kuriger that these were not men- tioned in the conversation between himself and Union Representative Hale. I, accordingly, fmd that Daye's statement to Robbins to the effect that the Union was challenging the right-to-work law and specifically chal- lenging Robbins' job was a threat that his nonmember- ship in the Union would cost him his job and that such threat was a violation of Section 8(b)(l)(A). I further find that the Employer violated Section 8(axl) of the Act by threats issued by Superintendent Lane to him that the Union had met with the officials at Mongtomery Elevator corporate headquarters and that the Union was challenging the right-to-work law and that getting out of the Union would end up costing Rob- bins his job. As set out above, Robbing' testimony in this regard was unrebutted, both Adams and Lane were sit- ting in the courtroom and the Employer had the oppor- tunity to call them as witnesses to rebut Robbins' testi- mony. I thus credit Robbins' testimony in this regard. I also credit Robbins' unrebutted testimony that the fol- lowing day Adams told him that in order to continue his employment with the Employer, Robbins would have to bring himself back in good standing with Local 64. I reject the Union's and the Employer's contentions that getting back in good standing referred to paying the re- quired service fee. While it is undisputed that Robbins was behind in his service fees, Kuriger acknowledged that the service fees were not discussed during his meet- ing with Hale. I thus find that the threats issued by. Lane and Adams as set out above were violative of the Act and that the Union thereby so violated Section 8(a)(1) of the Act. It is undisputed that Robbins was terminated rather than merely demoted. I also find that the testimony of Robbins of the statements attributed by him to Adams and Lane that Kuriger had told them not to find work for Robbins after he was demoted is unrebutted. Lane and Adams are undisputed agents of the Employer and carried out the termination of Robbins . Their stated rea- sons for terminating Robbins constitute admissions against the Employer. I fmd no reason for disregarding the unrebutted testimony of Robbins in this regard. The testimony of Kuriger establishes that this action was taken only after a meeting held by the Union en- couraging him to demote Robbins. I find that the evi- dence is substantial that Robbins was singled out for spe- cial treatment with respect to his status with the Union. It may have been initially that this resulted from his having been a member of another local and exacerbated as a result of the dispute over the mechanic's card. How- ever, the major issue in addition to his failure to pass the test that distinguished Robbins from other members, who were unquestionably permitted to work for long periods of time as temporary mechanics although they were ac- tually helpers, was his nonmembership in the Union. I fmd that the testimony of Robbins as corroborated by Miles and Baccus and acknowledged at least in part by former Business Agent Lumpkins was that these other in- dividuals were permitted to work as temporary mechan- ics for substantial periods of time without being enrolled in the school program. I fmd that the filing of charges against these individuals, only subsequent to the second resignation of Robbins in 1983 and the failure of Local 64 to process these charges for a period of a year and their subsequent withdrawal in 1984 on the vague assertion that the members were back in the school program is in- consistent with the Union's alleged concern with the en- forcement of the standard agreement. The standard agreement is proper on its face. The Union has the re- sponsibility to enforce it in a nondiscriminatory manner. However, it is the disparate treatment of Robbins in this instance that is in question . I recognize the importance of working members within their appropriate classification consistent with their acquired skills and training . Howev- er, it is the disparate treatment accorded Robbins as op- posed to other employees that calls into question the Union's conduct in this particular case . I thus find that the Union by pursuing Robbins in this regard clearly sin- gled him out because of his nonmembership in the Union as opposed to the other employees. The Union failed to rebut the testimony of Robbins, Baccus, and Miles that other members were permitted to work as temporary mechanics for extensive periods of time (years) without meeting the qualifications for mechanic. Although the Union clearly had the opportunity by testimony or records to rebut the General Counsel 's case in this regard, it failed to do so. I thus fmd that the circumstances of this case , includ- ing the timing of the discharge of Robbins following the meeting of the Union's representative with the Employ- er's higher echelon of management in Moline, Illinois, the credited testimony of Robbins concerning the state- ments made to him by Daye, and the statements made to him by the Employer's Superintendent Lane and Branch Manager Adams, are sufficient to warrant the inference and conclusion that the Union pursued the termination of MONTGOMERY ELEVATOR CO. 877 Robbins because of his nonmembership and the Employ- er acceded to this request . I do not credit the testimony of Kuriger that the termination of Robbins was an error or was unknown to him until shortly thereafter, in view of the unrebutted testimony of Robbins concerning the reasons given by Lane and Adams for his termination and the lack of likelihood that he would have been un- aware of the termination of Robbins from the outset. These events all occurred within a relatively short period of time and it is clear that the Employer respond- ed to the Union's demand. I do not find crucial to this determination the fact that the Union 's letter to the Em- ployer and Kuriger's letter to Lane requested demotion only, rather than termination of Robbins. I thus find that the General Counsel has established a prima facie case of a violation of Section 8(a)(3) by the Employer and Section 8(b)(2) by the Union by the Em- ployer's termination of Respondent because of his non- membership in the Union and by the Union 's insistance on and causing his termination because of his nonmem- bership in the Union. I find that neither the Employer nor the Union has rebutted this prima facie case by the preponderance of the evidence. I, accordingly, fmd that Robbins was demoted and laid off because of his non- membership in the Union and that the Union violated Section 8(b)(2) of the Act by causing the demotion and termination of Robbins and that the Employer violated Section 8(a)(3) and (1) of the Act by demoting and ter- minating Robbins. Hickmott Foods, 242 NLRB 1357 (1979). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III above occurring in connection with the operation of the Employer, Montgomery Elevator Company , set out in section I above have a close , intimate, and substantial re- lationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. CONCLUSIONS OF LAW 1. The Respondent Employer , Montgomery Elevator Company, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union, International Union of Ele- vator Constructors, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent Employer violated Section 8(a)(1) of the Act by threatening on two occasions to lay off its employee D. Webb Robbins because he was not a member of the Respondent Union. 4. The Respondent Union violated Section 8(b)(1XA) of the Act by telling Robbins that it was insisting that he be a member of the Union in order to continue his em- ployment with the Respondent Employer. 5. The Respondent Employer violated Section 8(a)(3) and (1) of the Act by demoting and then laying off its employee Robbins. 6. The Respondent Union violated Section 8(b)(2) of the Act by causing the demotion and layoff of Robbins. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.T THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices in violation of Section 8(b)(1)(A) and (2) and Section 8(axl) and (3) of the Act, I shall recommend that they be ordered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act. I recommend that the Employer offer full reinstate- ment to Robbins to his former position, or to a substan- tially equivalent one if it no longer exists , and that the Union notify the Employer and Robbins in writing that it has no objection thereto. I further recommend that Respondents make Robbins whole for any loss he may have suffered as a result of his demotion and layoff on 24 October 1984 until such time as he has been offered reinstatement by the Em- ployer to his former position of temporary mechanic at the Employer's Knoxville branch. All loss of earnings and benefits incurred by Robbins as a result of the dis- crimination practiced against him as set out above shall be computed with interest in the manner prescribed in F. W. Woolworth Ca, 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).' On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER A. Respondent International Union of Elevator Con- structors, AFL-CIO, its officers, agents, and representa- tives, shall 1. Cease and desist from (a) Threatening employees that it will insist that they be a member of the Union in order to continue their em- ployment with Respondent Montgomery Elevator Com- pany. (b) Causing the demotion and layoff of employees of Montgomery Elevator Company because of their non- membership in the Union. (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative actions necessary to effectuate the purposes and policies of the Act. (a) Make D. Webb Robbins whole jointly and several- ly with the Employer for any loss of pay or other bene- fits he may have suffered as a result of the unlawful action against him in the manner set forth in the section of this decision entitled "The Remedy." ' See generally Isis Plumbing Ca, 138 NLRB 716 (1962). 2 If no exceptions are filed as provided by Sec . 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Inform D. Webb Robbins and Montgomery Eleva- tor Company in writing that it has no objection to the assignment of Robbins as a temporary mechanic. (c) Post at its business office and meeting hall copies of the attached notice marked "Appendix A"s in places where notices to members of Local 64 are customarily posted immediately upon receipt for 60 consecutive days, in conspicuous places at its business office and meeting hall in Knoxville, Tennessee, and on any union bulletin boards at Respondent Montgomery Elevator Company's Knoxville, Tennessee facilities where said notices are customarily posted . Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director in writing within 20 days from the data of this Order what steps Respondent Union has taken to comply. B. Respondent Montgomery Elevator Company, Knoxville, Tennessee, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to lay off its employees because of their nonmembership in the International Union of Ele- vator Constructors. (b) Demoting and then laying off its employees be- cause of their nonmembership in the International Union of Elevator Constructors. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes and policies of the Act. (a) Offer to D. Webb Robbins immediate and full rein- statement to his former position as a temporary mechanic or, if this position is no longer available , to an equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed. (b) Expunge from the personnel record of D. Webb Robbins all references with respect to his termination and demotion. (c) Make D. Webb Robbins whole jointly and several- ly %iith the Union for any loss of pay or other benefits he may have sustained by reason of the discrimination against him in the manner set forth in this decision enti- tled "The Remedy." (d) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Sign and post copies of the attached notice marked "Appendix B"4 immediately upon receipt for 60 consec- ® If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." See fn. 3 above. utive days in conspicuous places at its Knoxville, Ten- nessee facilities including all places where notices to em- ployees are customarily posted . Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. APPENDIX A 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 LaborRelations Act and has or- dered us to post and abide by this notice. WE WILL NOT threaten employees with loss of em- ployment because of their nonmembership in the Interna- tional Union of Elevator Constructors. WE WILL NOT cause the demotion and layoff of em- ployees of Montgomery Elevator Company in the Knox- ville, Tennessee area because of their nonmembership in the International Union of Elevator Constructors. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaran- teed them by Section 7 of the Act. WE WILL jointly and severally with Montgomery Ele- vator Company make whole D. Webb Robbins for losses of earnings and benefits with interest which he may have suffered as a result of his discharge. WE WILL notify Montgomery Elevator Company in writing that we have no objection to the reinstatement of D. Webb Robbins to his former position of temporary mechanic. INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, AFL-CIO APPENDIX B 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 or- dered us to post and abide by this notice. WE WILL NOT threaten to lay off our employees be- cause of their nonmembership in the International Union of Elevator Constructors in the Knoxville, Tennessee area. WE WILL NOT demote and layoff our employees be- cause of their nonmembership in the International Union of Elevator Constructors in the Knoxville, Tennessee area. MONTGOMERY ELEVATOR CO. 879 WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer D. Webb Robbins full reinstatement to his former position of temporary mechanic , or to a sub- stantially equivalent position and will expunge from his personnel record all references to his discharge. WE WILL jointly and severally with the International Union of Elevator Constructors make whole said em- ployee for any loss of pay or other benefits sustained by him by reason of his discharge, with interest. WE WILL preserve our records in order to calculate the moneys due to said employee. WE WILL expunge from our records any references to the unlawful actions taken by us against D. Webb Rob- bins. Our employees have the right to support and join International Union of Elevator Constructors as their collective-bargaining representative or to refrain from doing so. MONTGOMERY ELEVATOR COMPANY