Plumbers Local 305 (Stone & Webster)

PLUMBERS LOCAL 305 (STONE & WEBSTER) United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Plumbers Local No. 305 (Stone & Webster En- gineering Corp. and Eastern Connecticut Me- chanical Contractors Association, Inc.) and Shane Phelan. Case 39-CB-660 7 November 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 31 March 1986 Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions, a sup- porting brief, and a motion to strike affidavits sub- mitted by the Respondent in support of its excep- tions, and the Charging Party filed an answering brief to the Respondent's exceptions and cross-ex- ceptions. 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,' cross-exceptions, and briefs and has decided to affirm the judge's rul- ings,2 findings, and conclusions,and to adopt the recommended Order.3 i Because the affidavits were not made part of the formal record, the General Counsel's motion to strike is granted. See Sec 102 46 of the Board's Rules and Regulations. 2 The Respondent contends that the judge denied it due process by going forward with the hearing despite the absence of its counsel, Burton S. Rosenberg, who had previously agreed to the hearing date. As the General Counsel had already granted the Respondent five postpone- ments, we find that the judge did not abuse his discretion by not permit- ting still another postponement. In this connection, we also deem it sig- nificant: (1) that Norman Zolot, with whose law firm Rosenberg was as- ' sociated, appeared and represented the Respondent during the remaining day and a half of the 2-day hearing; (2) that Zolot throughout that time was assisted by a representative of another law firm who was familiar with the issues in this case by virtue of participation in earlier settlement efforts on the Respondent's behalf; and (3) that the Respondent has not shown that it was in any way prejudiced by the absence of its counsel during the initial part of the hearing. a The judge found, and we agree, that the Respondent violated Sec 8(b)(1)(A) and (2), of the Act by failing and refusing to allow Shane Phelan, Mark Cotton, and Donald Fitzgerald to register on its out-of- work list on 27 February 1985. He properly recommended that the Re- spondent be ordered to make them whole "for any loss of earnings or other benefits they suffered, due to the discrimination by Respondent for the period 27 February to 25 June 1985" when the Respondent allowed them to register However, the General Counsel and the Charging Party express concern that the judge's remedy may be mistakenly construed to cut off any backpay as of the latter date. In order to obviate that possibil- ity, we clarify the remedy to require the Respondent to make Shane, Cotton, and Fitzgerald whole for earnings and benefits from jobs they would have obtained, absent discrimination by the Respondent, between 27 February and 25 June 19851 including any job commencing during that period which continued beyond 25 June 1985. 83 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, United As- sociation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Plumbers Local No. 305, Uncasviile, Connecticut, its officers, agents, and representatives, shall take the action set forth in the Order. Jonathon Kreisberg, Esq., for the General Counsel. Norman Zolot, Esq., for the Respondent. Leon N. Rosenblatt, Esq. (Rogin, Nassau, Captan, Lass- man & Hirtle), for the Charging Party. DECISION STATEMENT OF THE CASE JOEL P, BIBLOWITZ, Administrative Law Judge. This case was tried before me on 29 and 31 October 19851 in Hartford, Connecticut. The complaint issued on 6 June and was based on an unfair labor practice charge filed on 27 February by Shane Phelan, an -individual. The com- plaint alleges that Eastern Connecticut Mechanical Cony tractors Association (Association) is an organization that exists for the purpose of representing its employer-mem- bers in negotiating and administering collective-bargain- ing agreements with United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Indus- try, Plumbers Local No. 305 (Respondent); that, at all material times, Respondent has been the exclusive collec- tive-bargaining representative of the employees of the members of the Association; and that, at all material times, the Association and Respondent have been parties to a collective-bargaining agreement which, by its terms, requires that Respondent 'be the sole and exclusive source of referrals for, employment for individuals seek- ing work with Association members. The complaint also alleges that, at all material times, Stone & Webster Engi- neering Corp. (Stone & Webster) has agreed to be bound by the collective-bargaining agreement between the As- sociation and Respondent. Respondent admits the above allegations. What Respondent denies is the following al- legation: since 27 February Respondent has failed and re- fused to register for referral, or refer to employment with Stone & Webster, or other Association members, Phelan, Mark Cotton, and Donald Fitzgerald because they were not members of Respondent. This activity is alleged to violate Section $(b)(l)(A) and (2) of the Act. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by all parties, I make the following FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION STATUS There being no dispute, I find that Stone & Webster is an employer engaged in commerce within the meaning 1 Unless indicated otherwise, all dates are in 1985. 282 NLRB No. 12 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Section 2(2), (6), and (7) of the Act, and that Re- spondent is a labor organization within the meaning of Section 2(5) of the Act. II. THE FACTS For a number of years, Stone & Webster has been the largest employer of Respondent's members. This is due to its work at the Millstone Point Nuclear Power Facili- ty (Millstone) located in Waterford, Connecticut, within Respondent's jurisdiction. For a long period of time, until about October 1984, Stone & Webster's need for plumbers exceeded Respondent's membership. To cover the shortage, members of other locals of the United As- sociation of Journeymen and Apprentices of the Plumb- ing and Pipefitting Industry (UA) came to Millstone to work. These individuals are called travelers. The UA constitution provides that the local to which the individ- ual belongs will give its members travel cards. The con- stitution provides that the member desiring to deposit a travel card in a Local Union shall present it, together with his dues book, to the Local Union Business Manager, or the officer or agent designated by him to receive such cards, or, if there is no Business Manager, then to the Local Union Business Agent, or the officer or agent designated by him to receive such cards. Such offi- cer or agent shall accept any travel card properly presented by a Building Trades journeymen member. Article VI, section I, of Respondent's bylaws provides: "The Local Union Business Manager shall be the dis- patcher of the men to jobs. In his absence it will be the duty of the Assistant Business Manager." On the morning of 27 February, Phelan, Cotton, and Fitzgerald, members of UA Local 76, the Hartford local, went to Respondent's office to register as travelers; they were unsuccessful in that attempt. The issue is whether their lack of success in registering was caused by the fact that they were members of a different UA local in viola- tion of Section 8(b)(1)(A) and (2) of the Act.2 By letter dated 5February, Donald Pogue, Esq., an at- torney representing Local 76, wrote to Stone & Webster, its attorneys, the Board, and Respondent and its attor- ney, with copies to Phelan and other individuals: This is to advise you that Plumbers' Local 76 does not now maintain or operate an exclusive hiring hall. All members of Local 76 are entitled to obtain a travel card and register with Local 305 in order to attempt to obtain employment with Stone & Webster and at Millstone. 2 The General Counsel and the Charging Party attempted to introduce evidence that Phelan ran unsuccessfully for business manager in 1976 against Patrick Quinn, the brother of Terry Quinn, the business manager of Respondent, and that Phelan and Cotton had previously filed charges with the Board against Respondent and Local 76 Because the complaint alleges only that the discrimination was due to the fact that the individ- uals were not members of Respondent , and the General Counsel stated that he would not move to amend the complaint to include additional causes as well, I refused to allow such evidence By this letter, we are informing Messrs. Bungarz, Segal, Napolitano, and Phelan of their entitlement and specifically requesting that they register. In ad- dition, we are specifically requesting that Stone & Webster offer them employment whether through Local 305 or directly. Thank you for your assistance with this matter. On receiving this letter, Phelan, Cotton, and Fitzger- ald decided that they` would go to Respondent's office on 27 February; Phelan and Fitzgerald had been issued travel cards by Local 76 on 26 February; Cotton's travel card was issued on 28 January. They drove in the same car to Respondent's office in Uncasville, Connecticut, leaving Hartford about 7 a.m. and arriving at the office about 8 a.m. Phelan, Cotton, Fitzgerald, Terry Quinn, Respondent's business manager, Benjamin Hull,3 and Re- spondent's office clerk, Mary Hall, testified to that day's events, and there are inconsistencies in their testimony, some minor and some more' substantial. Each one's testi- mony will be discussed separately. Phelan testified that during the prior week he in- formed Patrick Quinn that he was going to Respondent's office to attempt to obtain employment; he testified that Patrick Quinn did not respond; he only laughed. On ar- riving at the building, they saw Hull upstairs, but nobody was downstairs. They waited in the ante room (or wait- ing room) for 5 to 10 minutes and saw Hall arrive. She was in the other room behind a sliding glass window and asked if she could help them. Phelan said they they had come to sign the out-of-work list and they had their travel cards and paid up union books (which they held up to show her); he asked if Business Manager Quinn was in. She said that he was not, and slammed the window closed; they sat down. Shortly thereafter, a member of Respondent arrived and asked to speak to Hull; Hall directed him in and he went upstairs to Hull's office. After waiting an additional time, Fitzgerald knocked on the window; after Hall opened it, he asked if they could speak to Hull; she said that she would check when the member finished speaking with Hull. That indi- vidual came downstairs and left the hall after spending about a half hour with Hull; about 45 minutes later Hull came downstairs and spoke to Phelan, Cotton, and Fitz- gerald in the waiting room. Phelan told him that they were there with their travel cards and books to sign the out-of-work list and they all showed Hull their travel cards and union books. Hull said, "Fm not authorized to take your travel cards, but Terry's [Quinn] on his way in, wait." Hull then went back upstairs; he returned about 30 minutes later and said that Quinn was at a meet- ing in Hamden and was not going to stop in the office on his way in. He said that they "should call back later to sign the book." Phelan said that they were there in re- sponse to Pogue's letter that he had a copy of. Hull said 2 Counsel for Respondent admitted the allegation in the complaint that at the tune in question Hull was the assistant business manager for Re- spondent ; at a previous Board hearing in 1985 Hull testified that he was business agent and assistant business manager for Respondent. In the in- stant matter, he initially testified that he was business agent and organizer for Respondent PLUMBERS LOCAL 305 (STONE & WEBSTER) that he knew something about a letter, "but I'm not taking your travel card." Hull also said that he had never taken a travel card. Fitzgerald then asked Hull if he had a list or book they could sign. Hull said, "I have no book for you to sign per se." After spending about 2 hours in the waiting room they left and drove directly to the Board's Subregional Office in Hartford where they filed an unfair labor practice charge against Respondent. This charge is time-stamped 1:53 p.m., 27 February. Fitzgerald testified that after' Hall arrived, Phelan knocked on the window; when 'she opened it they intro- duced themselves and said that they wanted to desposit their travel cards, which together with their union books they had in their hands and showed her, and sign the out-of-work book. She said that Quinn` was not going to be in that day and that she was not authorized to take the cards. She closed the window and they sat down. A few minutes later, a member of Respondent walked into the room and asked Hall if Hull were in and she said that he was and he went upstairs to speak to Hull. About 20 minutes later he came downstairs and left the hall and Fitzgerald knocked on the window and asked Hall if they could sign the out-of-work book; Hall said that she was not the dispatcher and was not authorized to accept travel cards. He then asked if Hull knew that they were waiting and she said that he would, be down shortly. About 10 or 15 minutes later, Hull came downstairs; they introduced themselves and said that they would like to deposit their travel cards and sign the out-of-work list. Hull said that he did not know anything about it, but if they wished to wait for a short time, Quinn would prob- ably be in. Fitzgerald said that Hall had told them that Quinn was going to a meeting and would not be in that morning. Hull said that Quinn usually came to the office before going to the meetings, and "if we wanted to wait, we could wait." About 10 a.m., Hull came downstairs and told Phelan, Cotton, and Fitzgerald that "it looked like" Quinn would not be in the office that day. Fitzger- ald and Phelan told him of Pogue's letter and Hull said that he was not aware of it. They asked' to sign the out- of-work list and Hull said that he was not authorized to accept travel cards- Cotton testified that after Hall arrived about 8:30 a.m., she opened, the window and asked them what they wanted; they all showed her their travel cards and union books and Phelan said that they wanted to sign,the out- of-work list. Hall said that the business agent was not in; he was at a meeting and would return about 10 a.m., and she slammed the window closed. Shortly thereafter, Phelan knocked on the window and again asked if they could -sign the out-of-work book; she said that they did not have an out-of-work book and, they would have to wait for the agent. They sat down again. About 9 a.m., a member of Respondent arrived and told Hall that he wanted to speak to Hull and she sent him upstairs. About a half hour later he came downstairs and left the build- ing. Either Phelan or Fitzgerald then asked Hall if they could see Hull; she went upstairs and 10 or 15 minutes later (approximately 9:45) Hull came downstairs. Phelan asked him if they could sign the out-of-work book; Hull said that Quinn was not there and nobody else was au- thorized to accept their cards. Hull told them that if they 85 wished, they could wait for Quinn to come to the office, although he never said when he would return. They left shortly after 10 a.m. and went to the Board's office. Hall testified that she was already in Respondent's office when Phelan, Cotton, and Fitzgerald arrived, shortly after 8 a.m.; she asked if she could assist them and they said that they wished to speak to Quinn and de- posit their travel cards. She said that he was out of the office at a meeting and would return later that day, She then asked them if they wished to speak to the business agent, Hull; they said they would and, after waiting for Hull to get off the phone, she informed Hull that three men from Local 76 were downstairs waiting to speak to him. He said that she should tell them that he would speak to them shortly, which she did and returned to her office. She saw Hull come down and speak to the men, although she did not hear what was said. He then asked Hall to call Quinn; Quinn's diary stated that he had an 11, a.m. meeting in Hamden, Connecticut, that morning and she called Quinn at that location about 8:30 or 9 a.m. She was not able to reach him, so she left a message for him to return the call, which he did about a half hour later; she told him that three men from Local 76 were there to see him and she then connected him with Hull. After speaking with Quinn, Hull spoke to Phelan, Cotton, and Fitzgerald again; although Hall did not overhear the conversation, she did hear Hull tell them that Quinn would return about 1 or 2 p.m. if they wished to have lunch and return at that time. Quinn returned to the office between 1 and 2 p.m. that afternoon. Hull testified that early in the morning of 27 February, he observed three men enter the Respondent's hall; at some point that, morning Hall informed him that "three members" with travel cards were downstairs. He went downstairs and told them that he was not the designated person to accept travel cards. He did this without calling Quinn who, at the time, had no home phone. About 9:30, he asked Hall to attempt to contact Quinn, and about 10 a.m. Quinn called the office. He told Quinn that Phelan, Cotton, and Fitzgerald were downstairs with travel cards to deposit. Quinn told him to tell them that he would be returning to, the office and they could wait if they wished, but if they left they should call when they were returning to be sure that Quinn would be present. Hull told them that, without telling them when he ex- pected Quinn to return. They did not respond, and he went upstairs; he did not see when they left. Quinn testified that he also received Pogue's letter of 5 February and expected that, at least, Phelan would come to Respondent's hall 'the next day, although he did not discuss it with Hull or Hall. He left his home about 9 a.m. that morning and drove to the Hamden office of the Mechanical Contractor's Association of Connecticut (MCAC). He arrived between 10 and 10:30 am. for the meeting that was scheduled to begin at 10:30 a.m. (al- though his calendar states that the meeting was to ]begin at 11 a.m.). The meeting actually began at 11:15 because a participant was late. Sometime between 10 and 11 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a.m.4 he was notified of a telephone call from Hull; he later testified that when he arrived at the MCAC office that morning the receptionist gave him a message to call his office, which he did; Hull told him that three mem- bers of Local 76, Phelan, Cotton, and Fitzgerald, wanted to register and Hull told them that he was not authorized to register them, that they would have to deposit their travel cards with Quinn. Hull said that they were hang- ing around and asked Quinn what he should do. Quinn told him, "Ask them to wait until I get there, I'll be coming up from this [meeting]."5 Quinn could overhear Hull telling them, "Terry's on his way back, you're wel- come to stay here, you can go up the street and have a cup of coffee or a bite to eat, but he'll be coming back and he's the only one authorized to register you." Quinn testified that he would have left the meeting immediately to return to the office if they had remained;6 however, Hull called him back and told him that they had left, but he was not sure if they had left for good or simply for a cup of coffee. Quinn said, "I'll be right up," and returned to Respondent's office about 1:30.7 Respondent's telephone bill for 27 February shows, inter alia, a 1-minute call to Local 76 at 9:42 a.m. and a 1-minute call to MCAC at 10:05 a.m. The next calls to Local 76 and MCAC were at 1:21 p.m. and 1:53 p.m., respectively. Respondent defends, inter alia, that Phelan, Fitzgerald, and Cotton were not allowed to sign the out-of-work list on the morning of 27 February because the only repre- sentatives of Respondent present at that time, Hull and Hall, were not authorized to do so. Hull testified that during the period in question his title was business agent and organizer for Respondent; that he was never the as- sistant business manager of Respondent. The General Counsel showed him the transcripts of a Board hearing earlier in 1985 wherein he testified that he was assistant to the business manager and business agent for Respond- ent. He served in these positions from April 1983 through 31 March. He testified that he was not author- ized to dispatch, people or have them sign the out-of- work book on his own. On most of the occasions when a person came to the Respondent's hall to sign the book, Quinn had previously told him that the person had been laid off and would be at the hall and to let him sign the book. On those occasions when a person came to the hall, and Quinn had not previously informed him that he would be there, Hull called Quinn ("he was always avail- able by phone") and told him that a member came to the hall to sign the book; on those occasions Quinn told him 4 He initially testified that he received this call, "I think before the meeting or right in the infancy." He later testified that it was before the meeting 5 He previously testified that he told Hull to ask them to wait, "I'll be up, this meeting is ending up." He later testified he told Hull, "At the conclusion of the meeting I would be up there." 6 He'mdially testified, "[B]ut I felt that that was important, that I could leave that meeting to take care of this situation " Quinn subsequent- ly testified that the three men's presence at the hall that day was "an in- sigmficant occurence." He later testified, "I told hun I'd be up immedi- ately after the meeting It was that important of a meeting that I just couldn't pack up and-and run back at [sic] the office, but I would return immediately, with no stops, which I did " 7 Respondent's office is approximately a 50-minute drive from the MCAC office to let the member sign the book. Prior to 27 February Hull had never been approached by a traveler who wanted to sign the out-of-work book and prior to 27 February Quinn had never instructed him, one way or the other, on what to do if a traveler attempted to regis- ter. Hall testified that "as a rule" she knew ahead of time when members were coming to the hall to sign the out- of-work book; on those occasions, Quinn had told' her to expect the member and, when he arrived, either she or Hull put his name on the list. If Hall was not expecting the member to be at the hall, she took the member's name and told him that she would speak to Quinn about it and either Quinn or she would put his name on the list. On all those occasions, Quinn either directed Hall to put the name in the book or he did it when he returned. The first time she was involved with registering nonmembers was 27 February. Quinn testified that, on the average, for the 2-year period ending 27 February, he was absent from the hall 15 hours a week; during that period, "there's nobody in charge." Up to late 1984, there was full employment (and more) at Respondent so members were not coming to the hall to sign the book. Prior to 27 February nobody came to the hall with travel cards to Quinn's knowledge. If a member appeared at a time when Quinn was absent, either Hull or Hall would tell him when Quinn would return and to come back at that time; they were not authorized to allow the person to sign the list without his prior approval. Quinn was asked by the General Counsel why, when he spoke to Hull on the morning of 27 February, he did not tell Hull to allow them to sign the out-of-work list. Quinn testified that he had to interview them first, and "check their qualifications" in order to put them in the proper book. He was then asked why he did not' allow them to deposit their cards and sign the list when he could have reviewed their credentials when he returned to the office later that day. He testified, "It was never done before, no-ever-unfamiliar people8 come in and want to register on our out-of-work list before." Later, in answer to a question from counsel for the Charging Party why (in his 27 February telephone conversation with Hull) he did not instruct Hull to sign the men on the out-of-work list, he testified that because they had never previously registered with Respondent he did not know 'their background or qualifications to determine in which of Respondent's three books (to be discussed more fully, infra) to place them. Information that he would need from them in this regard was what state license they possessed and the number of hours they have' been employed in Respondent's jurisdiction. He testified that he did not ask Hull to obtain this information because "that was my responsibility to do those things." The fol- lowing testimony appears in answer to questions from the General Counsel: Q. What conceivable difference would it have made to the Local, to you, if these individuals had 8 Quinn knew Phelan and Fitzgerald and was aware that they had pre- viously been employed at Millstone PLUMBERS LOCAL 305 (STONE & WEBSTER) been permitted to sign the out of work list at teii a.m. when they saw Mr. Hull as opposed to one p.m. when you might have been back in the office? A. It's procedure that's been followed for every- one. [He then testified that because there had previ- ously been full employment, this was the first occa- sion that a traveler came to register when there was no work.] Q. Well, how is there a procedure? A. The procedure that anyone wanting to regis- ter has to be interviewed by me on their qualifica- tions and licenses and etcetera. I just don't let anyone come in and sign that book. I wouldn't let you sign Book One because I know you're not qualified to go out and do the work. Q. You've told us that you've referred people di- rectly to Millstone based on a phone call? A. On full employment I would, yes, but there was not full employment at that time. Q. There was no employment, correct? A. Right. Q. So, what difference would it have made if Mr. Hull had let them sign the book? A. I'm telling you, I don't let people sign the book until I am sure they're qualified to get them on the proper book. Q. Well, you knew Mr. Fitzgerald was. You re- ferred him out later on. A. Prior. Q. You knew for many years that Mr. Fitzgerald was qualified. A. I'd have to see that his license was updated, and there's other things. I make my own members do it, and I make everyone do it. Quinn testified that there were basically two out-of- work books for individuals to sign at Respondent's hall on 27 February;9 book I is for plumbers and steamfitters; book II is entitled: "Metal Trades Out-of-Work." Quinn testified that a person wishing to register on book I must produce documentation establishing "four years certified experience" with contractors, together with a state li- cense.10 If the applicant cannot produce documentation of 4 years' experience, Respondent will examine him to determine if he is qualified. Book II was for "people that we're not familiar with, we don't know if they have the four years . . : we haven't examined them." When em- ployers call Respondent for referrals, they are given names from book I. If those names are exhausted, they inform the employer that they do not have anybody available from book I, but they do have individuals on book II. The employer usually asks what they know about the' individual and they can accept or reject the in- dividual. Quinn orginally testified that book II had been in existence since 1974; his affidavit given to the Board states that it had been in existence since 1984. Quinn tes- tified that prior to late 1984, book II was utilized rarely because of full employment. Individuals seeking work 9 There is a third book for gas distribution for people who are em- ployed in the streets on gas piping. 11 Phelan, Cotton, and Fitzgerald each had a state license as a plumb- er. 87 were often given job referrals over the phone or an- swered employer's ads directly; few people were regis- tering at the hall during this period. Quinn was not able to produce records establishing the qualifications for books I and II, but he testified (as did Hull and Hall) that they had been posted at the hall for about 5 years. Phelan, Cotton, and Fitzgerald testified that during the 2 hours they spent at the hall on 27 February they did not see any such notice posted, although they spent most of that time walking around the hall reading the posted ma- terial. Quinn later testified that an additional requirement for book I was that the applicant establish a minimum of 10,000 hours of experience` in the plumbing industry, al- though Quinn could produce no written rules containing this requirement. Hull, who testified that the rules governing the place- ment of applicants on the books had been posted at the hall since he had been employed there (April 1983), testi- fied that prior to 27 February he had only dealt with Re- spondent's members at the hall. The qualifications for book I were that the applicant be out of work with a paid up union card. Other than that, Hull was very un- certain in his testimony regarding these rules and never mentioned the 10,000-hour requirement testified to by Quinn. As stated, supra, the UA constitution provides the pro- cedure to be followed by travelers; Phelan has worked as a traveler in a large number of jurisdictions, and testi- fied that in these situations he normally gave the secre- tary or receptionist at the local union office his travel card and union book and she -wrote the information down and returned them to him. "Very seldom did he meet with the local's business manager. Fitzgerald-testi- fied that he also received a travel card from'the Local 76 business agent or financial secretary by presenting his paid-up union book. He also worked as a traveler in a large number of locations and "usually" the only person at the hall was the secretary and she took his card and registered him on the out-of-work book. Cotton testified to a number of different procedures: In early 1985 he and Fitzgerald went to the UA local in Poughkeepsie and asked to see the business agent. They were told that he was busy, and they spoke to the office secretary. They asked to sign the out-of-work book and she said that the union did not have such a book: "She says it's agent to agent."11 Also during 1985, while Cotton was first on the Local 76 out-of-work list his business agent told him of a job in another local's jurisdiction within the State; he accepted it and Local 76 sent,his travel card to the other location. He picked up his referral card from the Local 76 office and went directly to the jobsite. In May 1984 the secretary of the UA local in Stanford, Con- necticut, called him and said that there was a job in Stanford; he asked about a travel card and she said that he did not need one. He went to the jobsite and was put to work. Quinn testified that,up until late 1984, when many jobs were still available at Millstone, he received telephone 11 This means the member's business agent calls the business agent in the locality he is seeking employment in to arrange for the referral. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD calls from UA business managers around the country asking about referrals for their members. If Quinn had jobs available, he told the business manager to have the member report directly to the job and give his travel card to the steward, (whom Quinn would tell to expect the individual) on the job or to mail it to Respondent; during that period there was no out-of-work list because practically every qualified person who wanted to work had work. The first time in Quinn or Hull's memory that a traveler requested to sign Respondent's out-of-work book was 27 February. Patrick Quinn, business manager of UA Local 76 until February, who occupied that posi- tion for 9 years, testified that he often called business managers in other jurisdictions to obtain jobs for his members; he did this on a number of occasions for Fitz- gerald and Phelan. In more than 95 percent of the time, his traveling members had jobs lined up before leaving. By letter dated 8 March, counsel for Respondent in- formed the officer in charge of the Subregional Office of the facts (as testified to by Hull and Quinn), that Hull was not authorized to accept their cards; "Apparently, the Charging Parties were too impatient to wait for the Business Manager to accept their transfer cards." By letter dated 12 June to Phelan, Fitzgerald, and Cotton, Quinn stated: On or about February 27, 1985 you appeared at Local 305 office to deposit your travel card. Unfor- tunately I, was out of town at a meeting. Special Or- ganizer,, Hull, informed you I was expected back later that day. However, if you are still interested in depositing your travel card in this Local and registering for employment, I will be available at this address Tuesday, June 18, 1985 from 9:00 a.m. to 11:00 a.m. Please have your travel card and any state occu- pational licenses you, may possess with you. On 25 June they went to Respondent's hall where they registered, albeit, in book II. III. DISCUSSION It is, of course, a violation of the Act for a union, which operates an exclusive hiring hall, to discriminate against travelers in the operation of the hall. Plumbers Local 403 (Pullman Power), 261 NLRB 257 (1982); Plumbers Local 230 (Bechtel Power), 267 NLRB 589 (1983). In Electrical, Workers IBEW Local 948 v. NLRB, 697 F.2d 113 (6th Cir. 1982), the court stated: In order to find a violation of the Act in the oper- ation of an exclusive hiring hall, the Board need not have specific evidence of intent to encourage or dis- courage union membership; the Board may find a violation where the union refuses to place non- members on the referral list or gives members pref- erence on the referral list or gives members prefer- ence over non-members in referrals. In Operating Engineers Local 406 (Ford, Bacon & Davis), 262 NLRB 50 ( 1982), the Board found that the union violated Section 8(b)(1)(A) and (2) of the Act by changing, from 5 to 6 days, the number of days an em- ployee worked after a referral, which resulted in his name being removed from its out-of-work list. This change was not announced and resulted in the charging party losing- employment. The Board found that all the facts established that the union's actions were "motivated by unlawful discriminatory animus towards [the charging party]." The Board stated, in addition: Even assuming the absence of specific discriminato- ry intent, a violation must be found in the circum- stances of this case. The Board has held that any departure from established exclusive hiring hall pro- cedures which results in a denial of employment to an applicant falls within that class of discrimination which inherently encourages union membership, breaches the duty of fair representation owed to all hiring hall users, and violates Section 8(b)(1)(A) and (2), unless the union demonstrates that,its interfer- ence with employment was pursuant to a valid union-security clause or was necessary to the effec- tive performance of its representative function. The Board, in Electrical Workers IBEW Local 11 (Los Angeles NECA), 270 NLRB 424 at 425 (1984), stated that a labor organization that operates an exclusive hiring hall "has a duty to conform with and apply lawful contrac- tual standards in administering the referral system, and any departure from the established procedures resulting in a denial of employment constitutes discrimination which inherently encourages union membership. This discrimination constitutes a violation of Section 8(b)(1)(A) and (2) of the Act." -See also Millwrights Local 2834 (Atlantic Maintenance), 268 NLRB 150 (1983), and Carpenters Local 25 (Mocon Corp.), 270 NLRB 623 (1984). The General Counsel alleges that Respondent refused to allow Phelan, Fitzgerald, and Cotton to register simply because they were travelers; Respondent alleges that their impatience was the cause of their difficulty; if they had remained at the hall, or returned that afternoon or any other time when Quinn was present, they would have been permitted to sign the out-of-work book. I find the General Counsel's argument more persuasive. I credit the testimony of Phelan, Fitzgerald, and Cotton over that of Quinn, Hull, and Hall. Phelan, Fitz- gerald, and Cotton were clearly antagonistic to Respond- ent; however, they appeared to testify in a frank and straightforward manner, reciting the facts as they best re- membered them. Quinn's testimony, on the other hand, was often inconsistent and unrealistic. For example, his testimony regarding his conversation (or conversations) with Hull on the morning of 27 February is confusing, contradictory, and not supported by Respondent's tele- phone bill for that date. I found that Hull's testimony re- garding his position with Respondent established a lack of credibility on his part, and I would generally discredit Hall's testimony because it corresponds with Quinn's and Hull's testimony regarding the events of 27 February and the posting of the hiring hall rules at the hall, which I discredit. These rules were important enough to Re- spondent to discredit Quinn's testimony that they were thrown away "like yesterday's newspaper." I therefore PLUMBERS LOCAL 305 (STONE & WEBSTER) discredit the testimony of Quinn, Hull; and Hall and find that these rules were not posted at the hall on 27 Febru- ary. Initially it is necessary to examine Hull's status. Al- though counsel for Respondent's brief states "Hull's in- ability to accept the travel cards is reflected by Section 230(g) of the United Association's Constitution," the record does not support this argument. Rather, Section 229(d) of the UA constitution provides that the traveler present his card and dues book "to the Local Union Business Manager, or the officer or agent designated by him to receive such cards." Article VI, section I, of Re- spondent's bylaws provides that the assistant business manager will be the dispatcher of men to jobs in, the ab- sence of the business manager. Hull had previously testi- fied that he was the assistant business manager for Re- spondent and counsel for Respondent admitted that alle- gation of the complaint. No credible evidence was pre- sented that this , was not, so. I therefore find that at the relevant time Hull was the assistant business manager of Respondent authorized by the UA constitution and Re- spondent's bylaws to refer employees to employment and, therefore, to assist them in signing Respondent's out-of-work book. The most significant aspect of this case is Respondent's failure to register Phelan, Fitzgerald, and Cotton on 27 February; yet, despite the General Counsel's sustained ef- forts, Quinn never adequately explained this refusal. The uncontradicted testimony is that in the past, in Quinn's absence, Hull or Hall allowed individuals to register, or placed their names in the out-of-work book, with Quinn's permission. This procedure was not followed with Phelan, Fitzgerald, and Cotton on 27 February. Quinn's explanation was that he does not let people sign a book until he is sure that they are qualified for that book. Yet he knew that at that time there was no work and there- fore no immediate harm if they were placed on the wrong , book. He also knew that Fitzgerald (and to a lesser degree Phelan) 'had previously been employed at Millstone and was qualified, at least, for book II. Addi- tionally, Quinn had received Pogue's letter, weeks earli- er, and testified that he was expecting them at the hall; that, together with his admitted discussions with other UA business agents (including his brother Patrick) of Phelan and Cotton's activities, makes it reasonable to assume, that by 27 February Quinn was aware of their qualifications (or, at least, the qualifications of Phelan and Cotton, who had previously filed charges against Respondent and Local 76 , and/or Cotton, who had run for office against Patrick Quinn). In this regard, it is in- teresting to note that Respondent's telephone bill indi- cates that 20 minutes prior to calling ' Quinn at the MCAC, Respondent's office called ' Local 76. If Quinn were really interested in learning of their qualifications, as he testified, he could have called Local 76 (or had Hull call) to ask about their qualifications. Instead Hull simply , told Phelan, Fitzgerald, and Cotton that Quinn was ate a meeting, and they could wait if they wished to, but never told them when he would return. In line with my credibility findings, I do not credit Quinn's testimony that he interviews all individuals ap- pearing at the hall to register with Respondent . This may 89 have been ' so at the' time of the hearing, but I find that this procedure was not followed on 27 February. Up until late 1984 there was full employment arid, no need (or perhaps time) for such screening. Between that time and 27 February no traveler appeared at the hall to reg- ister and, as Quinn probably knew all Respondent's mem- bers, there was no need for screening at that time as well. Additionally, no credible evidence was adduced to establish that such interviewing was normally conducted prior to 27 February. As stated, supra, one of Respondent's defenses is that Phelan, Fitzgerald, and Cotton would eventually have been registered at the hall if not for their impatience in leaving the hall that morning. Initially, it should be noted that as Respondent's telephone bill places the first call to the MCAC at 10:05 a.m., assuming that Quinn returned the call within 10, or 15 minutes and spent , a few minutes on the telephone with Hull , I find that Phelan, Fitzger- ald, and Cotton left the hall at about 10 :30 ,a.m. Consid- ering all the facts, their reaction was a reasonable one. Their background of unfair labor practice charges against Respondent and Local 76 may have caused them to anticipate less .than a big welcome on 27 February and this was confirmed by the "cold shoulder" they received on that morning. After waiting for 2-1/2 hours to sign the out-of-work book they were told that Hull and Hall could not register them and that Quinn would not be in that morning. They were never told when he would return. Leaving, as they did, about 10:30 a.m. was rea- sonable and something that Respondent could well have anticipated. Although Respondent defends that if they had remained they would have been permitted to regis- ter, it is interesting to note that Respondent did not con- tact them in this regard until 12 June. A union must treat nonmembers the same as it treats its members. Rather than doing so, Respondent, on 27 February, departed from the established procedures of its hall, resulting in the failure of Phelan , Fitzgerald, and Cotton to register in the out-of-work book. This there- fore represents a violation of Section 8(b)(1)(A) and (2) of the Act. Electrical Workers IBEW Local 46 (NECA), 277 NLRB 1235 (1985). CONCLUSIONS OF LAW 1. Stone & Webster is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, by failing and refusing to allow Shane Phelan, Donald Fitzgerald, and Mark Cotton, all ,mem- bers of UA Local 76, to register on its out-of-work book on 27 February, violated Section 8(b)(1)(A) and (2) of the Act. 4. The above-described unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of 90 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD Section 8(b)(1)(A) and (2) of the Act, I shall recommend that it cease and desist therefrom and take certain affirm- ative action designed to effectuate the purposes of the Act. Having found that Respondent unlawfully failed and refused to permit Phelan, Fitzgerald, and Cotton to reg- ister on its out-of-work book on 27 February I would normally order it to- do so. The evidence establishes, however, that on 25 June they were registered by Re- spondent in book II; by that time Respondent had insti- tuted a new referral registration system and there is no allegation or evidence that this system of registration was unlawful. I will therefore recommend that Respond- ent be ordered to make whole Phelan, Fitzgerald, and Cotton' for any loss of earnings or other benefits they suffered, due to the discrimination by Respondent, for the period 27 February to 25 June 1985, as set forth in F. W. Woolworth Co., 90 NLRB 289, (1950), together with interest as provided in Florida Steel Corp., 231 NLRB 651 (1977); see generally Isis Plumbing Co., 138 NLRB 716 (1962). I will also recommend that Respondent be ordered to print the notice marked "Appendix," in its en- tirety, in the next edition of its newsletter or newspaper (if such publication exists) and to mail a copy of such notice to UA Local 76, in addition to the usual posting provided for below. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed12 ORDER The Respondent, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Indus- try, Plumbers Local No. 305, Uncasville, Connecticut, its officers, agents, and representatives, shall 1. Cease and 'desist from (a) Failing and refusing to allow Shane Phelan, Mark Cotton, Donald Fitzgerald, or any other traveler, to reg- ister on its out-of-work books because they are not mem- bers of Respondent. (b) 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 action necessary to effectuate the policies of the Act. (a) Make whole Shane Phelan, Mark Cotton, and Donald Fitzgerald for any loss they suffered due to the discriminatory refusal to register them during the period 27 February 1985 to 25 June 1985 in the manner set forth in the remedy section. (b) 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. 12 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. ' (c) Cause, at its expense, the attached notice marked "Appendix" to be printed in the next newsletter or news- paper, if any, prepared by Respondent and distibuted to its member. (d) Send to Phelan, Cotton, Fitzgerald, and Local 76 of the UA signed copies of the notice marked "Appen- dix." (e) Post at its Uncasville, Connecticut facility, copies of the attached notice marked "Appendix." 13 Copies of the notice, on forms provided by the officer in charge for Subregion 39, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (f) Notify the officer in charge in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 12 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." APPENDIX NOTICE To 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. The Board has ordered us to: 1. Obey the terms of this notice. 2. Publish this notice in any union newsletter or newspaper. 3. Mail a copy of this notice to United Associa- tion of Journeymen and Apprentices of the Plumb- ing and Pipefitting Industry, Plumbers Local No. 76, and to Shane Phelan, Mark Cotton, and Donald Fitzgerald. WE WILL NOT refuse to register Shane Phelan, Mark Cotton, Donald Fitzgerald, or any other person, because that person is not a member of Local 305., WE WILL NOT in any like or related manner restrain or coerce employees, including job applicants, in the exer- cise of their rights under Section 7 of the Act. ' WE WILL make Shane Phelan, Mark Cotton, and Donald Fitzgerald whole for any loss of earnings and other benefits resulting from our discrimination against PLUMBERS LOCAL 305 (STONE & WEBSTER) them between 27 February 1985 and 25 June 1985, less interim earnings, plus interest. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY, PLUMBERS LOCAL No. 305 91