C-D Investment Co.

632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Naftali Deutsch and Alexander Coler d/b/a C-D In- vestment Co. and Robert L. Dale Los Angeles County District Council of Carpenters, AFL-CIO and Robert L. Dale and Jimmy Mayo. Cases 31-CA-11931, 31-CB-4505, and 31-CB-4552 29 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS On 19 December 1983 Administrative Law Judge Michael D. Stevenson issued the attached decision. The General Counsel 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,2 and conclusions3 and to adopt the recommended Order. i In setting forth the issues, the judge mistakenly stated that Respond- ent District Council was alleged to have violated, inter alia, Sec 8(b)(l)(B) in regard to the discharge of Charging Party Robert Dale, the record establishes that Respondent District Council is alleged only to have violated Sec 8(b)(IXA) and (2) in this regard Also, the judge mis- takenly found that Local 25 Assistant Business Representative Kenneth Scott at one time told the Employer's construction superintendent, Bud Voight, that Scott would be the new steward, whereas the record estab- lishes that Scott told Voight that Dale would be the new steward Final- ly, the judge mistakenly found that Scott wrote out a job work referral for Dale on Christmas Eve, whereas the record establishes that this hap- pened on New Year's Eve 2 The General Counsel has 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 8 We affirm the judge's conclusion that Respondent District Council did not violate Sec 8(b)(l)(B) of the Act by denying permission for Su- pervisor-Member Jimmy Mayo to work overtime on 9 January 1982. In so doing, we rely solely on the judge's reasoning , under the facts and cir- cumstances of this case, that the denial of permission for Mayo to work overtime on one day could not reasonably be said to have affected the Employer's right to select its representative for the purpose of collective bargaining or the adjustment of grievances in any but the most incidental and minimal way It threatened no' "carryover' effect" on the way Mayo might adjust grievances on behalf of the Employer, and it did not other- wise significantly deprive the Employer of Mayo's services with respect to that function See American Broadcasting Co. Y. Writers Guild, 437 U S 411, 429-432 ( 1978) In this regard we note, as did the judge, that Mayo was denied permission to work only I day, that he had consistently worked every workday, including Saturdays, for the 6 months prior to 9 January 1982 , that he consistently worked every workday, including Sat- urdays, for several months thereafter, that there was no showing that grievances were normally or ever adjusted during Saturday overtime shifts, and that there was no showing that resolution of any grievances that could possibly have arisen on 9 January could not reasonably and effectively have been delayed until Mayo's next regularly scheduled workday, the following Monday ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Richard R. Paradise, Esq., for the General Counsel. Michael P. Posner, Esq. (Geffner & Satzman), of Los An- geles, California, for Respondent District Council Ronald D. Garber, Esq., of Los Angeles, California, for Respondent C-D. DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge. This case was tried before me at Los Angeles, California, on January 4-6, February 15-18, March 14-16, and July 5-7, 1983,1 pursuant to an order consolidating cases and consolidated complaint issued by the Regional Director for Region 31 of the National Labor Relations Board on March 31, and which is based on charges filed by Robert L. Dale, an individual (Cases 31-CA-11931 and 31-CB- 4505), and by Jimmy Mayo, an individual (Case 31-CB- 4552) (Dale and Mayo, respectively), on January 8 (Case 31-CB-4505), February 24 (Case 31-CA-11931), and February 26 (Case 31-CB-4552). The complaint alleges that C-D Investment Co. (C-D) has engaged in certain violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) and that District Council of Carpenters (Distract Council) has engaged in certain violations of Section 8(b)(1)(A) and (B), and Section 8(b)(2) of the Act.2 Issues The issues presented are: (1) Whether Respondent District Council violated Sec- tion 8(b)(1)(B) of the Act by refusing to clear C-D Fore- man Jimmy Mayo for employment on Saturday, January 9. (2) Whether Respondent District Council violated Sec- tion 8(b)(1)(A) and (B) and Section 8(b)(2) by causing C- D to discharge Dale because Dale had replaced other employees as union steward, under the facts and circum- stances of this case. (3) Whether Respondent C-D violated Section 8(a)(1) and (3) by discharging Dale under conditions which would encourage its employees to join, support, or assist Respondent District Council. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, Respondent C-D, and Re- spondent District Council. ' All dates herein refer to 1982 unless otherwise indicated 2 This case was interrupted between March and July by the refusal of Jaime Montoya to appear and testify at hearing pursuant to the subpoena of District Council As a result, it was necessary for the parties to seek enforcement of the subpoena in U S district court Ultimately, Montoya obeyed the order of a U S. magistrate to appear and testify 279 NLRB No. 90 C-D INVESTMENT CO On the entire record of the case, and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I THE RESPONDENT'S BUSINESS The Respondent C-D admits that it is a partnership duly organized under and existing by virtue of the laws of the State of California, with an office and principal place of business located in Los Angeles, California, where it is engaged as a building and construction con- tractor It further admits that in the course and conduct of its business it annually purchases and receives goods or services valued in excess of $50,000 from suppliers lo- cated outside the State of California. Accordingly it admits, and I find, that it is an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. Ii. THE LABOR ORGANIZATION INVOLVED The Respondent, Los Angeles District Council of Car- penters, AFL-CIO, and Carpenters Union Local No. 25, United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO (Local 25) are labor organizations within the meaning of Section 2(5) of the Act 3 III THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Preliminary statement and general background Within Local 25 there exists two competing factions. One of these is led by Robert L. Dale, at the time of hearing the duly elected president of the Union, and Kenneth (Kenny) Scott, at the time of hearing the duly elected secretary-treasurer and assistant business repre- sentative of the Union. The other faction is led by Arthur (Ron) Passman, at the time of hearing the duly elected business representative of the Local.4 The Dale- Scott group is primarily black (although Scott is white), and the Passman group is primarily white and Hispanic. Racial tensions, although a factor in the competing groups, are not the major point of friction. Rather, it is a desire for power and control over the membership and finances, with neither side powerful enough to accom- plish a clearcut victory. Local 25 has close to 1000 mem- bers. Besides the protracted case at bar, the unrelenting struggle between the factions has continued in other forums and involved other parties which either were un- fortunate enough to take sides or were perceived as 3 The District Council is composed of 30 locals consisting of 20 con- struction locals and 10 industrial locals It has certain supervisory author- ity over its member locals and answers to the United Brotherhood of Carpenters in Washington , D C I have received into evidence the Dis- trict Council's bylaws and trade rules (District Council Exh 3) and the United Brotherhood of Carpenters and Joiners of America constitution and laws (District Council Exh 2) * On July 6, 1983, the results of a new election of officers for the coming 3 years were reported to me for President Robert Stebner (Pass- man faction), for Business Representative Scott, for Financial Secretary- treasurer and Assistant Business Representative Dale (R Br 2216 ) 633 taking sides. For example, the two Respondents in this case became entangled in the factional struggle under circumstances more clearly recited below. Concerning other forums, the record of the instant case is replete with references to pending state and Federal court cases involving, for example, a temporary restraining order, a preliminary injunction, and an attempt to enforce a trust- eeship imposed by the International against Local 25. Examples of acts giving rise to this litigation are the at- tempt to remove Dale and Scott from office by means other than a new election, and the termination of and re- fusal to pay the salary of Passman for several weeks In addition to legal forums, there have been various intraun- ion administrative tribunals convened. The continuing controversy has proven to be a law- yer's bonanza. In addition to Attorney Michael Posner involved in this case, an unrelated attorney named Paul Posner represents the Dale-Scott faction Another attor- ney named David Silver represents the Passman faction. The latter appeared on the first day of this hearing and attempted to intervene Paul Posner also appeared later Both claimed to represent Local 25 1 denied the petition to intervene and this decision was affirmed by the Board on special appeal of Silver. (Intervenor's Exhs 1-4.) Before turning, with some difficulty, to a beginning point for the specific facts of the instant case, I note my overall impression of the parties and witnesses in this case. There are no clearcut saints nor scoundrels, but rather unremitting shades of gray. Although this may be true of most cases, or even life in general, it is particular- ly striking here. Additional comments on certain wit- nesses follow below 2. Specific facts of this case I begin with Jimmy Mayo. Like the two Respondents, he was not initially involved in the factions of Local 25 Indeed, prior to January, he belonged to another local entirely, Local 929, a member local of District Council. Between October 1980 and January 1981, Mayo worked as a carpenter on a construction job called the Morley job. Also employed there as a steward was Jaime Mon- toya. Although this job was in the jurisdiction of Local 25, it was not necessary for a member of a local within the District Council to transfer from one local to another to work on a jobsite outside the jurisdiction of the mem- ber's local. Mayo and Montoya developed animosity on the Morley job over certain standard safety procedures used in the construction industry. In the course of con- tinuous argument over the safest method to perform cer- tain carpentry, Mayo allegedly made a disparaging remark about Mexicans, and whether they should be as- signed to do work too dangerous for others to perform Mayo, who is black, and an experienced carpenter, denied the remark, but admitted the dispute with Mon- toya. It is unnecessary to resolve this conflict because the matter is not critical. Ultimately, Mayo quit the Morley job and about July 1981 went to work at a con- struction job located at 333 S Beaudry, Los Angeles, the C-D job, situs of the events in this case. Mayo was hired by C-D as a carpenter foreman. The parties stipulated that for all times material to this case, 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mayo was a statutory supervisor and a person empow- ered to hear and adjust grievances. When Mayo began working at C-D, he found Mon- toya there, again employed as a steward. While Montoya had been appointed steward at Morley by Scott, he was appointed steward at C-D by Passman . Montoya had begun working on the C-D job as a steward, in early 1981. Not surprisingly, Mayo and Montoya again were in conflict with each other, but because the C-D job was large and because Montoya was not assigned to Mayo's crew, their arguments were sporadic and not serious. However, about November 1, 1981, Mayo and Montoya argued over the use of certain building materials. Ac- cording to Montoya, Mayo called him a "Mexican mother-fucker" and threatened him. To calm this dis- pute, a meeting was held in the office of then Construc- tion Superintendent Harland (Bud) Voight, a witness at hearing. There Montoya referred to Mayo as a "monkey," or "monkey-face," a term which Mayo felt had racial implications. Mayo lunged at Montoya and grabbed him; Voight and others broke it up. Montoya then left the building site and returned later with Pass- man, who attempted with little success to act as mediator with Mayo. On November 12, 1981, the conflict between Mayo and Montoya flared up again. As before, the incident began over the disposition of building materials, this time screw jacks, which Montoya was carrying from one lo- cation to another. Mayo desired to take these items to a different location and so directed members of his crew. This angered Montoya. Words between the two men began and Montoya picked up one of these screw jacks and began swinging it in the general direction of Mayo. As the screw jack weighed over 30 pounds, Mayo grabbed Montoya and either struck or pushed Montoya away. Neither man was seriously injured in the episode, although Montoya claimed to have received medical treatment on about 10 occasions and had his arm in a sling for a time. After Voight learned of the incident and interviewed witnesses, he concluded that Montoya was responsible for starting the fight and terminated him. While Mon- toya, as a steward, would normally be entitled under the labor agreement to 48 hours' notice before termination, the contract also specifies that a steward can be terminat- ed without the notice for fighting on the job.5 5 It should be noted that Montoya was 39 years old, stood 5 foot 8 inches tall, and weighed about 165 pounds Mayo, about the same age, stood 6 foot 2 inches tall and weighed 250 pounds This difference in physical stature does not convince me that Montoya is more credible than Mayo about how the fight began Montoya not only was involved in a similar confrontation with witness Watkin McBroom, another large black man, but also never made any report to police about the alleged attack by Mayo Further, Montoya filed charges before a trial board of the District Council with respect to the fight with Mayo Then Montoya withdrew the charges before a hearing could be held (G C Exhs 6, 7, and 8) In the main, Montoya was most incredible in testifying why he refused to honor the subpoena of District Council, thereby delaying the hearing almost 3 months. I am asked to believe that Montoya had a well -founded fear for his personal safety This was based on an anonymous letter alleg- edly dropped into Montoya's mailbox However, he destroyed the note At another point, Montoya testified that he is unable to read English Subsequently, Montoya filed a grievance which went to arbitration. Voight received notice of the arbitration meeting, and told others in C-D that he would represent the Company's interest at the arbitration. Apparently through negligence Voight forgot about the arbitration, and no one appeared on behalf of C-D. (C-D Exhs. 3-6.) At least in part due to the failure of C-D to be represent- ed at the arbitration hearing, which was held on Decem- ber 9, 1981, the arbitrator ruled in favor of Montoya, and directed that he be reinstated with backpay. (G.C. Exh. 16.) A few days after the arbitration decision issued, Montoya reported to the C-D jobsite to resume his job as steward. Voight, however, indicated that, notwith- standing the decision of the arbitrator, Montoya would not be reinstated. Montoya then sought the assistance of Passman who had originally appointed him as steward . Passman in turn enlisted the help of the District Council to pressure Voight into reinstating Montoya. James Flores, a witness at heanng, was administrative assistant to Paul Miller, the executive secretary of the District Council. Flores was assigned by Miller to go to the jobsite and assist Montoya and Passman to obtain compliance with the ar- bitrator's decision. Flores spoke to Voight who persisted in his refusal to reinstate Montoya. Then Flores directed several business representatives who had accompanied him to the jobsite to fan out over the area and direct members of Local 25 and other carpenter locals to cease working and leave the jobsite. A short while after this occurred, Thomas Meehan, the general superintendent, and Voight's superior, ar- rived at the site. Also a witness at hearing , Meehan met with Flores and Passman about the problem with Mon- toya. A few minutes later, Meehan directed that Mon- toya be reinstated; the carpenters then returned to the job and work resumed. Flores and Passman then left the area. During the time that Montoya had been off the job, Passman had appointed Robert Stebner as a temporary steward to replace Montoya. When Montoya returned, Passman decided to continue Stebner as an assistant steward. The steward's duties are to prepare a daily steward's report verifying the union cards of all men on the job to ensure that they are in good standing with locals with respect to dues payments, to police the con- tract, to monitor safety practices on the jobsite, and to protect work jurisdiction. In addition, stewards are re- sponsible for obtaining Saturday overtime permits from the District Council. With one exception, C-D had been working Saturdays from the time the job began in the summer of 1981. Each Thursday, the stewards compiled a list of men who desired to work the following Satur- day; overtime was strictly voluntary. They also obtained the union cards of these men and then took the list down to the District Council for approval. The list was then reviewed by Flores or Miller to ensure that the men very well Also, he said McBroom followed him close in a car, but he would not have been able to identify the driver under the circumstances described . Other aspects of his testimony were also unbelievable Montoya was not easily intimidated I find that he was a reluctant wit- ness because he provoked at least some of the turmoil in this case C-D INVESTMENT CO were current in dues payments and notations were made alongside of the men's names, indicating approval or dis- approval. The steward would then return to the jobsite before the end of the work shift and post the list for the men to examine. After Montoya had been reinstated, Mayo testified that he was being harassed on the jobsite. For example, he stated that one or both of the stewards would contradict his orders to members of his crew, and he added they would sometimes contradict each other. This had the effect of undermining Mayo's authority. When one of the stewards picked up Mayo's card for Saturday overtime, he was not treated courteously and with respect like the other men Allegedly, Montoya was also sabotaging Mayo's job by unplugging power cords and by causing the drinking water to be unusable. I make no findings on whether Montoya was doing any or all of these things. It is clear that Mayo and Montoya did not like each other. It is also clear that Mayo was not totally blameless for these developments For example, he sometimes used the expression "Tijuana crew" to refer to his subordinates, who were primarily Mexican. Mayo said that his em- ployees did not mind that expression. I doubt that, given the context of the C-D jobsite, and the divisions in Local 25 At one point Passman asked Mayo to stop using the expression and he agreed to do so. In any event, and not surprisingly, the problems between Mayo and Montoya, between Mayo and Stebner, and to a lesser degree be- tween Mayo and Passman,6 ultimately brought Mayo to Scott and Dale at Local 25, where Mayo sought relief. From 1968 to 1980, Scott had been business represent- ative of Local 25 and was thoroughly familiar with the duties and responsibilities of the job. For unknown rea- sons, Scott decided in 1980 to seek the job of assistant business representative and financial secretary-treasurer. He was elected to this position, and his relationship with Passman, unfriendly for several years, worsened. Prior to Mayo meeting with Scott, the latter had received on De- cember It, 1981, a letter from C-D attorney David R. Denny (G C Exh. 16) Basically, the letter addressed to Union President Dale, requested a rehearing of the Mon- toya grievance and summarized the Company's position in the matter This letter led to a phone call between Scott and Denny, where Denny complained generally about the dissension in Local 25, which was prejudicing C-D's attempt to construct its building.' Scott discussed the Company's position with Dale and they allegedly de- cided that C-D might sue Local 25 if the problems were not resolved 8 6 On July 22, 1981, Passman had dispatched Mayo to work at the C-D job (G C Exh 2) By dispatch is meant that the local union in whose jurisdiction a jobsite is located gives its member a document to give to the building superintendent, in effect, saying that the person is a member in good standing either of that local or a sister local, and is "0 K " to be put to work ' There appears to be confusion in Scott's testimony concerning whether the letter or the phone call came first Inasmuch as there is no reference in the letter to any phone call, nor is any other subject covered in the letter other than Montoya's case, I find that the letter was sent first 6 Although Denny was still employed by C-D at the time of hearing, he never testified For reasons that become clear below, I cannot credit the testimony of Dale and Scott that they honestly feared a lawsuit against Local 25 635 In mid-December, Mayo met with Scott and Dale to tell them of his problems at the C-D jobsite. This was the first time Mayo had met the other two men. Scott asked Mayo to put his complaints in writing. Sometime prior to December 24, Mayo wrote out a letter detailing his complaints at the C-D jobsite. The letter was written on C-D time and took about 45 minutes. (G.C. Exh. 3.) Then Mayo gave the letter to a secretary employed by C-D at the jobsite and asked her to type the letter. She did so and the letter reads as follows: To Local #25 December 24th, 1981 I worked at another job site with Jaime Mon- toya, at Morley Construction Co. at 5th. and Flower. Because I would not have anything to do with Montoya and did not tolerate his foolishness he disliked me. I then went to work for C.D. Investment as a foreman approximately six months ago. Montoya was also working for C.D. Investment, he them [sic] immediately went to the Supt. and told the Supt. that he would not work for me. He then start- ed telling the men on the job carpenters and labor- ers not to work for me and slow down. He kept unpluging the power cords, I check them out hook them up again. I would assign him to a job and he would let the laborers do it. He then comes to me and goes berserk at me, because the laborers are doing it. One time one of his friends had a cut accident right next to the job site and the other guy called the police, then the carpenter threw several pack- ages of weed over the fence on the job site. I picked up one package and put it into the tool shack. Montoya came cursing me and calling me a mother fucker, son of a bitch, monkey because I would not give it to him, finally I told one of the other foreman to get it and give it to him. I guessed it belonged to him Montoya I believed because I would always do what Mon- toya wanted in order to keep peace on the job, he kept fooling with me. Once he called Passman down on the job site saying I was calling my crew names Which was not true. Then after Passman would leave he would brag how he got Passman to raise hell with me on the job. He said he would get me fired yet That Passman owes him favours [sic]. He keeps pulling cords out and continues to make a fool of himslf, such as con- taminating the water, then raises hell because the water is contaminated. One time as I was telling the laborers this was on the date of Nov. 12th, 1981. that I needed jacks and scaffolds stacked at the other end of the deck, Mon- toya came running up to me like a mad man and started telling the laborers that they did not have to do anything that this monkey mother fucker told them. Also that I was not going to be on the job much longer. When I asked him what he was call- ing me he then started changing the subject, by 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD saying that he was using the material himself. I told him I was the one giving orders and not him and that I wanted the materials to be moved to the other side as I had guys waiting for it. He then picked up a jack and said that he would knock my brains out. I then defended myself by dodging and finally taking the jack from him. Ev- eryday since he is back on the job he walks up and brags how he is back on the job and he will be there when I am gone. He continues goofing around and refuses to do any work. I believe this type of harassment is unfair to me and to the rest of the carpenters on the job. I also feel this is unfair to the contractors because I know and feel that there is going to be more trou- ble, because his moods changes [sic] from day to day. I request that this man be replaced with another steward for the safety of the job. I am hoping this letter is sufficient in notifying the union of inten- tions to again lay off the steward effective Decem- ber 31st. 1981. Respectfully Yours [s] Jimmy Mayo (G.C. Exh. 4.) Mayo gave the typed letter to Scott and Dale on De- cember 24. At this time, he also requested that Dale go to work at C-D so he could see for himself the various problems on the job. At that time, Dale was working as a carpenter foreman on another long-term job called the Feldman job. As foreman, he was supervising at least four other carpenters and making approximately $16.44 per hour. Journeyman wages was $14.95 per hour. Dale had been working for Feldman since July 1981 and was not dissatisfied. According to Dale, he was initially skep- tical of Mayo's request as he was reluctant to leave his present secure job for less money, at the request of some- one he had met for the first time a few days before, and who was not even a member of Local 25. Then, Mayo and Dale went to a nearby Denny's Restaurant for coffee. At this time, according to Dale, Mayo allegedly told Dale in confidence that he felt he was being dis- criminated against because of his race and that he sin- cerely felt that Dale's presence on the jobsite could im- prove conditions and contribute toward eliminating or relieving racial prejudice at the jobsite. Dale went on to say that he had never told anyone else, not even Scott, what Mayo had told him in the restaurant prior to his testimony at the hearing. Dale also testified that Mayo pleaded that he needed Dale because he was in fear for his life and that if Dale did not go to work there, Mayo would have no choice but to sue Montoya and Passman for violating his rights. I am unable to credit Dale's account of the Denny's Restaurant conversation and find it incredible on this record. First, Mayo made no reference in his testimony that he was experiencing racial prejudice, or that he feared physical violence, although there was no doubt Mayo desired Dale to begin work at C-D, and Mayo be- lieved that Dale's presence would restrain Montoya from doing what Mayo believed him to be doing. Next, Mayo's letter recited above makes no reference to racial prejudice, although Scott had told him to put all his complaints in writing. Further, there is no record of any complaint by Mayo or Dale to the Equal Employment Opportunities Commission or any similar agency, Feder- al or state. Next, Dale's failure to mention Mayo's al- leged complaint to his closest confidant, Scott, is indica- tive of fabrication. Although Scott was white, he worked closely with Dale to defeat and impede the Passman fac- tion of the Union and it would be expected that Dale would confide in Scott. All agree that as Dale and Mayo prepared to leave Denny's about 4 or 4:30 p in. on December 24, Dale had not yet committed himself to work at C-D. At this time, Mayo took a piece of note paper and wrote a job request for Dale. This was in case Dale agreed to the request. The document reads as follows: TRANSIT MIXED CONCRETE COMPANY Ready-Mixed Concrete * Rock & Sand * Gravel Base To R. Passman or K. Scott Please clear Bob Dale C. D. Investment Co 333 S . Beaudry LA CA [s] Jimmy Mayo [G.C. Exh. 5.] Respondent C-D presented evidence to show that Mayo, while a foreman, lacked authority to request an individual by name under the Master Labor Agreement. The normal procedure for hiring of new carpenters is for the superintendent to call Local 25's hiring hall and re- quest the desired number of carpenters Then Passman would dispatch from the top of the out-of-work list, i.e., a weekly register of those members out of work and seeking work, the requisite number of persons requested. Under the rules of the District Council, any member in good standing of a member sister local in the District Council can sign the out-of-work list of any other local without actually transferring membership. There are two methods of requesting a member by name, both of which apply without regard to the mem- ber's location on the out-of-work list, but the person re- quested is at least supposed to be somewhere on the out- of-work list: (1) the 25-percent rule which means that if an employer hires three from the top of the out-of-work list, then the fourth can be designated by name; and (2) when the requested employee had worked for C-D within the last 3 years. (G.C. Exh. 18.) Dale had never signed the out-of-work list because he was working when requested by Mayo. Further, he had never worked for C-D before so this provision did not apply. Further, when C-D desires to request a carpenter by name, the request must be on company letterhead (here the letter- head was of a subcontractor of C-D who left note packs on the job as a courtesy), dated (here the request was un- C-D INVESTMENT CO dated), must be signed by C-D's director of construction (the incumbent's name is Dale Thomas , who is the supe- rior both of Voight and Meehan; here, the request was signed by Mayo , a foreman), and submitted to the Union for appropriate action. The procedure used by Mayo to request Dale had other infirmities as well to be further recited below. About December 28, according to Scott and Dale, they attempted to discuss Mayo's complaints with Pass- man and specifically Mayo's desire to replace a steward. This hurried meeting allegedly occurred in a union hall hallway as Passman walked through, and Passman alleg- edly replied without elaboration, "Do what you want to do," or words to that effect. Passman denied any such encounter, and also denied receiving Mayo's letters, though Scott testified that he left them for Passman on the latter's desk. I find that no such meeting occurred and that Passman had no notice of what had been occur- ring between Mayo and Dale and Scott, nor what was about to occur, a few days later. Given the bitter state of relations between the men, it is unlikely that Passman would have acquiesced in whatever Dale and Scott planned relative to the stewards. On December 31, Dale met Scott at the union hall about midday and both men went to the C-D jobsite where they met with Voight. This was the first time that Dale had met Voight, according to the former. Accord- ing to Voight, he had met Dale about 2 weeks before for the first time. According to Dale and Scott, Voight com- plained generally about conditions on the job including having been forced to reinstate Montoya, and Stebner's allegedly ineffective and dilatory performance when processing overtime permits. Allegedly Dale and Scott looked out a window in Voight's trailer office at the job- site and saw Stebner visiting various employees and poking them or pulling at their clothing and generally wasting time. Voight was vague about requesting Dale, testifying at one point that he probably said to Mayo, "go ahead and hire him." (R. Br. 377.) Voight was un- certain about the meeting with Dale and Scott on De- cember 31 and was not even sure that it occurred at all. Voight allegedly approved Dale's employment at C-D as a way to resolve problems at the worksite. Dale then al- legedly showed both to Scott and Voight for the first time the job referral written out by Mayo at Denny's Restaurant the week before on a piece of notepaper fur- nished by Transit Mixed Concrete Company. (G.C. Exh. 5.) Finally, I am told, Dale having received the approval of Voight to work at C-D, and having assured himself that indeed the problems on the job were serious, Dale agreed to work at C-D.9 I am further told that on the ride back to the union hall, for the first time, Scott sug- gested that the most efficient way for Dale to bring "harmony to the work site" was to become a steward and replace Montoya and Stebner, the two stewards ap- pointed by Passman . According to Dale, he was reluc- tant to become a steward on the job, just as he was re- luctant to work there in the first place. However, he was 9 Voight testified that he did not know that Dale would be working for C-D on January 2 (R Br 150-151 ) 637 persuaded by Scott that this was the best way to resolve the problems on the job. But Dale stated that he intend- ed to replace the two stewards only temporarily until Scott and Passman could resolve their differences. Scott then wrote out a work referral for Dale (G.C. Exh. 17) and Dale left the union hall. By now, it was late after- noon on Christmas Eve; Dale had not worked on that day due to rain. He testified that after leaving the union hall, he returned to his job at Feldman and told a super- visor that he was quitting his carpenter foreman's job im- mediately to work at C-D as a carpenter steward. I find that Dale and Scott' s testimony regarding their motives for their action is so inherently improbable as to be preposterous. 10 I do not believe any of it. I will return to this theme in the "Analysis and Conclusions" section of this opinion. For now, I continue with this as- tonishing sequence of events. On January 2, a Saturday, Dale reported for work. This was an overtime day so fewer than half of the 150 or so employees were working. Meeting with Voight in his office were Dale, Scott, and Mayo. Scott told Voight that there had been a slight change in plans Not only was Scott going to be working on the jobsite, but he would also be the union steward, and Montoya and Stebner would not be the stewards. To this information, Voight allegedly indicated that it was an internal union matter which did not concern him. Also present in the C-D trailer, but not part of the meeting, was Voight's su- perior, Thomas Meehan. A witness at hearing, Meehan was then no longer employed by C-D and had no motive to fabricate. I credit his testimony regarding conversa- tions with Voight. The latter told Meehan that the Union was going to put a new steward on the job. At first, Meehan answered "fine," but then Voight said that Dale did not work there, that Voight had not requested him, and that he had not been referred through the hall. When Meehan heard this, he told Scott, "Don't take him." Later, Voight told Meehan that he had taken care of the matter." In fact, Voight had not obeyed Meehan. Eventually, a procession of persons wound its way from Voight's office to Stebner, the only steward working on that Saturday. In the group was Dale, Scott, Foreman Mayo, and a uniformed security guard assigned by Voight to prevent any trouble. Stebner was located working on the saw, his usual job. Scott told him that Dale was replacing him as steward, but that he still had his regular job and was not being terminated. Stebner looked at the group of people with Scott, promptly handed over his steward's badge, and left the worksite for the day. Allegedly, Dale worked the 10 That Dale would leave his job as a carpenter 's foreman without poor notice to his current employer for less pay and for less security-all on the grounds that he desired to prevent lawsuits against the Union, and to assist a man whom he did not even know and who was not even a member of his local-is self-impeaching 11 Prior to the hearing, Voight had been fired by C-D for incompe- tence, in part for missing the Montoya arbitration meeting , and then tell- ing Yanpolsky an office supervisor for C-D, that he had taken care of the matter After he was terminated, Voight went to another C-D job where he worked for a week until the superintendent found out he had been fired by C-D in Los Angeles At the time of his testimony, Voight was a member of Local 25, and the Scott-Dale faction of the Union I find that he was not an unbiased witness and that his credibility was suspect 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remainder of the day, although it is not clear exactly what he did. On Monday, January 4, the above-described scenario was repeated, including another conversation, this time by telephone, between Voight and Meehan. Again the latter told Voight not to take Dale, but again Voight dis- regarded this order. Early on this Monday morning, Scott's group, including Dale, Mayo, and a uniformed se- curity guard, wound its way around the jobsite, until Montoya was located. Again Scott made it clear that Montoya was not being laid off or terminated, but was only being relieved by Dale. Like Stebner, Montoya handed over his badge to Dale, but unlike Stebner, Mon- toya then stayed on the jobsite to await developments. Meanwhile, Stebner had been busy since he left the jobsite on January 2. On Sunday, January 3, he had called Passman to report that Scott had named Dale to replace him the day before. I find that this was the first notice that Passman had of Scott's action. About 7 a.m., Monday, January 4, Stebner met with Paul Miller at the offices of the District Council. Stebner explained to Miller how he had been relieved as steward. Then Miller called Voight at the jobsite. Voight could not recall if Miller or Flores called him. I find that Miller called and asked Voight if Dale had been requested. 12 Voight answered no. Miller then stated that no hiring hall referrals could have occurred because the hall had been closed on Saturday. Miller testified that he did not recollect that he threatened to shut the job down if Stebner was not reinstated, but I find that is exactly what he said. After his phone call, Voight called Meehan for instructions and Meehan directed Voight to comply with Miller's demands. Flores testified that he also spoke to Voight after talk- ing to Stebner After ascertaining that Voight had not re- quested Dale, Flores then asked, "Well, do you need him?" Voight answered, "Not really." Then Flores said, "Well, you do what you have to do." (R. Br 1395) This is convincing evidence that Flores desired Dale's termi- nation. In any event, Voight subsequently called in Dale to his office about midmorning and stated that Dale could not continue working there due to the threat of the District Council to shut the job down if he contin- ued. After attempting to get Voight to reconsider, Dale left the jobsite. Dale had never completed any W-4 forms and was never paid for any work he may have done on January 2 and 4. Further, he never filed any claim with the appropriate state agency for unpaid wages on the alleged grounds that the Board procedures would fully protect his rights. Sometime after Dale left the C-D jobsite, Passman arrived there with Stebner, and Mon- toya and Stebner were then reinstated to their jobs as stewards. On Thursday, January 7, the overtime list was pre- pared by Montoya, as usual . As usual, Mayo indicated his desire to work Saturday, January 9, as he had worked every Saturday that overtime was available, since he had been employed at the C-D job. This time, 12 The evidence is conflicting whether Miller or Flores made the tele- phone call to Voight after meeting with Stebner The evidence shows that both made calls to Voight on that morning however, he was not permitted to work on Saturday. The following Saturday, and every Saturday thereafter, he continued to work on Saturdays. I discuss the facts and circumstances of Mayo's lost overtime immediately below. B. Analysis and Conclusions 1. Was Mayo unlawfully denied his right to work 8 hours of Saturday overtime on January 9? Other than Local 25, all or most locals process their own overtime permits. In this case, District Council began the job on the grounds that the two factions were unable to formulate and apply a clear policy. That is, if Passman would deny a permit, Scott was likely to ap- prove it, and do so without clearing with the District Council. Scott apparently was more liberal in approving these requests to Passman's dismay. In any event, Dis- trict Council took over the job at some point in the fall of 1981.13 As noted above, Mayo was unaffected by this change until January 9, and then only for that single Sat- urday. The authority for the District Council to approve overtime permits is reflected in its bylaws and trade rules (District Council Exh. 3): Any permit for work on Saturdays, Sundays or Holidays must be approved by the Los Angeles District Council of Carpenters no later than 2 p.m. of the preceeding Thursday. [P. 41.] According to Flores, Mayo was not permitted to work on January 9 because he was a member of two locals in violation of the constitution and laws of the United Brotherhood of Carpenters & Joiners of America. (Dis- trict Council Exh. 2.) 14 The factual basis for this deci- sion is as follows. As noted above, Mayo was not re- quired to join Local 25 to work at the C-D jobsite. In fact, on December 23, 1981, Mayo paid his dues to Local 929 for January, February, and March of the coming year (G.C. Exh. 9.) However, to align himself with the Dale-Scott faction of Local 25, Mayo decided in late De- cember to make the transfer. Mayo was under the mis- taken impression that his transfer could be done by mail. District Council rules required that such transfers be done in person. He sent his Local 929 card in the mail to Local 929 Business Representative Baker with instruc- tions to "transfer his book" to Local 25. Then Scott issued Mayo a temporary Local 25 card When Montoya 18 I am aware of at least one similar case where the local had given up all its authority to issue work permits to the District Council NLRB v Carpenters Local 64 (Western Dry Wall), 497 F 2d 1335 (6th Cir 1974) 14 In pertinent part, sec L, pp 40-41, of the constitution and bylaws reads as follows No member of the United Brotherhood can remain in or become a member of more than one Local Union If a member is ac- cused of holding membership contrary to this section , the Executive Committee of the Local Union or District Council shall give the member due notice of the charge, shall afford the accused a hearing and a full opportunity to present a defense If after hearing the Exec- utive Committee finds that the member holds membership contrary to this section, the member shall be permitted thirty days in which to resign C-D INVESTMENT CO. collected cards on January 7, Mayo, for the first time, presented a Local 25 card. The collected cards were taken by Montoya to Flores, who noted Mayo's Local 25 card whereas in the past, he had submitted a Local 929 card. Flores then allegedly called Baker who allegedly stated that Mayo was a member in good standing of Local 929. After this alleged telephone call, Flores wrote on the Saturday work list next to Mayo's name, "Hold, Belongs to #929 has #25 card." (G C. Exh 11.) Baker never testified and I am not able to ascertain if he had received in the mail Mayo's attempted transfer re- quest when he spoke to Flores. Nor can I ascertain ex- actly what he may have told Flores. It is certain, howev- er, that Mayo first learned that he would not be permit- ted to work, when Montoya returned with the list late Thursday evening On Friday, January 7, Mayo had a meeting with Miller, Flores' superior, to attempt to have the decision reversed. After Miller discussed the matter with Flores by telephone, Miller decided to support his subordinate's decision. Prior to the next overtime list, Mayo went in person to Local 929 and completed the necessary procedures to transfer into Local 25. Subsequently Scott issued Mayo a permanent Local 25 card dated January 8. (G.C. Exh. 10.) Section 8(b)(1)(B) of the Act (29 U.S.C. § 158(b)(1)(B)) provides that "it shall be an unfair labor practice for a labor organization . . . to restrain or coerce . . an employer in the selection of his represent- atives for the purposes of collective bargaining or the ad- justment of grievances." Restraint or coercion under Section 8(b)(1)(B) does not require economic pressure di- rected at an employer but can be accomplished by inter- nal union discipline which reasonably tends to deprive an employer of the right to select its representative.15 To evaluate whether union discipline of member-supervisors in a given case constitutes impermissible coercion, one must determine if the discipline could adversely affect the supervisor's performance of grievance adjustment of collective-bargaining responsibilities. 16 In analyzing this case, I note that the Employer was deprived of Mayo's services for a single Saturday. It is also true that several members of Mayo's crew worked on January 9. In addition, I find that Flores made a less than exhaustive effort to resolve the problem. That is, Flores never called Scott to ask how he happened to issue the temporary Local 25 card to Mayo. More im- portantly, before making his decision, Flores never asked Mayo, perhaps the one most able to explain the apparent discrepancy. In considering the above, in the context of Mayo's participation in the removal of Montoya and Stebner, a few days before and Mayo's clear alliance with the Dale-Scott faction of Local 25, I am con- strained to find that the reasons given by Flores to pre- vent Mayo from working were pretextual and the real 15 Iron Workers Local 46 (Cement League), 259 NLRB 70 (1981), Typo- graphical Union No 18 (Northwest Publications), 172 NLRB 2173 (1968) 10 American Broadcasting Co v Writers Guild, 437 U S 411, 429 (1978) 639 purpose was to punish Mayo for his activities regarding Montoya and Stebner. Notwithstanding the above findings, I am also required to find that District Council did not violate the Act. To begin, Mayo's activities with respect to the replacement of two duly-appointed stewards could hardly be charac- terized as protected concerted activities. 17 As a statutory supervisor and representative of man- agement, Mayo had no business in attempting to cause a change of stewards apppointed by a business representa- tive of a local, of which he was not even a member! 18 Next, in disciplining Mayo, the District Council was at- tempting to affect primarily the relationship between Mayo and Local 25. The relationship between the Dis- trict Council and the Employer was only affected sec- ondarily or incidentally.19 Thus Mayo elected to involve himself in an intraunion dispute, and may have been pun- ished by the District Council for his activities on behalf of the "wrong" side.20 In any event, the action of the District Council in denying Mayo an overtime permit does not violate Section 8(b)(l)(B) of the Act.21 In the alternative, I find that even assuming, arguendo, that the primary effect of Mayo's not working on Janu- ary 9 was to affect the relationship between the Employ- er and the District Council, I could still not find an 8(b)(1)(B) violation here. Contrary to the General Coun- sel's statement in his brief (Br 51), "the reasonably fore- seeable and intended effect of District Council 's actions is that Mayo would cease working for C-D, thereby de- priving C-D of the grievance adjustment services of its chosen representative," I find that the opposite is true. Mayo worked 6 days a week for about 6 months before January 9, and he worked 6 days a week for several months after. This isolated event could not reasonably be foreseen to cause Mayo to cease working for C-D. In ad- dition, there is no evidence to show that grievances were 17 Mayo may have had good motives for wanting a change of stew- ards, and for joining the Dale-Scott faction of Local 25, based upon his convictions that District Council was against him , that Passman would not cooperate with him on the job, and that Montoya countermanded his orders, treated him with disrespect , and Was hostile toward him (See, e g , Mayo's letter to Dale and Scott, GC Exh 4) However, even if true, all of the above makes no difference in resolving the pending issue 18 Cf Associated Truck Lines, 239 NLRB 917, 920 (1978), NLRB v Gates Rubber Co, 493 F 2d 249 (6th Cir 1974) 19 Compare Yakima County Beverage Co, 212 NLRB 918 (1974), and Typographical Union No 18, supra, 172 NLRB 2173 (1968) The U S Su- preme Court assumed without deciding that the Board's decision in the latter case was a correct statement of the law Florida Power Co v Elec- trical Workers IBEW Local 641, 417 U S 790 (1974) An object of the union's coercion in the Oakland Mailers case was to compel the employ- er's foreman to take a prounion position in interpreting the collective-bar- gaining agreement In the instant case, the object of District Council's co- ercion was to compel Mayo to take positions on the job favorable to Dis- trict Council and the Passman faction of the Union Thus C-D became a mere bystander and was affected only secondarily 20 Once a member of Local 25, Mayo was appointed to several com- mittees and given other assignments within the Union by Dale While on these assignments, Mayo vigorously represented the Dale-Scott faction 21 I have read and considered two Board cases dealing with supervi- sors who were disciplined by their unions for incidents having to do with stewards The Board found violations in both cases However , these cases are factually distinguishable and do not apply to the present case See Electrical Workers IBEW Local Union 648 (McGraw Construction), 216 NLRB 706 (1975), and Carpenters Local 1089 (M Greenberg Construc- tion), 217 NLRB 999 (1975) 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adjusted on Saturdays or, even if they were, that the ad- justment could not occur on the following Monday with- out prejudice to the Employer. In light of the above, I will recommend to the Board that this allegation be dismissed. 2. Was Dale discharged by C-D, at the behest of the District Council , for unlawful reasons? To recapitulate my findings from the "Facts" above, I found that Passman had primary authority to appoint stewards at the C-D jobsite (District Council Exh. 3, sec. 41, p 31), that pursuant to the lawful exercise of that power, Passman duly appointed Montoya and Stebner; that Scott as assistant business representative lacked power to remove stewards appointed by Passman; that Passman was never informed nor did he consent to the removal of Montoya and Stebner ; and that Scott's at- tempted replacement of Montoya and Stebner was null and void All of the above seems to me to be unassailable. Whether Montoya and Stebner were effective as stew- ards or, in the case of Montoya, whether he harassed and provoked Mayo is basically irrelevant to the central issue which I divide into two parts : ( 1) whether the District Council could lawfully cause Montoya and Stebner to be reinstated as stewards ; and/or (2) whether the District Council could lawfully cause C -D to terminate Dale. To answer these questions, it is necessary to reiterate certain additional key facts in this case. When Scott dispatched22 Dale to the C-D jobsite on January 2, there was no legal basis for this act . As noted above, there were three basic methods by which Dale could have been dispatched: (1) from the top of the out- of-work list-Dale never signed it , (2) pursuant to the 25-percent clause-not applicable ' 23 (3) pursuant to the previous employment within the past 5 year's clause- Dale had never worked for C-D before January 2. (G.C. Exh. 14, pp 9-10.) Recognizing that these methods of lawful dispatch do not apply in the present case, Scott and Dale both testified that in their experience , a hiring hall basically operates without rules and regulations. That is, a hiring hall has traditionally been used to reward friends of those controlling the hiring hall and to punish foes. In sum, Scott and Dale were merely utiliz- ing the hiring hall in accord with custom and practice. I find, contrary to Scott and Dale, that no credible evidence was presented to support the claim that such a practice exists, or is condoned by any union . I cannot credit their testimony . However even if their testimony is credited, it merely shows widespread violations of the Act. The Board has held.24 22 In his testimony, Scott repeatedly objected to the use of the term "dispatch" to describe his act of sending Dale to C-D to work as stew- ard Rather Scott testified that he "cleared" Dale to work at C-D How- ever Scott wishes to characterize his act, I find that it was without legal basis 22 The General Counsel argues (Br 40) that the 25-percent clause was applicable here I find that it was not because Dale never signed the out- of-work list because this is an after-the-fact justifications never relied on by Scott and Dale at the time and because this theory remains unproven in the record 24 Pile Drivers Local 2375 (Offshore Welding), 267 NLRB 320, 323 (1983) [Iln operating an exclusive hiring hall, a union owes a duty of fair representation to all applicants for re- ferral, and it may not act arbitrarily without objec- tive criteria or standards, or in disregard of the pro- visions of its collective-bargaining agreements. Put differently, if there is a practice in the construction industry by which members are dispatched based on the purely personal choice of the dispatcher and without aid of objective factors, such practice has been held to vio- late Section 8(b)(1)(A) of the Act 25 The General Counsel makes additional arguments to show that Dale was properly referred to the C-D jobsite (Br. 38-42). For example, it is argued that because Pass- man was absent from the hiring hall on December 31, Passman was authorized to act in his absence. This argu- ment assumes the validity of the Mayo request, a concept with which I cannot agree; the General Counsel's argu- ment also assumes that Dale was merely being referred to C-D as a carpenter whereas he was being referred to replace Passman's two stewards, and it assumes that Dale could not have requested a referral from Passman when he was there. Instead, Dale went to Scott when both knew that in accord with Passman's usual work sched- ule, he would not be there. The General Counsel goes on to contend that an emer- gency existed by virtue of the threats of lawsuits against Local 25 not only by Mayo, but also by C-D. This argu- ment is so frivolous, I reject it out of hand. First, no credible evidence was presented to show that anyone had made a bona fide threat to sue Local 25. Rather, Dale allegedly believed that matters might come to that. However, I find that Dale created this possibility with Scott as a rationale for replacement of Passman's ap- pointees. To the extent that there is even a scintilla of evidence to support the General Counsel's assertions, I reject it based on the countervailing likelihood of law- suits from Montoya and Stebner for violating their rights not to be summarily replaced as stewards and their rights to be fairly represented by the Union. This of course is not to rule out C-D's lawsuit which presumably would be just as likely after the stewards were replaced as before, due to the continuing, not to say increased, tur- moil caused by Dale's and Scott's actions.26 The irregularities in the dispatch of Dale by Scott are matched by the request of Mayo for Dale in the first place. It is unnecessary to repeat my findings here re- garding Mayo's lack of actual authority to request Dale. It is arguable whether Mayo was acting outside the scope of his authority in requesting Dale; it is also argu- able whether Mayo was acting as an agent of C-D in re- questing Dale, even though he was a statutory supervi- sor.27 I have found above that Voight never requested Dale, although Voight may have acquiesced in Mayo's request of Dale However, it is unnecessary to resolve 25 Painters Local 277 v NLRB, 717 F 2d 805 (3d Cir 1983) 26 In this respect, Voight's assignment of uniformed security guards to accompany Dale, Scott , and Mayo to relieve the stewards is evidence that Voight fully believed violence was a real possibility I would share that view 27 Cf Carpenters v NLRB, 286 F 2d 533, 536-537 (D C Cir 1960) C-D INVESTMENT CO. the questions regarding Mayo's authority because Scott so clearly lacked authority to dispatch Dale both as an employee and as a steward. In this case, District Council is charged with violating Section 8(b)(1)(A) and (2), while C-D is charged with violating Section 8(a)(1) and (3).28 The gist of the al- leged violations is based on the telephone calls made by Miller and Flores to Voight to the effect that Dale should be terminated or the District Council would shut the job down. No claim is made in this case that District Council violated the Act, when Flores used the identical tactic to secure the reinstatement of Montoya, pursuant to the arbitrator' s ruling . The General Counsel argues (Br. 44) that "no investigation was made into the circum- stances of Dale's referral," before the calls were made to Voight. This is not true. Voight told Miller and Flores that Dale had not been requested and Stebner told Miller of his removal on January 2. Miller also knew that Pass- man had appointed Stebner and Montoya and played no role in their removal. Further, neither Miller nor Flores had received complaints about the two stewards, relative to their job performance. Based on the above, I conclude that District Council properly caused the reinstatement of Montoya and Stebner. I agree with the General Counsel's statement of law that a violation of the Act occurs where the union causes the discharge of an employee because the employee po- litically or personality wise opposes the incumbent union administration (Br. 44). However, I must reject the Gen- eral Counsel's additional claim (Br. 47) that a union may not cause an employee's discharge for any reasons other than failure to pay dues or initiation fees. Rather the Board has declined to hold as unlawful per se every in- terference with an employee's status for reasons other than the failure to pay dues and initiation fees. In Operat- ing Engineers Local 18 (Ohio Contractors), 204 NLRB 681 (1973), revd. and remanded 496 F.2d 1308 (3d Cir. 1974), the Board stated (204 NLRB at 681): When a union prevents an employee from being hired or causes an employee's discharge, it has dem- onstrated its influence over the employee and its power to affect his livelihood in so dramatic a way that we will infer-or, if you please, adopt a pre- 28 These subsections of the Act provide (b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title Provided That this paragraph shall not impair the right of a labor organization to pre- scribe its own rules with respect to the acquisition or retention of membership therein (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section (29 U S C §§ 158(b)(1)(A) and (2) ) Secs 8(a)(l) and (3) provide (a) It shall be an unfair labor practice for an employer- (1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization (29 U S C §§ 158(a)(1) and (3) ) 641 sumption that the effect of its action is to encourage union membership on the part of all employees who have perceived that exercise of power 3 But the in- ference may be overcome, or the presumption re- butted, not only when the interference with em- ployment was pursuant to a valid union- security clause, but also in instances where the facts show that the union action was necessary to the effective performance of its function of representing its con- stituency. Thus the Supreme Court has sanctioned union control over access to employment through hiring hall agreements,4 even though recognizing that "the very existence of a hiring hall encourages union membership." And this Board has found legitimate a union's action in causing the layoff of an employ- ee who insisted on working without receiving a subsistence allowance called for by the collective- bargaining agreement . 5 In such cases, the union's actions, while incidentally encouraging union mem- bership, were nevertheless essential to its effective representation of employees. 2 Radio Officers' Union [A H Bull Steamship Co ] v NLRB, 347 US 17 (1954) 4 Local 357, Teamsters [Los Angeles-Seattle Motor Express] v NLRB, 365 U S 667 (1961) S Planet Corporation, fn 2, supra. Thus, the primary question here is whether Dale's dis- charge was necessary to the effective performance of District Council's function of representing its constituen- cy. I find that it was.29 Dale and Scott acted primarily to advance their own union political interests rather than out of concern for the welfare of Local 25 as a whole. By departing from established hiring hall practices, in order to refer Dale to C-D, Scott easily might have been charged himself with violating the same provisions of the Act as District Council stands accused .3 ° In attempting to return the status quo by reinstating the two stewards and causing the discharge of Dale, the District Council was acting in furtherance of a valid objective for the benefit of its membership as a whole. 31 In Cement Masons Local 526 (P. J. Dick Contracting), 261 NLRB 1050 (1982), the Board approved a decision of the administrative law judge holding that a union can lawfully subject a member to union discipline for seeking his own employment and accepting a job without first clearing his employment with the union under the exist- ing provisions and understandings lawfully governing that clearance. One form of union discipline approved by the Board in appropriate circumstances is to insist on an employer's removal of an offending individual from scheduled em- ployment. Birmingham Country Club, 199 NLRB 854 29 See Carpenters Local 1102 (Planet Corp), 144 NLRB 798 (1963), Ty- pographical Union (Houston Chronicle), 145 NLRB 1657 (1964) 30 Plumbers Local 392 (Kaiser Engineers), 252 NLRB 417 (1980), ITO Corp of Rhode Island, 246 NLRB 810, 812 in 12 (1979) 91 Lithographers (Publishers Association), 258 NLRB 1043, 1047 (1981); Marquette Cement Mfg Co, 213 NLRB 182 fn 2 (1974) 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1972).92 As an example of appropriate circumstance, I turn to Painters Local 487 (American Coating), 226 NLRB 299, 301 (1976). There, Administrative Law Judge Boyce held with Board approval that union actions reasonably designed to preserve the integrity of contractually pre- scribed referral practices, even though those actions bring changes in job status to individual employees, are permissible under the Act. In causing the discharge of Dale, the District Council was doing no more than pre- serving the integrity of a contractually prescribed refer- ral practice, which was so clearly violated by Dale and Scott who were attempting to advance their personal po- litical goals. In conclusion, I note the cases that hold that a union violates Section 8(bXl)(A) and (2) of the Act if it causes an employer to discharge or lay off a member of the union for activities within the union, and an employer who knowingly acquiesces to union pressure to discrimi- nate against employees who engage in union activities violates Section 8(a)(1) and (3) of the Act.33 Thus, as a general rule, a union is permitted to discipline its mem- bers for violations of its rules, but it may not enforce its regulations by inducing the employer to exclude an em- ployee from the work force without triggering violations of the Act . That is, the Act insulates employees' jobs from their organizational rights.34 These principles of 32 See also Laborers (Peter Kiewit), 204 NLRB 151, 152-153 (1973) Indeed it could be argued that the District Council not only had a right, but also a duty, to cause Dale's removal Dale's deliberate bypass of es- tablished hiring hall provisions for his personal political goals meant that someone on the out-of-work list may have been denied a job to which that person was entitled Had the District Council acquiesced in Dale's or Scott's action, it may have been liable to grievance or suit for violating the duty to fair representation of the bypassed member sa Frurn-Colnon Corp. v. NLRB, 571 F.2d 1017 , 1021 (8th Cir. 1978) 34 See NLRB Y. Plumbers Local 120, 719 F 2d 178 (6th Cir. 1983), and cases cited therein. law simply have no application to the present case for the reasons stated above . In accord with my analysis above, I also find, for the same reasons applicable to the District Council, that C-D did not violate the Act. I will recommend to the Board that this case be dismissed in its entirety.35 CONCLUSIONS OF LAW 1. The Respondent, Naftali Deutsch and Alexander Coler d/b/a C-D Investment Co., is an employer within the meaning of Section 2(2) of the Act, engaged in com- merce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent, Los Angeles County District Council of Carpenters , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondents have not engaged in the unfair labor practices alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed96 ORDER It is ordered that the complaint is dismissed in its en- tirety. 35 In deciding this case, I have deliberately avoided the use of the word "conspiracy" to characterize the actions of Dale , Scott, and Mayo District Council's answer was amended during the hearing to assert as an affirmative defense that a conspiracy existed among the persons listed above My findings in this case will speak for themselves and I prefer to let others characterize them se 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