Glaziers Local 513 (National Glass)

GLAZIERS LOCAL 513 (NATIONAL GLASS) 35 Glaziers, Architectural Metal and Glassworkers Local Union No. 513, affiliated with Interna- tional Brotherhood of Painters and Allied Trades, AFL-CIO and National Glass & Glaz- ing, Inc. and Christopher R. Nellie. Cases 14- CB-6645 and 14-CB-6708 July 13, 1990 DECISION AND ORDER By CHAIRMAN STEpHENS AND MEMBERS DEVANEY AND OvIATT On September 13, 1989, Administrative Law Judge William A Pope II issued the attached deci- sion The Respondent filed exceptions and a sup- porting brief and the General Counsel filed cross- exceptions, a supporting brief, and an answering 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,' and conclusions2 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 Respondent, Glaziers, Architectural Metal and Glassworkers Local No 513, affiliated with International Brotherhood of Painters and Allied Trades, AFL-CIO, St Louis, Missouri, its officers, agents, and representatives, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge '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 Or 1951) We have carefully examined the record and find no basis for reversing the findings We grant the General Counsel's limited exception that fn 26 of the judge's decision should begin, "I do not find "rather than "I do find 2 The Respondent did not except to the judge's conclusion that its dis- cipline of Lawrence Hilboldt, a member of the Respondent Local and a co-owner of National Glass & Glazing, Inc , violated Sec 8(bX1)(A), (B), and (2) of the Act We amend the judge's third conclusion of law to omit the words "and 8(b)(2) of the Act" 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 cause or attempt to cause Nation- al Glass & Glazing, Inc to discriminate against Steven D Stewart, Christopher R Nelke, Tony Accardi, John Barry, or Joe Kortkamp, or any other employee of National Glass & Glazing, Inc similarly situated, in violation of Section 8(a)(3) of the National Labor Relations Act, by laying off, discharging, or otherwise discriminating against them because they are not members of Local Union No 513 WE WILL NOT maintain or enforce article XXIV, section 3, of our bylaws and trade rules prohibiting members of our Union from working at glazing with other than members of the International Brotherhood of Painters and Allied Trades, AFL- CIO, against Lawrence Hilboldt, or other employ- er/members, thereby causing or attempting to cause them to discriminate against nonunion em- ployees, in violation of Section 8(a)(3) of the Act WE WILL NOT denigrate, intimidate, or otherwise harass, insult, or use derogatory or perjurative lan- guage or gestures towards any persons, including, but not limited to, Steven D Stewart, who are or may be eligible for membership in Glaziers, Archi- tectural Metal and Glassworkers Local Union No 513, under its bylaws and trade rules, or under the constitution of the International Brotherhood of Painters and Allied Trades, AFL-CIO, to restrain or coerce such persons in the exercise of their Sec- tion 7 rights, including seeking membership in Local Union No 513 WE WILL NOT in any like or related manner re- strain or coerce employees of National Glass & Glazing, Inc or any other employee, in the exer- cise of the rights guaranteed them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requinng membership in a labor organization as a condition of employ- ment in accordance with Section 8(a)(3) of the Act WE WILL notify National Glass & Glazing, Inc, in writing, that we have no objection to its em- ploying persons who are not members of Local Union No 513, and have not been referred by us, to do glazing work, and WE WILL furnish Steven D Stewart, Christopher R Nelke, Tony Accardi, 299 NLRB No' -8 36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD John Barry, and Joe Kortkamp with a copy of such notification WE WILL make Christopher R Nelke whole for any loss of earnings or benefits he may have suf- fered by reason of Local Union No 513 causing National Glass & Glazing, Inc to lay him off, or otherwise terminate his employment, because he is not a member of our Local Union WE WILL remove from our records all references to unlawful charges and fines imposed by Local Union No 513 against employer/member Law- rence Hilboldt, WE WILL rescind all fines imposed on him for working at glazing with other than members of the International Brotherhood of Paint- ers and Allied Trades, AFL-CIO, and, WE WILL notify Lawrence Hilboldt, in wntmg, that this has been done GLAZIERS, ARCHITECTURAL METAL AND GLASS WORKERS LOCAL UNION No 513 Dorothy D Wilson, Esq , for the General Counsel Jeffrey E Hartnett, Esq , of Clayton, Missouri, for the Respondent DECISION STATEMENT OF THE CASE WILLIAM A POPE II, Administrative Law Judge The complaint in Case 14-CB-664i, filed on April 10, 1987, by the Regional Director for Region 14 of the National Labor Relations Board (the Board), alleges that the Re- spondent, Glaziers, Architectural Metal and Glasswork- em Local Union 513 (the Union), violated Section 8(b)(1)(A), (B), and (2) of the National Labor Relations Act (the Act) by attempting to cause National Glass & Glazing, Inc (the Charging Party in Case 14-CB-6645) to discharge certain of its employees because they were not members of the Union, by attempting to cause the Charging Party to discriminate against certain of its em- ployees because they were not members of the Union, and by unlawfully fining and disciplining an employer!- member The original charge in Case 14-CB-6645 was filed by National Glass & Glazing, Inc on March 6, 1987 The complaint in Case 14-CB-6708 was filed on May 5, 1988, by the Regional Director for Region 14 of the Board and consolidated with Case 14-CB-6645 by order, dated May 19, 1988, alleges that the Respondent violated Section 8(b)(1)(A) and (2) of the Act, by caus- ing the Respondent to lay off its employee, Christopher R Nelke, the Charging Party in Case 14-CB-6708, be- cause he was not a member of the Union, and by causing the Respondent to discriminate against its employees be- cause they were not members of the Union The original charge in Case 14-CB-6708 was filed by Charging Party Nelke on July 14, 1987 Trial was held before me in St Louis, Missouri, on May 18 and 19, 1987, on Case 14-CB-6645, and on June 14, 1988, on consolidated Case 14-CB-6708 1 I BACKGROUND FACTS National Glass & Glazing, Inc has been engaged in the commercial glazing business in the St Louis, Missou- ri area for over 4 years 2 Lawrence Hilboldt, his brother, Dennis Hilboldt, their mother, and an individual named Malcolm Sweet each own 25 percent of the corporation Dennis Hilboldt, National Glass' president, and Law- rence Hilboldt, National Glass' vice president, share the responsibility of supervising the Company's jobs Law- rence Hilboldt handles personnel matters for the Compa- ny, and deals with the Union's representatives in collec- tive-bargaining matters During the year preceding the hearing in May 1987, National Glass had 8 to 12 employees, the number vary- ing from job to job The employees included eight or nine glaziers, helpers or permit workers, and, at times, bricklayers Permit workers were not members of the Union, but had written permission from the Union, in the form of work permits, authorizing them to do bargaining unit work National Glass & Glazing, Inc is a member of the Glazing Contractors of the St Louis, Missouri area, a multiemployer bargaining association, and has been a party to collective-bargaining agreements between the association and the Union since it started in business 4 years previously The most recent agreement covers the period from November 1, 1986, to October 31, 1989 Under the 1986-1989 collective-bargaining agreement (as well as in the 1983-1986 agreement), the Employer (The Glazing Contractors of the St Louis, Missouri area) recognized the Union as the exclusive representa- tive and bargaining agent for "its employees who are employed by the Employer" in doing glazing work as defined in the agreements The 1983-1986 collective-bargaining agreement pro- vided that work covered by the agreement would be performed by journeymen and apprentices, and specified what the ratio of journeymen to apprentices would be for various types of jobs No provision was included in the agreement for operation by the Union of a referral system to provide journeymen and apprentices to the employers A change included in the 1986-1989 agreement gave the Union the right to operate a nonexclusive referral system for the purpose of recommending journeymen By Order dated April 22, 1988, Cases 14-CB-6697, 14-CB-6793-1, and 14-CB-6797 (Case 14-CB-6792 was inadvertently omitted from the Order) were consolidated with Case 14-C13-6645, and the heanng was ordered reopened By further Order dated May 19, 1988, Cases 14-CB- 6792 and 14-CB-6708 were consolidated with Case 14-CB-6645 and the other cases previously consolidated with Case 14-CB-6645, and a hearing in the consolidated cases was set for June 14, 1988 By further Order dated June 1, 1988, granting a motion by the General Counsel, Cases 14- CB-6697, 14-CB-6792, 14-CB-6793-1, and 14-CB-6797 were severed from Cases 14-CB-6645 and 14-CH-6708, and remanded to the Regional Director for approval of withdrawal requests based on non-Board settle- ments 2 National Glass & Glazing, Inc does commercial glazing, installs exte- nor walls, and Installs "skins" or "curtain walls" on new construction GLAZIERS LOCAL 513 (NATIONAL GLASS) 37 and apprentices as job applicants as needed by the em- ployers 3 The stated purpose of the arrangement was to enable the Union to compete with other sources in the placement of journeymen and apprentice employees The employers agreed to give applicants referred by the Union "due and fair consideration consistent with the provisions of the National Labor Relations Act," and agreed not to discriminate against any applicant by reason of his union membership The employers agreed to notify the Union whenever employees were hired, giving their names and addresses and the job classifica- tion in which they would work An added provision gave union journeymen the right to select the employers for whom they desired to work The employers pledged to lay off employees in the order of helpers first, then apprentices and/or journeymen 4 Although both the 1983-1986 and 1986-1989 agree- ments use the term "journeymen," the agreements do not limit "journeymen" status to union members, or others whom the Umon recognizes as "journeymen" Also re- ferred to in the collective-bargaining agreements, but otherwise undefined by the agreements, is a category of workers, called "apprentices" Both agreements provide for an apprenticeship program to be operated by the Union, with funding to be provided by the employers But, while the Union and the employers agreed to con- stitute a "joint committee" for the purpose of working out a "suitable Apprenticeship Training Program," that program is not specified as the only source of appren- tices The caption or job title appearing on the work permits issued by the Union to helpers or permit workers was "Temporary Service Employee" The permits, which were purchased from the Union for a fee of $2 per day, bore the signature of Union Business Manager Patrick Hughes Printed on the permits were a number of rules, including a requirement that the permit holder "must work with [a] journeyman at all times," a provision that the permit holder "may be the 3rd man on a 4-man unit or larger," and a requirement that the "no two service employees may work on the same unit" In the fall of 1986, the Union changed the term of the work permits from biweekly to day to day, and refused to accept fee payments from the holders The constitution of the International Brotherhood of Painters and Allied Trades, of which the Union in this case (Local Union 513) is a member, limits membership in the Brotherhood to persons who "have followed one of the branches of the trade for three years "5 3 The new sec 4, art 1, states that the "parties recognize the fact that the Union's knowledge and expenence within the industry here involved, together with the sources of competent manpower available to it, can be of assistance to the Employer in recruiting Journeymen and Apprentices as employees" 4 There appears to be no other reference in either the 1983-1986 or 1986-1989 agreements to "helpers" 5 Persons seeking to learn the vanous trades are required to serve a minimum apprenticeship of 3 consecutive years After initiation, appren- tices are authorized to participate in all union activities with the right to vote, but are not authorized to hold union office or serve as a union dele- gate When the apprentices complete their term of service and become qualified journeymen, they are placed on the Union's rolls as regular members A member is authorized to transfer his membership to the local union of the special branch of the trade (includ- ing to the Glaziers, Architectural Metal and Glasswork- ers' Union) in which he is engaged in a locality where such a union exists, provided he is qualified in that branch of the trade Glaziers, architectural metal work- ers, and glassworkers are not permitted to work in juris- dictions other than those covered by the local union in which they are members, except by "deposit[mg] their card in the nearest established Glaziers, Architectural Metal and Glassworkers' Local Union" Local unions must accept cards of members of other local unions 6 If no district councils have been established in their areas, local unions are authorized to establish examining boards, whose duty shall be to examine, among others, all mem- bers desiring to deposit their clearance cards in a local union of a special branch of the trade 7 The boards may reject a member's clearance card upon finding after ex- amination that the member is not a qualified mechanic Both the 1983-1986 and 1986-1989 agreements contain a "Controversy or Dispute" article, providing for no "suspension of work" in the event of controversies or disputes, and providing for an arbitration procedure Issues The complaint in Case 14-CB-6645 (Glaziers, Archi- tectural Metal and Glassworkers Local Union No 513 and National Glass & Glazing, Inc ), alleges that the Union violated Section 8(b)(1)(A) and (2) by 8 (1) On or about January 28, 1987, denigrating an em- ployee of the Charging Party (National Glass & Glazing, Inc ) "because he was not a member of Respondent and Respondent sought to preserve employment exclusively for its members" (2) On or about January 28, 1987, informing an em- ployee of Charging Party that he would not be permitted to work for the Charging Party because he was not a member of Respondent, and Respondent sought to pre- serve employment exclusively for its members (3) On or about February 18, 1987, revoking the work permits of Charging Party's employees Tony Accardi, John Barry, Joe Kortkamp, and Chris Nelke because they were not members of the Respondent, and advising the employees that "they were being laid of from Charg- 6 The International Brotherhood's constitution provides for a "clear- ance card" procedure to be used by members leaving the jurisdiction of their local union Sec 229 of the constitution provides that no local union "shall refuse to accept a Clearance Card of any traveling member or members in search of employment or employed," providing the clearance card is properly filled out, except under conditions not applicable to this case 7 Such boards are to be composed of delegates elected by the local union or unions 8 Respondent's motion at the conclusion of the General Counsel's case to dismiss par 6A of the complaint was granted Par 6A of the com- plaint alleges that Respondent violated Sec 8(b)(1)(A) and (2) by filing a grievance on February 12, 1987, demanding that the Charging Party not continue to employ Tony Accarch, John Barry, Joe Korticamp, Chris Nelke, and Stephen D Stewart, and Instead accept the exclusive referrals of Respondent's members, notwithstanding that there was no "practice, agreement or understanding requiring that Respondent be the sole and exclusive source of referrals of employees to employment with the Charging Party" Respondent's motion to dismiss pars 5A and 6C of the complaint was denied 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing Party notwithstanding that [there was no] prac- tice, agreement or understanding requiring that the Re- spondent be the sole and exclusive source of referrals of employees to employment with Charging Party" (4) On or about March 30, 1987, advising the Charging Party that its employee, Stephen D Stewart, "could con- tinue to be employed by Charging Party only upon ex- clusive referral by Respondent and that no such referral had been, or would be, made by Respondent notwith- standing that [ there was no] practice, agreement or understanding requiring that Respondent be the sole and exclusive source of referrals of employees to employ- ment with Charging Party" (5) Imposing a fine on Lawrence M Hilboldt, an employer/member [of the Union], by letter of December 8, 1986, for violating article XXIV, section 3 of Re- spondent's bylaws, in an attempt to cause the Charging Party to discriminate against its employees who are not members of Respondent (6) All of which was done by Respondent in an at- tempt to cause the Charging Party to discriminate against its employees "who are not members of Respond- ent" The complaint in Case 14-CB-6708 alleges that the Union violated Section 8(b)(1)(A) and (2) of the Act, by on or about July 9, 1987, instructing its shop steward to refuse to work with Charging Party Nelke, in an attempt to cause, and causing National Glass to lay off Charging Party Nelke, for reasons other than Charging Party Nelke's failure to tender periodic dues and initiation fees uniformly required as a condition of acquiring or retain- ing membership in Respondent II ARGUMENTS OF THE PARTIES A General Counsel's Theory of the Case General Counsel alleges that the Respondent commit- ted the violations alleged in the complaints in an effort to find employment for 'its members For a 7-year period ending in 1986, there had been full employment for gla- ziers in the St Louis area In 1986, however, the em- ployment situation changed, and a number of Respond- ent's members were laid off, and remained unemployed To make room for its laid-off members, Respondent ille- gally attempted to force National Glass to terminate its employees who were not members of Local Union 513 Although the Union was not constituted an exclusive hiring hall by the collective-bargaining agreement cover- ing the 1986-1989 period, it engaged in a series of ac- tions intended to force National Glass to recognize it as the sole source of its glassworker employees In an effort to achieve its goal, Respondent revoked the "permits" of nonunion member "permit workers" employed by National Glass, and demanded that Nation- al Glass lay them off and replace them with union mem- bers referred by the Respondent Although the Union was not successful in achieving its goal, its attempt to cause the layoffs violated the Act The Union further violated the Act by imposing a fine of $410 on employer- member Larry Hilboldt, vice president of National Glass, for working on a Saturday without the Union's permis- sion, and working with members of another trade (brick- layers), all in an attempt to intimidate Hilboldt into com- plying with the Union's demands To further restrict the pool of employees available to do glazier work in the St Louis area, Respondent refused to accept the transfer into Local Union 513 of Steven Stewart, an employee of National Glass who was a member of a Dallas, Texas local union of the Glaziers, Architectural Metal and Glassworkers Union As part of a deliberate pattern of conduct intended to force Stewart, a traveler, to quit his job with National Glass, Respondent's agents used pro- fane and abusive language towards him, and brought in- ternal union charges against him General Counsel asserts that in the absence of an exclusive hiring hall agreement, Respondent's attempts to interfere with Stewart's em- ployment violated the Act General Counsel argues that Respondent further vio- lated the Act by causing National Glass to lay off its em- ployee, Christopher R Nelke, as part of Respondent's ef- forts to make jobs available for its members In February 1987, National Glass laid off its "permit workers" for economic reasons Of the four permit workers laid off, only Nelke was subsequently recalled The Union violat- ed the Act by the actions of its agent, Shop Steward Bob Lynch, who walked off a National Glass job, and re- fused to return so long as Nelke was employed on the job Because of Lynch's refusal to set glass with Nelke, National Glass laid off Nelke on July 9, 1987 General Counsel asserts that it made a prima facie showing that Lynch acted as Respondent's agent, and that Respondent failed to provide any evidence to overcome that show- ing B Respondent's Theory of the Case Respondent asserts, with regard to paragraph 5A of the complaint, that the use by Respondent's business agent, Frank Scimo, of denigrating language towards Steven Stewart, even assuming that such an incident oc- curred, was no more than "animal exuberance," which the Board has often recognized in labor relations Re- spondent argues that characterizing such words as a statement "akin to an 8(a)(1) statement by an employer," "trivializes the Board process" Otherwise, Respondent asserts that there was no testimony supporting the Board's allegations that Respondent sought to preserve employment exclusively for its members, or that Stewart was told that he could not work because he was not a member of the Union Respondent contends that it did not violate the Act, as alleged in paragraph 6 of the complaint There is nothing unlawful, asserts the Respondent, in a union seeking the discharge of employees who have circumvented a hiring hall in violation of a collective-bargaining agreement Al- though it was stipulated that the Union has a nonexclu- sive referral system, it is exclusive, nevertheless, to the extent that it "give[s] the Union first opportunity to make referrals of employees" The employer must come to the union first for certain classes of employees There was no violation of the Act by the Union in revoking work permits, in an effort to preserve operation of a tra- ditional or agreed-upon referral system GLAZIERS LOCAL 513 (NATIONAL GLASS) 39 Respondent sees no connection between imposing a fine on Lawrence M Hilbo1dt, and restraint and coer- cion of employees who are not members of the Union Respondent denied that it restrained or coerced Nelke in the exercise of his rights guaranteed by the Act, or that it caused or attempted to cause National Glass to discriminate against Nelke Findings and Conclusions I The Union's activities in 1986 and 1987 concerning helpers or permit workers, and National Glass' journey- man glazier, Steven D Stewart, who was a union member but not a member of Local Union 513, marked a departure from the Respondent's past actions When viewed in the perspective of the changed employment picture for glaziers in the St Louis, Missouri area begin- ning sometime in 1986, it is apparent that Local Union 513's actions concerning National Glass' employees were intended to create jobs for members of Local Union 513 by forcing National Glass to lay off its employees who were not members of Local Union 513 During a period of full employment in the glazing trade in the St Louis area prior to 1986, the Union raised no objection to National Glass employing non- union workers as helpers doing bargaining unit work, or to its employing as a journeyman glazier Steven D Stewart, who was not a member of Local Union 513, al- though he was a member of a Glaziers, Architectural Metal and Glassworkers' local union in Dallas, Texas Indeed, the Union not only did not object to employ- ment by National Glass of nonunion helpers, but fol- lowed the practice of issuing work permits, for a fee, to workers in this category The Union initially authorized Steven D Stewart, a journeyman glazier who was a member in good standing of his local union, to go to work for National Glass in the St Louis area after he presented his paid-up journeyman's card from his local union The situation changed, however, in late 1986 A down- turn in the construction industry in St Louis reduced employment opportunities for glaziers Because of the re- duced need in the construction industry for glaziers, members of the Respondent Union were laid off and could not find work Respondent Business Manager Pat- rick Hughes acknowledged the changed employment picture, which he said affected all the construction indus- try unions, not just the Glaziers In a letter dated July 28, 1986, Frank Scimo, Local Union 513's apprentice coordinator, informed National Glass that the Union was "implementing the new four year apprentice program "9 The letter said that the ap- prentices would be working from a pool and would re- ceive their assignments from the union hall Scimo said that the Union was eliminating the helper program, and replacing the helpers with apprentices Scimo went on to say that the helpers' last day would be August 1, 1986, 9 There is no provision in the current collective-bargaining agreement for a "four year apprentice program" Even assuming that Local Union 513 actually implemented such a program, It was a unilateral act and that National Glass should call the Union's office for replacements National Glass did not comply with the letter On or about October 24, 1986, Lawrence Hilboldt, who is an employer-member of Local Union 513, re- quested approval from Patrick Hughes, Local Union 513's business manager, for glaziers to work overtime on the next day, Saturday, on a National Glass job In the past when Hilboldt had requested approval for overtime work from Hughes, it had been given On this occasion, however, Hughes denied approval for overtime work by either glaziers or bricklayers Although Hilboldt did not put other glaziers to work the next day, Hilboldt, worked on the jobsite with two bricklayers employed by National Glass During the day, Frank Scnno appeared at the jobsite, and asked Hilboldt if any glaziers were working When Hilboldt answered "no," Scimo respond- ed by saying, "What about you?" By letter dated November 18, 1986, Hilboldt was in- formed by Local Union 513 that internal union charges had been filed against him by Frank &Imo for violating union rules on Saturday, October 25, 1986, and that a hearing would be held on the charges by the Union's tnal board on December 2, 1986 Hilboldt appeared at the hearing In substance, he was told that he had violat- ed union rules by working on that Saturday without per- mission and with another trade He was found guilty of violating the Union's bylaws and trade rules, and a fine of $410 was imposed Hilboldt has not paid the fine, and the Union has refused since then to accept dues pay- ments from him The Union notified Hilboldt that he could not work with his tools Dennis Hilboldt, National Glass' president, according to his estimate, had as many as 10 conversations with Business Manager Hughes during 1986 and early 1987 about laying off permit workers One such conversation took place in January 1986, when Hughes asked Hilboldt to lay off National Glass' permit workers Later in the spring or summer of 1986, Hughes asked Hilboldt to lay off permit workers to make room for an out-of-work member of Local 513 named Don Elrod Hughes said that Elrod, who was a B-glazier, had lost his job to an out-of-work A-glazier Hughes told Hilboldt during the conversation that if National Glass were to employ Elrod, and an A-glazier later became available, Elrod would have to be laid off again After that, on another occasion when Hughes asked Hilboldt to lay off the permit men, and Hilboldt refused, Hughes said, "See you in court then" Hilboldt said that he told Hughes on all the occasions when they discussed permit workers that he would not lay off his permit workers Hilboldt stated that Hughes did not make any threatening remarks or threaten job action National Glass continued to employ its four permit workers until a business slowdown and a delay in glass delivery caused it to lay them off from on or about Janu- ary 30 to on or about February 12, 1987 It is undisputed that Dennis Hilboldt suggested to the permit workers that they tell the Union that they were taking vacations, rather than being laid off, and the permit workers did as Hilboldt suggested The permit workers were recalled on ao DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD or about February 12, 1987, and continued to work until on or about March 6, 1987, when they were again laid off Two weeks later, National Glass laid off all of its employees for economic reasons As of the time of the hearing (May 1987), of the four permit workers, only Nelke had been recalled On or about July 9, 1987, after Bob Lynch, Respondent's shop steward for National Glass, refused to work with Nelke, Dennis Hilboldt off Nelke Nelke was recalled on July 22, 1987 Since October 1987, Nelke has worked for Acme Glass, an- other glazing contractor Dennis Hdboldt admitted that when slow business con- ditions forced him to lay off his four permit workers from January 30 to February 12, 1987, he offered the workers the choice of taking a vacation or being laid off Offered that choice, the four permit workers notified Local Union 513 that they were taking their vacations Hilboldt admitted that during a phone conversation he told Hughes that the men had taken a vacation There is no dispute that the purpose of characterizing the layoff as a vacation was to enable the employees to draw vaca- tion pay from the Vacation Trust Fund administered by Local Union 513 during a period when they were actual- ly laid off because of lack of work Hilboldt said in his Board statement that the workers had been temporanly laid off After Barry was laid off by National Glass for eco- nomic reasons in February 1987, he received a letter signed by Patrick Hughes, business manager of Local Union 513, in which Hughes said that the Union that had been informed that Barry had been laid off, and told him to contact the union hall for the purpose of putting his name on the availability list In the letter, Hughes told Barry that he had to go through the hall for all job refer- rals Barry admitted that after receiving the letter he had called the union hall "and told them that I had not been laid off, that I took the week off to take care of personal stuff" On February 12, 1987, by letter signed by Frank Seim% Local Union 513 notified National Glass that it was filing a grievance under the collective-bargaining agreement, because National Glass had failed to comply with the contract provision giving the Union an opportu- nity to recommend applicants for employment, and had hired employees directly Working with Dennis Hilboldt on National Glass' Fairview Heights Job on February 17, 1987, were Tony Accardi, John Barry, and Joe Kortkamp, and two mem- bers of Local Union 513, Journeyman glazier Charlie Tankersley, and apprentice Bob Lynch, who, Hilboldt said, is Union Business Manager Hughes' son-in-law At or about 9 30 a m that day, after Tankersley had called the union hall twice, the two members of Local Union 513 walked off the job, and did not return that day Lynch and Tankersley remained off the job until they called on February 18, asking for their jobs, and were told to come back to work Working with Dennis Hilboldt on the Fairview Heights Job on the next day, February 18, 1987, were Tony Accardi, John Barry, Joe Kortkamp, and Hil- boldt's two brothers, Pat and Jackie Hdboldt, both of whom are Journeymen glaziers and members of Local 513 At 10 or 10 30 a m, Hilboldt observed Union Busi- ness Manager Hughes on the Jobsite talking to Joe Kort- kamp Hilboldt told Hughes that as long as he had work he would continue to employ Kortkamp Later, Hilboldt heard Hughes tell Tony Accarch and John Barry that he was pulling their permits, and that he was laying them off '° When Hilboldt interjected that Hughes could not lay off National Glass' employees, Hughes replied that he just had Hughes said that he had 14 glaziers out of work, and that the situation regarding the permit work- ers had "come to a head" Hughes said to Hilboldt, "You do what you got to do, I will do what I got to do" Local 513 first issued John Barry a work permit in May 1985, and after that issued new permits to him every 2 weeks, until September 8, 1986, when he was issued a day-to-day permit On that occasion, Business Manager Hughes told Barry that the permit was good on a day-to-day basis, and that he would let Barry know when to pay his fees The Union did not issue any more permits to Barry, and Barry did not pay any more fees Barry applied for entrance into the Union's apprentice- ship program in June or July 1985, again in August or September 1986, and for a third time on February 25, 1987 None of his applications led to acceptance in the program It was not until May 16, 1987, that the Union allowed Barry to put his name on the work availability list maintained by the Union Tony Accardi, an employee of National Glass from June 1985 to February 27, 1987, received a permit from the Union every 2 weeks beginning in June 1985 until September 1986, when Business Manager Hughes changed the term of the permit to day to day Hughes revoked Accarch's permit on February 18, 1987, and told him that he was laid off However, Accarch continued to work for National Glass until it laid him off for econom- ic reasons Accardi and Chris Nelke went to the union hall on February 28, 1987, to place their names on the out-of-work list 11 Among the National Glass employees laid off in March 1987 was Steven D Stewart, a member of a Gla- ziers local union in Dallas, Texas, who had worked for National Glass at various times in St Louis and Dallas Stewart had first worked for National Glass on a job in Dallas, Texas, in October 1982 During the same year, he transferred his membership in the Glaziers Union from local union 106 in Duluth, Minnesota, to local union 1837 in Dallas Stewart went to work again for National Glass for a 2- week penod in October 1984, this time in the St Louis area On that occasion, he showed his journeyman's card to a secretary at Local Union 513's office, and was told to go to work Stewart followed the same procedure in June 1985, when he next worked for National Glass in the St Louis area With Local Union 513's concurrence, "Union Business Manager Hughes admits that on February 18, 1987, he went to National Glass' jobsite, and while there revoked the work permits of National Glass' four permit workers, Tony Accardi, John Barry, Joe Kortkamp, and Chris Nelke Accarch said that he and others had filed a lawsuit against the Union, and that their lawyer had told them to go to the union hall to sign the out-of-work list GLAZIERS LOCAL 513 (NATIONAL GLASS) 41 Stewart worked for National Glass on this occasion for approximately 1 month Stewart's current period of em- ployment by National Glass 'began in February 1986, when Stewart again received clearance from Local Union 513 Following the March 1987 layoff, Stewart was recalled by National Glass on March 30, 1987 Stew- art was still working for National Glass at the time of the hearing in this case, May 1987 During a meeting with Patrick Hughes and Frank Scimo on February 6, 1987, Stewart told them he wanted to clear into or join Local Union 513 Stewart had obtained a clearance card, dated January 28, 1987, from his local union m Dallas, Texas (local union 1837) Hughes responded by saying "no way" Hughes and Scimo told Stewart that they had been kind enough to let him work in the past, but now times were slow and they wanted him to leave Stewart said that during the meeting he was told that he had come to the St Louis area to make "big bucks," and "now" would not leave Hughes called him a "back stabber," and left the room Scimo told him that "they had to take care of their own" Stewart's wife, acting for her husband, complained to the International Brotherhood about the treatment he had received As a result of his wife's telephone calls, Stewart was contacted on February 10 or 11, 1987, by Jerry Krause, the International's area representative,12 who asked Stewart to send the International a letter ex- plaining the situation Stewart complied by letter of Feb- ruary 15, 1987, addressed to Richard Zach, vice presi- dent of the International Brotherhood of Painters and Allied Trades By telegram dated March 23, 1987, the International notified Stewart that the following tele- gram had been sent to Patrick Hughes, business repre- sentative of Local Umon 513 This is in furtherance to Brother Stephen Stewart's efforts, since February 1987, to deposit his clear- ance card into Glaziers Local Union #513 As per Section 229 of the Constitution, Local Union #513 is to immediately accept Brother Stephen Stewart's clearance card and the examining board of Local Union #513 shall give Brother Stephen Stewart any qualifying test as permitted by Section 185 of the Constitution by no later than March 27, 1987 Fail- ure on your part or any other officer of Local Union #513 to comply with this directive will sub- ject the offender(s) to penalties spelled out in Sec- tion 44 (F) of the Constitution Stewart was instructed in the telegram to present his clearance card to Patrick Hughes, and request the date, time, and place to take the qualifying test 13 12 Prior to becoming the International Brotherhood's representative, Krause was the business agent for Local Union 513 General Counsel's motion to correct the spelling of Krause's name from "Crowsy," as It ap- pears in the record, to "Krause," is granted 13 By letter of February 24, 1987, Patrick Hughes had notified Stewart that the "Glazier Placement Test for acceptance to Glaziers, Architectur- al Metal & Glassworkers Local Union No 513" would be given on June 22, 1987 In apparent compliance with the International's direc- tive, the Respondent administered a 50-question written test to Stewart on March 27, 1987 14 Stewart did not pass the test International Brotherhood Representative Jerry Krause told Stewart that he could not join Local Union 513, but that would not prevent him from work- ing in the area Krause told Steward to keep on paying Ins dues to the Dallas local union After taking the test, which Stewart said was com- posed of 50 mostly multiple choice questions, Scimo and Krause went over the test with Stewart, showing him answers for some of the test questions in a book Stewart thought was called "Glazing Manual "15 The test was drafted by Local Union 513's apprentice coordinator, Frank Scimo, possibly with some help from members of the apprentice committee, approximately 5 days before it was administered to Stewart Scimo took the multiple choice test questions (39 of 50 questions) from questions at the end of each chapter in the National Apprentice Training Manual, a multivolume book sup- plied by the International Brotherhood The remainder of the questions were fill-in-the-blank questions involving general knowledge of glazing, which were taken from other tests and qtuzzes given to apprentices Scum ad- mitted that the test had been made up specially for Stew- art, and that it was not the same test administered to other individuals trying to clear into Local Union 513 Scimo stated that no one had told Stewart what the sub- ject matter of the test would be, or what books he could study in preparation for the test Stewart said that he thought the test was administered fairly Scimo acknowl- edged that other glaziers had been allowed to clear into Local Union 513 without being tested Those individuals, including Dennis and Lawrence Hdboldt, had worked for a contractor who had a national agreement allowing their glazing foremen to clear, or become members of, Local Union 513 without taking a test There is no dispute that Stewart's troubles with Local Union 513 did not end with the test Shortly after Stew- art returned to work for National Glass on March 30, 1987," Local Union 513 Assistant Business Agent and 14 Prior to the test, Stewart said Krause told him there was no book that he could study for the test, and that Local Union 513 had four dif- ferent tests, of varying degrees of difficulty, and It would administer the most difficult one to Stewart 13 Stewart contends that some of the test questions had two possible answers One such question, to which Stewart's answer was scored as In- correct, asked what is applied to the back of a mirror Stewart answered, "silver nitrate" The answer from the Glazing Manual was "silver" Ac- cording to Stewart, silver nitrate is applied to to the back of a mirror, and after the nitrate evaporates, a deposit of silver remains Parenthetical- ly, the nature of this question appears to bear out Krause's remark to Stewart, to the effect that Local Union 513 would give him their hardest test The question is sufficiently ambiguous, so that either "silver" or "silver nitrate" arguably could be the correct answer In any event, the question, itself, appears to have little bearing on Stewart's qualifications as a glass installer or glazier Accordmg to Stewart, he was laid off by National Glass from March 25 through 27, 1987, because of lack of work Stewart took the test on March 27 On March 30, he called National Glass, inquiring about the availability of work He was told that work was available, and he re- turned to work on that day Stewart said that all of National Glass' em- ployees had been laid off on March 25 42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Apprentice Coordinator Scimo filed internal union charges against Stewart for violating the Union's consti- . tution." Prior to the union hearing on the charges by Scimo, Stewart sent a letter to Hughes, asking what arti- cles of the Union's constitution he had broken, and for a 30-day postponement of the hearing. Hughes refused to provide any information to Stewart concerning which union work rules he had broken. Stewart was not grant- •ed a postponement. At a hearing held by Local Union 513 on May 5, 1987, Stewart was found guilty of a union violation by going back to work for National Glass without first being re- ferred by Local Union 513. 18 Local Union 513 officials told Stewart that they were going to levy a fine against him, but as of the time of the hearing in this , case, the fine had not been levied." • Business Manager Hughes admitted that, as alleged in the complaint, on or about February 18, 1987, he re- voked the work permits of four employees of National Glass: Tony Accardi, John Barry, Joe Kortkamp, and Chris Nelke. According to Hughes, at about noon on that date, he arrived at National Glass' Fairview Heights jobsite, and there, after talking first to Jackie Hilboldt, a brother of Dennis and Lawrence Hilboldt, two of the owners of National Glass and its president and vice president, respectively, informed John Barry and Tony Accardi, two holders of Local Union 513 work permits, that he was "pulling" their permits. Hughes denied that he told the two employees of National Glass that he was laying them off. According to Hughes, he told them they could work that day, but their permits were no longer any good. According to Hughes, he said nothing to them about working the next day. Hughes testified that there •were not any other helpers holding union permits work- ing for other employers at that time. After taking into consideration Hughes' demeanor as a witness, and the record, as a whole, I find that Hughes did say that the permit workers were laid off. Hughes further acknowledged that, as alleged in para- graph 6(c) of the complaint, on or about March 30, 1987, he told National Glass that it could continue to employ Steven D. Stewart only upon referral by the Respond- ent, and that no such referral would be made by the Re- " Specifically, in a letter from the Respondent, dated April 8, 1987, Stewart was informed that he was charged by Scimo with violating three provisions of art. 248 of the constitution of the International Brotherhood of Painters and Allied Trades on March 30, 1987: (1) disloyalty to the Brotherhood; (2) violation of union trade rules; and (3) violation of orders "issued by representatives acting under the direction of the Gener- al Officers or of the General Executive Board." 18 The basis of the charge, according to Local Union 513, was a letter from International Union Representative Krause purportedly saying that Stewart was to go through Local Union 513 to find jobs, not find them on his own. Whether or not there was such a letter, Stewart said he did not receive it, and he did not recall Krause saying that to him. The Re- spondent, on the other hand, did not produce a copy of the letter or call Krause as a witness. On the record before me, I find no credible evidence that such a letter was ever delivered to Stewart. ' 9 Stewart testified that he was attempting to negotiate a settlement with Local Union 513 by agreeing to leave the area if the Union would drop the charges. Stewart testified that Local Union 513 Vice President Walsh told him that the Union would hold the fine in abeyance. Walsh said that at a different time and under different circumstances Local Union 513 would have welcomed his transfer with "open arms," and that the Union's difficulties with National Glass just added to the problem. spondent. Hughes said that he told National Glass' repre- sentative that National Glass had breached the collec- tive-bargaining agreement by hiring Stewart without going through the union hall. Hughes said that he inter- preted the provisions of the new collective-bargaining agreement to include a requirement that out-of-town gla- ziers, apprentices, and helpers be cleared through the Union before employers who are parties to the agree- ment can hire them. Hughes said that under the agree- ment the only ones who are free to get their own jobs are journeymen members of Local 513. Hughes said that he filed a grievance over the vacation/layoff incident, but that he did not file a grievance about National Glass' employment of Stewart because charges had been filed with the Board by then, and, after talking to the Union's lawyer, he decided "to let this thing ride." Christopher Nelke first applied for membership in Local Union 513 in 1985 when he started working for National Glass. After filling out an application, he took a test, but heard nothing more from the Union about be- coming a member of the Union. In February 1987, Nelke applied for the Union's apprentice program. On June 17, 1987, after negotiations between Nelke's attorney and the Union, Nelke, along with 19 or 20 other people, took a test given by the Union for entry into the apprentice program. A week or so later when Nelke asked Scimo about the results of the test Scimo said it had not been graded yet. On June 15, 1987, Bob Lynch, Union Business Manag- er Hughes' son-in-law, an apprentice employee of Na- tional Glass and the Union's shop steward at National Glass, refused to set glass with Nelke, giving as his reason that the union hall would not let him set glass with Nelke on a National Glass job. Upon learning of this, Dennis Hilboldt told them to do all the metal work they could, unload some metal, and then go home since they could not set glass. On July 7, 1987, when Nelke and Lynch were next given glass setting work to do to- gether, Lynch again refused to set glass with Nelke, stat- ing that the union hall would not permit it because it was unsafe to set glass with Nelke. On this occasion, Dennis Hilboldt laid Nelke off, stating that the layoff was neces- sary because he could not get anyone to set glass with Nelke. Nelke returned to work for National Glass on July 22, 1987, and continued working for National Glass until he accepted other employment in October 1987. Nelke began working for National Glass in the summer of 1985. In March 1986, Dennis Hilboldt in- creased Nelke's pay to the level of a journeyman glazier, so that, as Hilboldt explained it, Nelke could do journey- man's work. According to Hilboldt, it was accepted practice that someone paid at a journeyman's rate could do journeyman's work. National Glass continued paying Nelke journeyman's wages until he was laid off in August 1987, because of lack of work. During the 1986- 1987 period National Glass paid journeyman's wages to approximately six employees, including permit workers Joey Kortkarnp and Tony Accardi. On July 9, 1987, after Lynch walked off a National Glass job rather than set glass with Nelke, Hilboldt told Nelke that he was laid off after completing that day's GLAZIERS LOCAL 513 (NATIONAL GLASS) 43 work, because Hilboldt "couldn't have constant interrup- tions about who was going to work with him" Hilboldt called Lynch back to work the next lay, explaining to Lynch that he had laid off Nelke and that he had work for Lynch Hilboldt put Nelke back to work on July 22, 1987, after receiving a letter from Nelke's attorney Hilboldt admitted that he had laid off \Nelke, because he was aggravated by Lynch's refusal to \set glass with him No gnevances were filed because of the incidents involving Lynch and Nelke II I find that the Respondent violated Section (b)(1)(A) . and (2) of the Act, as alleged in paragraphs 5(i) and (n), 6C, and D of the complaint in Case 14-CB-6645 (a) Paragraph 5 of the complaint alleges that the Re- spondent denigrated an employee of National Glass "for his attempts to obtain membership in Respondent or clearance from Respondent" to work for National Glass, and that Respondent told the employee "that he would not be permitted to work for the Charging Party because he was not a member of Respondent and Respondent sought to preserve employment exclusively for its mem- bers The employee referred to in paragraph 5 of the com- plaint is Steven D Stewart, who, at the time set out in the complaint, was an employee of National Glass, and a member of Glaziers, Architectural Metal and Glass Workers' Local Union 1837 in Dallas, Texas After ob- taining a clearance card from Local Union 1837 in Janu- ary 1987, Stewart attempted to transfer his union mem- bership to Local Union 513 He was immediately re- buffed in that effort by Local Union 513's business man- ager, who made it clear that Stewart was not wanted as a member of the Local Union, and would not be accept- ed as a member During a meeting on February 6, 1987, with Local Union 513 Business Manager Patrick Hughes and Apprentice Coordinator and Assistant Business Rep- resentative Frank Scimo, Hughes told Stewart that there was "no way" he would be allowed to join Local Union 513 Hughes and Scimo told Stewart that he had come to the St Louis area to make "big bucks" and "now" would not leave Hughes called him a "back stabber," Scimo told him that the Local Union 513 had to take care of its own The evidence establishes beyond any question that Hughes and Scimo intended by coercion and improper application of union rules to prevent Stewart from be- coming a member of Local Union 513, and to use his lack of membership as part of a continuing effort to in- timidate Stewart into giving up his job with the Charg- ing Party, so that it could be filled by a member of Local Union 513 20 In that context, the statements which 20 There is ample evidence suggesting that Hughes and Scimo were not deterred in their efforts to keep Stewart out of Local Union 513, even after Stewart had successfully secured the intervention of the Inter- national Union When ordered by the International Union to accept Stewart's clearance card and permit him to take any qualifying test per- mitted by the constitution of the International Union, Scimo prepared a ' written test of dubious fairness and relevancy, which, predictably, Stew- art failed Following his return to work for National Glass on March 30, 1987, Stewart was charged by Frank Scimo with violating union work Hughes and Scimo made to Stewart indisputably were denigrating and clearly were made for the purpose of re- straining and coercing him in his attempt to become a member of Local Union 513 The pejorative reference to Stewart as a "back stabber," by any definition, was deni- grating and coercive There being no doubt that Local Union 513's officials engaged in the conduct alleged, for the purposes alleged, it remains only to determine whether that conduct, under the exigent circumstances, violated Section 8(b)(1)(A) of the Act I find that it did Section 8(b)(1)(A) of the Act makes it an unfair labor practice for a labor organization to restrain or coerce employees in the exercise of Section 7 nghts Teamsters Local 515 (Roadway Express), 248 NLRB 83 (1980) It is well established that it is a violation of Section 8(b)(1)(A) of the Act for a union to engage in a "deliber- ate pattern of conduct consisting of threats and coercion designed to force" travelers into quitting their jobs so that the jobs can be filled by local union members Iron- workers Local 111 (Steel Builders), 274 NLRB 742, 745 (1985), enfd in relevant part 792 F 2d 241 (D C Cir 1986), citing Sachs Electric Co, 248 NLRB 669 (1980) Not only was the Respondent's attempts to intimidate Stewart into abandoning his job with National Glass a violation of the Act, it was a violation of specific provi- sions of the constitution of the International Brotherhood of Painters and Allied Trades, with which Respondent is affiliated The International Union's constitution, which is binding upon Respondent, provides that glazier-mem- bers are permitted to work in the jurisdiction of local unions other than the one to which they belong simply by depositing their clearance card in the nearest estab- lished local union Section 229 of the International Union's constitution provides that "no local union shall refuse to accept a Clearance Card of any traveling member or members in search of employment or em- ployed" Stewart had fully complied with the require- ments of the International Union's constitution by depos- iting his clearance card with Local Union 513 Upon re- ceipt of Stewart's clearance card Local Union 513 had no right under the Internal union rules by which it is bound to arbitrarily refuse to accept Stewart as a transfer member of Local Union 513 or interfere in any way with his continued employment by National Glass, or, for that matter, employment by any other employer in the St Louis area Respondent's actions were a clear violation of Stewart's Section 7 rights rules, and subsequently was found guilty of violating union work rules by going to work for National Glass without first being referred by the union Hall The charge was spurious There is no credible evidence that Stewart was given such an order by a union representative Further, even if such an order had been given, it would be unlawful because it discrimi- nated against Stewart for belonging to an out-of-town local union Stew- art had complied with the constitution of the International Brotherhood, which permits glaziers to work in out-of-town junsdictions by depositing their card with the local union having geographical junscliction Further, the collective-bargaining agreement between Local Union 513 and Na- tional Glass authorizes Local Union 513 Journeymen to select the em- ployer for whom they wish to work It would be an 8(bX1XA) and (2) violation for Local Union 513 to selectively apply this provision only to Local 513 journeymen and not to journeymen from other local unions properly working with Local Union 513's Junsdiction 44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Paragraphs 6C and D of the complaint allege that on or about March 30, 1987, Respondent "advised Charging Party that its employee Stephen D Stewart could continue to be employed only upon exclusive re- ferral by Respondent and that no such referral had been, or would be, made by Respondent," and, in this manner, "attempted to cause Charging Party to discharge" Stew- art Respondent does not dispute that Business Manager Hughes made the alleged statements to a representative of National Glass, or that his purpose was to cause Na- tional Glass to terminate Stewart's employment (See part I, above ) Respondent contends, however, that Hughes' statements did not violate the Act because Na- tional Glass had violated the collective-bargaining agree- ment by hiring Stewart without going through the union hall I find that defense to be totally lacking in merit The collective bargaining in effect at that time (on or about March 30, 1987) clearly does not support the Re- spondent's position A change was incorporated into that agreement, covering the 1987-1989 penod, permitting the Union to operate a nonexclusive referral system for the purpose of recommending journeymen and appren- tices as job applicants, as needed by the employers (in- cluding National Glass) who are bound by the agree- ment As stated in the agreement, the "parties recognize that the Union's knowledge and experience within the in- dustry here involved, together with the sources of com- petent manpower available to it, can be of assistance to the [employers] in recruiting Journeymen and Appren- tices as employees" The employers are required to give applicants referred by Local Union 513 "due and fair consideration" The employers are further obligated to notify the Union when employees are hired, giving their names, addresses, and job classifications There is nothing in the collective-bargaining agreement that requires the employers to hire only applicants referred by the Union In this case, the occasion for Hughes' statement to Na- tional Glass concerning its continued employment of Stewart was National Glass' recall of Stewart on March 30, 1987, after he and all of Respondent's other employ- ees had been laid off for economic reasons earlier in the month When an employer already has available to it ex- penenced employees on layoff who can be recalled, the employer has no need to recruit new employees It being explicitly stated in the collective-bargaining agreement that the purpose of the nonexclusive referral system is to permit the Union to bnng its expertise and resources into play to assist the employers in recruiting journeymen and apprentices, it follows that this provision of the agree- ment does not apply to situations, such as a recall, in which the employer already has available to it qualified employees, and has no need to recruit anyone else National Glass did not violate the nonexclusive refer- ral provision of the collective-bargaining agreement by recalling employee Steven D Stewart following the end of a general economic layoff of all employees without first seeking a referral of applicants from the Respond- ent There having been no violation of the collective-bar- gaining agreement, Respondent cannot use the collective- bargaining agreement as justification for the actions of its business manager, Patrick Hughes, in attempting to cause National Glass to terminate Stewart's employment Section 8(b) makes it an unfair labor practice for a union "(1) to restrim or coerce (A) employees in the ex- ercise of rights guaranteed in Section 7," and "(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection 8(a)(3) " Sheet Metal Workers Local 16 (Parker Sheet Metal), 275 NLRB 867 (1985) In the absence of a lawful, negotiated exclusive hiring hall referral system, it is unlawful for a union to force or attempt to force an employer to use its referrals as a sole source of labor Sheet Metal Workers Local 16, supra, Op- erating Engineers Local 17 (Combustion Engineering), 231 NLRB 1287 (1977) It is also well established that it is a violation of Section 8(b)(2) for a union to attempt to force an employer to discharge nonunion employees and replace them with union members Carpenters District Council of Miami (Bruchard Designs), 238 NLRB 1683, 1684 (1978) By attempting to cause National Glass to fire employ- ee, Steven D Stewart because he was not a member of Respondent and had not been referred as a job applicant by Respondent, and by further stating that Stewart would not be referred by Respondent in the future, Re- spondent's business manager, Patrick Hughes, violated Section 8(b)(1)(A) and (2) of the Act III I further find that Local Union 513 violated Section 8(b)(1)(A) and (2) of the Act, as alleged in paragraphs 6B and 6D of the complaint Specifically, I find that on or about February 18, 1987, Respondent, acting through its business manager, Patrick Hughes, revoked the union work permits which had been issued to National Glass' employees Tony Accardi, John Barry, Joe Kortkamp, and Chris Nelke, 21 and in- formed the employees that they were laid off, all in an effort to cause National Glass to discharge the employ- ees because they were not members of the Respondent Union, and to force the employees to stop working for National Glass Business Manager Patrick Hughes admitted revoking the employees' work permits, as alleged, however, he denied telling them that they were laid off or saying any- thing to them concerning their future employment by National Glass After hearing the testimony of all the witnesses, including Hughes, and observing the witness' demeanor, I find that Hughes, in fact, did tell National Glass employees Tony Accardi, John Barry, and Joe Kortkamp that he was revoking their work permits, and that they were laid off I find Hughes' denial not to be credible There is an abundance of evidence that Hughes' ac- tions of February 12, 1987, were a sequential step in an escalating campaign by Local Union 513's officials to force or intimidate National Glass into termmatmg its 21 Chns Nelke was not present on that occasion, however, It is clear that Hughes intended to Invoke Nelke's permit, as well as those of Ac- card', Barry, and Kortkamp, and to cause the layoff of all four of Nation- al Glass' permit workers GLAZIERS LOCAL 513 (NATIONAL GLASS) 45 employment of glaziers and helpers who were not mem- bers of Local Union 513, and replacing the workers with members of Local Union 513 (See part I of Findings and Conclusions, above ) It is also abundantly clear that Local Union 513 had no right under the 1986-1989 col- lective-bargaining agreement between it and the Glazing Contractors of the St Louis, Missouri area, of which Na- tional Glass is a member, to operate an exclusive hinng hall The collective-bargammg agreement states only that the Union has the right to operate a nonexclusive referral system for the purpose of recommending journeymen and apprentices as job applicants as needed by the em- ployers who are a party to the agreement The nonexclu- sive referral system set up in the collective-bargaining agreement does not extend at all to the somewhat vague category of employees called helpers Fmally, whatever the applicant referral system ar- rangements may have been between Local Union 513 and National Glass, the four permit workers were em- ployees of National Glass, not Local Union 513, and the Respondent had absolutely no right to interfere in the employee-employer relationship by, itself, brazenly at- tempting to lay off National Glass' employees for any reason Even if National Glass' employment of the four helpers somehow violated the collective-bargaining agreement, which it did not, Local Union 513's remedies lay m other directions which do not include undertaking to lay off the Employer's employees As previously noted, Section 8(b) makes it an unfair labor practice for a union "(1) to restrain or coerce (A) employees in the exercise of rights guaranteed in Section 7," and "(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsec- tion 8(a)(3) " Sheet Metal Workers Local 16, supra And, as also previously noted, in the absence of a lawful, ne- gotiated exclusive hiring-hall referral system, it is unlaw- ful for a union to force, or attempt to force, an employer to use its referrals as a sole source of labor Sheet Metal Workers Local 16, supra, Operating Engineers Local 17, supra Finally, it is also well established that it is a viola- tion of Section 8(b)(2) for a union to attempt to force an employer to discharge nonunion employees and replace them with union members Carpenters District Council of Miami, supra Just as Respondent's attempts to interfere m the em- ployee-employer relationship between National Glass and its employee, Steven D Stewart, violated the Act, so did its similar attempts to cause National Glass to ter- minate its employment of Tony Accardi, John Barry, Joe Kortkamp, and Chris Nelke because they were not mem- bers of Respondent IV I further find that Respondent violated Section 8(b)(1)(A), (B), and (2) of the Act, as alleged in para- graph 8 of the complaint Paragraph 8 alleges that Respondent attempted to cause National Glass to discriminate against its employ- ees who are not members of Respondent by maintaining and enforcing against Lawrence M Hilboldt, an employer/member of Respondent, through imposition of monetary fine, article XXIV, section 3, of its bylaws and trade rules, prohibiting members from "working and glazing with other than members of the IBPAT" Assistant Business Agent Frank Scum filed the inter- nal union charge against Hilboldt after he observed Htl- boldt working on a National Glass job on Saturday, Oc- tober 25, 1986, with two bricklayers but no glaziers This situation had been precipitated by Business Manager Hughes' arbitrary refusal the day before to authorize overtime work for glaziers, for no other apparent reason than to apply additional pressure on National Glass to discharge its permit workers in order to open up jobs for Local Union 513's members Hilboldt was charged with violating section XXIV, articles 3 (part 2) and 9, 22 of Local Union 513's bylaws and trade rules, and section 1 of articles I and II of the collective bargaining agree- ment The cited provisions reqture union approval of overtime work," and prohibit union members from "working and glazing with other than members of the IBPAT "24 Hilboldt subsequently was found guilty by the Union's trial committee of violating these provi- sions 25 For these alleged violations of union rules, Local Union 513 imposed a fine of $410, which Hilboldt continues to refuse to pay In an earlier case, Local Union 513 was found to have violated Section 8(b)(1)(A) and (2) of the Act by main- taining and enforcing the same provision of section XXIV, article 3, of its bylaws and trade rules, against an employer/member for doing glazing work with an em- ployee who was not a member of Local Union 513, with the intent to cause the employer/member to terminate the employment of his employee Glassworkers Local 513, 200 NLRB 617 (1972) A similar provision in the consti- tution of a local union of the International Brotherhood of Electrical Workers, as applied against an employer/member, was found to be violative of Section 8(b)(1)(A) and (2) of the Act in a later case Electrical Workers IBEW Local 952 (Tr-Bar Electric), 269 NLRB 608 (1984), enfd 758 F 2d 436 (9th Cir 1985), Plumbers Local 589 (L & S Plumbing), 294 NLRB 616 (1989) Under similar circumstances here, there is no question but that Respondent again violated Section 8(b)(1)(A) and (2) of the Act, by maintaining and enforcing the same provision against another of its employer/members, as part of a continuing attempt to cause the employer to fire nonmembers of Local Union 513 and hire in their places members of Local Umon 513 Section 8(b)(1)(B) of the Act makes it an unfair labor practice for a labor organization or its agents to restrain 22 This charge apparently refers to art XXIV, sec 3 and 9, of Local Union 513's bylaws and trade rules 23 Art XXIV, sec 9, of Local Union 5I3's bylaws and trade rules, and Art II, Sec 1, of the collective-bargaining agreement 24 Art XXIV, sec 3, of Local Union 513's bylaws and trade rules 25 This, despite the fact that there were no glaziers, members of Local Union 513, or not, other than Hilboldt, himself, at work on the job that Saturday This left Hilboldt, an owner of the company and one of its offi- cers, in the rather puzzling predicament of having been charged with, and found guilty of, violating union rules by approving overtime work, if Indeed that it what it was, for himself on his own company's job This application of its union rules by Local Union 513 is further evidence that its real motive was to bnng pressure on National Glass to discriminate against its nonmember employees, in violation of their Sec 7 rights and Sec 8(a)(3) 46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD or coerce "an employer in the selection of his representa- tive for the purpose of collective bargaining or the ad- justment of grievances" As vice president, and an owner, of National Glass, Lawrence Hilboldt handles personnel matters for the Company, and deals with Local Union 513's representa- tives in collective-bargaining matters In view of his duties and responsibilities, Hilboldt clearly is an employ- er's representative within the meaning of Section 8(b)(1)(B) Electrical Workers IBEW Local 113 (Pride Electric), 283 NLRB 39 (1987) The discipline imposed by Respondent on employer!- member Lawrence Hilboldt was for the purpose of caus- ing Hilboldt and National Glass to discriminate against some of its employees, in violation of Section 8(a)(3) of the Act, by discharging them because they were not members of the Respondent Union Rather than involv- ing a matter of internal union discipline, the Respond- ent's disciplinary action against Hilboldt quite clearly was directly related to its dispute with National Glass over its continued employment of helpers and glaziers who were not members of Respondent As such, it vio- lated Section 8(b)(1)(B) Electrical Workers IBEW Local 113 (Pride Electric), supra V The complaint in Case 14-CB-6708 alleges that Re- spondent violated Section 8(b)(1)(A) and (2) of the Act, on or about July 9, 1987, by causing and attempting to cause National Glass to lay off employee Christopher R Nelke because he is not a member of Respondent The complaint charges that Respondent caused Nelke's layoff by refusing to permit Shop Steward Bob Lynch to work with Charging Party Nelke On the record before me, I find that factually there is no doubt that Respondent's shop steward, Bob Lynch, acting on Respondent's instructions, refused on two oc- casions to set glass with Charging Party Nelke, and that the cumulative effect of Respondent's repeated refusals to permit its members to set glass with Nelke, and the delay and inconvenience that caused National Glass in completing its jobs, caused National Glass to lay off Charging Party Nelke on July 9, 1987 I find that the tes- timony of Dennis Hilboldt and Charging Party Nelke is credible on these points 26 Respondent's actions in June and July 1987 with regard to Nelke were consistent with its long and well established pattern of repeated efforts to force National Glass to discharge its nonunion member employees, in order to create jobs from mem- bers of Local Union 513 Respondent offered no testimo- ny or other evidence to rebut the testimony of Hilboldt and Nelke, or to dispute that Shop Stewart Lynch was 22 I do find that the testimony of either Hilboldt or Nelke should be discredited because they misled the Respondent concerning the February 1987 layoff of National Glass' four permit workers Both Hilboldt and Nelke admitted their actions Although their actions were dishonest or, at least, deceitful, Respondent created the climate of hostility in which these actions occurred by its own illegal actions, and, under these circum- stances, can hardly be said to have clean hands It is of no significance that Charging Party Nelke accused Respondent of other Illegal acts upon which the General Counsel declined to act As a layman, Nelke is not presumed to know the intncacies of labor law Their is no indication that he acted maliciously in bringing charges against Respondent Respondent's agent, acting on directions received from Respondent In the absence of any evidence to the con- trary, I find that Lynch acted as Respondent's agent, and that Respondent is bound by his actions For reasons stated in section III, above, and equally applicable here, Respondent's action with regard to Charging Party Nelke violated Section 8(b)(1)(A) and (2) of the Act 27 CONCLUSIONS OF LAW 1 Respondent, Glaziers, Architectural Metal and Glassworkers Local Union No 513, is a labor organiza- tion within the meaning of Section 2(5) of the Act 2 National Glass & Glazing, Inc is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 3 Respondent Union, by denigrating Steven D Stew- art for his attempt to obtain membership in the Respond- ent Union, and by telling him that he would not be per- mitted to work for National Glass & Glazing, Inc , the Charging Party, because he was not a member of the Re- spondent Union, violated Section 8(b)(1)(A) and (2) of the Act 4 Respondent Union, by attempting to cause National Glass & Glazing, Inc , the Charging Party, to discharge employee Steven D Stewart because he was not a member of Respondent Union, and had not been referred as a job applicant by Respondent Union, violated Section 8(b)(1)(A) and (2) of the Act 5 Respondent Union, by attempting to cause National Glass & Glazing, Inc , the Charging Party, to discharge employees Tony Accardi, John Barry, Joe Kortkamp, and Christopher R Nelke because they were not mem- bers of Respondent Union, violated Section 8(b)(1)(A) and (2) of the Act 6 Respondent Union, by maintaining and enforcing ar- ticle XXIV, section 3, of its bylaws and trade rules, pro- hibiting members of Respondent Union from working and glazing other than with members of the International Brotherhood, against employer/member Lawrence Hil- boldt, vice president of National Glass & Glazing, Inc , the Charging Party, through initiation of internal union charges and imposition of a fine upon him, all for the purpose of causing Lawrence Hilboldt and National Glass & Glazing, Inc to discriminate against some of its employees, in violation of Section 8(a)(3) of the Act, by discharging them because they were not members of the Respondent Union, violated Section 8(b)(1)(A), (B), and (2) of the Act 7 Respondent Union, by causing National Glass & Glazing, Inc to terminate employment of employee Christopher R Nelke, the Charging Party in Case 14- CB-6708, because he was not a member of Respondent Union, violated Section 8(b)(1)(A) and (2) of) the Act 27 It may be argued that National Glass violated the Act by acceding to the pressure brought upon It by Respondent to terminate Nelke's em- ployment National Glass, however, is not a party in Case 14-CB-6708, and, therefore, is not subject to a remedial Order in this case GLAZIERS LOCAL 513 (NATIONAL GLASS) 47 8 The above unfair labor practices affect commerce within the meaning of Section (2)(6) and (7) of the Act 28 REMEDY Having found that Respondent Union, Glaziers, Archi- tectural Metal and Glassworkers Local Union No 513, has engaged in certain unfair labor practices, I further find that the Respondent Union must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act Respondent Union, having engaged in certain unfair labor practices In violation of Section 8(b)(1)(A), (B), and (2) of the Act, shall be ordered to cease and desist from engaging in those unfair labor practices, and shall remove from its records all references to internal union charges filed against its employer/member Lawrence Hilboldt in or about October or November 1986, and shall rescind the $410 fine which it imposed upon Law- rence Hilboldt Respondent Union, having violated Section 8(b)(1)(A) and (2) of the Act by causing National Glass & Glazing, Inc , to discriminate against its employee, Christopher R Nelke, by terminating his employment because he was not a member of Respondent Union, shall make Christo- pher R Nelke whole for any loss of earnings which he may have suffered as a result of its unlawful conduct, less any net interim earnings, as prescribed in F W Woolworth Co, 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) 29 On these findmgs of fact and conclusions of law and on the entire record, I issue the following recommend- ed 3 0 ORDER The Respondent Union, Glaziers, Architectural Metal and Glassworkers Local Union No 513, St Louis, Mis- souri, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Maintaining or enforcing article XXIV, section 3, of its bylaws and trade rules, prohibiting its members from working and glazing other than with members of the International Brotherhood of Painters and Allied Trades, AFL-CIO, against employer/member Lawrence Hilboldt, by initiating internal union charges against him 28 I reject General Counsel's request for a visitatonal clause, whether It be broad or narrow in scope Such clauses are not routinely included in the Board's orders In this case, there are no grounds for issuance of either type of visitatonal clause The record does not show there to be any basis for a broad visitatonal clause, such as a likelihood that the Re- spondent would fail to cooperate or otherwise seek to evade compliance with any order the Board should issue in this case Nor is there any basis for including a narrow visitatonal clause There is no question in this case concerning how and by whom compliance with any order of the Board is to be effected See Cherokee Marine Terminal, 287 NLRB 1080 (1988) 33 Interest accrued before January 1, 1987, shall be computed in ac- cordance with Florida Steel Corp, 231 NLRB 651 (1977) 3° 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 and/or imposing a monetary fine upon him, all for the purpose of causing or attempting to cause Lawrence Hil- boldt and National Glass & Glazing, Inc, to discriminate against its employees, in violation of Section 8(a)(3) of the Act, by terminating their employment because they are not members of Glaziers, Architectural Metal and Glassworkers Local Union No 513 (b) Causing or attempting to cause National Glass & Glazing, Inc , or any other employer, to discriminate against its employees, including, but not limited to, Steven D Stewart, Christopher R Nelke, Tony Accardi, John Barry, and Joe Korticamp, and any other employees similarly situated, in violation of Section 8(a)(3) of the Act, by discriminatory denying employment to, or termi- nating the employment of, persons who are not members of the Respondent Union, Glaziers, Architectural Metal and Glassworkers Local Union No 513 (c) Denigrating, intimidating, or otherwise harassing, insulting, or using derogatory or pejorative language or gestures towards any persons, including, but not limited to, Steven D Stewart, who are or may be eligible for membership in Glaziers, Architectural Metal and Glass- workers Local Union No 513, under its bylaws and trade rules, or under the constitution of the International Brotherhood of Painters and Allied Trades, AFL-CIO, in order to restrain or coerce such persons in the exer- cise of their Section 7 rights, including seeking member- ship in Local Union No 513 (d) In any like or related manner restraining or coerc- ing employers, union members, job applicants, or regis- trants in the exercise of the rights guaranteed to them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Make whole Christopher R Nelke for any loss of earnings or benefits which he may have suffered as a result of Respondent Union, Glaziers, Architectural Metal and Glassworkers Local Union 513, having caused or attempted to cause National Glass & Glazing, Inc , to terminate his employment, or otherwise deny him em- ployment, on and after July 9, 1987, in the manner set forth in the section of this decision entitled "Remedy" (b) Notify National Glass & Glazing, Inc, in writing, that Glaziers, Architectural Metal and Glassworkers Local Union No 513 has no objection to its employing persons who are not members of Local Union No 513, and have not been referred by Local Union No 513, to do glazing work, and, furnish Steven D Stewart, Chris- topher R Nelke, Tony Accardi, John Barry, and Joe Kortkamp with a copy of such notification (c) Rescind the internal union disciplinary action taken against employer/member Lawrence Hilboldt in or after October 1987, including, but not limited to, imposition of any monetary fine, because he worked with, or did glaz- ing work with, persons other than members of the Inter- national Brotherhood of Painters and Allied Trades, AFL-CIO (d) Remove from its files any reference to internal union disciplinary action proposed or taken against em- ployer member Lawrence Hilboldt, in or after October 1986, because he worked with, or did glazing work with, 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD persons other than members of the International Brother- hood of Painters and Allied Trades, AFL-CIO, and notify Lawrence Hilboldt that this has been done and that no evidence of such disciplinary action shall be used by Glaziers, Architectural Metal and Glassworkers Local Union No 513 for any purpose whatsoever (e) Preserve and, on request, make available to the Board or its agents, for examination and copying, all hiring records, dispatch lists, referral slips or cards, and any other documents necessary to compute the amount of backpay due under the terms of this Order (1) Post at its business offices, hmng hall, and meeting places in St Louis, Missouri, and elsewhere copies of the attached notice marked "Appendix "31 Copies of the notice, on forms provided by the Regional Director for 3 '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" Region 14, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to members are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (g) Additional copies of the attached notice marked "Appendix" shall be signed by an authonzed representa- tive of Glaziers, Architectural Metal and Glassworkers Local Union No 513 of the International Brotherhood of Painters and Allied, AFL-CIO, and forthwith returned to the Regional Director for Region 14 for posting by National Glass & Glazing, Inc , it being willing, at its places of business in St Louis, Missouri, or elsewhere, where notices to its members are customarily posted (h) Notify the Regional Director in wntmg within 20 days from the date of this Order what steps the Re- spondent has taken to comply