Pile Drivers, Dock,, Wharf, And Bridge Carpenters And Divers, Local Union 2396

760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pile Drivers, Dock, Wharf, and Bridge Carpenters and Divers, Local Union 2396, affiliated with United Brotherhood of Carpenters and Joiners of America (Tri-State Ohbayashi, a Joint Ven- ture) and Richard Westberg. Case 19-CB-5930 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 10 July 1987 Administrative Law Judge David G. Heilbrun issued the attached decision. The General Counsel filed limited exceptions and a supporting brief, and a brief that supports the judge's decision in all other respects. The Respond- ent filed exceptions, a supporting brief, and a reply 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 briefs and has decided to affirm the judge's rulings, findings, i and conclusions as modified herein, and to adopt the recommended Order as modified. On 11 August 19862 Charging Party Richard Westberg was telephoned by Richard (Swede) Larson, a superintendent for Tri-State Ohbayashi (TSO), who offered Westberg a job at one of TSO's construction projects, known as ETS-9. The next morning, on Larson's instructions, Westberg, who is a member of Carpenters Local 470 in Tacoma, Washington, went to the Seattle office of Respondent Pile Drivers Local 2396 to be dis- patched to the jobsite. When he asked for a dis- patch, the Respondent's financial secretary and business representative, William Sullivan, informed him that he could not give him a dispatch to the job in question because he was "a guy here from Tacoma."3 Sullivan then asked Westberg for a letter from TSO requesting that he be given a dis- patch. Westberg, who had no such letter, told Sul- livan he would get a letter of request if the Re- spondent needed one, and left the office. Westberg eventually found Larson at the ETS-3D jobsite and ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 All dates are in 1986 s Although the Respondent and TSO have contracts covering two other TSO projects, ETS-6 and ETS-3D, they have never entered into an agreement covering ETS-9, the project at which Westberg was to have a job told him he could not go to work without a letter of request. On Larson's instruction, Larry Agos- tino, office manager at ETS-3D, wrote a letter to Sullivan requesting that Westberg be allowed to work for TSO at ETS-9. Westberg then returned to Local 2396's office and presented the letter to Patricia Sullivan, William Sullivan's wife and secre- tary, who handles routine dispatches. Mrs Sulli- van, within the hearing of Westberg, telephoned Larry Agostino and informed him that she could not give Westberg a dispatch because he was from the Tacoma local. Westberg then retrieved his letter from TSO and left, saying that he intended to go to the NLRB because he had been denied a dispatch. First, however, he went to the ETS-9 site and told Jimmy Sauro, the job foreman, that he could not go to work because he could not get a dispatch. 4 While Westberg was out getting his letter of re- quest from TSO, William Sullivan was in touch with TSO as well. He went to the ETS-9 jobsite and spoke to Ron Agostino, the superintendent on that job. Sullivan told Agostino that he understood that Local 2396's agreement with TSO required TSO to hire only members of Local 2396, and Agostino agreed.5 Sullivan asked Agostino if he knew who had hired Westberg; Agostino said that he had not hired him, and indicated that Larson, who was the superintendent on a different project, would not have been hiring for ETS-9. Sullivan told Agostino that Westberg was a carpenter from Local 470, and that he understood that TSO was hiring piledrivers. He also told Agostino that he had come to the realization that there was no agreement on ETS-9, and that he would have to get in touch with Paul Noble, TSO's project man- ager, and get a contract signed. Sullivan did not ask Agostino to sign a contract.6 Sullivan tried to telephone Noble about a con- tract, but Noble was not available. The call was taken by Arlene Whitworth, payroll clerk and sec- retary for TSO, whose testimony the judge gener- ally credited. She testified that Sullivan told her that TSO was paying Westberg as a piledriver, but that he was not dispatched, and would not be dis- patched, through Local 2396 because he was not a piledriver Sullivan insinuated that TSO, having started with piledrivers, should continue hiring them. He also said that, due to an oversight, there 4 The above account is taken from the testimony of Westberg, whom the judge generally credited The judge generally discredited contradic- tory testimony of the Sullivans s As noted in fn 3, supra, the Respondent's agreement with TSO did not cover ETS-9 B The foregoing is based on Sullivan's testimony Ron Agostino did not testify 287 NLRB No. 78 CARPENTERS LOCAL 2396 (TRI-STATE OHBAYASHI) was no signed agreement covering ETS-9 and asked if TSO could supply a letter agreeing to use piledrivers. Whitworth responded that he would have to talk with Noble about such a letter. Sullivan testified that he spoke to Noble on 13 August and told him he wanted TSO to sign an agreement to hire "people out of our hall." Sulli- van also testified that he asked Noble for a letter of understanding that ETS-9 was part of the agree- ment covering project ETS-6, but that he never re- ceived such a letter.' Whitworth testified that Ron Agostino called her on 13 August and, in reference to questions she had raised concerning the addition of Westberg to the payroll, told her "Just forget it." 1. Westberg filed a charge with the Board, alleg- ing that the Respondent had failed and refused to dispatch him to the job with TSO because he was not a member of Local 2396. The complaint (as amended at the hearing) alleged that the Respond- ent (1) violated Section 8(b)(1)(A) by entering into and maintaining agreements with TSO that re- .quired TSO to give preference in hiring to mem- bers of Local 2396; (2) violated Section 8(b)(1)(A) when the Sullivans informed Westberg that he would not be dispatched because he was not a member of the Local; and (3) violated Section 8(b)(1)(A) and (2) when the Sullivans failed and re- fused to honor a request from TSO to dispatch Westberg because he was not a local member, and thus caused and attempted to cause TSO to dis- criminate against Westberg by not hiring him.' Neither the charge nor the complaint alleged spe- cifically that the Respondent told TSO not to hire Westberg, or that Respondent attempted in any way, other than refusing to dispatch him, to inter- fere with his prospective employment with TSO. Nevertheless, in section II,B of his decision, the judge analyzed the issues before him in the follow- ing manner: In the absence of a lawful exclusive hiring hall agreement,9 there is little question that when a labor organization causes or attempts to cause an employer not to hire an individual because of conduct protected by Section 7 of the Act, it violates Section 8(b)(2). Under a well established legal principle therefore Re- spondent's action of causing or attempting to cause TSO not to hire Westberg because he was not a present member, or alternatively was the member of a neighboring local union 7 Noble did not testify 9 TSO is not named as a respondent in either the charge or the com- plaint 9 The complaint was amended at the hearing to delete the character- ization of the Respondent's hiring hall arrangements as "exclusive " 761 whose members competed for job opportuni- ties at the trade in the Seattle vicinity, was a violation of Section 8(b)(2) and derivatively of Section 8(b)(1)(A). The only question of sub- stance in this case is whether or not William Sullivan told officials of TSO, in effect, not to hire Westberg because the job to which he was destined had not yet become subject to one of its project agreements I conclude that when the first opportunity arose, Respondent, speaking through Patricia Sullivan and almost contemporaneously the authoritative William Sullivan, attempted to cause and in fact did cause TSO to abort the hire of Westberg for no other reason than that he was not a member of Respondent as those individuals typically appeared on its out-of- work list. I find that the true motivation of William Sullivan was to fend off Westberg from filling a prized opening within Respond- ent's trade and geographical jurisdiction, and he did so by pointedly prevailing on Ron Agostino to set in motion a sly cancellation of the employment opportunity. Overall, the credited evidence bears out signif- icant allegations of the complaint. According- ly, I conclude that the activity engaged in by Respondent regarding the requested employ- ment of Westberg in August was violative of Section 8(b)(1)(A) and 8(b)(2) of the Act The judge recommended a remedy that included make-whole relief for Westberg. The Respondent has excepted to the judge's find- ing that it unlawfully prevailed on officials of TSO not to hire Westberg.1 ° The Respondent asserts that, with respect to Westberg, the only issue before the judge concerned the alleged refusal to give him a dispatch. The Respondent notes that neither the charge nor the complaint alleged that it attempted to interfere directly with Westberg's job opportunities with TSO, and that even when the General Counsel amended the complaint at the hearing, no allegation was raised of unlawful at- tempts to influence TSO not to employ Westberg. Further, the Respondent emphasizes that the Gen- eral Counsel failed to call a single official of TSO who might have testified who decided not to hire Westberg or why that decision was made. Accord- ingly, the Respondent argues that it was an error 10 The judge made no finding whether the Respondent violated the Act by Informing Westberg that he would not be dispatched, and the General Counsel has not excepted to the judge's failure to make such a finding Accordingly, that issue is not before us 762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for the judge to go beyond the allegations of the complaint and to find a violation based solely on a "direct interference" theory. The-Respondent also excepts to the judge's factual finding that its agents contacted TSO to prevent the hiring of Westberg; to his implicit finding that it refused to dispatch Westberg and to his basing the finding of a viola- tion on such refusal; and to the judge's make-whole remedy. For the reasons set forth below, we find that, the Respondent's exceptions lack merit. It is settled that, absent an exclusive hiring hall arrangement, a union violates Sections 8(b)(2) and 8(b)(1)(A) if it interferes or attempts to interfere with an individual's employment for union-related reasons. i i Therefore, if the issue of "direct inter- ference" by the Respondent with Westberg's em- ployment with TSO was fully and fairly litigated, and if a preponderance of the evidence establishes such interference, we will affirm the judge's find- ing that the Respondent violated the Act. To begin -with, we agree with the judge that the evidence establishes that the Respondent, through the Sullivans, attempted to prevent and did prevent Westberg's employment with TSO. The initial- and vital-step in this operation was to confirm in 'Westberg's mind the mistaken impression that he had to have a dispatch in order to work at the ETS-9 project, because if Westberg. had ever dis- covered that no dispatch 'was necessary, the Re- spondent's remaining efforts would have been futile. Therefore, although there was no hiring hall arrangement between TSO and the Respondent concerning ETS-9, the Respondent acted as if its clearing Westberg for hire on that project was re- quired and without such clearance he could not be hired. The sequence of events clearly bears this out. Thus, when Larson, apparently believing (along with Westberg) that clearance by the Re- spondent was a prerequisite to being hired on ETS- 9, sent Westberg to the Respondent to be dis- patched, the Respondent did nothing to dispel that belief. Indeed, instead of forthrightly informing Westberg or Larson, or any other TSO representa- tive, that Westberg did not need a dispatch to work at ETS-9, William Sullivan asked Westberg for a letter of request from TSO, thereby implying that a dispatch was necessary. The Company, taking its cue from the Respondent, provided the letter. However, when Westberg returned with the letter, Patricia Sullivan, in his presence, telephoned TSO and informed Larry Agostino, who had pre- pared the letter, that Westberg would not be dis- patched to work for TSO on ETS-9 because he u See, e g, Sheet Metal Workers Local 16 (Parker Sheet Metal), 275 NLRB 867 ( 1985), Stage Employees IATSE Local 665 (Columbia Picture), 268 NLRB 570 ( 1984), enfd mem 751 F 2d 390 (9th Cir 1984) was not a member of the piledrivers local;12 and in case the message was not understood, William Sul- livan telephoned Arlene Whitworth that day and told her the same thing. In these circumstances, the Sullivans did not merely, passively and without comment, fail to honor TSO's requests that West- berg be dispatched; rather, on their own initiative, they made believe to all concerned that a dispatch was necessary and then they called Whitworth and Agostino to say that the Respondent refused to dis- patch him.13 Of course, William Sullivan's actions with re- spect to Westberg were not limited to announcing the Respondent's refusal to issue him a dispatch. In his telephone conversation with Whitworth, Sulli- van insinuated that TSO should continue to hire piledrivers and asked if TSO would supply him a letter agreeing to do so. By his own admission, Sul- livan also drove to the ETS-9 jobsite, sought out Ron Agostino, and (1) asked him who had hired Westberg; (2) told, him that Westberg was a car- penter from Local 470, and that Sullivan under- stood that TSO was hiring piledrivers; (3) stated his understanding-with which Agostino agreed- that the agreement between the Respondent and TSO required TSO to hire only Respondent's members; and (4) said he had realized that TSO and the Respondent had no agreement covering ETS-9, and that he would have to get a contract signed. The next' day, Agostino told Whitworth, concerning Westberg, "Just forget it." Thereafter Westberg was not contacted by anyone from TSO about working on the ETS-9 job. Like the judge, we have no difficulty concluding that the Respondent's course of conduct constitut- ed an attempt to persuade TSO not to hire West- berg, and that the attempt succeeded. The Sulli- vans' statements to Larry Agostino and to Whit- worth that Westberg would not be referred' be- cause he was not a piledriver, and William Sulli- van's conversation with Ron Agostino in which the latter acknowledged that only piledrivers should be hired, indicated clearly that the Respondent was unhappy about the prospect of TSO's hiring non- 12 In light of these events, we find that Westberg, having been misled by the Respondent, cannot be faulted for not further pursuing employ- ment at ETS-9 13 The Respondent's active refusal to refer Westberg and its mislead- ing him about the necessity of obtaining a dispatch distinguish this case from Teamsters Local 17 (Universal Studios), 251 NLRB 1248 (1980), relied on by the Respondent In Teamsters Local 17, the union received a request for the dispatch of certain named employees, but simply made no effort to contact them Id at 1252 There is no indication that the union informed the employer that it refused to refer the employees, or that the employees were misled by the union Moreover, unlike this case, in Teamsters Local 17 there was no allegation that the union's failure to con- tact the employees as the employer had requested was a violation of Sec 8(b)(2) CARPENTERS LOCAL 2396 (TRI-STATE OHBAYASHI) 763 member Westberg, and that the Respondent wanted TSO to rescind its offer of employment. Part and parcel of the Respondent's actions were the efforts by William Sullivan, including asking for a referral letter, to confirm in the minds of Westberg and TSO officials the erroneous impres- sion that Westberg needed a dispatch to work on ETS-9. It is immaterial that no explicit threat or demand was voiced; the Sullivans' actions and their thinly veiled hints of the Respondent's displeasure were sufficient to influence TSO not to employ Westberg as it had planned." We also find that the issue of the Respondent's "direct interference" with Westberg's employment with TSO was fully and fairly litigated. Although, as we have noted, the amended complaint does not specifically allege such direct interference, it does allege that the Respondent caused TSO not to hire Westberg not by merely failing to dispatch him but also by refusing to do so. As we have noted, the credited testimony establishes that as part of its effort to prevent Westberg from working for TSO, the Respondent on two occasions informed TSO that it was refusing to dispatch him. Moreover, counsel for the General Counsel elicited, without objection, Whitworth's testimony that William Sul- livan insinuated that TSO should continue to hire piledrivers, and that he asked if TSO could supply a letter to that effect. Counsel for the General Counsel also elicited-again without objection- testimony from Sullivan himself concerning his conversation with Ron Agostino at the ETS-9 job- site, and the Respondent's counsel brought out still more information about that conversation from Sullivan on cross-examination. Finally, both parties addressed the issue of the Respondent's "direct in- terference" with Westberg's employment in their briefs to the judge. Thus, although the complaint never was amend- ed to include a specific allegation of "direct inter- ference," we are satisfied that the issue was fully litigated before the judge, and that the parties were aware that it was an issue in the case. Accordingly, although his decision is not a model of clarity, the judge properly found that the Respondent violated Section 8(b)(2) and (1)(A) by prevailing on officials of TSO to change their plans and not to hire West- berg because he was not one of the Respondent's members. 15 The Respondent also excepts to the judge's order of make-whole relief for Westberg. That exception is based on the assertions that even if a violation occurred, (1) Westberg actually did not need a dis- patch to work for TSO, and (2) because there is no evidence of any referrals to TSO between 12 August and 2 October, there really was no job at TSO for Westberg in the first place. We find no merit in either contention. The Respondent first contends that Westberg should not be made whole because there is evi- dence that other employees went to work for TSO without dispatches and Westberg never asked if he could do the same. This attempt to put the blame on Westberg for the Respondent's own unlawful acts is unavailing. In the first place, there is no evi- dence that Westberg knew that other employees had been hired by TSO without dispatches. More important, Westberg cannot be faulted for not asking whether he could be hired without a dis- patch because, as we have seen, the information he had on 12 August indicated clearly that he did need a dispatch. Larson, at the outset, told West- berg to get a dispatch from the Respondent, and no representative of either TSO-or, of course, the Respondent-did or said anything to disabuse him of the belief that a dispatch was required. Of cru- cial importance is that William Sullivan not only withheld the pertinent facts from Westberg, t 6 but also fostered the impression that a dispatch was necessary by telling Westberg to get a letter of re- quest. We will not permit the Respondent to escape responsibility for its unlawful acts merely because Westberg did not ask a question to which he reasonably thought he already knew the answer. The Respondent's other contention-that there actually was no job for Westberg at TSO-need not detain us long. It is uncontroverted that TSO requested in writing that Westberg be dispatched to a job at ETS-9, and that TSO had even taken steps to add him to the payroll for that project. We have no doubt that, at least until William Sullivan began to interfere, there was a job for Westberg at TSO. That there is no record evidence of a dis- patch to TSO from 12 August to 2 October is of little probative value, especially in view of the fact that (as the Respondent admits) it is possible for at least some individuals to go to work without dis- patches. Accordingly, we find that the judge prop- erly ordered make-whole relief for Westberg.17 14 Stage Employees IATSE Local 665, supra, 268 NLRB at 572. 15 In so holding, we place no reliance on the judge's discussion in sec. II,B concerning an earlier "controversy" between the Respondent and Ron Agostino's father, on the subject of hiring through unions. There is no evidence of any such "controversy," although Sullivan testified that he and the senior Agostino did discuss the hiring of carpenters and pile- drivers in 1985. 16 In addition to admitting that it is possible for piledrivers to work without dispatches, Sullivan testified that while Westberg was in the Re- spondent's office on 12 August, Sullivan checked his records and found that the Respondent had no contract covering ETS-9. 11 The judge's recommended Order enjoins the Respondent from re- straining or coercing employees in the exercise of their Sec. 7 rights, in- Continued 764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. The complaint alleged that the Respondent violated Section 8(b)(1)(A) by maintaining agree- ments with TSO that contained the following pro- vision- "Whenever the employer [TSO] requires men covered by this Agreement on any job, the employer shall give preference in hiring to Union members from the' local union having jurisdiction who are qualified to perform the work." That pro- vision was part of the underlying master area labor agreement which was adopted by reference in the Respondent's -contracts with TSO covering work at projects ETS-3D and ETS-6. Although the foregoing contract provision was, placed in 'evidence and was alleged in the com- plaint to violate the Act, and although the General' Counsel contended in her'brief to the judge that the provision was unlawful, the judge made no finding on that allegation The General Counsel has excepted to the judge's failure to find the provision unlawful and - to recommend an appropriate remedy. We find merit -in the General Counsel's excep- tions. The provision in question plainly requires signatory employers to give' preference in hiring based on membership or nonmembership in labor organizations, and consequently restrains and, co- erces employees' in the exercise of their Section 7 rights. The quoted provision is unlawful on its face. Accordingly, we find that by entering into and maintaining an agreement containing such a provi- sion, the Respondent has violated Section 8(b)(1)(A) of the Act, and we shall order Respond- ent to cease and desist from maintaining any such provision.18 ' ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Pile Drivers, Dock, Wharf, and Bridge cluding "the right to obtain a nondiscriminatory job dispatch upon an employer's name request " That provision would, under some circum- stances, conflict with the teaching of Teamsters Local 17, supra, 251 NLRB at 1257, that a union that has no bargaining relationship with an employer and that does not operate an exclusive referral service does not violate the Act simply by failing to refer nonmembers Accordingly, and because the judge in any event did not find a violation based simply on the Respondent 's failure to refer Westberg , we shall delete that provision of the recommended Order as well as the corresponding portion of the judge's notice 18 The Respondent argues that no violations can be found because it has not been shown that the provision ever was enforced The Respond- ent is mistaken Although absent a showing that the Respondent had ac- tually caused or attempted to cause employers to discriminate in hiring, no violation of Sec 8(b)(2) could be found, see, e g , Polis Wallcovermg Co , 262 NLRB 1336, 1339 (1982), enfd in relevant part 717 F 2d 805 (3d Cir 1983), here it is alleged that the provision in the Respondent's con- tracts with TSO violated Sec 8(b)(1)(A), not Sec 8(b)(2) The mere maintenance of such a provision violates Sec 8(b)(1)(A) Plasterers Local 32 (McCrory & Co), 223 NLRB 486, 491-492 (1976) Accord Plasterers Local 121, 264 NLRB 192, 205 (1982) Carpenters and Divers, Local Union 2396, Seattle, Washington (affiliated with United 'Brotherhood of Carpenters and Joiners' of America), its officers, agents, successors, and assigns, shall take' the action set forth in the, Order as modified. ' 1. Substitute the following for paragraph -1(a). "(a) Maintaining or otherwise giving effect to any agreement with Tri-State 'Ohbayashi, or with any other employer, that requires the employer to give preference in hiring to employees based on membership or nonmembership in any labor orga- nization:" 2. Substitute the following for paragraph 2(b). "(b) Notify Tri-State Ohbayashi in writing that it has no objection to its hiring Richard Westberg and request that Tri-State Ohbayashi do so, and send a copy of such notification to Westberg." 3. Substitute the following for paragraph 2(d). "(d) Notify all employers bound by its collec- tive-bargaining agreement, by mailing each em- ployer a signed copy of the attached notice marked "Appendix," that the provision found herein to be unlawful will be given no further force` or effect." 4. Substitute the attached notice for that of the administrative law judge. 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 ordered us to post and abide by this notice. WE WILL NOT maintain or otherwise give effect to any agreement with Tri-State Ohbayashi, or with any other employer, requiring the employer to give preference in hiring ;to employees based , on membership or nonmembership in any labor orga- nization. ' WE WILL NOT cause or attempt to cause Tri- State Ohbayashi, or any other employer; to fail to employ Richard Westberg, or any other qualified person, because that person has engaged in or re- frainedfrom activities as protected by Section 7 of the Act. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make Richard Westberg whole for any loss of earnings or other benefits suffered by reason of our discrimination against him , with interest. WE WILL notify Tri-State Ohbayashi in writing that we have no objection to its hiring Richard CARPENTERS LOCAL 2396 (TRI-STATE OHBAYASHI) Westberg and WE WILL request that it do so and send a copy of that notice to Westberg. WE WILL notify all employers bound by our col- lective-bargaining agreement that the contract pro- vision found by the Board to violate the Act will be given no further fo;pe or effect. PILE DRIVERS, DOCK, WHARF, AND BRIDGE CARPENTERS AND DIVERS, LOCAL UNION 2396, AFFILIATED WITH UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMER- ICA Martha A. Barron, Esq., for the General Counsel M. Lee Price (Hafer, Price, Rinehart & Schwerin), of Seat- tle, Washington, for the Respondent DECISION STATEMENT OF THE CASE DAVID G HEILBRUN, Administrative Law Judge This case was tried at Seattle, Washington, on 17 December 1986.1 The charge was filed by Richard Westberg, an in- dividual, on 20 August, and the complaint was issued 7 October The primary issue is whether Pile Drivers, Dock, Wharf, and Bridge Carpenters and Divers, Local Union 2396, affiliated with United Brotherhood of Car- penters and Joiners of America (Respondent) unlawfully caused and attempted to cause an employer to discrimi- nate against Westberg by failing to hire and employ him because Westberg was not its member, in violation of Section 8(b)(1)(A) and (2) of the National Labor Rela- tions Act. On the entire record, including my observation of the demeanor of witnesses, and after consideration of briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION In January Tri-State Ohbayashi a point venture, was formed comprising Tri-State Construction, Inc., a State of Washington corporation, and Ohbayashi Corporation, a Japanese corporation. This enterprise, called TSO, is authorized to do business in the State of Washington where it has an office and place of, business in Bellevue, from which it engages in the construction business TSO is now, and has been at all times material, engaged in performing services under a contract with the Municipal- ity of Metropolitan Seattle, a governmental subdivision, on jobsites collectively referred to as Metro Sewer Projects During the representative 12-month period pre- ceding October TSO sold and shipped goods or provid- ed services in the course and conduct of its business op- erations having a total value in excess of $50,000 from its facilities within Washington to customers which were ' All dates are in 1986 unless otherwise indicated 765 themselves engaged in interstate commerce by other than indirect means On these admitted facts I find that TSO is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that Respondent is a labor organization within the meaning of Section 2(5). II ALLEGED UNFAIR LABOR PRACTICES A Basis of Analysis This case arises from TSO's operations along the Renton Effluent Transfer System, an approximately 8- mile long pipeline construction undertaking for which the joint venture had three separate and unabutting public contracts. In the linear and generally southeasterly to northwesterly line of construction these three con- tracts were officially identified as ETS-3D, ETS-6, and ETS-9, respectively. The geographically lowermost job- site ETS-3D was at Tukwila, Washington, adjoining Renton, while uppermost ETS-9 spread around the far rim of the West Seattle peninsula by Duwamish Head, as popularly, termed Harbor Avenue or Alki Point The pertinent employer hierarchy relative to this case includes Joe Agostino, owner of Tri-State Construction, Paul Noble, overall project manager for the TSO under- taking, Arlene Whitworth, long-service payroll clerk and secretarial employee of Tri-State Construction now with TSO, Richard (Swede) Larson, superintendent at ETS- 3D, Ron Agostino, superintendent at ETS-9, Larry Agostino, office manager at ETS-3D, plus Jimmy Sauro and Jimmy Crawford, each a foreman at ETS-9 during material times. On 14 April and 9 June, Respondent and TSO had en- tered into a project agreement for ETS-3D and ETS-6, respectively, binding the Employer to master area labor agreements and to benefit trust agreements of the vicini- ty, all of which were to have immediate effect and to continue until all current or contemplated "carpentry work" at the specified projects was completed Respond- ent is a distinctive local of the United Brotherhood of Carpenters and Joiners of America, in that it possesses several trade jurisdictions in three separate areas as re- flected by its official title. These are (1) commercial diving work, (2) piledriver work,2 and (3) carpenter work in regard to certain types of bridge, dock, and wharf construction as delineated from the International Union. The underlying master area labor agreement for the trade provides in part, as article 5 (Union Recogni- tion and Security) the following nonexclusive hiring pro- cedure: Section 1 Whenever the employer requires men covered by this Agreement on any job, the employ- er shall give preference in hiring to Union members from the local union having jurisdiction who are qualified to perform the work. The employer will notify the local union office having jurisdiction either by telephone or in writing stating the job lo- cation and number of workmen required The union 2 in actual industry usage the term "piledriver" is synonymous with "piled riverman," "pilebuck," and even "pile butt " 766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD shall refer men to the employer by name with a dis- patch slip, at the request' of the employer or his agent. Respondent maintains an out-of-work list offering dis- patch of qualified carpenters or piledrivers 3 The eight- point description of its workings disclaims a hiring hall characteristic, expressly entitles an employer who makes a name request to reject any person on the list, and es- tablishes a testing standard coupled with 4 years' trade experience for those not members or former members. Aside from other rituals of the system, a closing item specifies the mandatory prerequisite to dispatch as "a note from the- Contractor or a call from the Contractor to this office " Westberg was a member of Respondent during the 1960s and for an approximate 2-month period in 1984. Otherwise he has been an active member of Carpenters Local 470, in Tacoma, Washington, and resides in nearby Sumner about 18 miles to the east The approximate dis- tance from Tacoma to Seattle is 30 miles on a generally north-south line About 11 August, Westberg was telephoned at his home by Larson, a person Westberg had previously worked with at jobs of the trade 4 Larson called as a su- perintendent of TSO to offer Westberg immediate work at a specified jobsite. Westberg accepted and early the next morning traveled to his own local union to obtain a paid up work card. Following this he traveled directly to Respondent's office near downtown Seattle. On arriving there around 7:45 a.m. he was met by William Sullivan, who has held office as financial secretary, treasurer, and business representative of Respondent for the past 12 years. Westberg testified that he informed Sullivan of being there to obtain 'a dispatch for work with TSO at Alki Point, to which Sullivan stated that a letter of re- quest would be needed Westberg left immediately and spent the next several hours searching for Larson in the ' construction zone stretching from Alki Point back to work in progress at Tukwila. Eventually locating Larson to advise that a written dispatch was necessary, he was turned over to Larry Agostino who wrote out an actual document as addressed to Respondent and requesting employment of Westberg for the ETS-9 project. West- berg then returned to Respondent's office where he found Patricia Sullivan, wife of William and Respond- ent's secretary and bookkeeper who also performs dis- patch functions He presented the paid up work card of, his own local union and Larry Agostino's letter of, re- quest to Patricia Sullivan, who then went to the tele- phone for what appeared as a conversation with Larry Agostino at his jobsite whereabouts Westberg testified that during this telephone conversation Patricia Sullivan stated she could not give him the requested dispatch be- cause he was from the Tacoma local. According to Pa- tricia Sullivan, Larry Agostino believed the request of Westberg had emanated from his friendship with Sauro, 3 Special qualifications are required of persons who are to be employed as certified welders, divers, or tenders 4 Although Westberg testified that the contact occurred on 12 August, a Tuesday, I place it as the day before based on what other witnesses recount and related written records however he agreed that some "misunderstanding" could be present that would prevent Respondent from fulfilling a dispatch of Westberg. Larry Agostino's own loose recollection of that telephone conversation was that Pa- tricia Sullivan said simply she could not dispatch West- berg When the conversation ended Patricia Sullivan ad- vised Westberg that certain questions remained unan- swered, and she could not give him a dispatch to the job. Westberg retrieved his documentation and left, advising her of his intention to go to the NLRB for not getting the requested dispatch Whitworth credibly testified that on the morning of 12 August she had been telephoned by William Sullivan, who asked whether a person named Westberg was on the payroll. Whitworth advised him that a preliminary check of records, subject to what might appear on the regular Wednesday payroll, showed no such person. She recalled - William Sullivan continuing ' by mentioning Westberg's not being dispatched through the "pilebuck" union, and adding that he intended TSO's final project phase at ETS-9 to also be under agreement similar to the earlier ones. In the conversation Whitworth advised him she was without authority, and he should take that sub- ject up with Noble This point of the conversation in- cluded an express-wish from William Sullivan that TSO supply him a letter indicating willingness only to utilize "pilebucks" throughout the project at all locations That same morning William Sullivan traveled to ETS- 9 where he first spoke with Crawford about whether Sauro had discharged Respondent's member Raleigh Me- deiros to make room for Westberg on the job When this inquiry resulted inconclusively, William Sullivan then lo- cated Ron Agostino at another part of the ETS-9 jobsite and discussed what understanding should exist between the Employer and the Union respecting the exclusive hiring of Respondent's members. According to William Sullivan, Ron Agostino agreed with this mutual ap- proach to job staffing. B Analysis The accepted facts of this case revolve mainly around a credibility resolution favoring General Counsel's wit- nesses Westberg and Whitworth. The former was persua- sively sincere in his testimony, while the latter was im- pressively concise, truthful-seeming, and without hint of bias Neither of the Sullivans presented sufficiently for me to accept the critical portions of their testimony. Wil- liam Sullivan could not harmonize his stated reasons for a hasty trip to the ETS-9 jobsite in terms of Westberg's requested employment there, and he was tellingly incon- sistent both in regard to knowledge of contract coverage at ETS-9 and the extent of his wife's authority to act on name requests as part of the dispatching procedure. An additional facet of William Sullivan's testimony which belies it, was, the description about discomfort he might have felt in writing a dispatch to ETS-9 as opposed to ETS-6 I translate this seeming neutral intention to actu- ally tie in with William Sullivan's objective of securing immediate application of earlier collective-bargaining agreements to the ETS-9 location, and from that invok- ing the members only rule of dispatch Regarding Patri- CARPENTERS LOCAL 2396 (TRI-STATE OHBAYASHI) cia Sullivan I am convinced that her testimony was unre- liable and at times contrived. I specifically discredit her assertion that Westberg had stated he would take the of- fered job even without a dispatch from the Union, and I note the glaring oddity of her claimed failure to recog- nize who may have prepared the specific written request for Westberg when the name of Larry Agostino was so plainly hand-printed on the document. In the absence of a lawful exclusive hiring hall agree- ment, there is little question that when a labor organiza- tion causes or attempts to cause an employer not to hire an individual because of conduct protected by Section 7 of the Act, it violates Section 8(b)(2). Under a well-es- tablished legal principle therefore Respondent's action of causing or attempting to cause TSO not to hire Westberg because he was not a present member, or alternatively was the member of a neighboring local union whose members competed for job opportunities at the trade in the Seattle vicinity, was a violation of Section 8(b)(2) and derivatively of Section 8(b)(1)(A). The only question of substance in this case is whether William Sullivan told officials of TSO, in effect, not to hire Westberg because the job to which he was destined had not yet become subject to one of its project agreements. I conclude that when the first opportunity arose, Re- spondent, speaking through Patricia Sullivan and almost contemporaneously the authoritative William Sullivan, attempted to cause and in fact did cause TSO to abort the hire of Westberg for no other reason than that he was not a member of Respondent as those individuals typically appeared on its out-of-work list. I find that the true motivation of William Sullivan was to fend off Westberg from filling a prized opening within Respond- ent's trade and geographical jurisdiction, and he did so by pointedly prevailing on Ron Agostino to set in motion a sly cancellation of the employment opportuni- ty. This is further highlighted by Whitworth's reliable recollection that, in her effort to bring orderly fulfillment to the question, she found that Ron Agostino merely tersely told her to forget the whole matter. The infer- ence is compelled from these facts that William Sullivan had alluded to earlier controversy between Respondent and Ron Agostino's father in terms of contract scope and an employer's potential difficulties when hiring without the Union's consent Additionally, I agree with the General Counsel's ob- servation that no "fair representation" issue is present in this case, it being instead a direct matter of whether Re- spondent, without the mechanics of an exclusive hiring hall at work, nevertheless insinuated itself into the normal course of hiring by some authoritative agent for TSO. Larson had legitimately set just such a course in motion, and as contrasted with the cases of pilebuck union members Sauro and Harvey Phelan earlier that summer, William Sullivan here drew a line and made Westberg the innocent victim. Overall, the credited evi- dence bears out significant allegations of the complaint. Accordingly, I conclude that the activity engaged in by Respondent regarding the requested employment of Westberg in August was violative of Section 8(b)(1)(A) and (2) of the Act, and an appropriate remedy will be recommended. See Bricklayers Local 2 (Glenshaw Glass), 767 205 NLRB 478 (1973); Operating Engineers Local 17 (Combustion Engineering), 231 NLRB 1287 (1977); Sheet Metal Workers Local 16 (Parker Sheet Metal), 275 NLRB 867 (1985). CONCLUSIONS OF LAW 1 The Respondent, Pile Drivers, Dock, Wharf, and Bridge Carpenters and Divers, Local Union 2396, affili- ated with United Brotherhood of Carpenters and Joiners of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. Tri-State Ohbayashi, a joint venture, is an employer within the meaning of Section 2(2) of the Act, and is en- gaged in commerce within the meaning of Section 2(6) and (7). 3. By causing and attempting to cause Tri-State Oh- bayashi to unlawfully refuse to hire and employ Richard Westberg beginning in August 1986, Respondent en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having concluded that Respondent caused and at- tempted to cause Richard Westberg not to be hired by TSO, I shall recommend that the Respondent notify TSO in writing, with a copy to Westberg, that it has no objection to his hire and that it requests Westberg be hired. The Respondent shall be ordered to make whole Westberg for any loss of wages or other rights and bene- fits he may have suffered as a result of its action, until Westberg has been hired by TSO, the project is complet- ed, or he obtains substantially equivalent employment elsewhere, in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as provided for in New Horizons for the Retarded, 283 NLRB 1173 (1987). See, generally, Isis Plumbing Co., 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5 ORDER The Respondent, Pile Drivers, Dock, Wharf, and Bridge Carpenters and Divers , Local Union 2396, Seattle Washington , affiliated with United Brotherhood of Car- penters and Joiners of America, Seattle, Washington, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act, which includes the right to obtain a nondiscriminatory job dispatch on an employer 's name request 5 If no exceptions are filed as provided by Sec 10246 of the Boaid'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 768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Causing or attempting to cause any employer to discriminate against potential employees because they have engaged in activity, or refrained from activity, as protected by Section 7 of the Act (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole Richard Westberg for any losses of wages or other rights and benefits that he may have suf- fered as a result of the Respondent's action with refer- ence to his prospective employment with TSO, com- mencing 12 August 1986, in the manner set forth in the remedy section above. (b) Notify TSO that it has no objection to its hiring Richard Westberg and request that TSO do so. (c) Post at Local 2396 offices and meeting halls copies of the attached notice marked "Appendix "s Copies of the notice, on forms provided by the Regional Director for Region 19, 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 employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material (d) Furnish the Regional Director sufficient signed copies of the attached notice for posting at the premises and projects of TSO, if it is willing. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 6 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 "