United Association Of Journeymen And Apprentices Of The Plumbing And Pipefitting Industry Of The United States And Canada, Afl-Cio, And Its Local, Pipefitters Local Union No. 589 (L & S Plumbing And Heating Of Hibbing, Inc.)

616 DECISIONS OF THE NATIONAL.LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, and its Local, Pipefitters Local Union No. 589 (L & S Plumbing and, Heating of Hibbing , Inc.) and Joseph A. Lendacky, Chief Executive Officer, L & S Plumbing and Heating of Hibbing, Inc. Case 18-CB-1718 May 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 16, 1988, Administrative Law Judge William J. Pannier III issued the attached decision. The General Counsel filed exceptions and a sup- porting brief. The Respondent filed cross-excep- tions, a supporting brief, and a brief in response to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, United As- sociation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, and its Local, Pipe- fitters Local Union No. 589, St. Paul and Virginia, Minnesota, respectively, its officers, agents, and representatives, shall take the action set forth in the Order. ' 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 In affirming the judge's finding that the International was liable for the discipline imposed on Joseph Lendacky, we rely on the credited evidence showing that when the International affirmed the Local's imposition of discipline it had information sufficient to put it on notice that the Local was fining an employer-member for working with the nonunion members whom he employed We therefore find it unnecessary to rely on any theory of per se liability, i e , liability for approval even in the absence of such knowledge DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge. I heard this case in Hibbing, Minnesota, on November 18, 1987. On September 30, 1987, the Regional Director for Region 18 of the National Labor Relations Board (the Board) issued a complaint and notice of hearing, based on an unfair labor practice charge filed on May 26, 1987, amended on July 8, 1987, and again on September 30, 1987, alleging violations of Section 8(b)(l)(A) and (2) of the National Labor Relations Act (the Act). All parties have been afforded full opportunity to appear, to intro- duce evidence, to examine and cross-examine witnesses, and to file briefs. Based on the entire record, on the briefs filed on behalf of the parties, and on my observa- tion of the demeanor of the witnesses, I make the follow- ing FINDINGS OF FACT I JURISDICTION At all times material, L & S Plumbing and Heating of Hibbing, Inc (the Employer) has maintained an office and place of business in Hibbing, Minnesota, and has en- gaged as a plumbing and heating contractor, installing and servicing plumbing and heating equipment in com- mercial and residential facilities In the course and con- duct of those operations during calendar year 1986, the Employer purchased and received goods and materials valued in excess of $50,000 from other enterprises locat- ed within the State of Minnesota, each of which received those goods and materials directly from outside that State. Therefore I conclude, as admitted in the Answer of Respondents, that at all times material, the Employer has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 11. THE LABOR ORGANIZATIONS INVOLVED At all times material, United Association of Journey- men and Apprentices of the Plumbing and Pipefitting In- dustry of the United States and Canada, AFL-CIO (Re- spondent International) and Its Local, Pipefitters Local Union No. 589 (Respondent Local), has each been a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues At root, this case presents an issue of motivation based, in turn, upon a section of Respondents' constitu- tion that is alleged to be unlawful. In essence, that sec- tion prohibits journeymen members from working with nonmembers. i Florence I. Brammer, for the General Counsel. Brian A. Powers (O'Donoghue & O 'Donoghue), of Wash- ington, D.C., appearing for the Respondents Robert D. Chabot, of Duluth, Minnesota, appearing for the Charging Party 294 NLRB No. 45 The events in this case span a revision and amendment of Respond- ents' constitution, occurring "at Las Vegas, Nevada, July 28-August 1, 1986 With respect of the particular section pled in the complaint as un- lawful, sec 154(a) of the superseded constitution provided Continued PLUMBERS LOCAL 589 (L & S PLUMING) In September 1986, Joseph A. Lendacky was a union member operating his own business, the Employer. At one time the Employer had been party to a collective- bargaining contract with Respondent Local, but Len- dacky repudiated that relationship in March 1985. Later, the Employer hired nonunion employees as helpers. On September 27, 1986, he was charged with violating two sections of Respondents' constitution: the one prohibiting working with nonmembers and the other prohibiting member-employers from working without a contract.2 As described in more detail in section III,B, infra, resolu- tion of this charge would have allowed only one of the Employer's nonunion employees to continue working for it. Respondent Local fined and expelled Lendacky from membership. However, that penalty could not become effective absent approval by Respondent International, which was granted by letter dated April 7, 1987.3 I conclude that the section of the constitution pled in the complaint, prohibiting union members from working with nonmembers, does not violate the Act. It is by now settled that rules of this type are encompassed by the in- ternal affairs provision of Section 8(b)(1)(A) of the Act and, consequently, do not violate the Act. See, e.g., Plumbers Local 119 (Kam tech, Inc.), 264 NLRB 688, 694 (1982), enfd mem. 715 F.2d 578 (11th Cir. 1983). As the No journeyman member will be permitted to work with an appren- tice or helper who is not a member except apprentices who have made an application for membership in the Local Union and the United Association, and who are covered by a written apprentice- ship agreement and are serving a probationary period (not to exceed six months) in a training program under the administration of an ap- prenticeship committee or as provided by the 30 day period under a union security clause In the revised and amended constitution, that same proscription, modi- fied in two respects not pertinent to the issues in this proceeding, appears in sec 152(a) No journeyman member will be permitted to work with an ap- prentice or helper who is not a member except apprentices who have made an application for membership in the Local Union and the United Association, and who are covered by a written apprentice- ship agreement and are serving a probationary period of one (1) year in a training program under the administration of an apprenticeship committee or if a helper, he is working under the grace period of a union security clause 2 In the superseded constitution, this proscription appears in section 204(c), while it appears as section 200(c) of the revised and amended con- stitution Both sections are identically worded A member who enters business for himself or holds a financial inter- est in any business and such business performs work that comes within the work jurisdiction of the United Association must sign a collective bargaining agreement with a Local Union or Local Unions in whose territorial jurisdiction plumbing or pipefitting work is per- formed ` 3 Respondent International challenges the adequacy of the General Counsel's investigation pertaining to the amended charge filed against it, arguing that "there was no meaningful opportunity for it to present its position during the investigative portion of the proceedings, and in this respect it was denied full due process " But under Sec 3(d) of the Act, the General Counsel possesses "final authority, on behalf of the Board, in respect of the investigation of charges " Moreover, regional directors, who operate under the General Counsel's supervision in this area, "may exercise discretion to dispense with any portion of the investigation " Statements of Procedure, Sec 101 4 Therefore, it is not within the prov- ince of the Board and its administrative law judges to sit in judgment on the manner in which the General Counsel's office discharges responsibil- ity for conducting investigations Moreover, whatever may be said of the investigation, Respondent International had full opportunity to present its evidence during the hearing 617 Board recently pointed out in Local Carpenters Local 720 (UMC of Louisiana), 287 NLRB 545 (1987): union rules forbidding members to work for non- union employers reflect such traditional union ob- jectives as encouraging members to work for signa- tory employers, preserving union work and discour- aging work done under nonunion conditions, main- taining the integrity of hiring hall arrangements with signatory employers, fulfilling contractual obli- gations with those employers, and rallying the sup- port of union members. However, by applying this prohibition to an employer- member, Respondents violated Section 8(b)(1)(A) and (2) of the Act For the natural consequence of that applica- tion is to cause employer-members to deprive nonunion employees of continued employment Electrical Workers IBEW Local 952 (Tri-Bar Electric), 269 NLRB 608 (1984), enfd. 758 F.2d 436 (9th Cir. 1985). Of course, Lendacky was charged with, and disciplined for, operat- ing without a collective-bargaining contract, as well as for working with nonunion employees Respondents argue that the record shows that the "overriding motiva- tion in this case was to organize the employer" and, fur- ther, "that the discipline would have occurred for the admittedly valid reason of attempting to encourage the employer to sign a contract." In this respect, Respond- ents contend that they have shown that Lendacky would have been disciplined, regardless of the status of his em- ployees, and thus have satisfied their burden of going forward, imposed pursuant to the analysis in Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). This is the motivation issue that, in the final analysis, provides the central factual issue in this case. For the reasons set forth post, I conclude that Re- spondents failed to satisfy their burden of showing, in re- sponse to the General Counsel's prima facie case, that Lendacky would have been charged and disciplined for not being party to a contract, regardless of the nonmem- bership status of the Employer's employees. To the con- trary, a preponderance of the evidence establishes that Respondent Local's only concern was that the Employer had hired employees who were not union members. In the circumstances, the effort to obtain a contract was a subordinate concern and was but the vehicle for depriv- ing as many nonunion employees as possible of continued employment with the Employer. Consequently, Re- spondents have failed to show that they would have pro- ceeded internally against Lendacky concerning the ab- sence of a contract had the Employer not employed workers who were not union members Finally, I conclude that by concurring in Respondent Local's disciplinary decision, Respondent International became a party to the violation and, itself, violated Sec- tion 8(b)(1)(A) and (2) of the Act. B. The Evidence In 1969 Lendacky became a member of Respondent Local In 1980, he organized the Employer. Although he 618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD has served as its chief executive officer, he has continued working "with the tools" and has continued to maintain his union membership. The Employer became a party to a collective-bargain- ing contract with Respondent Local. However, as a result of a conflict with then-Business Manager Walter A. Kordish,4 Lendacky wrote a letter to Respondent Local on March 7, 1985, stating, to the extent pertinent here, "that our union agreement will no longer be in effect because of differences between the Union business agent Kordish and myself." Brad Skarich, who had become business manager by the time of the hearing, tes- tified that rather than take formal action against Len- dacky, the executive board members had decided "to try and pursue, to remedy things with Joe and try to get things right again" by instructing Kordish to attempt to persuade Lendacky, "[t]o become signatory to the col- lective bargaining agreement." Although this course was not fruitful, no formal action was taken against Lendacky for 19 months. An internal union charge, dated "9-27-86," was filed by Kordish against Lendacky. The charge recited that he had violated constitutional sections 204(c) and 154(c) In listing these sections, Kordish apparently overlooked the fact that the constitution had been revised and amended 2 months earlier, for those sections in the revised and amended constitution bear no relevance to the conduct about which Kordish was complaining. Thus, in the "Description of Nature of the Offense" portion of his charge, Kordish stated: Joseph Lendacky refused to be bound by our Local Agreement. He hired and worked with people other than members of the United Association. Steve Kuriatnyk, David Nelson and Ken Gehrke are men employed or who have been employed by L & S Plumbing of which Joseph Lendacky is the owner Moreover, in the "Pertinent Data" subsection of the charge, Kordish recited that, "Brother Lendacky was signed to our Agreement. He later refuted the Agree- ment by hiring people and calling them partners. He has since lost the partners, and hired people other than mem- bers of the U A., which he continues to do at the present time." Respondents do not contend that there was any dispute with the Employer other than that pertaining to the absence of a contract and the employment of non- members Further, as set forth in section III,A, supra, section 204(c) and section 154(c) of the superseded con- stitution pertain, respectively, to operating as an employ- er without a collective-bargaining contract and to work- ing with nonmembers. Respondent Local's executive board, presided over by then vice president Skarich, conducted a hearing on No- vember 17, 1986. Lendacky appeared and pled guilty to all charges. At some points when he testified, Skarich, Respondent's lone witness, claimed that the internal charge would have been dropped if Lendacky merely had agreed to sign a contract. But that testimony tended to be contradicted by the minutes of that meeting. Rather than imposing a penalty on Lendacky at that time, one of the Executive Board members proposed a settlement that contemplated a somewhat different type of agreement. According to the minutes, the proposed settlement would have obliged Lendacky to sign an agreement with Local #589, the terms being as follows: the Local will take his three (3) men into its Helper program for a period of five (5) years, with these men being eligible to take the journeymans test with proper affidavits after this time span, and to pay these men 70% of the negoti- ated wage. This would enable him to bring his busi- ness into compliance with Local policies. This portion of the meeting concluded, according to the minutes, with Lendacky requesting a copy of Respond- ent Local's standard collective-bargaining contract and saying that he would like time to discuss the proposed settlement with the Employer's employees. Significantly, had Lendacky agreed to the proposed settlement, only one of his employees could have contin- ued working for the Employer. For, Lendacky, himself, was the only qualified journeyman then working for the Employer. Respondent Local's standard contract re- quires that three journeymen be employed before a second helper or apprentice can be employed. Skarich claimed that it might have been possible to avoid depriv- ing all buy one of the employer's helpers of employment by going, "through the executive board on a special meeting again." But Skarich conceded that he was not confident of that fact. To the contrary he admitted that," it would have been tough," since "if you start protecting one contractor over the rest, your [ sic] signing a sweet- heart agreement and you're asking for nothing but trou- ble." In fact, his own earlier statements to the executive board contradicted the optimism that he attempted to display when testifying about continued employment of all of the Employer's nonunion employees. For he con- ceded that he had told the executive board on December 3, 1986, "that even had Lendacky's [sic] accepted Gen- ise's proposal, it would not have been workable since our procedures don't allow for two or three helpers to be in the same shop." Respondent adduced no evidence that an exception to this procedure ever had been granted to any employer. In fact, in the final analysis, the best "pos- sible" alternative solution that Skarich was able to ad- vance was allowing one helper to remain employed with the Employer and trying to locate employment else- where for any others who would be obliged to cease working for the Employer. On December 2, 1986, Skarich was told by Lendacky that the Employer's employees had been advised of Gen- ise's proposed settlement, but "were not interested, they'd like to leave things the way they are for the time being"5 nor was he (Lendacky) interested in signing a " Respondents admit that Kordish, now deceased, had been an agent of Respondent Local at all times material to the events at issue in this pro- ceeding 5 In their brief Respondents assert that no violation of Sec 8(b)(1)(A) of the Act has been established, because "the record is devoid of any evi- dence that the employees of the Employer had any knowledge of the fine Continued PLUMBERS LOCAL 589 (L & S PLUMING) 619 contract. At a meeting on the following day, according to the revised minutes of it, "[t]he Executive Board im- posed a fine of five hundred dollars ($500 00) in addition to five hundred dollars ($500.00) reinitiation fee. The Board also recommended expulsion from the United As- sociation." But that decision was not final at that point. Due to the severity of the penalty imposed on Len- dacky, approval had to be secured from Respondent International. On December 11, 1986, Respondent Local petitioned for approval of its disciplinary action. At the hearing, Respondents introduced a packet of documents that were in "the file that Respondent International had on this case." Included among them is a copy of Len- dacky's letter to Respondent Local dated March 7, 1985, a copy of the charge against Lendacky dated "9-27-86"; and, a copy of the minutes of the executive board meet- ing on November 17, 1986 In short, Respondent Interna- tional possessed the pertinent documents that have been offered into evidence in this case to support the com- plaint against Respondents. By letter dated December 18, 1986, Respondent Inter- national's General Secretary-Treasurer Charles J. Habig notified Lendacky that Respondent Local had sought "approval of disciplinary action taken against you," and invited Lendacky to submit a statement "regarding your side of the controversy," as well as notifying him that he was "entitled to an appeal from the decision of the local union to place this penalty against you."s Apparently exacted against the employer or the reason for the fine " Yet, that asser- tion is refuted by Lendacky's statement to Skarich on December 2, 1986 Of course, in this regard that testimony was hearsay since it was Skarich who recited what had been said to him by Lendacky that day Lendacky did not testify concerning what he had said to the Employer's employees But this testimony by Skarich was elicited by Respondent's counsel and he did not seek to limit the purposes for which it was being offered "Or- dinarily, where there is no objection to hearsay evidence, it is a clear in- dication that the evidence is not disputed, hence the absence of objec- tion " NLRB v Operating Engineers Local 12, 413 F 2d 705, 707 (9th Cir 1969) This doctrine applies with even greater force where a party, itself, elicits hearsay the substance of which is adverse to its own interest Here, the remark to Skarich tends to show that Lendacky had told the employ- ees about Gemse's settlement proposal and, in turn, about the circum- stances that had led Genise to make it That conclusion tends to be con- firmed, by Lendacky's statement to the Executive Board, on November 17, 1986, that he intended to discuss the proposed settlement with the Employer's employees Nothing in the record serves to show that he did not, in fact, discuss the matter with those employees, as he said that he would do and as he later said that he had done Consequently, there is no merit to the argument that no violation of Sec 8(b)(l)(A) of the Act can be established because the Employer's employees were unaware of the in- ternal union proceedings against Lendacky and their potential effect on them 6 The letter also notified Lendacky that he had the right to continue paying dues to remain in good standing pending Respondent Internation- al's decision At the hearing testimony was adduced showing that under the union constitution, Lendacky should have been expelled from mem- bership automatically on February 28, 1987, because he had paid no dues for the preceeding 6 months Thus, Skarich explained If a member goes delinquent for three months, he pays a $50 00 rein- statement fee, plus his back dues After he is delinquent for six months, he is automatically expelled by the United Association On the local level, we have no say on that, that's all done through the International, through the case sheets However, due to a bookkeeping error, Lendacky was credited as having paid dues through November 1986 Thus, by April 1987, he was not officially expelled from membership Moreover, Skarich testified that the matter did not come to light until "later now" and there is no show- ing that either Respondent Local or Respondent International had been aware by April 1987 that Lendacky technically should have been expelled Lendacky chose to do neither. By letter, dated April 7, 1987, Habig notified Kodish, that the General Executive Board has concurred in the recommendation of the Local Union 589, Hib- bing, Minnesota, to place a $500.00 fine against Joseph A. Lendacky . . . and that he be expelled with a raised initiation fee of $500.00 placed against him. In accordance with Section 165 of the United Association' Constitution, the penalty will be pay- able prior to reinitiation. A similarly worded letter was sent to Lendacky by Habig. C Analysis In Electrical Workers IBEW Local 952 (Tn-Bar Elec- tric), supra, the Board held that a labor organization vio- lated Section 8(b)(1)(A) and (2) of the Act by initiating internal disciplinary proceedings, resulting in imposition of a fine, against an employer-member for working with nonunion employees that he employed.? In so holding, the Board adopted Administrative Law Judge David G Heilbrun's reasoning -that the respondent there directly approached the employer, utilizing the latter's union membership as a lever to compel him to relieve non- union employees of their duties and, in so doing, con- veyed to those employees the message "that they face a potential deprival of work opportunity should the ac- cused member-employer succumb to such pressure." (Id at 609.) An almost identical situation is presented in the instant case. Lendacky was an employer-member at the time that the charge was filed against him. He was ap- proached directly and that approach was based on his union membership. Since he was the lone journeyman employed by the Employer, had Lendacky succumbed to the pressure of the charge, all nonunion employees, save one, would have been deprived of continued employ- ment. Although, as discussed in section III,B, supra, Skarich claimed that it might have been possible to avoid that result, his testimony in that regard was unconvinc- ing, contradicted by his own earlier statements to the ex- ecutive board, not consistent with avoidance of excep- tions for one employer that could later be advanced by other employers seeking similar treatment, and unsup- ported by evidence of similar exceptions having been granted to any other employers In short, Respondents have failed to show that all but one employee would not have been deprived of employment had Lendacky suc- cumbed to the pressure of the charge. As pointed out in section III,A, supra, Respondents argue that Tri-Bar Electric is distinguishable in one signif- from membership by that time Since nonpayment of dues was not a factor in Respondents' motivation for disciplining Lendacky, that subject is irrelevant in this proceeding What ramifications it may have concern- ing the remedial order, especially in view of the paucity of evidence re- garding the nonpayment in this record, is a matter that can be resolved in the compliance phase of this case 7 While the circuit court enforced the Board's Order in that case under the doctrines of Sec 8(b)(2) of the Act, the court concluded that it was unnecessary to determine if Sec 8(b)(1)(A) of the Act had been violated ,as well 620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD icant respect: that there was no valid other purpose for the discipline in that case, whereas here, "the discipline would have occurred for the admittedly valid reason of attempting to encourage the employer to sign a con- tract " In another context this argument might have merit. But the evidence does not warrant the conclusion that absent employment of nonmembers, Lendacky would have been disciplined because the Employer was not party to a collective-bargaining contract. To the con- trary, a preponderance of the evidence shows that Re- spondent Local was unhappy over the nonunion status of the Employer's employees and that a contract was sought as a means for eliminating as many of them as possible That Respondent Local had not been concerned solely about the nonexistence of a contract with the Employer is shown, first, by the fact that Lendacky was charged not only with violating the prohibition against operating a business without a collective-bargaining contract He was charged as well with working with nonmembers. In- clusion of this additional allegation serves no logical pur- pose if Respondent Local's sole concern truly had been restricted to the absence of a contract with the Employ- er. Certainly no purpose in that connection for the addi- tional allegation has been suggested by Respondents. That Respondent Local had not been concerned at all about the nonexistence of a contractual relation, until nonmembers were discovered working for the Employer, is shown by the fact that, the Employer had been operat- ing without a contract for almost 19 months prior to the filing of the internal charge on September 27, 1986. Re- spondent Local had been aware of that fact for that entire period. That is shown by Lendacky's letter of March 7, 1985, included in Respondent International's file, stating "that our agreement will no longer be in effect." Yet, no internal charges were preferred against Lendacky at any point during that period To the con- trary, Respondent Local's officials admittedly had made a conscious decision to refrain from doing so, opting in- stead to attempt to persuade Lendacky informally to resume contractual relations. The record is devoid of evidence showing any event, relating only to the nonex- istence of a contract, that would naturally have led Re- spondent Local to reverse field in September 1986, and suddenly to charge Lendacky with failing to observe a constitutional prohibition that he had been disregarding for over a year and a half. The true reason for that abrupt change in direction is shown clearly by the narrative descriptions in the charge, supplied as the bases for its filing Note is made of the absence of a contract in both the "Description of Nature of the Offense" and the "Pertinent Data. . . . subsections. However, those notations serve as mere springboards for more prolonged complaints pertaining to the nonunion status of employees working for the Em- ployer. The record does not disclose when the Employer commenced hiring employees who were not union mem- bers. Nor, more important, does it show when Respond- ent Local's officials discovered that fact. But an objec- tive reading of the recitations in the charge's two subsec- tions makes plain that the absence of a contract was but a footnote to the central complaint that the Employer was employing nonmembers That is, by hiring nonunion personnel, Lendacky "refuted the Agreement" and "re- fused to be bound by it"-in short, while the absence of a contractual relationship was tolerable, it was not to be ignored if nonmembers were employed. In sum, the General Counsel has established a prima facie case that the filing and processing of the internal charge was motivated by the Employer's employment of employees who chose not to be union members and,, fur- ther, was intended as a means for depriving as many of those employees as possible of continued employment with the Employer. It is undisputed that the Employer was not a party to a collective-bargaining contract and that Lendacky, a union member, was prohibited by the union constitution from operating in that fashion. But Respondents have failed to meet their burden of going forward by showing that Lendacky would have been charged and disciplined regardless of the union status of the Employer's employees Rather, absence of a contract with the Employer had been tolerated for 19 months without internal disciplinary proceedings being initiated, Lendacky was charged with working with nonunion per- sonnel as well as with not being party. to a contract, and, the central focus of the charge was that by hiring non- union personnel, Lendacky had acted inconsistently with the contract and,,thus, the union constitution, as opposed to violating the latter simply by not being party to a con- tract. Consequently, on this record it cannot be said that Lendacky would have been disciplined had the Employ- er not employed personnel who exercised their statutory right to refrain from being members of a labor organiza- tion Lendacky was approached directly by Respondent Local which used his' union membership as the basis for internal disciplinary proceedings in an effort to attempt to cause him to pursue a course of action having the nat- ural consequence of depriving employees of continued employment because they were not union members. Con- sequently, Respondent Local violated Section 8(b)(1)(A) of the Act. But assessment of Respondent International's liability under the Act requires additional analysis. In Musicians (Don Glasser), 165 NLRB 798 (1967), enfd. sub nom. Don Glasser v. NLRB, 395 F.2d 401 (2d Cir. 1968), the Board concluded that the, in effect, inter- national labor organization did not violate the Act merely by engaging in the ministerial act of processing two members' appeals from a local union's unlawfully imposed fines. But in that case, the international sus- tained the appeals, with the result that no discipline ulti- mately was imposed. Consequently, in that case the Board did not confront the issue of what should have been the result had the international denied the appeals and upheld the local's unlawfully imposed fines. Later cases have found international labor organizations liable whenever they have ratified unlawful actions by their af- filiated local labor organizations. However, in almost all of these cases the Board has noted that, before ratifying or approving those actions, the internationals possessed information, as a result of their own investigations, that placed them on notice of the illegality of the locals' ac- tions. That is, "[t]he International did not simply 'rubber- stamp' the trial board's finding." Electrical Workers PLUMBERS LOCAL 589 (L & S PLUMING) IBEW Local 11 (Bergelectric Corp.), 271 NLRB 25, 27 (1984). See also Iron Workers Local 46 (Cement League), 259 NLRB 70, 77 (1981), enfd. in pertinent part 727 F.2d 234 (2d Cir. 1984); Teamsters Local 984 v. Humko Co., 287 F 2d 231, 242 (6th Cir 1961), cert. denied 366 U S. 962. Unanswered by these cases was the extent, if any, to which it has to be shown that an international possesses information that does, or should, put it on notice of the illegality of its local's action In Bricklayers (McCleskey Construction), 241 NLRB 898 (1979), the Board flatly stated that the local's request for enforcement or ratification, "place[d] a duty upon Re- spondent International to investigate the action taken by Respondent Local." (Ibid) More recently, in Sheet Metal Workers Local 80 (Limbach Mechanical), 285 NLRB 386, 388 (1987), the Board concluded that the international labor organization's "decision to uphold the local labor organization's expulsion" violated the Act. Arguably the nature of the charge could have put the international on notice of the facts underlying the local'sdiscipline. How- ever, the Board reached its conclusion without discus- sion of the information available to the international and without discussion of whether or not the international had investigated, or had merely "rubber-stamped," the local's action If an international labor organization is liable when- ever it ratifies, enforces or approves the unlawful action of its affiliated local labor organization-either on a per se basis or because of a duty to investigate the local's action-then Respondent International is liable here Re- spondent Local's penalty did not become final until ap- proved by Respondent International. The latter did grant approval. Even if liability attaches only where it is shown that an international possesses information sufficient to at least put it on notice that an illegality may exist, Re- spondent International's situation here satisfies that higher standard. In "the file" it possessed copies of Len- dacky's letter to Respondent Local severing contractual relations and of the charge filed against Lendacky 19 months later This 19-month gap, viewed in conjunction with the sections of the union constitution enumerated in the charge and the narrative descriptions that it con- tained, provided sufficient information to alert Respond- ent International that Respondent Local was concerned about a condition other than mere absence of a contract with the Employer Indeed, as discussed above, this in- formation serves to show that Respondent Local's actual concern had been the nonunion status of the Employer's employees and, further, that the charge was a device for compelling the Employer to deprive as many of them as possible of work Therefore, I conclude that by approv- ing the recommended disciplinary action, Respondent International violated Section 8(b)(1)(A) and (2) of the Act. CONCLUSION OF LAW By disciplining employer-member Joseph A. Lendacky because he performed work alongside nonunion employ- ees of his company, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Indus- try of the United States and Canada, AFL-CIO, and its 621 Local, Pipefitters Local Union No 589, have committed unfair labor practices affecting commerce, within the meaning of Section 2(6) and (7) of the Act, by attempt- ing to cause L & S Plumbing and Heating of Hibbing, Inc, an employer engaged in commerce, to discriminate against employees within the meaning of Section 8(a)(3) of the Act and by restraining and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8(b)(2) and Section 8(b)(1)(A) of the Act. REMEDY Having concluded that United Association of Journey- men and Apprentices of the Plumbing and Pipefitting In- dustry of the United States and Canada, AFL-CIO, and its Local, Pipefitters Local Union No. 589 have engaged in certain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom. In addi- tion, they shall be ordered to take certain affirmative action to effectuate the policies of the Act, including re- scinding the penalty imposed on Joseph A. Lendacky and expunging from their records all reference to the charge, trial and penalty imposed and approved against him for assertedly violating the Constitution of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, as revised and amended at Las Vegas, Nevada, July 28-August 1, 1986. However, as the General Counsel has failed to show special circumstances necessitating its inclusion as a remedy, her request for a visitatorial remedy is denied. Cherokee Marine Terminal, 287 NLRB 1080 (1988) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed8 ORDER The Respondents, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Indus- try of the United States and Canada, AFL-CIO, and Its Local, Pipefitters Local Union No. 589, their officers, agents, and representatives, shall 1. Cease and desist from (a) Maintaining or enforcing section 152(a) of the con- stitution of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO as revised and amended at Las Vegas, Nevada, July 28-August 1, 1986, prohibiting members from working with nonmembers, against Joseph A. Lendacky, or other employer-mem- bers, thereby causing or attempting to cause them to dis- criminate against nonunion employees in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. 8 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- porse 622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner restraining or coerc- ing employees of L & S Plumbing and Heating of Hib- bing, Inc. or of any other employer in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment in accordance with Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the penalties imposed against Joseph A Lendacky on December 3, 1986, as approved on April 7, 1987. (b) Remove from their records all references to the charge, trial and penalty imposed against Joseph A. Len- dacky on December 3, 1986, as approved on April 7, 1987. (c) Notify Joseph A Lendacky , in writing, that they have taken the action required in subparagraphs (a) and (b) above (d) Post at their business offices, hiring halls and meet- ing places in Hibbing , Minnesota, copies of the attached notice marked "Appendix "9 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent 's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places , where notices to members and employees are customarily posted . Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (e) Additional copies of the attached notice marked "Appendix" shall be signed by authorized representatives of United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, and its Local, Pipefitters Local Union No. 589, and forthwith returned to the Re- gional Director for Region 18 for posting by L & S Plumbing and Heating of Hibbing, Inc., it being willing, at its place of business in Hibbing , Minnesota, where no- tices to its employees are customarily posted. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES AND MEMEBERS 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 nor enforce Section 152(a) of the Constitution of the United Association of Journey- men and Apprentices of the Plumbing and Pipefitting In- dustry of the United States and Canada, as revised and amended at Las Vegas, Nevada, July 28-August 1, 1986, prohibiting members from working with nonmembers, against Joseph A . Lendacky, or other employer-mem- bers, thereby causing or attempting to cause them to dis- criminate against nonunion employees in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL NOT in any like or related manner restrain or coerce employees of L & S Plumbing and Heating of Hibbing, Inc., nor of any other employer , in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment in accordance with Sec- tion 8(a)(3) of the Act. WE WILL rescind the penalties imposed against Joseph A. Lendacky on December 3, 1986, as approved on April 7, 1987. WE WILL remove from our records all references to the charge, trial and penalty imposed against Joseph A Lendacky on December 3, 1986, as approved on April 7, 1987. WE WILL notify Joseph A . Lendacky, in writing, that we have taken the required action set forth above. 9 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 " UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO