Hospital Building & Equipment Co.

112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hospital Building & Equipment Company and David M. Ruff Case 7—CA-22278 18 September 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 11 April 1984 Administrative Law Judge Phil W Saunders issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed 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, 1 and conclusions 2 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, Hospital Building & Equipment Company, St Louis, Mis- souri, its officers, agents, successors, and assigns, 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 2 The judge ciling Gulton Electro Voice Inc , 266 NLRB 406 (1983), stated that supersernoray accorded to union officials who are not in volved in policy making functions was unlawful While his reliance on Gulton is correct a more accurate reading of the holding in Gulton is that no supersemority benefits may be extendig to union officials who are not involved in grievance processing or other on the job contract adnunistra lion or steward like duties See also Harvey Hubble Inc , 268 NLRB 620 (1984) DECISION STATEMENT OF THE CASE PHIL W SAUNDERS, Administrative Law Judge Based on a charge and amended charge filed on June 21 and on August 2, 1983, by David M Ruff, the Charging Party or Ruff, a complaint was issued on August 5, 1983, against Hospital Building & Equipment Company (the Company or Respondent) alleging a violation of Section 8(a)(1) and (3) of the Act Respondent filed an answer to the complaint denying it had engaged in the alleged matter and, subsequent to the hearing, both the General Counsel and Respondent filed briefs in this matter On the entire record in the case, and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent is a corporation organized under the laws of Delaware, and at all times material has maintained its principal office and place of business in St Lows, Mis- souri, and also has various jobsites in the State of Michi- gan where it is engaged as a general contractor in the building industry constructing and renovating hospitals and medical facilities, and providing other related serv- ices Respondent's jobsite, located at Port Huron, Michi- gan, is the only facility involved in this proceeding During the 12-month period ending June 30, 1983, Re- spondent, in the course and conduct of its business oper- ations, performed services valued in excess of $50,000, for Saratoga General Hospital and Port Huron General Hospital, both of which have gross annual revenues in excess of $250,000 and are directly engaged in com- merce In the course of performing construction services for these two hospitals, Respondent purchased and caused goods and materials valued in excess of $50,000 to be shipped to both of the Michigan hospital jobsites directly from points located outside the State of Michi- gan Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED It is alleged in the complaint that Local 463, Laborers International Union of North America, AFL-CIO (the Union or Local 463) is, and has been at all times materi- al, a labor organization within the meaning of Section 2(5) of the Act Respondent has insufficient knowledge to either admit or deny this allegation The record in this case shows that the Union's mem- bership is comprised of employees who elect the officers in charge of running the Union's affairs The Union also engages in collective bargaining with employees, includ- ing employees of Respondent Further, the Union pro- cesses grievances on behalf of the employees it repre- sents I find the Union is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES It is alleged in the complaint that, at all times material, James E McGraw is a supervisor of Respondent within the meaning of Section 2(11) of the Act and its agent, that Frank Burns is an agent of the Union within the meaning of Section 2(13) of the Act, that about March 23, 1983, Respondent, by its agent James E McGraw, in- formed the Charging Party that he was to begin working for Respondent on the following day as a laborer, that about March 23, 1983, the Union, by its agent Frank Burns, requested that Respondent not hire the Charging Party, and that Respondent hired instead another em- 272 NLRB No 24 HOSPITAL BUILDING CO 113 ployee in place of the Charging Party, that the Union en- gaged in the conduct described above because the Charging Party was not an official of the Union and the Union wanted the preferential treatment given to offi- cials of the Union, and that about March 23, 1983, Re- spondent, by its agent James E McGraw, notified the Charging Party that he was not to report to work be- cause of the Union's request It is alleged that by the acts described above Respondent did discriminate in regard to the hire or tenure or terms or conditions of employ- ment of its employees, thereby encouraging membership in a labor organization, and thereby did engage in, and is engaging in, unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act Respondent is a general contractor specializing in con- struction of hospitals, and has a fixed-price contract to design and build additions to the Port Huron Hospital, the facility here in question This construction project started in February 1983 and is scheduled for completion sometime in 1985 i A collective-bargaining agreement between the Union and Respondent was not executed until about April 29, 1983, and it contained a referral clause Prior to the exe- cution of the agreement, Respondent paid its laborers on this project prevailing wages and was engaging in discus- sions with the Union as to contract proposals In fact, during the interim, Respondent substantially adhered to the Union contract with Port Huron Construction Con- tractors Association insofar as its laborer employees' wages, hours, and other working conditions were con- cerned, and Frank Burns, business manager for the Union, serviced such agreements on behalf of the laborer employees 2 Commencing about February 19, 1983, Respondent ac- cepted applications for jobs at the Hospital site, and be- tween early 1983 and March 22, 1983, the Charging Party spoke several times about the possibility of em- ployment with Respondent's carpentry foreman James McGraw, and during such visits the the Charging Party and McGraw conversed about cement pouring tech- niques and both agreed on the proper procedures for each type of job except the pouring of columns 3 1 Specifically, Respondent contracted to construct all vertical supports including walls, shafts, and staircases of an addition to the Hospital's structure, and the nature of the work to be performed by Respondent was carpentry and cement pouring 2 It should be noted that the carpenters on this project were covered by a separate collective bargaining agreement not at Issue herein, and this contract covered employees such as James McGraw The collective-bar gaining agreement for laborers, ultimately signed by Respondent and the Union on April 29, 1983, provided that the first laborer referred to the project shall be the steward and shall be chosen by the Union Such em ployee has the only seniority (R Exh 2, at 18) of any laborer on this project In the case at hand, Joseph Mondok a nonunion official, was the first laborer at Port Huron Hospital and began work the week ending March 1, 1983 The second laborer was R Davis who had worked for Respondent for several years on other projects 3 Between the commencement of its operations at the Hospital site and March 22, 1983, Respondent hired Robert Ruff, carpenter, Michael White, carpenter, Clyde Winters cement finisher Joe Mondok, laborer steward, and R Davis, laborer foreman Mondok and Davis were re ferred to Respondent through the Union s referral procedure On March 23, 1983, the Charging Party, David Ruff, went to the Hospital jobsite to apply for work with a contractor other than Respondent (Ceco Corporation), but was told that this contractor would not need another employee at this time, but while Ruff was at the jobsite, Respondent's carpentry foreman McGraw approached him and asked if he had been hired The Charging Party responded that he had not, and McGraw then asked Ruff if he would like to start working for Respondent the fol- lowing day, and Ruff replied that he would McGraw then introduced the Charging Party to Respondent's la- borer foreman and instructed the foreman to take the Charging Party into Respondent's office and have him fill out income tax withholding forms, and Ruff went into the office and completed the necessary paperwork 4 Later that day, Business Manager Frank Burns came to the Hospital site and engaged McGraw in a conversa- tion Burns asked McGraw if he had hired the Charging Party McGraw responded that he had and had also told Ruff to begin working the following day Burns then in- formed McGraw that he already had selected someone else for the job by the name of Butch Gill McGraw again stated that he had already hired the Charging Party and that Ruff had filled out his paperwork Burns then told McGraw to tear up the paperwork and that he could hire someone else Burns and McGraw then went into Respondent's trailer, but a few minutes later they came back out and McGraw then told Ruff he was sorry he could not hire him The following day, Marvin ("Butch") Gill, the Union's sergeant-at-arms, was sent to the jobsite by the Union and was hired by Respondent It also appears that the Charging Party thereafter applied for work with Re- spondent, but has not been offered employment with Re- spondent since March 23, 1983, but Gill worked several weeks thereafter for Respondent The allegation that Frank Burns s an agent of the Union is in dispute This record shows that Frank Burns has served as the Union's business manager, an elected position, intermittently for about 13 years His responsi- bilities, as set forth in the Uniform Local Union Constitu- tion of the Laborers Inteoational Union of North Amer- ica (G C Exh 2), and as described in the record, are those traditionally assigned to union business agents Thus, he is responsible for servicing the Union's collec- tive-bargaining agreements with employers including Re- spondent, he processes grievances, he visits jobsites to meet with stewards and to resolve problems such as those between members and their supervisors and juris- dictional disputes, and he meets with employer r,present- atives concerning interpretation of contractual provi- 4 Counsel for Respondent points out that it is common practice of the carpentry foreman to solicit Interest of workers on behalf of management, and McGraw, having never worked in the Port Huron area or under the union rules, was not attempting to hire in countervention of the laborer agreement between the Union and the Contractors Association of Port Huron since Respondent was not a member as of this date, but by mad vertence or happenstance, and in a rush to get the Port Huron Hospital project off the ground McGraw solicited Ruff's Interest for employment which would have been for a period of a couple of days Respondent did not actually sign its collective bargaining agreement with the Union until April 29, 1983 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sions, including referral procedures, and the requirement of the respective projects Finally, pursuant to the Union's constitution, Burns is chiefly responsible for the operation of Local 463 and he is "the recognized repre- sentative of the Local Union" (G C Exh 2 at 15) I find that Burns is an agent of the Union The allegation that James McGraw was a supervisor and/or agent of Respondent within the meaning of Sec- tion 2(11) of the Act during the material period herein is also in dispute Respondent submits that the position and duties of James McGraw, as carpenter foreman, were not suffi- cient to satisfy the statutory test of a supervisor—that Eddie Kirby, as superintendent on the job, was the only one who had authority to hire and fire employees Fur- thermore, argues Respondent, McGraw was an hourly paid union carpenter working under a separate collec- tive-bargaining agreement for carpenters from that of the Laborers Union, and McGraw had only leadman duties in directing the laborers under him in that these were carpenter and laborers helpers Respondent also points out that the number of Respondent employees on the jobsite on March 23, 1983, included the following (1) project superintendent, (2) mechanical superintendent, (3) project engineer, (4) secretary, (5) carpenter leadman McGraw, (6) laborer Mondok, (7) laborer Davis, and the only true supervisor at the jobsite was Eddie Kirby He, alone, could hire or fire or lay off and, as supported by the testimony of McGraw and Kirby, Respondent also notes that prior to Kirby becoming a full-time superin- tendent at the Port Huron jobsite, an assistant superin- tendent, John Parr, was present Under the law, it is clear that employees who exercise control over less ca- pable employees are not supervisors and that, while McGraw may have exercised hiring and firing powers on other projects for Respondent, he did not do so in his position at the Port Huron Hospital—McGraw did not act Independently in carrying out his duties In making my findings as to McGraw, it is noted that he was hired by Respondent in 1980 and has worked for them, off and on, since that time As indicated, prior to February 1983, McGraw worked at other Respondent's jobsites, both as a foreman and as superintendent When he worked as foreman on other jobsites, McGraw had the authority to discipline and to hire, and McGraw was not told, when he was transferred to the Hospital site, that his job duties would change At the Hospital site here in question, it is clear from this record that McGraw had the authority to recall em- ployees from layoff, to discipline employees, and to assign overtime whenever it became necessary McGraw was also responsible for discussing misunderstandings with the Union, for designing and placing all form work and prints, for directing employees as to what work needed to be done and how to do it, and for maintaining time records on other employees Moreover, it is clear that McGraw was on the Hospital site every workday for the entire day, unlike his superiors Eddie Kirby and Bill Stewart, who were on the site only 1 day per week and once every other week, respectively In fact, McGraw estimates he spent 90-100 percent of his time each day directing the work of other employees It is further submitted that McGraw possessed the au- thority to hire employees, and a good deal of McGraw's testimony at the hearing concerning this authority, par- ticularly his denials thereof, is suspect First, McGraw's oral testimony conflicted with the statements set forth in his pretrial affidavit As indicated, McGraw initially tes- tified at the hearing that Respondent's regional manager Bill Stewart said nothing to him about his hiring author- ity when he was made carpentry foreman for Respond- ent's operations at the Hospital site and that hiring "is never one person's decisions," but this testimony was contrary to McGraw's affidavit wherein he stated that Regional Manager Stewart had told him to "get who you need" on the hospital job and, concerning the hiring of employees prior to March 23, 1983, stated I got these people except the mason and carpenter White by calling the respective trade union halls and asked for referrals The mason and carpenter White were hired off the street Both the carpenter and the laborer simply sent out took the exact number of people I asked for and I hired them These people that were referred to me were inter- viewed by me specifically and were not interviewed by anyone else before they started working After they were hired I told them they were hired and had then filled out [sic] W-4 tax forms Further, as also pointed out, McGraw exhibited a pro- pensity to shift his testimony on other aspects of hiring critical to this case McGraw initially testified that the March 23 conversation, here in question, was the first time he had ever heard his (Gill's) name, but later McGraw testified that as of March 23 he knew Gill was a member of the Union because Gill had applied for em- ployment with Respondent in February Moreover, McGraw conceded that it was "common practice" for foremen to do the hiring on a jobsite, and admitted that this was his practice at the Port Huron General Hospital site In his affidavit McGraw stated that Regional Man- ager Stewart told him to get whom he needed to work at the Hospital site, and he called the Carpenters' and Laborers Union to have prospective employees sent to the jobsite, but that he hired a mason and a carpenter "off the street" McGraw, alone, interviewed the individ- uals referred to him by the respective unions and he hired them Given this authority, together with those re- sponsibilities enumerated supra, McGraw's supervisory position for Respondent is duly established, and I so find There is one overriding issue of credibility in this case David Ruff testified about the conversation he heard be- tween McGraw and Burns on March 23, and stated that, on this occasion, Burns informed McGraw that he had a man who had poured a lot of concrete, would be a good employee for the job, that his name was Butch (Marvin) Gill, and that Gill was an executive board member Shortly thereafter, McGraw informed Ruff that he could not hire him Herbert Dandron, a union member who was also at the jobsite looking for work on March 23, testified that he heard McGraw ask Ruff if he wanted to go to work, that Ruff replied in the affirmative, and accordingly the HOSPITAL BUILDING CO 115 W-2 forms were then filled out Dandron stated that shortly thereafter Frank Burns appeared on the site and, when the discussion between Ruff, Burns, and McGraw reached the point relative to Ruff going to work the next day, Burns stated that he could not do so as he had "a board member" who came first, and McGraw then in- formed Ruff that he could not hire him and that they had "tore up" his W-2 forms James McGraw testified as to his recollection of the events on March 23 Q To your recollection did you have a conversa- tion with Mr Burns on March 23, 1983? A Yes Q To your recollection what was said during the conversation? A He asked me if I had hired David Ruff and I told him yes I just put him for the following day Frank told me that he already had the third man picked out for that job who was Gill I told him I had already signed David up I said "What about him?" He said "Well don't worry about him," he will take care of him I would gather from that him being the laborer business agent that he figured he would put him on another job someplace Q Do you recall anything else what was said') A Other than I told Frank that made no differ- ence to me which one was hired other than I needed a good concrete man Frank told me that Gill was a good concrete man Q Do you recall if Mr Ruff said anything during that conversation') A Mr Ruff wanted it clarified by Frank Burns if he was telling him he couldn't go to work on that jobsite Frank told him "Don't worry about it I will take care of you" So I gathered from that he was going to put him someplace else to work Q Was Ed Kirby on the jobsite on March 23, 1983? A No Q Was Bill Stewart on the jobsite that day? A No Q Did the union send someone out to work for you the next day? A Yes Q Who was that? A It was Gill JUDGE Who') WITNESS Gill By Ms Syx Q Did Mr Gill hold a position in the union? A I guess he does That is what I heard Q What position did you think he held? A I really didn't know at the time I didn't even know he was an officer of the local JUDGE You heard later that he was an officer of the local? WITNESS Later, yeah The first time I had ever heard the man's name By Ms Syx Q How long did Mr Gill work for you? A It was quite a while It seems to me we kept him on there quite steady for a while Two or three weeks or something like that Respondent's superintendent Eddie Kirby testified that on March 23, 1983, he did not know that Marvin Gill occupied any position with the Union However, Kirby did not participate in this discussion and, in fact, was not present during the conversation here in question Frank Burns testified that he had received a message from his steward to the effect that the Respondent was going to hire a laborer starting Monday morning, and he then told Marvin Gill to meet him at the jobsite here in question Burns' testimony is as follows I got there at a quarter to eight and Mr Gill got there approximately the same time Mr Jim McGraw and Mr Dave Ruff came out of the office and Mr Jim McGraw said "I hired this man," and I said "No, you didn't hire this man you hired this man that has the referral slip " Well he says "Is that the way it is?" I said "That is the way you people wanted it instead of hiring at the gate and this is the way I want it" He says "What do you want me to do with Mr Ruff's W-2 form?" I said "I could care less what the hell you do with it, tear it up, throw it away I don't care but this man is going to work" With that Dave says "Is there any reason, Frank?" I says "Yes, Dave, you are a member and we have a referral system and this job is going to be referred and this is the way your membership voted on this and this is why we are doing it this way" We passed in our local do you want referral or do you want the contractors to come in and hire off the street The [sic] voted to in the referral system So with that I went back to my office and Mr Ruff come in and asked my secretary if I was in She said he is in his office, his office is just around the corner I invited him in and he says "Frank, I am not happy" I said "Dave, if you think I'm happy I don't like this any more than you do but this is the way the membership wants it and this is what I have to do It was voted and passed the re- ferral system" Well he says why was he sent out there I said "Well Butch Gill is the sergeant-at- arms plus he is going to be my assistant steward" So he said "At least, Frank, you were man enough to explain your feelings" He shook my hand and he left and I thought maybe he is satisfied I said "Dave, I will send you out just like anybody else, no hard feelings," and with that I thought we had a good understanding Burns stated that his referral system started about 10 years ago, and when he asked at what time he quit refer- ring executive board members, Burns replied that he stopped doing so when Local 463 was put under trustee- ship in May 1983 Burns also testified that at the time here in question McGraw did not know that Marvin Gill was a union of- 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ficer, 6 that he referred people based on their qualifica- tions, and that he continually endeavored to send the best qualified people With the admission of Frank Burns that he did not quit referring executive board members until May 1983, and based on his later statement to Ruff in his office that Marvin Gill was the sergeant-at-arms, I find the testimo- ny of Ruff and Dandron to be credible and, accordingly, Foreman McGraw was aware on March 23 that Ruff's employment was being denied because he was not an of- ficial of the Union and the Union wanted and insisted on preferential treatment to its union officials.6 Counsel for Respondent argues that McGraw was simply in the process of implementing the referral system pushed by Burns, and the decision to hire Marvin Gill had nothing to do with Gill's status with the Union, and furthermore, the subsequent discussions with Burns, McGraw, and the Charging Party indicated acquiescence by all parties as to whom would be laborers on the project. Counsel also points to Burns' testimony to the effect that he was unaware of a bar against favoring union officials, but this factor was never an issue in that he simply placed the best available laborer on the job who had been previously unemployed for a long period. Counsel for Respondent also argues that the question of whether Respondent hired Gill or Ruff was not grounded on favoring a union officer because of the simple fact that Gill was not a union officer—that the sergeant-at-arms is simply an honorary post without any power in policy-making decisions. Moreover, if the Union was pushing or attempting to force employers to accept its officers instead of other union members, it would have placed Gill on the Port Huron job as the 5 Burns stated that the Union's executive committee is composed of six members, but Gill, as the sergeant-at-arms, was not a member of the ex- ecutive committee and that his job is not a policy-making position ' It should be noted at this time that all facts found herein are based on the record as a whole and on my observation of the witnesses The credi- bility resolutions herein have been derived from a review of the entire testimonial record and exhibits with due regard for the logic and proba- bility, the demeanor of the witnesses, the weight of the evidence, admit- ted facts, reasonable Inferences, and the teaching of NLRB v Walton Mfg Ca, 369 U S 404 (1962) As to those testifying in contradiction of the findings, their testimony has been discredited, either as having been in conflict with the testimony of reliable witnesses or because It was in and of Itself incredible and unworthy of belief All testimony has been reviewed and weighed in the light of the entire record As pointed out, McGraw's testimony is suspect for the reasons set forth supra in connection with his hiring authority, and It appears that McGraw structured his testimony to avoid or to deny anything unlawful in connection with his hiring and subsequent refusal to employ the Charging Party Burns' testimony is also suspect for several reasons Thus, has statement that he did not refer Gill because of Gill's union position conflicts with his testimony concerning a conversation with the Charging Party which occurred in Burns' office right after the March 23 incident at the Jobsite Further, Burns' testimo- ny, in general, evidenced a desire on his part to tailor his testimony in a way that would place the Union's conduct in a favorable light Burns conceded that the Union's conduct could be deemed a breach of Its duty of fair representation; that a lawsuit could be filed in distnct court on this matter, and that the Union presently could incur liability He offered eva- sive and confusing testimony concerning the Union's contracts with Re- spondent, he offered conflicting and nonresponsive answers to questions concerning supersemonty given union officials, and he testified that he was personally familiar with the skills and experience of each of the Union's 520 members, without reference to files or notes, and, as also pointed out, the last-named item clearly is cntical for the lawfulness of the Union's conduct lunges on how the Union determined which mem- bers would be given a job No. 1 laborer—which is the steward—to protect his se- niority since this is the only protected laborer under the Union's agreement with the Port Huron General Con- tractors Association (see R. Exh. 2). Furthermore, main- tains Respondent, there is an abundance of evidence to support the argument that Gill was placed on the job based on his skills and the skills needed for the laborers at the Port Huron project, and had nothing to do, what- soever, with Gill's status as a union official. Conclusions The central issue in the instant case is simply whether Respondent favored a union official. Generally, of course, employers and unions are not to encourage or discourage union membership or to grant preference to a union official in hiring. Based on the facts previously set forth herein—David Ruff had been hired by Respondent on March 23, 1983, and he would have begun working for Respondent on the following day except for Respondent's participation and acquiescence in the Union's unlawful request—de- manding that Respondent replace the Charging Party with Marvin Gill, the Union's sergeant-at-arms. As indicated, there is some conflict in the record con- cerning the type of referral arrangement to which Re- spondent and the Union had agreed and, although the parties had no written agreement as of March 23, the contract to which Respondent substantially adhered (R. Exh. 2) contained the following clause. When requested, the Union agrees to furnish com- petent employees upon notification to the Business Manager, Secretary or Business Agent of the Union. The employers retain their right of freedom of se- lection of employees from among all applicants [art. II, sec. 2]. According to Eddie Kirby, Respondent's project super- intendent, there were no oral agreements between the parties, and therefore it would appear that Respondent and the Union had a nonexclusive referral arrangement as the Union would not necessarily have to be Respond- ent's first and primary source of employees.7 As indicated, it is quite apparent that the Union and Respondent had a nonexclusive referral arrangement and, under this situation and circumstances, the Union caused Respondent to discriminate in favor of an individual pre- ferred by the Union, and thereby openly demonstrated the Union's power over employees and their livelihoods. Moreover, the discriminatory aspect of the Union demand lies in the fact that the true reason for Burns' in- sistence that Gill replace the Charging Party was Gill's 7 Business Manager Burns asserted that, in practice, the Union had an exclusive referral arrangement Burns testified that he and Respondent's regional manager Steward had "set up" a referral system when Respond- ent moved onto the Jobsite and that the union membership had voted for it Subsequently, however, Burns "qualified" this description and stated that the referral system was "pretty exclusive" and that he "would be lying . if [he said] it was a hundred percent" and that the only agree- ment between Respondent and the Union regarding the referral was the wntten contract HOSPITAL BUILDING CO 117 position as a union official, previously detailed and dis- cussed herein Frank Burns testified that the reasons he felt Gill should be working in place of Ruff was because Gill was qualified to do concrete pouring, the task for which Ruff had been hired, and because, in the back of his mind, he intended to make Gill assistant laborer steward, and not because Gill was the sergeant-at-arms As indicated, these purported reasons for giving Gill preference fail for the following reasons First, Burns conceded and ad- mitted that the Charging Party was "very capable" of pouring cement Thus, absent an unlawful reason for doing so, and absent an exclusive referral arrangement, it is questionable why Burns would urge McGraw to put Gill to work in place of the Charging Party Further, as of March 23, there were only two laborers on the job- site—the laborer foreman and an employee who served as steward—thus one must question why, at this time, the Union would need to place a second steward on the job given this small employee complement Next, Burns testified he was told by the International Union that ex- ecutive board members of the local could be given first priority in referral and that he gave these officers prefer- ence until May 1983 As previously noted, Burns told McGraw, at the time he demanded that the Charging Party be replaced by Gill, that Gill was on the executive board Later, however, he testified that the sergeant-at- arms does not sit on the board It is submitted, and I agree, that the reasons for Burns' assertion that Gill sat on the executive board was that he felt such would justi- fy a preferential referral due to the International's direc- tive However, under Gulton Electro-Voice, 266 NLRB 406 (1983), the Union's objective of according supersen- iority to the recording and financial secretaries was an unlawful one, in view of the fact that the occupant of those positions does not participate in the Union's policy- making functions In the instant case, it is clear that the sergeant-at-arms, Marvin Gill, does not sit on the execu- tive board, and quite obviously does not participate in the administration of collective-bargaining agreements Certainly, Burns' testimony that he had in the back of his mind some future idea or plan in making Gill an assistant steward does not elevate Gill's status during the period and circumstances in question here to that of an employ- ee responsible for grievance processing and on-the-job contract administration 8 Even assuming, arguendo, that the referral practice was an exclusive one, the conduct here in question was still unlawful 9 It is also well established that a union is ' t 8 See also Otis Elevator Ca, 268 NLRB 180 (1983), and Houdaille In dust ries, 268 NLRB 1468 (1984) 9 There is no 8(b)(1)(A) and (b)(2) allegation in the complaint, nor is there any contention by the parties that there be any remedy against the Union based on its conduct in this dispute It is, of course, well settled that a union violates Sec 8(b)(2) and (1)(A) of the Act where it causes or attempts to cause an employee s employer to demonstrate against him in violation of Sec 8(a)(3) such as bringing about the termination of the employee s employment (or by failing or refusing to refer him for em ployment or reemployment), and where It coerces and restrains the em ployees in the exercise of rights guaranteed in Sec 7, because the em ployee politically or personality wise opposes the Incumbent union ad ministration It is also clear that an employer who participates in or lends itself to such actions similarly violates Sec 8(a)(3) and (1) of the Act R- M Framers, 207 NLRB 36 (1973), Tracy Towing Line, 166 NLRB 81 obligated to operate an exclusive referral system based on objective criteria, and in a nondiscriminating manner In the instant case, it appears that subjective, rather than objective, standards were utilized by the Union in deter- mining that Gill, rather than the Charging Party, should be given the job here in question Thus, neither the Charging Party's nor Gill's place on the out-of-work list, appears to have been taken into consideration Rather, according to the Union, the referral was based on Burns' determination that Gill was "more than qualified," but then Burns conceded the Charging Party was indeed ca- pable of performing the work In the final analysis, I am in agreement that Respond- ent has presented no credible evidence that there was any reason, other than the Union's demand, for the Charging Party being told not to report to work after he had been hired Thus, it is concluded that, but for the Union's unlawful request, the Charging Party would have been permitted to work for Respondent on March 24, 1983, and that Respondent clearly participated and acquiesced in a demand which was unlawful on its face, thereby itself discriminating in violation of Section 8(a)(1) and (3) of the Act Loft Painting Co, 267 NLRB 74 (1983), Carpenters District Council (Daniel Construction Co ), 227 NLRB 72 (1976) THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act It having been found that Respondent discriminatorily discharged David Ruff, I shall recommend that Respond- ent offer him immediate and full reinstatement to his former or substantially equivalent position, without prej- udice to seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment of a sum of money equal to that which he would have normally earned from the date of his dis- charge, less net earnings, during said period All backpay provided shall be computed with interest on a quarterly basis, in the manner described by the Board in F W Woolworth Co, 90 NLRB 289 (1950), and with interest thereon computed in the manner and amount prescribed in Florida Steel Corp, 231 NLRB 651 (1977) See also Isis Plumbing Co, 138 NLRB 716 (1962) CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 James McGraw is an agent of Respondent and Frank Burns is an agent of the Union within the meaning of Section 2(11) and (13) of the Act (1967), enfd 417 F 2d 865 (2d Cir 1969), cert denied 397 U S 1008 (1970) 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 By engaging in conduct described in section III, above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Hospital Building & Equipment Company, St Louis, Missouri, its officers, agents, succes- sors, and assigns, shall 1 Cease and desist from (a) Encouraging membership in Local 463, Laborers International Union of North America, AFL-CIO, or any other labor organization, by discharging employees or otherwise discriminating against them in regard to their hire or tenure of employment or any other term of employment, except as authorized by Section 8(a)(3) (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action which is nec- essary to effectuate the policies of the Act (a) Make whole David Ruff in the manner set forth in the section of this decision entitled "The Remedy" (b) Offer David Ruff immediate and full reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his se- niority and other rights and privileges previously en- joyed (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (d) Post at its office and work project in Port Huron, Michigan, copies of the attached notice marked "Appen- 10 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 dix "" Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply " 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 Na- tional Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice WE WILL NOT discharge or otherwise discriminate against employees in encouraging membership in Local 463, Laborers International Union of North America, AFL-CIO, or any other labor organization, except as permitted by Section 8(a)(3) and Section 8(f) of the Na- tional Labor Relations Act WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act WE WILL offer to David Ruff immediate and full rein- statement to his former job or a substantially equivalent one and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him HOSPITAL BUILDING & EQUIPMENT COMPANY