International Union of Operating Engineers, Local 132, AFL-CIO (National Engineering Contracting Co.)

National Labor Relations Board - Board Decisions

Jun 10, 1983

266 N.L.R.B. 977 (N.L.R.B. 1983)

OPERATING ENGINEERS LOCAL 132
International Union of Operating Engineers, Local
132, AFL-CIO and Edward Phillips and Na-
tional Engineering Contracting Co.,' Party to
the Contract. Case 9-CB-4993
10 June 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On 26 August 1982 Administrative Law Judge
Donald R. Holley issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief and the General
Counsel filed an answering 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
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge, but not to adopt his recommended Order. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
International Union of Operating Engineers, Local
132, AFL-CIO, Charleston, West Virginia, its offi-
cers, agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause National En-
gineering Contracting Co., or any other employer,
to give preference on utility work to parent body
members of Local 132 who are physically handi-
capped or 50 years of age or older, by giving force
or effect to, or attempting to enforce, contractual
or union constitution or bylaw provisions which
The name of the Employer appears as amended at the hearing.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing his findings.
We note that the Administrative Law Judge inadvertently found that
Edward Phillips caused his name to he placed on the parent body out-of-
work list maintained by Respondent on 4 September 1980. This occurred
on 5 September 1980.
3 In his recommended Order, the Administrative Law Judge errone-
ously failed to require Respondent to notify, in writing, National Engi-
neering Contracting Co. and Edward Phillips that it no longer has any
objection to his employment In order to correct this omission and to in-
clude the expunction remed. recently approved by the Board in Interna-
rional Brotlherood o/ Bodlermake rs (Daniel Construction Company), 266
NLRB No 106 (1983), sse shall issue a new Order and notice in con-
formit iAu th his Colnclusions of L as
provide for preference on utility work to such em-
ployees.
(b) Threatening employees that they will not be
assigned to utility work unless they become mem-
bers of the Local 132 parent body.
(c) Causing, or attempting to cause, National En-
gineering Contracting Co., or any other employer,
to lay off or discharge Edward Phillips or other
employees in violation of Section 8(a)(3) of the Act
to enable Respondent Union to give unlawful pref-
erence on utility work to parent body members
who are physically handicapped or 50 years of age
or older.
(d) In any like or related manner restraining or
coercing employees in the exercise of any of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Notify National Engineering Contracting Co.,
in writing, with a copy to Edward Phillips, that it
has no objection to the employment of Edward
Phillips.
(b) Make Edward Phillips whole for any loss of
earnings that he may have suffered due to the dis-
crimination practiced against him in the manner set
forth in the section of the Administrative Law
Judge's Decision entitled "The Remedy."
(c) Expunge from its files any reference to the
layoff of Edward Phillips on 12 June 1981, and
notify him in writing that this has been done and
that evidence of this unlawful layoff shall not be
used as a basis for future actions against him.
(d) Post at its business office, hiring halls, and
meeting places copies of the attached notice
marked "Appendix."4 Copies of said notice, on
forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any
other material.
(e) Sign and mail sufficient copies of said notice
to the Regional Director for Region 9, for posting
by National Engineering Contracting Co., Hunting-
ton, West Virginia, if willing, at all places where
notices to its employees are customarily posted and
ask the Employer to remove any reference to Phil-
4 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
266 NLRB No. 176
977
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lips' unlawful discharge from the Employer's file
and notify Phillips that it has asked the Employer
to do this.
(f) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Na-
tional Engineering Contracting Co., or any
other employer, to give preference on utility
work to parent body members of International
Union of Operating Engineers, Local 132,
AFL-CIO, who are physically handicapped or
50 years of age or older, by giving force or
effect to or attempting to enforce contractual
or union constitution or bylaw provisions
which provide for preference on utility work
to such employees.
WE WILL NOT threaten employees that they
will not be assigned to utility work unless they
become members of the Local 132 parent
body.
WE WILL NOT cause or attempt to cause Na-
tional Engineering Contracting Co., or any
other employer, to lay off or discharge
Edward Phillips or other employees in viola-
tion of Section 8(a)(3) of the Act to enable us
to give unlawful preference on utility work to
parent body members who are physically
handicapped or 50 years of age or older.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the
Act.
WE WILL notify National Engineering Con-
tracting Co., in writing, with a copy to
Edward Phillips, that we have no objection to
the employment of Edward Phillips.
WE WILL make Edward Phillips whole for
any loss of earnings that he may have suffered
due to the discrimination we practiced against
him by paying him a sum equal to what he
would have earned, less any net interim earn-
ings, plus interest.
WE WILL expunge from our files any refer-
ence to the layoff of Edward Phillips on 12
June 1981, and notify him in writing that this
has been done and that evidence of this unlaw-
ful layoff will not be used as a basis for future
actions against him, and WE WILL ask National
Engineering Contracting Co. to remove any
reference to Phillips' unlawful discharge from
its files and notify Phillips that we have asked
the Employer to do this.
INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS, LOCAL 132, AFL-
CIO
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge:
Upon a charge filed by Edward Phillips (herein called
the Charging Party or Phillips), the Regional Director
for Region 9 of the National Labor Relations Board
(herein called the Board) issued a complaint against
International Union of Operating Engineers, Local 132,
AFL-CIO (herein called Respondent or Local 132), on
September 2, 1981,1 alleging, in substance, that Respond-
ent has violated Section 8(b)(1)(A) and (2) of the Nation-
al Labor Relations Act since January 16, 1981, by: main-
taining and enforcing a contractual hiring hall provision
which provides, in pertinent part, "all parent body mem-
bers physically handicapped or fifty (50) years of age or
over shall have preference on compressors and welding
machines as provided in the by-laws of the [Respond-
ent]"; threatening on June 16 that an employee would
never work on utility jobs without having a parent body
book; and refusing on June 15 to refer Phillips to a job
working on welding machines and compressors for Na-
tional Engineering Contracting Co. 2 (herein called Na-
tional) at a Huntington, West Virginia, worksite. By
timely answer, Respondent denies it has engaged in the
unfair labor practices alleged.
This case was heard in Huntington, West Virginia, on
June 30, 1982. Subsequent to the hearing, counsel for the
General Counsel and counsel for Local 132 filed briefs
which have been carefully considered. Upon the entire
record and upon my observation of the demeanor of the
witnesses while giving testimony, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, and Respondent's answer
admits, that National Engineering Contracting Co., an
Ohio corporation, with offices in Strongsville, Ohio, is a
general contractor. During the 12 months preceding issu-
ance of the complaint, it purchased and received in
Strongsville, Ohio, from suppliers located outside the
State of Ohio, goods and materials valued in excess of
$50,000. It is admitted, and I find, that National Engi-
neering is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
I All dates herein are 1981 unless stated otherwise.
2 The name of the Employer as amended at the hearing.
978
OPERATING ENGINEERS LOCAL 132
11. STATUS OF THE LABOR ORGANIZATION
It is admitted, and I find, that Respondent is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
In late 1980, National Engineering commenced con-
struction of a water waste treatment plant in Huntington,
West Virgina. At the time, it was signatory to a collec-
tive-bargaining agreement with Respondent which re-
quired it to obtain its operating engineers through the ex-
clusive hiring hall operated by Local 132. The agreement
contains a clause which provides:3
4. The selection of applicants for referral to jobs
shall be on a non-discriminatory basis and shall not
be based on, or in any way affected by union mem-
bership, by-laws, rules, regulations, constitutional
provisions or any other aspect or obligation of
union membership, policies or requirements; provid-
ed, however, all parent-body members physically
handicapped or fifty (50) years of age or over shall
have preference on compressors and welding ma-
chines as provided in the by-laws of the local union.
This preference shall not be used in any manner to
change an assignment.
The record reveals that Local 132 consists of a parent
local and several branch locals. Since 1966, the Charging
Party, Phillips, has been a member of Branch Local
132B. The initiation fee for those desiring to join a
branch local was some $60 less than the initiation fee
charged for membership in Local 132, the parent local,
at the time the hearing was held in this case. James
(Smokey) Pruett,4 the current business agent for Local
132, indicated during his testimony that a person who
has been a member of a branch local for 3 years can
become a member of the parent body by appearing
before Local 132's executive board, stating the types of
work he is qualified to perform and paying the difference
between his branch local initiation fee and the current
Local 132 initiation fee.
While Respondent's branch locals operate hiring halls,
any member of Respondent is entitled to cause his name
to be placed on the out-of-work list maintained by the
parent body, which is headquartered in Charleston, West
Virginia. Homer Maddix, whose title is dispatcher, oper-
ates the parent body hiring hall.
The Charging Party, Phillips, on September 4, 1980,
contacted Maddix and caused his name to be placed on
Local 132's parent body out-of-work list, indicating he
desired referral as a crane picker, an oiler, a utility man,
or a deckhand. Respondent Business Agent Pruett indi-
cated during his testimony that a utilities employee is an
I G.C. Exh. 2, sec. 4, p. 37.
4 It is admitted that James (Smokey) Pruett (business agent), Homer D.
Maddix (dispatcher), and Joseph Handley (business manager) are, and
have been at all times material herein, agents of Respondent within the
meaning of Sec. 2(13) of the Act.
individual who operates water pumps, air compressors,
welding machines, and generators.
In April 1981, a Respondent parent body member
named Albert Legg was the union steward on National
Engineering's Huntington waste water treatment jobsite.
Legg had originally been referred to the job as an oiler,
but as the job progressed he performed some utility
work for which he was paid extra moneys. Phillips indi-
cated during his testimony that Legg informed him in
April that a utility job would be opening up at the job-
site at some indefinite time in the future.
On Monday, June 9, Business Agent Pruett visited the
Huntington waste water treatment jobsite and conversed
with the job superintendent, Jack Shott. According to
Pruett, he then informed Shott that he had sufficient util-
ity work to justify the addition of a utilities man on the
job. After Pruett left the jobsite, Shott contacted his su-
periors in Cincinnati, Ohio, and was authorized to hire a
utility man on the job the following week.
At some unstated time after he had caused his name to
be placed on Respondent's out-of-work list, Phillips in-
formed Maddix that his unemployment benefits had run
out and he was in need of employment. Apparently,
Phillips had given the same message to the steward on
the National Engineering job because Legg contacted
Maddix on Wednesday, June 10, and informed him he
would be absent from the jobsite on Thursday, June 11,
and Friday, June 12, and that someone from the union
hall would have to be referred to the job to work in his
absence. Legg recommended that Phillips be referred to
the temporary position. Maddix explained during his tes-
timony that while others seeking utility work were ahead
of Phillips on the out-of-work list, he telephoned Phillips
on June 10 and offered him the 2 days work on the Na-
tional Engineering job to help him in his financial situa-
tion. When Phillips indicated he would accept the refer-
ral, Maddix told him it might work to his advantage be-
cause, once he got on National Engineering's payroll, the
Company would be entitled to recall him to the job for 6
months after he was laid off.
Phillips reported to National Engineering's Huntington
job on Thursday, June 11. During the course of that day,
Shott indicated to him that he was going to put on a util-
ity man and the superintendent indicated that he did not
want Legg operating his utilities but would like for Phil-
lips to remain on in the utility job. When Phillips indicat-
ed he would like to have the position, Shott told him he
would check with the Union.
During the evening of Thursday, June 11, Phillips
called Maddix and asked him if he could remain at Na-
tional Engineering if the superintendent made a job for
him. Maddix replied, "That's why I sent you. If anyone
deserves a good job it's you since you have been out of
work so long." Phillips informed Shott of his above-de-
scribed conversation with Maddix the next day and Shott
told him he would call the Union and ask the people.
Shott testified that he telephoned Maddix on Friday,
June 12, and informed him he needed a utility man on
Monday, June 15. During the conversation, Shott claims
979
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he told Maddix he would prefer to have Phillips.5
Maddix replied that he understood that Legg had been
promised the utility position. Shott replied he did not
want Legg to operate his utilities and Maddix then told
him he could not make the assignment and would have
Smokey Pruett call him.
When Shott telephoned Maddix on June 12, Pruett
was in the field. He claims that, when he returned to the
office at or around 3:30 p.m., he was given a note which
informed him he was to call National Engineering con-
cerning a utility man. Although Maddix indicated during
his testimony that he spoke with Pruett that afternoon,
the record fails to reflect the content of their discussion
and Pruett denied that he was aware Phillips was then
working on the National Engineering jobsite. According
to Pruett, he telephoned the jobsite and Shott, who he
then thought was Roy Johnson, the assistant superintend-
ent, answered the telephone. Pruett claims Shott told
him he was not going to argue with him over a utility
man any more and asked that he send a utility man on
Monday morning. Pruett suggested that the utility job be
given to Legg and Shott informed Pruett he did not
want Legg as a utility man. According to Pruett, Shott
then stated he was through with Phillips and added he
was not going to make Phillips wait until payday for his
money, but would pay him off that day.6 At the end of
the day, Shott laid Phillips off.
After he was laid off, Phillips contacted Maddix to ask
why he had not gotten the utilities job. While both indi-
viduals touched upon the content of the conversation
when testifying, neither purported to relate all that was
said. Phillips claims he asked Maddix what was happen-
ing and Maddix replied, "Don't blame me and Smokey.
It's the superintendent's fault, Roy Johnson." He claims
he said Roy Johnson was not the superintendent; that
Jack Shott was, and then asked why he was laid off.
Phillips claims Maddix's reply was, "you don't have a
parent body book." Phillips states he told Maddix,
"Well, I have been running utilities on jobs before with-
out a parent body book," and Maddix commented,
"You'll never run utilities again." Maddix's version of
the conversation is that Phillips called him and was
asking particularly about the utilities job. He claims he
replied that National Engineering had the right to call
back who they wanted or whatever, but "If they give
me an order for a utility man, I'll go by the hiring hall
list." 7
During the week of June 15, Phillips spoke with Local
132 President Joseph Handley and told him he felt Pruett
had unfairly refused to let him have the National Engi-
neering utility job because he was not a member of the
I Maddix claims Phillips' name was not mentioned during the conver-
sation. Shott, in addition to being a disinterested witness, was more im-
pressive. I credit his version of the conversation.
6 Shott testified that he asked Pruett what he should do with Phillips
during the conversation and that Pruett told him he should lay him off.
Shott was the more impressive witness, and I credit his testimony.
I Maddix admitted that he told Phillips on Friday or the following
Monday or Tuesday that he did not have a parent body book and they
were going to go by their out-of-work list and send the first parent body
bookman to that utility job. I credit Phillip's testimony where it conflicts
with that given by Maddix. Maddix was not an impressive witness and I
gained the impression that he sought to tailor his testimony to meet the
needs of Respondent's case.
parent body. After ascertaining that Phillips was 59 years
of age, Handley told him he also thought he should have
been referred to the job.
After talking to Phillips, Handley scheduled a meeting
at the National Engineering jobsite for the purpose of
discussing the Phillips situation. The meeting was held
on June 26. Attending were Phillips, Handley, Pruett,
Shott, and Johnson. During the course of the meeting,
Pruett stated his recollection of the June 12 conversation
he had with Shott, and Shott agreed he had not asked
that Phillips be referred as a utility man during the dis-
cussion. Handley then explained to Phillips that if he had
been transferred to the utility job he could have kept the
job, and Pruett told Phillips that if he got in that type of
situation again he should come to the hall and put up S60
and get a parent body book.
The record reveals that Dayton Comer, who had gone
on the out-of-work list seeking employment as a utility
man on July 28, 1980, was actually referred to the Na-
tional Engineering's Huntington job as a utility man on
Monday, June 15. Comer was a member of the parent
body and is over 50 years of age.
B. The Issues
1. Whether, by maintaining and enforcing since Janu-
ary 16, 1981, a contract provision granting referral pref-
erence to utility work to "parent body member physical-
ly handicapped or fifty (50) years or older," Respondent
violated Section 8(b)(1)(A) and (2) of the Act.
2. Whether Respondent, through Maddix's June 16,
1981, statement that Edward Phillips would never work
utilities without a parent body book, violated Section
8(b)(l)(A) and (2) of the Act.
3. Whether Respondent failed to refer Edward Phillips
to utility work at National Engineering on June 15, 1981,
in violation of Section 8(b)(1)(A) and (2) of the Act.
C. Analysis and Conclusions
I. The "parent body" clause
With exception of certain situations involving union-
security clauses, not argued to be applicable here, it is
well established that a union which operates an exclusive
hiring hall cannot lawfully refuse to refer applicants to
jobs because of union considerations. Patently, by includ-
ing in the contract involved herein a clause which grants
preference in referral to utilities work to "parent body
members who are physically handicapped or fifty (50)
years of age or older," Respondent has attempted to
cause employers who are signatory to the contract to
give preference on utilities work to Local 32 parent
body members who are physically handicapped or 50
years of age or older.
While the clause in question is unlawful on its face,
Respondent contends I should refrain from finding it was
inserted in the contract for discriminatory reasons be-
cause: (1) The clause "humanely discriminates in favor of
the elderly and physically handicapped"; and (2) as
membership in the parent body is readily available to
those with 3 years' experience as an operator the "parent
body clause" is, in effect, merely a clause which grants
980
OPERATING ENGINEERS LOCAL 132
preference to employees who have 3 years' experience as
an operator in the area. I reject Respondent's defenses.
The difficulty with the "humane" argument is simply
the fact that Respondent grants preference on utility
work to its members to the detriment of members of
branch locals and nonunion employees who utilize the
hiring hall. Similarly, the "three year experience" argu-
ment is not meritorious because the clause does not pro-
vide that operators with 3 or more years' experience
who are physically handicapped or 50 years or older will
have preference on utility work; it provides that parent
body members meeting such criteria will be accorded the
preference.
In sum, I find, as alleged, that by maintaining and en-
forcing a contractual clause which accords perference in
referral to utilities work to members of its parent body
who are physically handicapped or 50 years or older
since January 16, 1981, Respondent has caused or at-
tempted to cause employers who are signatory to the
contract containing such clause to discriminate against
employees in violation of Section 8(aX3) thereby violat-
ing Section 8(b)(2) of the Act. By engaging in the de-
scribed conduct, Respondent additionally restrained and
coerced employees in the exercise of their Section 7
rights, thereby violating Section 8(b)(1)(A) of the Act.
2. The threat not to refer Phillips to utilities work
The complaint alleges that Maddix restrained and co-
erced Phillips in the exercise of his Section 7 rights on or
about June 16, 1981, by "threatening that he would
never work on utility jobs (i.e., compressor and welding
machines) without having a 'parent body' book."
As indicated, supra, Phillips claims that when Maddix
told him he had been laid off because he did not have a
parent body book, he observed that he had worked utili-
ties without a parent body book on other occasions, and
Maddix allegedly replied that he would not work utilities
any more without a parent body book. While Maddix ad-
mitted during his testimony that he told Phillips at some
time that he did not have a parent body book, he failed
to describe the context in which the remark was made.
Significantly, Maddix did not deny that he told Phillips
he would not work utilities in the future without such a
book. In the circumstances described, I find that Maddix
uttered the threat attributed to him and that through
such conduct Respondent violated Section 8(b)(1)(A) of
the Act as alleged. Since the record fails to reveal the
comment was made in the presence of any employer rep-
resentative, I find that General Counsel has failed to es-
tablish that the threat constituted violation of Section
8(b)(2) of the Act as alleged.
3. The alleged refusal to refer Phillips to the utility
job
While the complaint alleges that Respondent violated
Section 8(b)(1)(A) and (2) of the Act on June 15, 1981,
by refusing to refer Edward Phillips to a "job working
on compressors and welding machines for the Employer
at its Huntington, West Virginia facility," the actual issue
litigated was whether Respondent caused Phillips to be
removed from the job because he was not a parent body
member.
During the presentation of its case, the General Coun-
sel was able to show: (1) that National Engineering de-
cided to add a utility man to its job while Phillips was
working there temporarily as an oiler and utility man; (2)
that the utility job was offered to Phillips subject to the
job superintendent's checking with Respondent; (3) that
the contract between the parties and Local 132's consti-
tution and bylaws dictated that preference in referral to
utility work would be given to parent body members
who were physically handicapped or 50 years of age or
older; (4) that the Employer contacted Respondent indi-
cating it was to add a utility man to the job on June 15
and indicated it preferred Phillips; (5) that Respondent
suggested to the Employer that union steward Legg, a
parent body member who is over 50 years of age, be
given the job and the Employer indicated it would reject
Legg; (6) that Respondent told the Employer to lay off
Phillips on June 12; and (7) that Phillips was informed by
Respondent he had been laid off because he did not have
a parent body book. The General Counsel contends, and
I agree, that the above factors establish, prima facie, that
Phillips was denied the National Engineering utilities job
because the contract between the parties and Respond-
ent's constitution and bylaws accorded preference in re-
ferral to utility work to parent body members who are
physically handicapped or 50 years of age or older.
Respondent contends that I should refrain from finding
that it violated Section 8(b)(1)(A) and (2) of the Act in
the Phillip's situation because the record reveals that Na-
tional Engineering opted to fill its utility man opening by
requesting that a man be referred to the position from its
hiring hall and it complied with such request by sending
Dayton Comer, whose name was placed on the list on
July 28, 1980, a date almost 2 months prior to the date
that Phillips went on the list on September 5, 1980. I
reject the defense for the reasons set forth below.
During their testimony, both Maddix and Pruett indi-
cated that the subsisting collective-bargaining agreement
entitled National Engineering to simply assign one of its
existing employees to work on utilities without the ap-
proval of Respondent's officials. In that situation, the
"parent body" clause would have been inapplicable as no
order for a utility man would have been placed with the
dispatcher who administered the hiring hall provisions of
the contract. Indeed, Maddix informed Phillips he would
have gotten the utility job if Shott had simply assigned
him the job rather than place an order for a man to be
referred through the hall. As I view the facts in this
record, Shott decided on Thursday, June 11, that he
wanted Phillips for the utility job; he offered the position
to the employee who accepted the offer; and he in-
formed Maddix on June 12 that he was going to put on a
utility man on Monday, June 15, and wanted Phillips to
be that man. Thus, while Respondent's defense is bot-
tomed upon its claim that Shott called the hiring hall on
June 12 to order a utility man, and Maddix falsely testi-
fied that Phillips' name was not mentioned, I find that
the credible record evidence reveals that Shott called the
hall to see if he could assign Phillips to the utility job
981
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rather than to order a utility man through the hall. This
conclusion is buttressed by subsequent actions of both
Maddix and Pruett-both sought unsuccessfully to con-
vince Shott that he should assign Legg, a parent body
member who was over 50 years of age to the job. While
the record does reveal that Legg was a logical choice
for the job because he had been performing the work for
extra pay prior to that time, the fact remains that he was
also entitled by the "parent body" clause to preference
over Phillips in the situation. Last, but not least, the
record reveals that Maddix expressly told Phillips when
he asked why he had not gotten the job that he had not
gotten it because he did not have a parent body book.8
In sum, the observations set forth above cause me to
conclude that but for the unlawful "parent body" clause
in the contract which was binding upon National Engi-
neering and Respondent, Respondent would have permit-
ted National Engineering to assign Phillips to the utilities
job under discussion. I find that by causing National En-
gineering to lay off Edward Phillips, on June 12, 1981,
thus preventing him from obtaining the utilities job
under discussion, Respondent violated Section 8(bXIXA)
and (2) of the Act as alleged. Electrical Workers Local 99
IBEW (Crawford Electric Construction Co.), 214 NLRB
723 (1974); Electric Workers Local 648 IBEW (Foothill
Electrical Corp.), 182 NLRB 66 (1970).
CONCLUSIONS OF LAW
1. National Engineering Contracting Co. is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in the acts and conduct described
above in section III of this Decision, Respondent has
violated Section 8(bXl)(A) and (2) of the Act.
a Pruett indicated the same thing indirectly at the meeting held on
June 26 by telling Phillips he should come to the hall and get a parent
book if he found himself in the same situation again.
4. Respondent has not engaged in unfair labor prac-
tices alleged except to the extent herein specifically
found.
THE REMEDY
Having found that Respondent Union violated Section
8(b)(1)(A) and (2) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Since I have found that the "parent body" proviso
contained in the Heavy Agreement between Construc-
tors' Labor Council of West Virginia, Inc., Respondent
and other labor organizations named in said agreement,
contains an unlawful proviso which accords preference
in assignment to utility work to parent body members (of
Local 132) who are physically handicapped or 50 years
of age or older, I shall recommend that Respondent
notify National Engineering Contracting Co. and all
other employer signatories to said agreement that it will
no longer give any force or effect to or attempt to en-
force such unlawful provision.
I shall further recommend that Respondent be re-
quired to notify National Engineering Contracting Co.
that it has no objection to its employment of Edward
Phillips as a utility employee.
Finally, I shall recommend that Respondent be or-
dered to make Edward Phillips whole for any loss of
earnings he may have suffered as a result of the discrimi-
nation against him with interest computed thereon in the
manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977). 9 I shall also recommend that Respondent Union
be required to post the appropriate informational notice
to its members in appropriate places in its offices and
meeting halls.
[Recommended Order omitted from publication.]
s See, generally, Isis Plumbing 4 Heating Co., 138 NLRB 716 (1962).
982