Elevator Constructors, Local No. 6

National Labor Relations Board - Board Decisions

Jun 27, 1973

204 N.L.R.B. 578 (N.L.R.B. 1973)

578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Elevator Constructors, Local
No. 6, AFL-CIO (Westinghouse Electric Corpora-
tion, Elevator Division) and Richard A. Jameson.
Case 6-CB-2455
June 27, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On February 8, 1972, Administrative Law Judge
Nancy Sherman issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order except as modified
herein.
As more fully detailed in her Decision, the Admin-
istrative Law Judge found that the Respondent violat-
ed Section 8(b)(2) and (1)(A), inter alia, by its failure
on and after July 8, 1972, to advise Richard Jameson
of the exclusive referral provisions contained in its
collective-bargaining agreement with Westinghouse,
in derogation of its duty of fair representation. How-
ever, for the reasons set forth below, we find it unnec-
essary to reach or pass upon that issue.
The record establishes that the referral list which
the Respondent provided Westinghouse contained
only the names of its unemployed members. The rec-
ord shows that these members had not specifically
asked that their names be placed on the referral list
and, further, that they were not even aware of the
provisions for such a list at that time.
Although Jameson testified that he called the Re-
spondent a week after the strike ended, Respondent's
business manager, John Russell, testified that he
spoke to Jameson on July 10, the day the strikers
returned to work. Russell admitted that Jameson
wanted to know whether there was any work, that
there was no doubt in his mind that Jameson wanted
to work, and that he told Jameson that there were
members out of work. Russell also admitted that it
was union policy that nonmembers did not work
while members were unemployed, that there was no
doubt in his mind that Jameson understood that poli-
cy, and that that was what he was telling Jameson
when he said there were members out of work. Thus,
in the context here, and in so many words, Russell
confessed that the Respondent's failure to place
Jameson's name on the referral list on July 10, 1972,
was solely because Jameson was not a member. Hav-
ing assumed the benefits of an exclusive hiring agree-
ment, the Respondent is in no position here to insist
that applicants who are justifiably unaware of its exis-
tence specifically request placement on a referral list.
As the Respondent's brief points out, "a Union can be
held to have discriminated against a person who is not
employed by an employer because of their refusal to
place his name on an exclusive hiring hall list because
of his nonmembership." That is precisely what oc-
curred.
Accordingly, we find that, by its failure to place
Jameson's name on the July 10, 1972, referral list, the
Respondent violated Section 8(b)(2) and (1)(A) of the
Act without regard to any duty of fair representation.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Inter-
national Union of Elevator Constructors, Local No.
6, AFL-CIO, Pittsburgh, Pennsylvania, its officers,
agents, and representatives, shall take the action set
forth in the Administrative Law Judge's recommend-
ed Order as modified.
1. From paragraph I (a) delete the letter "(a)" un-
der clause 2 and delete clauses (2)(b) and (c).
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportinity
to present their evidence, it has been decided that we
violated the law and we have been ordered to post this
notice. We intend to carry out the Order of the Board
and abide by the following:
204 NLRB No. 100
ELEVATOR CONSTRUCTORS, LOCAL NO. 6 579
The National Labor Relations Act gives employ-
ees the right, among others:
To get and keep their jobs, including place-
ment on and referral from a list from which
employers must hire men, without regard to
whether or not they are union members, except
to the extent that such right may be affected by
an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3).
WE WILL NOT infringe on these rights.
WE WILL NOT cause or attempt to cause West-
inghouse Electric Corporation, Elevator Divi-
sion, or any other employer, within our territorial
jurisdiction, to discriminate against Richard A.
Jameson, or any other employee, in violation of
Section 8(a)(3) of the National Labor Relations
Act.
WE WILL NOT restrain or coerce Richard A.
Jameson, or any other employee, in the exercise
of the rights guaranteed in Section 7 of the Act.
WE WILL notify Richard A. Jameson and West-
inghouse, in writing, that we have no objection to
Jameson's continued employment by Westing-
house.
WE WILL make Richard A. Jameson whole for
any loss of pay he may suffer by reason of our
action in causing or attempting to cause Westing-
house to discriminate against him.
INTERNATIONAL UNION OF
ELEVATOR CONSTRUCTORS,
LOCAL NO. 6, AFL-CIO
(Labor Organization)
Dated By
ceeding, heard at Pittsburgh, Pennsylvania, on December
18, 1972, pursuant to a charge filed on August 11, 1972, a
complaint issued on October 31, 1972, and an amended
complaint issued on December 4, 1972, presents the ques-
tion of whether Respondent violated Section 8(b)(2) and
(1)(A) of the National Labor Relations Act, as amended
(hereinafter called the Act), by causing or attempting to
cause Westinghouse Electric Corporation, Elevator Divi-
sion (hereinafter called Westinghouse), to discriminate
against the Charging Party (Richard A. Jameson), in viola-
tion of Section 8(a)(3) of the Act.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
the General Counsel and Respondent, I make the following:
FINDINGS OF FACT
I JURISDICTION
Westinghouse is a Pennsylvania corporation with its prin-
cipal office located in Pittsburgh, Pennsylvania. It is en-
gaged in the manufacture, sale and distribution of electrical
appliances and products in various states. Solely involved in
the instant proceeding is Westinghouse's Elevator Division.
Within the 12-month periods immediately preceding the
issuance of the complaint and amended complaint, West-
inghouse purchased and received goods and materials va-
lued in excess of $50,000 directly from points outside
Pennsylvania for use at its facilities within Pennsylvania. I
find that, as Respondent admits, Westinghouse is engaged
in commerce within the meaning of the Act, and that exer-
cise of the Board's jurisdiction herein will effectuate the
policies of the Act.
Respondent International Union of Elevator Construc-
tors, Local No. 6, AFL-CIO, hereinafter called the Union,
is a labor organization within the meaning of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Background: the Union's Membership and Employment
(Representative) (Title) Policies
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1536 Federal Building, 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222, Telephone
412-644-2977.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This pro-
At all times relevant herein, the Union has been recog-
nized by Westinghouse as the representative of all elevator
constructor mechanics and helpers engaged in the installa-
tion, repair, maintenance, and servicing of elevators and
related devices in the Pittsburgh area. The Union follows a
restricted admission policy. No employee is admitted into
membership until he has completed a year's employment in
the industry, and not all employees will be admitted to
membership even after they have completed this year.]
Union Business Representative John Russell admitted that
it has been union policy in the past that a nonmember does
not go to work until all the members are put to work. While
the Union's rules do not forbid members to work with non-
] At no time herein was the Union willing to admit Jameson to member-
ship, although during much of this period, at least, Jameson wanted to
become a member. Accordingly, although the contracts herein contain a
union-shop clause effective in non-Right-to-Work states like Pennsylvania,
the Union concedes that this clause had no effect on Jameson's rights
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members, Union Secretary-Treasurer Regis Lauer testified
that prior to the bargaining agreement executed in July
1972, ". . . we did have cases of a man working with a non
union man , and he was censured .- 2 Although the bargain-
ing agreement in effect between January 1967 and March
1972 contained no restrictions on Westinghouse 's right to
select employees, Westinghouse Regional Field Manager
Edward Miklavcic credibly testified that Russell had taken
the position that neither members nor nonmembers could
go to work for any company without going through the
union hall. Miklavcic further credibly testified that on vari-
ous occasions after June 1972, when Westinghouse had di-
rectly asked a particular individual to come to work for it,
". . . generally he was forced to go elsewhere, he didn't
report, he kind of more or less was shoved out of town, or
made to go away, so he couldn't come to work." 3
B. Richard Jameson's Preinduction Employment History
Richard A. Jameson was first employed by Westinghouse
on June 9, 1969. He obtained his job with Westinghouse
through an uncle (a union member who worked for West-
inghouse) and the Union, which contacted him to go to
work. Upon hearing from the Union about this job, Jame-
son went down to the union hall, paid the Union $13.50, and
received a "permit" to go to work. Thereafter, until being
drafted into military service on July 20, 1970, he worked
steadily for Westinghouse and paid the Union $13.50 a
month , a sum which Jameson (who has never been admitted
to union membership) characterized at the hearing as
"dues," but which Respondent's counsel described as "ser-
vice fees." 4 Upon receiving his induction notice, Jameson
told Union Business Agent Russell about it and asked
whether he had "to pay any dues or anything like that
there." Russell replied that he did not.
Before his induction, Jameson completed the 6-month
"probationary" period during which Westinghouse was
contractually permitted to terminate him with or without
cause and without affording him a remedy under the griev-
ance procedure. Under the bargaining agreement, comple-
tion of this probationary period entitled Jameson to a pay
raise and other benefits, all of which he duly received.
C. Events During Jameson 's Military Service
In 1970, Westinghouse had 200 to 220 employees in the
contract unit . From November 1970 through January 1971,
2 Union member Francis Vith testified that he had heard that under the
prior agreement , members had been censured for working with nonmembers
J On cross-examination , Miklavcic admitted that prior to July 1972, West-
inghouse had hired at least three employees directly rather than through any
union hall . Such testimony did not impeach the testimony quoted in the text,
for during 1970 and 1971 Westinghouse had 100 to 200 employees in the
contract unit
4 Neither of the bargaining agreements herein contains a provision requir-
ing such payments from nonmembers in non -Right-to-Work states
Respondent 's counsel stated that these payments are not a condition of
employment and that nobody has ever been discharged for not paying them
The record fails to show the monthly dues for members in 1970 In 1972,
monthly dues for helpers were $20, and "service fees" were $17
while Jameson was still in military service, Westinghouse
laid off 95 to 100 unit employees, both members and non-
members. Westinghouse did not rehire any of these employ-
ees while Jameson was still in service.5 In order to assist
members in obtaining work elsewhere, the Union invited
laid-off members to request that their names be entered on
a list of unemployed members who wanted jobs. When the
Union learned of vacancies (in or out of the trade), it re-
ferred the members on this list thereto on a rotational basis.
D. Jameson 's Efforts To Obtain Work Following
his Honorable Discharge from Military Service
Jameson was honorably discharged from military service
on March 19, 1972, 4 days before the 1967-72 agreement
was due to expire by its terms . On March 21, Jameson
advised Union Secretary-Treasurer Lauer that he was just
back from military service, asked "what about my union
card" and whether he "had to pay any dues or anything like
that there," and also asked "how the working conditions
were." 6 Lauer replied that the men were going on strike
soon, that there was no work at all, that Jameson should
"wait," and that a lot of "card men"- i.e., union men-were
out of work. The strike began 8 days later , on March 29.
E. Hiring under the New Bargaining Agreement
On Saturday, July 8, 1972, the Union and a number of
employers in the industry, including Westinghouse, execu-
ted a new bargaining agreement effective from March 24,
1972 (5 days after Jameson's discharge from the military
service), to July 8, 1977. The new agreement provided, inter
alia, that "when hiring an experienced mechanic or helper,
the Employer shall use the Union as the first source of
applicants for employment." Further, the new agreement
stated, "The Union shall refer to the Employer only work-
men whose names appear on the open employment list." In
addition, the agreement required the Union to maintain "an
open list for the employment of workmen qualified to per-
form the duties required," to be "established, maintained
and kept current on a non-discriminatory basis and ... not
based on or in any way affected by Union membership,
Union by-laws, regulations or constitutional provisions or
any other aspect or obligation of Union membership, poli-
cies or requirements." Also, "If an Employer requests by
name from the open employment list a particular workman
previously employed by the Employer, who permanently
lives in the area, that workman shall be referred by the
5 When enlarging its workforce , Westinghouse was under no contract obli-
gation to prefer employees whom it had previously laid off , but it generally
did so as a matter of policy The record fails to show whether, subsequent
to these layoffs but while Jameson was still in service , it added to its payroll
anj employees who had never worked for it before
As previously noted , Jameson had completed the 1 year of experience in
the industry, required as a condition of admission into the Union, about a
month before entering military service While he was in military service,
several employees with comparable experience in the industry had been
admitted into membership
ELEVATOR CONSTRUCTORS , LOCAL NO. 6
Union to the Employer unless the workman is unwilling to
accept employment with the Employer." I Moreover, "All
Employment Practice provisions are to be posted in the
Union Hall and in the Employer' s Personnel Office." No
provisions similar to those described in this paragraph were
included in the prior agreement. Union Secretary-Treasurer
Lauer testified that under the new agreement he did not
believe a member could be censured or punished for work-
ing with a nonmember. However, there is no evidence that
the membership was ever so advised (see infra fns. 13, 22).
On Monday, July 10, the employees who had been active-
ly working for Westinghouse and other employers immedi-
ately before the beginning of the strike returned to work for
such employers, without the use of a referral list. About 95
Westinghouse employees, half of them helpers, returned to
work at this time. On July 13 or 14, Westinghouse's regional
field manager, Edward Miklavcic, came to the union hall in
an effort to obtain the employee list from which Westing-
house was contractually required to select new employees.
Business Agent Russell gave him a copy of the list of unem-
ployed union members which the Union had begun to
maintain in 1970 . 8 As previously noted , the list consisted
only of union members , and the name of Jameson (a non-
member) did not appear thereon.
Miklavcic took the list back to Westinghouse's superin-
tendents (inferentially , including Field Superintendent
C. B. Ross), who selected six employees (three helpers-
including McCartan-and three mechanics ) to be hired
from the list. Westinghouse did not hire any more employ-
ees from this list until August 8, when it hired John Bittner
as a helper. Although not contractually required to prefer
former Westinghouse employees in hiring from the referral
list, Westinghouse normally does so as a matter of policy.
Of the seven employees whom Westinghouse hired from the
referral list, six had previously worked for it and one (helper
McCartan) had not.'
Union Business Agent Russell testified that up to the date
of the hearing (more than 5 months after the contract was
signed), the referral lists had consisted entirely of union
members , and that no nonmember had ever asked the
Union to put his name on the list. With the exception set
forth infra footnote 11, I credit this testimony. Russell fur-
ther testified that if any nonmembers did appear on the list
and an employer requested men without specifying whom
he wanted, the Union would refer union members before
referring nonmembers , " it would be the more experienced
and more qualified, due to length of service." As previously
7 The provision quoted in the text is article XXII, paragraph l(d)(l). Para-
graph l (d)(2) of that article is the same , except that it substitutes the language
"who has not previously been employed by that Employer " for "previously
emsployed by that Employer."
Because Miklavcic was unfamiliar with the names of the individuals who
had previously worked for Westinghouse , Russell marked such names on the
copy of the list given to him. See supra In. 5, In. 7, and attached text.
None of these employees except Bittner had been included in the West-
inghouse layoff of November 1970-January 1971; but all of them had been
laid off from the industry while Jameson was in military service . In hiring
from the referral list, Westinghouse was under no contract obligation to take
prior layoff dates into account; nor is there any evidence that it did so as a
matter of policy
581
noted, the record shows that some nonmembers have more
experience than some members.
F. Jameson's Poststrike Efforts To Obtain
a Union Membership Card and a Job
About July 15, 1972, Jameson telephoned Lauer that he
had just heard the strike was over 10 and would like to know
how the working conditions were. Lauer replied that work
was slow, and there were still a lot of "card men"- i.e.,
members-out of work. Lauer said nothing about unem-
ployed nonmembers. Thereupon, according to Jameson's
credited testimony:
I said well, . . . is there any chance of putting me on
a list to go to work, and Mr. Lauer then told me that
there is no list, and I said about the list to go to work,
and he said, I can't put you on the list, because you are
a probationary helper, and not a card helper . . . I
asked Mr. Lauer about my time that I had before I
went into the military service, and he just answered me
with, well. I t
On a subsequent date not fixed by the record, Jameson
called Lauer again. Jameson asked how working conditions
were, and if there were any work at all. Lauer replied no,
there was still no work, and there were still men loafing.
Thereupon, on August 2, Jameson telephoned Westing-
house Field Superintendent C. B. Ross, who had been
Jameson's supervisor before his induction. Jameson told
Ross that he had just returned from the military service and
asked how work was. Ross replied ". . . fine, . . . we have
got work." Jameson said ". . . I have been calling the union,
and they keep telling me there is no work, and I dust thought
that I would call down here and check with you, if you
remembered me or not." Ross said, "... yes, we have got
work, give me a few days and I will let you know."
Thereafter, Ross told Robert Mierzwa, Westinghouse's
district field superintendent, about Jameson's application
for work, and asked for Mierzwa's "attitude." Mierzwa told
Ross to hire Jameson. On Friday, August 4, Ross left a
message at Jameson's house telling him to report for work
on Monday morning, August 7.
That Monday morning, before reporting to work, Jame-
son advised Lauer by telephone that Westinghouse had
called him to go to work, and he was going back to work.
According to Jameson's uncontradicted and credited testi-
mony, Lauer told him that he "could not work, because [he]
did not have a card, and [he] was a probationary helper,"
and told Jameson to tell Westinghouse to call Lauer if it
needed men. Jameson replied that he would pass the infor-
mation on. Lauer also told Russell about Jameson's report.
10 Jameson explained at the hearing that after learning that the strike was
over, he "waited a week, to let everything calm down, and let everybody get
back to work, as best they could "
11 On the basis of the witnesses' demeanor, I do not credit Lauer's testimo-
ny that at no time did Jameson ask to be put on any list. See also infra, part
II,I, I,c
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. Union Members' Refusal To Work with Jameson after
his Employment by Westinghouse
1. The Allegheny Community College incident
Thereafter, Jameson reported to the Company's shop and
described his conversation with Lauer to Superintendent
Ross, who said, ". . . well, I will work that out some other
way." Ross told Jameson that he would be going to Alleghe-
ny Community College, and introduced him to employee
Chuck Blooming, a union member. Jameson told Blooming
that the Union would not give Jameson "a card, or a permit
to work," explaining that he was telling this to Blooming
because Jameson "didn't want to get him into trouble with
the union or anything like that there." Blooming replied that
he would have to call the union hall and "see about it."
Blooming then left the room, inferentially to call the union
hall. When he returned, he told Jameson that he "could not
work with [Jameson], that [Jameson] didn't have a card or
a permit . . . sorry about that." Jameson reported this con-
versation to Ross, who instructed him to drive a car to
Wheeling, West Virginia, for Westinghouse. Jameson re-
turned to Pittsburgh that same day, August 7. On August 8,
Westinghouse assigned him to a warehouse job which was
apparently not covered by the Union's bargaining agree-
ment; nor was it covered by any other agreement.t2
2. The Marriott incident
A few days later, about August 10, Westinghouse District
Field Superintendent Mierzwa told mechanic Vith, a union
member, to take Jameson out to the Marriott Inn jobsite in
Pittsburgh. Mierzwa added that Jameson was not a "card
carrying union member." Vith replied that he was not going
to work with a nonmember. Mierzwa then told him to go out
to the job, that there was an extra helper there. Vith did so.13
Mierzwa also told Jameson to report to the Marriott Inn job
site, to which Jameson went by himself. Either before or
immediately after reaching the Jobsite, Jameson telephoned
Russell and gave his own name as the caller, whereupon
Russell said, "I have nothing to say to you," and hung up.14
After reaching the jobsite and having this exchange with
Russell, Jameson contacted Union Secretary-Treasurer
Lauer and told him that Westinghouse had sent him to the
Marriott Job. Lauer replied that Jameson "could not work,
that [he] did not have a card or permit." Jameson then
advised Foreman Gene Bonah, whom he had met before
going into military service, that the Union would not give
Jameson a card or a permit to work, and that he was telling
Bonah this rather than just going ahead and starting to work
12 However , he was paid the helper 's rate of $6 10 an hour called for by
the union agreement.
IJ Although Lauer testified that under the new agreement he did not be-
lieve a member could be censured or punished for working with a nonmem-
ber within the Union 's jurisdiction , Vith credibly testified that the Union had
not told him this Further , Vith was aware of occasions prior to the new
agreement when (as Lauer conceded) members were censured for working
with nonmembers.
14 This finding is based on Jameson 's credited testimony On the basis of
the witnesses ' demeanor and Russell's conceded reluctance to talk to Jame-
son during this period , I discredit Russell 's denial that this incident occurred.
because Jameson "didn't want to get him on any trouble on
the job." Bonah replied that he would have to call the union
hall. When Bonah left the area (inferentially, to make the
call), the other men on the job quit working. Only one of
these men had ever met Jameson before.
Bonah did not testify. Lauer testified that Bonah asked
him what he should do, and that Lauer replied, "I can't tell
you to work with this man, or not to work with this man .. .
this is entirely up to you, ... but do not leave that Job, you
stay on that job."
When Bonah returned to the area, he asked Jameson to
leave for a while until Bonah had had a discussion with the
men working for him. Jameson duly absented himself for 45
minutes to an hour. Union witness Vith, the only witness
who was present during the events which occurred during
Jameson's absence , testified that Bonah said, ". . . whatev-
er you men want to do , it is up to you"; further, that accord-
ing to Bonah, Lauer had "told him something about don't
leave the job"; and, without further particularity, that, "The
men made up their minds themselves that they wanted to
leave the job." 15 When Jameson returned, Bonah told him
that "they had to pick up their tools, they were leaving,"
whereupon the men did so.
Foreman Bonah, two mechanics (including Vith), and
three helpers then went down to the union hall (5 minutes
from the jobsite), and advised Lauer and Russell that they
had left the job. When Russell asked why, they stated that
"they left because the man Jameson [came] on to the job,
when there were card men sitting on the bench." 16 Russell
replied, "... you cannot stop the man from working."
Russell served coffee to those present and, while they were
drinking it, said, "I want you men to go back to work." 11
After having stayed at the union hall about a half hour, the
men returned to the jobsite, about 40 minutes after leaving
it.
In the meanwhile, Jameson telephoned Mierzwa and told
him what had happened, that the other workers had left the
job. Mierzwa replied, ". . . well, I did the best that I could,
it is up to you . . . if you get things straightened out, contact
me, and your job is just as good." Jameson then left the
jobsite and went to the Veterans' Administration. A VA
representative later advised Jameson that "he had a meeting
with the union lawyers and the Westinghouse lawyers, and
that there was an agreement made that [Jameson] could go
to work."
A few days after the Marriott incident, during a conversa-
tion about another matter, Mierzwa asked Lauer "what was
going on, at the Marriott relevant to the fact that the guys
wouldn't work with Rich Jameson." Lauer replied that
Mierzwa "didn't get employees that way." Mierzwa stated
that Jameson was a veteran whom he had to reinstate. Lauer
replied, ". . . that is your problem," that Mierzwa would
have to talk to Russell "on anything after that," and that
Lauer "had a list of men, if [Mierzwa] needed men." 11
About this same time, Russell commented to Miklavcic on
15 To the extent indicated infra part II, 1,2, I discredit Vith's essentially
conclusional testimony about the men's motives
16 This finding is based on Russell's testimony, which I credit to this extent.
17 My finding as to the exact words used is based on Vith's testimony
18
These findings are based on Mierzwa's credible testimony. Lauer was
not asked about this conversation
ELEVATOR CONSTRUCTORS, LOCAL NO. 6 583
the telephone, in connection with the Marriott incident, that
Westinghouse was "having problems" and that Westing-
house "would have no problems, if [Westinghouse had]
treated Jameson with the same accord as the union treated
him, and that was, that we told him that there was no work
available." Miklavcic replied that Westinghouse could not
do that.19
In mid-August, while in Mierzwa's office, Jameson spot-
ted the union referral list on Mierzwa's desk and asked him
about it. Mierzwa explained that under the new agreement,
Westinghouse and other shops hired helpers from this list,
and said, ". . . if your name gets on it, we will see what we
can do." This was the first time Jameson learned of the
existence of a referral list in connection with the new bar-
gaining agreement.
3. The Allegheny Center Mall incident
On September 5, 1972, VA representatives advised Mierz-
wa that the Union's attorney, Joseph M. Maurizi, had "ac-
cepted" Jameson back to work on the Union's behalf 20
Thereupon Westinghouse called Jameson to its office on
September 6, where Mierzwa described his conversation
with the VA and sent Jameson to work at Allegheny Center
Mall. When Jameson reached the Jobsite, he told the main-
tenance man there, union member Moliteras,21 that Jame-
son was having trouble getting a card or a permit to work,
but that a VA representative had advised him of an agree-
ment between the Union and Westinghouse that he was to
work "without the union interfering." Moliteras said, ".. .
let's call the hall and check on it."
Jameson then telephoned Lauer, advised him that Jame-
son was at Allegheny Center Mall, and asked about "the
agreement that was made through Westinghouse and you."
Lauer replied that he had "no recollection, or no idea about
no agreement." Jameson explained that he was working
with Moliteras, and Lauer told Jameson to put him on the
phone. Lauer said nothing to Jameson about whether or not
he could work. Jameson gave the phone to Moliteras, who
talked with Lauer for a few minutes. After hanging up,
19 My finding as to Russell's statement is based on Miklavcic's credited
testimony Russell testified that this was a face-to-face conversation in late
August or early September , and that Russell told Miklavcic that he did not
want to discuss the Jameson matter, that Westinghouse had hired him, "and
any attempt to construe that we told our people to leave the job, when in
fact-and the facts substantiated we sent our people back to the job, but any
other conversation would have to go through proper channels " On the basis
of the witness ' demeanor , I discredit Russell's account of his conversation
with Miklavcic.
20 Mierzwa's testimonial evidence indicates that Jameson was not paid at
all from the time of the Marriott incident through September 5 Jameson's
testimonial evidence is to the same effect, except that he testified that during
this period he worked in the shop "maybe one or two days," and was paid
for only one-half day on the day of the Marriott incident The Union's brief
asserts (p 5, fn.), "Jameson, according to the Company payroll records,
worked continuously from August 7, 1972, to the date of hearing, December
18, 1972, with the exception of three (3) days on which he received no
time-August 16, 1972, August 23, 1972, and August 30, 1972 The time
records were submitted by Robert Mierzwa at the hearing General Counsel
has agreed to these facts." The payroll records in question are not part of the
record herein, nor has any party filed a motion to reopen the instant record
to receive them. This issue can be resolved in compliance proceedings
21 The transcript refers to this individual as Milo Terrace The spelling used
in the text accords with the General Counsel's brief
Moliteras told Jameson, ". . . you know how things are, I
can't work with you,. . . is there any way-well, why don't
you go to the union hall, and see if you can get things
straightened out, and if you can, then I will meet you at the
Pleasant Valley Hospital." 22
Jameson then went straight to the union hall and asked
Lauer if Jameson could speak to Russell. Lauer replied that
Russell was out of town. Jameson asked Lauer what he was
trying to do, that Jameson understood "there was an agree-
ment made." Lauer replied, "I don't know anything about
no agreements." Jameson said ' ... well, why can't i
work?" Lauer replied "... you can work, we are not stop-
ping you from working." Jameson said, ". . . well, if you are
not stopping me from working, then I am a card holding
member and I want to pay my dues." Lauer said, "I can't
accept your dues, and I cannot give you a card." Lauer
explained that the Union was "not issuing cards at this time,
due to the unemployment "23 Jameson said, ". . . well, you
just told me that you weren't stopping me from working,
and I can't work unless I have a card or a permit to work,
and so I want to pay my dues, and I will pay for my card."
Lauer said, "I cannot accept that, I can't take it," and
repeatedly said ". . . we are not stopping you from work-
ing." Jameson then asked whether his probationary time
counted, and whether his name had ever been put on a list
for a card for membership in the Union. Lauer replied that
Jameson had no "right" to ask that question, because he was
not a card- holding member. Jameson asked Lauer what he
considered a "probationary"; Lauer replied, ". . . anybody
with six months or less, that does not have a card." 4
After hearing about the Allegheny Center Mall incident,
Westinghouse representative Mierzwa telephoned Lauer
and asked "what was going on about Jameson." Lauer re-
plied that he did not know what Mierzwa was talking about.
Mierzwa replied ". . . don't you know anything about
[union attorney] Maurizi's agreement to accept Jameson
back to work?' Lauer said that he did not know about that.
Mierzwa asked how he was supposed to put Jameson back
to work if the people he had to work with would not work
with him. Lauer replied, ". . . that's your problem." Mierz-
wa asked "... what kind of work is he going to do?" Lauer
replied, "... that is your problem . . . I have people here
if you need them . . . I'm not stopping you from employing
22 Lauer testified that Moliteras called him and said that Jameson was over
on the job with him, to which Lauer allegedly replied, " he is employed
by Westinghouse, so it is entirely up to you, what you do." Lauer further
testified that he did not tell Molrteras not to work with Jameson However,
Lauer admitted that he did not tell Moliteras that there was a new agreement
in effect under which he could not be censured for working with a nonmem-
ber like Jameson Molrteras did not testify On the basis of the witnesses'
demeanor, I credit Jameson's testimony that he originated the call and talked
to Lauer before Moliteras took the phone, and discredit Lauer's testimony
otherwise Further, on the basis of Molrteras' conduct after hanging up the
phone, Lauer's demeanor, and the considerations discussed infra part 11,1,2,
I discredit Lauer's testimony about the content of his telephone conversation
with Moliteras
23 My findings in this sentence are based on the testimony of union mem-
ber Francis W Miller (who overheard this conversation), whom I credit to
this extent
24 With the exception indicated supra, fn 23, my findings as to this conver-
sation are based on Jameson's credited testimony, not substantially contro-
verted by Lauer. On the basis of the witnesses' demeanor, I do not credit
Miller's testimony about this conversation to the extent that it is inconsistent
with Jameson's testimony
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him." Mierzwa said, ". . . well, what is he supposed to do,
am I supposed to make him a truck driver, or janitor [?] ..
he can't go back and do the function that he did, because
the men won't work with him." Lauer replied that this was
Mierzwa's "problem" and Mierzwa would have to talk to
Russell about it.25
H. Subsequent Events
After the Allegheny Center Mall incident, Westinghouse
again assigned Jameson to work in the warehouse. Thereaf-
ter, Jameson tried to reach Russell by telephone, but was
repeatedly advised that he was not there. On the one occa-
sion when Jameson reached him, Russell said, "I have noth-
ing to say to you," and hung up.
On September 11, 1972, Westinghouse assigned Jameson
to a helper's job in Altoona, Pennsylvania, outside the
Union's territorial jurisdiction, where he was still working
at the time of the hearing on December 18, 1972 .26 Before
Jameson reported to that job, the mechanic who accompa-
nied him tried without success to reach the Union by phone,
and then sent a registered or certified letter to the Union
saying who was working (including Jameson) and where the
job was. At the Altoona job, three members of Respondent
Union worked along with Jameson without apparent inci-
dent.
Since his discharge from military service , Jameson has
not been paying any "service fees" to the Union. Neither
Russell nor Lauer ever told Westinghouse in terms that it
had to remove Jameson from the job. Jameson's name was
never on any of the Union's referral lists, and Westinghouse
never specifically asked the Union to refer Jameson.
1. Analysis and Conclusions
1. Whether the Union unlawfully caused or attempted to
cause Westinghouse not to hire Jameson
a. Introduction
Laying to one side any rights conferred under the Mili-
tary Selective Service Act of 1967 (50 U.S.C. Sec. 459(b)(c) )
by virtue of Jameson's status as an honorably discharged
veteran, the 1972 bargaining agreement executed by the
Union permitted Jameson to obtain a job from Westing-
house only if Jameson's name appeared on the referral list
which the Union was contractually required to maintain.
All parties stipulated at the hearing that Jameson's name
never appeared on any such list. The Union's brief implicity
(and correctly) assumes that a statutory violation by the
Union would be made out by a showing that Jameson had
requested the Union to put his name on the referral list and
the Union had failed or refused to enter his name thereon
because he was not a union member.27 However, the Union
25 My findings as to this incident are based on Mierzwa's undenied and
credited testimony. Lauer was not asked about this conversation
26 Article XIII, paragraph 1, of the bargaining agreement appears to re-
quire Westinghouse to pay Jameson for the time spent travelling to and from
this location. The record fails to disclose whether it in fact did so
27 See, e g., United Association of Journeymen and Apprentices of the United
States and Canada, Local 633 (Plumbing Contractors of Owensboro), 178
contends that the record fails to show any unfair labor
practice by it in connection with Jameson's efforts to be
hired, on the ground that Jameson allegedly never asked the
Union to put his name on the referral list. For reasons set
forth below, I conclude that under the particular facts of
this case, Jameson's rights against the Union at all material
times after July 8, 1972, were the same as they would have
been if the Union, because of Jameson's nonmembership,
had failed to honor an express request by him for the addi-
tion of his name to the referral list. For reasons further set
forth below, I conclude that Jameson made such a request
about July 15, 1972, and that the Union failed and refused
to honor that request because he was not a member.28
b. The absence of Jameson's name from the initial referral
list
A Union which is a party to an exclusive referral agree-
ment violates Section 8(b)(1)(A) and (2) of the Act where its
breach of its statutory duty of fair representation in the
administration of the referral system causes an employee to
lose employment 29 Moreover, the duty of fair representa-
tion has been held to extend to advising unit members of
relevant portions of the collective-bargaining agreement
which covers them. 0 While this latter requirement has been
articulated primarily in cases involving an employee's right
to keep a job which he already has, the principle of these
decisions is equally applicable to a case involving, as here,
a unit employee's obligations under an exclusive referral
contract to register with the Union in order to get a job in
the first place. See International Association of Heat and
Frost Insulators and Asbestos Workers, Local No. 5 (Insula-
tion Specialties Corp.), 191 NLRB 220, enfd. 464 F.2d 1394
NLRB 398, 399, enfd 436 F 2d 1386 (C.A. 6, 1971); NL.R.B. v. Local 269,
International Brotherhood of Electrical Workers, AFL-CIO, and Mercer Coun-
ty Division, 357 F.2d 51, 55 (C.A. 3, 1966).
28 It should be noted that both conclusions are necessary to my remedial
order herein , which calls for backpay to Jameson on and after July 10, 1972.
The first six employees hired by Westinghouse from the referral list were
selected after July 10; but the record fails to show that they were selected
after Jameson asked the Union to put his name on the referral list, and
Westinghouse did not hire any more employees from the referral list until
August 8 , the day after Jameson began to work for Westinghouse . Further,
as shown below, the Union's unlawful conduct which began on July 8 in-
volved a breach of its duty of fair representation , whereas its unlawful con-
duct which began about July 15 involved a breach of its duty not to cause
or attempt to cause employees to lose employment because they are not
union members . Accordingly, my recommended cease -and-desist order and
notice encompass both kinds of unlawful conduct.
29 Local 1367, International Longshoremen's Association, AFL-CIO (Galves-
ton Maritime Association), 148 NLRB 897, enfd. 368 F.2d 1010 (C.A. 5, 1966),
cert den 389 U.S. 837; Cargo Handlers, Inc., 159 NLRB 321, Houston
Maritime Association, Inc, 168 NLRB 615, set aside on other grounds, 426
F 2d 584 (C.A. 5, 1970)
I note that unlike Houston Maritime, the instant case does not present the
question of whether, as to an exclusive hiring provision , the duty of fair
representation extends to persons who never worked in the unit. As an
employee whose initial tour of duty with Westinghouse was interrupted by
military service from which he was honorably discharged , Jameson was
unquestionably an employee in the unit at all material times. Emil Denemark,
Inc, 121 NLRB 1370, 1371-72. Indeed, it is arguable that his status as an
honorably discharged veteran entitled him to his statutory bargaining
representative 's special concern Ford Motor Company v. Huffman, 345 U.S.
330, 339-343
70 See , e g., Philadelphia Sheraton Corp, 136 NLRB 888, 896 , enfd. 320 F 2d
254 (C.A. 3, 1963); Miranda Fuel Co., Inc., 140 NLRB 181, 189-190, enforce-
ment denied 326 F.2d 172 (C.A. 2. 1963); and cases cited infra fns. 31-32.
ELEVATOR CONSTRUCTORS, LOCAL NO. 6 585
(C.A. 9, 1972). Thus, in the case where this duty to inform
was initially spelled out , the Court of Appeals said, inter
alta: 31
The Union is the agent for employees and as such "is
subject to a duty to use reasonable efforts to give his
principal information which is relevant to his affairs
entrusted to him and which , as the agent has notice, the
principal would desire to have ...." Restatement
(Second), Agency §381 ( 1958)... .
* s s •
Thus , according to Union counsel 's statement at the hear-
ing, printed copies of the new contract were not distributed
until "well after" July 1972. No comparable hiring provi-
sions had been included in the contract in effect while Jame-
son was previously working for Westinghouse.32 The
Union 's failure to discharge its duty as Jameson 's statutory
representative to explain the contractual hiring require-
ments to him is not excused by the fact that Jameson was
not initially advised of such hiring requirements by West-
inghouse either ,33 particularly because Westinghouse hired
• him almost as soon as it learned that he wanted a job.
"The bargaining representative , whoever it may be,
is responsible to, and owes complete loyalty to, the
interests of all whom it represents ." Ford Motor Co. v.
Huffman, 345 U.S. 330 , 338... .
I conclude that Jameson 's failure to obtain employment
from Westinghouse when it first hired employees off the
referral list was caused by the Union 's failure to advise him
of the exclusive referral provisions of the new contract,
which failure constituted a breach of the Union 's duty of
fair representation toward Jameson ; and that , therefore, the
Union 's conduct in this respect violated Section 8(b)(1)(A)
and (2) of the Act . Jameson 's immediate acceptance of
Westinghouse 's job offer , his prestrike and poststrike efforts
to obtain a job , and his long period of unemployment (at
least in the industry) following his discharge from the armed
services leave no doubt that if he had known about the
exclusive referral agreement as soon as the parties had
agreed on it, he would have immediately asked the Union
to put his name on that list. In fact , Union Business Manag-
er Russell conceded that at all relevant times there was "no
doubt in [his] mind that the man wanted to go to work."
Further , Westinghouse 's August 4 action in hiring Jameson
almost immediately after he asked it for a job, notwith-
standing the exclusive referral clause , together with
Westinghouse 's preference for employees previously em-
ployed by it , leads me to infer that if his name had appeared
on the list, it would have included him among the three
helpers whom it selected from the list in mid-July (Including
one who had never worked for Westinghouse before). In
any event, because the absence of Jameson 's name from the
referral list was attributable to the Union 's failure to tell him
about the exclusive hiring clause, the burden devolved upon
the Union to show (as it has not) that Westinghouse would
not have hired him at that time . See N.L.R.B. v . Stackpole
Carbon Co ., 105 F.2d 167 , 176 (C.A. 3), cert . denied 308 U.S.
605; Amsterdam Wrecking & Salvage Co., Inc. v. Local 294,
472 F.2d 153 (C.A. 2).
Finally , the record compellingly shows that the Union
was on notice of Jameson 's July 1972 justifiable unaware-
ness that he would have to put his name on the Union's
referral list in order to obtain a job under the new contract.
31 International Union of Electrical, Radio and Machine Workers, AFL-
CIO, Frigidaire Local 801 v N.L R B , 307 F . 2d 679 , 683-684 (C.A.D C,
1962) (per Burger, C J.), cert . denied 371 U.S. 936 (1962 ). See also Philadel-
phia Sheraton, supra at 896; Miranda, supra at 189-190
Further, while it is true that the union Members were not
informed about the new contractual referral provisions until
the second union meeting in September,34 this information
was of much less importance to them than to nonmember
Jameson, because the referral list used by the Union con-
tained the names of practically all the unemployed mem-
bers,35 and employed individuals were not eligible for the
list. In any event, a breach of the Union's duty of fair
representation toward other employees in the unit could
hardly serve to excuse its breach with respect to Jameson.
I note, further, that the Union's reliance on Jameson's
failure to request that his name be put on the referral list
asks me to assume that such a request, if made, would have
been honored. In view of the Union's July 15 failure to
comply with Jameson's express request that his name be
added to the list (infra, part II,1,l,c), the Union is in a poor
position to claim the benefit of such an assumption. Cf.
N.L.R.B. v. Swinerton, 202 F.2d 511, 514-516 (C.A. 9), cert.
denied 346 U.S. 814.
c. The absence of Jameson 's name from the referral list on
and after July 15, 1972
As found supra, about July 15, 1972, when Jameson asked
Lauer whether there was "any chance of putting [Jameson]
on a list to go to work," Lauer first attempted to put Jame-
32 Jameson was not actively working in the unit during the Union's pre-
1972 contract efforts to effect a noncontractual exclusive hiring procedure.
In view of Jameson 's justifiable ignorance of the existence of the exclusive
referral clause and the Union's failure even to mention it to him, I find it
unnecessary to consider the extent, if any, to which the bargaining represen-
tative must take affirmative steps to supplement a unit employee's incom-
plete knowledge of exclusive hiring provisions. Cf Conductron Corp, 183
NLRB 419, International Association of Bridge, Structural and Reinforced Iron
Workers Union, Local 378, AFL-CIO (Judson Steel Corporation), 192 NLRB
1069, Building Construction, Highway Pavers, Sewer and Tunnel Workers
Union Local No 113 of the International Hod Carriers (James Luterbach
Construction Co, Inc), 167 NLRB 39, 41, General Truck Drivers, Chauffeurs,
Warehousemen and Helpers Local 270 (Bulk Transport, Inc), 186 NLRB 299;
District Lodge No 99 (General Electric Co), 194 NLRB 938
33 Luterbach, supra at 41
34 This finding is based on union member Vith's testimony, from which I
infer that the Union had not previously complied with its contractual duty
to post the contractual "Employment Practice" provisions I find it unneces-
sary to consider whether this omission affected the parties' right to require
registration on the referral list as a condition of hire. Cf. Teamsters Local
Union No 676 (Tellepsen Petro-Chemical Company), 172 NLRB 948, In. 1,
enfd. 419 F 2d 1274 (C A 3, 1963).
35 That list contained the names of about 75 unemployed members. Russell
testified that prior to the strike, "eighty-some" members were unemployed.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
son off by untruthfully asserting that there was no list.
When Jameson persisted that he wanted his name on "the
list to go to work," Lauer replied, "I can't put you on the
list, because you are a probationary helper, and not a card
helper." Finally Lauer's reply ("well") to Jameson's accu-
rate statement that before entering the military service he
had worked as a helper (during which tour of duty, as found
supra, Jameson had successfully completed his probation-
ary period) made it wholly clear that Lauer's refusal to enter
Jameson's name on the list was based, and solely based, on
Jameson's nonmembership.
This inference is substantiated by the Union's admitted
policy of attempting to secure the employment of members
in preference to nonmembers; by the fact that the Union
initially tendered as the contractual referral list a list con-
taining only the names of members; by the fact that subse-
quent referral lists have never included the names of any
nonmembers; by the fact that Jameson was the only non-
member who ever asked the Union to put his name on the
list; by Lauer's references, when Jameson inquired about
work immediately after leaving military service and again
on July 15, to the fact that members were unemployed; by
Lauer's statements to Jameson when he was assigned to the
Allegheny Community College and Marriott jobs that he
could not work because he had no card; by Lauer's Septem-
ber 6 statement to Jameson that Union membership cards
were not being issued "due to the unemployment"; by the
fact that the Union had previously censured members for
working with nonmembers; by Russell's admission to Mik-
lavcic that the Union had been fending off Jameson's re-
quest for a job by untruthfully telling him that no work was
available; and by the Union's subsequent efforts to stop
Jameson from working, on the ground that he had no union
card or permit, after Jameson obtained a job directly from
Westinghouse. The Union's unlawful motivation for failing
to comply with Jameson's request to be put on the referral
list is further shown by Russell's testimony that when Jame-
son in effect asked on various occasions during and immedi-
ately after the strike about his employment prospects,
Russell tried to remind Jameson, by pointing out that many
members were out of work, of the Union's policy tlrat a
nonmember works only after all members are put to work.
While for demeanor reasons I credit Jameson's denial that
he had such conversations with Russell, Russell's testimony
is highly probative of the Union's desire, at all material
times, to subordinate nonmember Jameson's employment
opportunity to that of members.
The Union does not appear to dispute that Jameson's
July 15 request to Lauer to be put on a "list to go to work"
called for Lauer to add Jameson's name to the referral list,
even though Jameson did not have any specific knowledge
that the contract required Westinghouse to hire from a re-
ferral list maintained by the Union. Rather, the Union con-
ten^i that Jameson's lack of knowledge in this respect
renders inherently incredible his testimony (denied by
Lauer, but which I have heretofore credited) that Jameson
asked that his name be put on "a list to go to work." Howev-
er, Jameson credibly explained that he surmised that the
Union was maintaining some such list because he himself
had initially obtained his job with Westinghouse through
the Union. Nor were Jameson's NLRA job rights impaired
by the fact that he was at the same time attempting to obtain
a union membership card (which, as shown, would as a
practical matter have considerably improved his employ-
ment prospects). While the Act does not ordinarily affect a
Union's right to decide whom to admit to membership,36 an
employee's efforts to obtain union membership do not privi-
lege the Union to cause discrimination against him because
of his nonmembership. Cf. Radio Officers' Union v. N.L.R.
B., 347 U.S. 17, 38, 51-52.
For the foregoing reasons, I find that on and after July
15, 1972, the Union failed and refused to add Jameson's
name to the referral lists because of his nonmembership,
thereby attempting to cause Westinghouse to fail to hire
Jameson, in violation of Section 8(b)(2) and (1)(A) of the
Act. However, there is no evidence that Westinghouse hired
any employees from the referral list between July 15 and
August 7, 1972, when Westinghouse hired Jameson. Ac-
cordingly, the record fails to show that by such conduct the
Union actually caused discrimination against Jameson.
2. Whether the Union caused or attempted to cause
Westinghouse to discriminate against Jameson after hir-
ing him
I further conclude that after Westinghouse hired Jame-
son, the Union further violated Section 8(b)(2) and (])(A)
by attempting to cause and causing Westinghouse to dis-
criminate against Jameson, in violation of Section 8(a)(3),
because he was not a union member and, owing to his
nonmembership, could not have been and was not hired
from the referral list.
Thus, when discussing the incident where six union mem-
bers walked off the Marriottjob because Jameson had been
assigned thereto, Lauer told Westinghouse representative
Mierzwa that Westinghouse's supposed obligation to "rein-
state" Jameson was "your problem," reproached Mierzwa
for hiring Jameson directly, and urged Mierzwa to hire from
the members-only referral list. In addition, Russell told
Westinghouse representative Miklavcic that Westinghouse
would not have had "problems" such as the Marriott walk-
out if Westinghouse had pursued the Union's policy of
falsely telling Jameson that no work was available. Even if
the Union had nothing to do with the Marriott walkout,
such attempts to exploit it as a means of inducing Westing-
house to get rid of Jameson constituted an unlawful attempt
to cause Westinghouse to discriminate against him. Cf.
N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003,
1005-06 (C.A. 5, 1965). Moreover, these union statements
approach (if indeed they do not constitute) an admission
that the Union had caused the Marriott stoppage and plan-
ned to cause others if Westinghouse retained Jameson.
This interpretation is substantiated by the accuracy of the
Union's forecast: when Westinghouse assigned Jameson to
the Allegheny Center Mall job, after speaking to Lauer
36 But see Millwright Local Union No 1311 (American Riggers, Inc), 193
NLRB No 156, holding that a Union violated Section 8(b)(l)(A) by telling
an employee whose discharge it had procured for nonmembership that he
could not become a member unless he withdrew a charge he had filed with
the Board complaining of the Union's action in causing such discrimination
ELEVATOR CONSTRUCTORS, LOCAL NO. 6 587
union member Moliteras refused to work with Jameson
unless Jameson could get "straightened out" at the union
hall. When Westinghouse complained to Lauer about this
incident , Lauer professed total ignorance of the circum-
stances (although by his own testimony he had discussed the
incident with Moliteras before he refused to work with
Jameson), stated that finding a job for Jameson was
Westinghouse 's "problem," and reminded Westinghouse, "I
have people here if you need them ." Further, essentially
parallel events had previously taken place at Jameson's first
job assignment at Allegheny Community College: upon
learning that Jameson was not a member and had no per-
mit, member Blooming called the Union hall and then re-
fused to work with Jameson because he had no card or
permit , "sorry about that."
Blooming 's statements and conduct lead me to infer that
during his telephone conversation , as to whose content there
is no direct record evidence , the Union made statements
which under the circumstances (including the Union 's pref-
erential hiring policy and its never formally rescinded prac-
tice of censuring members for working with nonmembers)
at the very least encouraged Blooming to refuse to work
with Jameson because he was a nonmember without a per-
mit. For like reasons, I draw a similar inference as to Union
Representative Lauer's conversation with Moliteras on the
Allegheny Center Mall fob . While Lauer's version of this
conversation might, if credited , overcome such an inference,
I discredit such testimony for the reasons set forth supra,
footnote 22, because Moliteras ' refusal to work with Jame-
son on this job was in furtherance of the Union 's admitted
hiring policy as implemented by Lauer himself , and because
of Lauer's action , when Westinghouse complained about
the incident , in concealing his conversation with Moliteras
while at the same time stressing the Union's desire that
Westinghouse hire from the Union' s members-only register.
Cf. Bon Hennings Logging Co. v. N. L. R. B., 308 F .2d 548, 554
(C.A. 9, 1962).
Moreover, in view of the Union's statements to Westing-
house in connection with the Marriott stoppage ; Lauer's at
best ambivalent statements to Foreman Bonah about what
to do regarding Jameson 's presence on the Marriott job;
Russell's rather languid conduct (including the serving of
coffee to the strikers ) when he learned about their refusal to
work with Jameson , who (predictably) left the jobsite while
they were still at the hall ; the participation of all six union
men (four of whom did not even know Jameson) in the
walkout ; and the Union 's failure to advise these members
(or, so far as the record shows, any others) that they no
longer risked union censure for working with a nonmember,
I further conclude that the Union in answerable for the
walkout at the Marriott job. While member Vith may hon-
estly have believed his testimony that "The men made up
their minds themselves that they wanted to leave the job,"
in the absence of more specific exploration of the factors
which led to this decision I cannot conclude that they
reached this decision without regard to union influence. Cf.
Radio Officers, supra, 347 U.S. at 51.
In short , I conclude that the Union is answerable for its
members ' refusals to work with Jameson on these three
projects because he was a nonmember without a permit.37
3. The Union's procedural defenses
Jameson's charge herein (filed on August 11, 1972) al-
leged that the Union violated Section'8(b)(2) on or about
August (sic) 14 and 15, 1972, by "caus[ing] or attempt[ing]
to cause Westinghouse . . . to refuse to reemploy Richard
A. Jameson in violation of Section 8(a)(3)." The amended
complaint alleged, inter alia, that the Union violated Section
8(b)(2) and (1)(A) by refusing "At all times material herein"
to place Jameson's name on the referral list (paragraph 7);
by causing or attempting to cause Westinghouse to "termi-
nate" Jameson, in or about August 1972 and at all times
thereafter, "because of Jameson's lack of membership in
Respondent, and/or because his name had not been placed
on the hiring hall list" (paragraphs 8 and 9); and, "By the
acts described in paragraphs 7, 8 and 9," causing or attempt-
ing to cause Westinghouse "to discriminate against its em-
ployees [sic] in violation of Section 8(a)(3)." I find
unmeritorious the Union's contention at the outset of the
hearing, but not renewed in its brief, that the complaint
invalidly exceeded the scope of the charge to the extent that
it relied on the referral list. N.L.R.B. v. Fant Milling Co., 360
U.S. 301, 306-309 (1959); N.L.R.B. v. Epstein, d/b/a/ Top
Mode Manufacturing Co., 203 F.2d 482, 485 (C.A. 3), cert.
denied 347 U.S. 212; Bob's Casing Crews, Inc., 192 NLRB
1, in. 5, enfd. 458 F.2d 1301, 1304-05 (C.A. 5, 1972). Indeed,
the Union received the amended complaint within 6 months
after the commission of the unfair labor practices herein,
stated at the outset of the hearing that it planned to defend
against the entire complaint on the merits, and in fact did
so without any claim that it needed more time to prepare its
case than the 13-day interval between its receipts of the
complaint and the hearing date.
The General Counsel's opening statement averred that
the Union's alleged unfair labor practices directed against
Jameson's registration and employment were motivated by
his nonmembership. At this point, the Union's counsel sub-
stantially reiterated the Union's answer to the amended
complaint by asserting that Jameson never asked to have his
name "specifically put on this hiring hall list." Thereafter,
but before the General Counsel had rested his case, I sug-
gested on the record that, assuming Jameson never asked to
be put on the list this alleged omission might be immaterial
because it is attributable to a union failure to advise him of
the existence of a list from which employers were contractu-
ally required to hire, which failure arguably constituted a
breach of the Union's duty of fair representation. Although
the General Counsel thereafter took the hearing position
that the discrimination against Jameson began as of the date
that he made the request to be put on the list, the General
Counsel's brief specifically urges the theory which I suggest-
37 N L R B v Bulletin Company, 443 F.2d 863, 865-867 (C A 3,), cert
denied 404 U S 1018, Local Union No 272, International Association of
Bridge, Structural and Ornamental Iron Workers (Prestress Erectors, Inc), 172
NLRB 207, enfd 427 F 2d 211, 213 (C.A 5, 1970), Local 545, International
Union of Operating Engineers (Joseph Saraceno & Sons, Inc.), 161 NLRB 1114,
1119
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed at the hearing and on which I rely herein supra part, II,
I,l,b. Moreover, the theory is also discussed in the Union's
brief. Accordingly, I conclude that this theory was properly
before me. 8
CONCLUSIONS OF LAW
1. Westinghouse is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Union has violated Section 8(b)(2) and (])(A) of
the Act about July 8, 1972, and various occasions thereafter,
by causing and attempting to cause Westinghouse to dis-
criminate against Jameson in violation of Section 8(a)(3).
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
(2)(6) and (7) of the Act.
THE REMEDY
Having found that the Union has engaged in certain un-
fair labor practices, I shall recommend that it cease and
desist therefrom, and from like or related conduct. Because
the testimony of the Union's own witnesses establishes that
within its territorial jurisdiction Respondent follows a poli-
cy of attempting to secure employment with all employers
for its members in preference to all nonmembers, and be-
cause the Union's administration of the exclusive hiring
provisions in the current contract was calculated to procure
such a result as to all employer parties within the Union's
territorial jurisdiction, my recommended order will forbid
the Union unlawfully to limit any employees' job opportu-
nities with any employers within such jurisdiction and over
whom the Board would assert jurisdiction.
I shall also recommend that the Union take certain af-
firmative action designed to effectuate the policies of the
Act. I shall recommend that the Union make Richard A.
Jameson whole for any loss of pay he may have suffered on
and after July 10, 1972, by reason of the Union's unfair
labor practices, by payment of him of a sum of money equal
to that which he would normally have earned during such
periods, less his net earnings during such periods, to be
computed in the manner described in F. W. Woolworth Co.,
900 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716. I shall also recommend that the Union post
appropriate notices.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed: 39
39 Associated Home Builders of the Greater East Bay, Inc, v. N L R B, 352
F.2d 745, 751-754 (C A 9, 1965)), Independent Metal Workers Union, Local
No 1 (Hughes Tool Co.), 147 NLRB 1573, 1576-77, Sheet Metal Workers'
International Association, Local No 71 (H J Often Company, Inc.), 193
NLRB 23
39 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec . 102.48
of the Board's Rules and Regulations , be adopted by the Board and become
ORDER
Respondent, International Union of Elevator Construc-
tors Local No. 6, AFL-CIO, its officers, agents, and repre-
sentatives , shall:
1. Cease and desist from:
(a) Causing or attempting to cause Westinghouse Elec-
tric Corporation, Elevator Division (hereinafter called
"Westinghouse"), or any other employer, within its territori-
al jurisdiction and over whom the Board would assert juris-
diction, to discriminate against Richard A. Jameson, or any
other employee, in violation of Section 8(a)(3) of the Na-
tional Labor Relations Act, as amended, (1) on the basis of
such employee's nonmembership in Respondent; or (2) on
the basis of the absence from an exclusive referral list main-
tained by Respondent of the name of such employee, where
such absence is attributable (a) to such employee's non-
membership in Respondent, (b) to Respondent's failure to
advise such employee that under the applicable and lawful
provisions of a collective-bargaining agreement, the pres-
ence of his name on that list is a condition of hire, or (c) to
any other breach by Respondent of its duty of fair represen-
tation.
(b) In any like or related manner causing or attempting
to cause Westinghouse, or any other employer, within its
territorial jurisdiction and over whom the Board would as-
sert jurisdiction, to discriminate against Jameson or any
other employee in violation of Section 8(a)(3) or to discrimi-
nate against an employee with respect to whom membership
in Respondent has been denied or terminated on some
ground other than his failure to tender the periodic dues and
the initiation fees uniformly required as a condition of ac-
quiring or retaining membership.
(c) In any like or related manner restraining or coercing
Jameson , or any other employee, in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will effec-
tuate the policies of the Act.
(a) Notify Jameson and Westinghouse, in writing, that it
has no objection to Jameson's continued employment by
Westinghouse.
(b) Make Jameson whole for any losses he may have
suffered by reason of Respondent's action in causing and
attempting to cause Westinghouse to discriminate against
Jameson in violation of Section 8(a)(3), in the manner set
forth in the section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all re-
cords necessary or useful in determining compliance with
the provisions of this Order, including but not limited to
referral lists, records of contributions made to employee
welfare, pension, and educational funds, and any other doc-
uments or records or data showing requests by Westing-
house or other employers for employees, job referrals of
employees to Westinghouse or other employers, and the
work assignments of such employees.
(d) Post at its business office, union hall, or any other
places where it customarily posts notices to employees or its
members, copies of the attached notice marked "Appen-
its findings, conclusions and order , and all objections thereto shall be deemed
waived for all purposes.
ELEVATOR CONSTRUCTORS, LOCAL NO. 6
dix." 40 Copies of said notice, on forms provided by the
Regional Director for Region 6, after being duly signed by
an authorized representative of Respondent, shall be posted
by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members or
40 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National 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."
589
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Furnish the Regional Director for Region 6 signed
copies of such notice for posting, if willing, by Westing-
house and other employers within the Union's territorial
jurisdiction who are parties to the Union's 1972-77 bargain-
ing agreement and over whom the Board would assert juris-
diction, in places where notices to employees or prospective
employees are customarily posted.
(f) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.