Loc. Un. No. 513, Operating Engineering, AFL-CIODownload PDFNational Labor Relations Board - Board DecisionsJun 25, 1970183 N.L.R.B. 1134 (N.L.R.B. 1970) Copy Citation 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 513 , affiliated with International Union of Operating Engineers , AFL-CIO (Maxon Construction Company , Inc.) and John R. Davis. Case 14-CB-1940 June 25, 1970 DECISION AND ORDER BY MEMBERS MCCULLOCH, BROWN, AND JENKINS On March 27, 1970, Trial Examiner Paul Bisgyer issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Decision. Thereafter, the Respondent filed exceptions to the Decision 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Trial Examiner 's Decision , the exceptions and brief, and the entire record in the case, and hereby adopts the findings , conclusions , and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recom- mended Order , of the Trial Examiner and hereby orders that the Respondent , Local Union No. 513, affiliated with International Union of Operating En- gineers , AFL-CIO, Farmington , Missouri, its of- ficers , agents, and representatives , shall take the ac- tion set forth in the Trial Examiner 's Recom- mended Order. ' The complaint is based on a charge filed on November 5, 1969, a copy of which was duly served on the Respondent by registered mail on the same day ' Sec 8 (b)( I )(A) of the Act, in relevant part, makes it an unfair labor practice for a labor organization or its agents "to restrain or coerce em- ployees in the exercise of rights guaranteed in Section 7" which includes, inter al,a, the right to refram from engaging or supporting union activities with certain qualifications not here applicable TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL BISGYER , Trial Examiner: This proceeding, with all the parties represented, was heard on January 12, 1970, in St. Louis, Missouri, on the complaint of the General Counsel issued on December 11, 1969,' and answer of Local Union No. 513, affiliated with International Union of Operating Engineers, AFL-CIO, herein called the Respondent or Union. In issue is the question whether the Respondent, in violation of Section 8(b)(1)(A) and (2) of the National Labor Rela- tions Act, as amended,' refused to refer John R. Davis for employment as an oiler on the jobsite of Maxon Construction Company, Inc.,' herein called Maxon or the Company, because his uncle, James F. Davis, was involved in an internal union dis- agreement with Business Agent Lester Straughan. At the close of the hearing, no party availed himself of the opportunity to argue his position orally. Thereafter, only the General Counsel submitted a brief. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments ad- vanced by the parties, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE COMPANY Maxon, an Ohio corporation with its principal of- fice in Dayton, Ohio, is engaged in the building construction industry. At the time of the hearing, the Company had construction projects in progress in various States, including the one located in St. Jude Industrial Park in New Madrid, Missouri, which is here involved. During the year ending December 31, 1969, it purchased goods and materials valued in excess.of $50,000 which were shipped directly to the New Madrid jobsite from points outside the State of Missouri. It was stipulated, and I find, that Maxon is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted , and I find, that the Respondent is a labor organization within the meaning of Section 2(5) of the Act. Sec 8(b)(2) makes it an unfair labor practice for a labor organization or its agents "to cause or attempt to cause an employer to discriminate against an employee in violation of [Section 8] (a)(3) "The latter provi- sion prohibits an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage membership in any labor organization " ' The name of the Company appears as amended at the hearing 183 NLRB No. 117 LOC. UN. NO. 513, OPERATING ENGINEERS , AFL-CIO 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. The Respondent's hiring hall; refusal to refer John R. Davis Pursuant to the terms of the Respondent's collec- tive-bargaining contract with Associated General Contractors and other employer associations,' the Respondent maintains an exclusive hiring hall for the referral of operating engineers, oilers, and re- lated classifications. Under this contract, the em- ployers are required to secure needed employees through the hiring hall and the Respondent, in turn, is obligated to refer qualified job applicants on a nondiscriminatory basis. An order of referral priori- ty depending on the job applicant's employment history with the contracting employers-not claimed to be unlawful-is also set forth in section 3.03 of the contract, and controls referral of job ap- plicants, "except as modified below and subject also to the Employer additional preferences hereinafter provided under Section 3.04." After listing five categories in descending order of priori- ty, the contract states: The order of referral shall be from the current monthly appropriate registration lists on a first- in, first-out basis, except as to registrants requested by name. Then follows section 3.04 which provides: Additional Employer Preferences. Employers may request also the referral of specific in- dividuals by name desired by them as em- ployees, irrespective of their position on the re- gistration list, and these persons shall be referred to such Employer, regardless of the fact that other job applicants would otherwise be entitled to prior referral ....g It was stipulated that at all material times, the foregoing referral provisions governed the hiring of employees in the operating engineer trade at the Maxon jobsite where the Company was construct- ing a dock facility. The unfair labor practice charge herein arose out of Union Business Agent Straughan's refusal to refer John Davis, an oiler, to the Maxon jobsite under the circumstances related below. ' This agreement , which is commonly known as the St Louis A G C Agreement or the Building Trade Agreement , is for a term of 5 years, ex- piring in 1974, and names as parties the Respondent and Associated General Contractors of St Louis , Concrete Contractors Association, Home Builders Association of Greater St Louis, Mason Contractors As- sociation , and Site Improvement Association ' The number of employees who may be so requested by name in catego- ries second through fifth established in sec 3 .03 of the contract is limited to 50 percent of the bargaining unit at a particular job There is no claim, nor can one be validly made , that the Company's referral request for John R Davis, hereinafter discussed , exceeded this limitation ° Unless otherwise indicated, all dates refer to 1969 r John Davis subsequently received showup pay for reporting for work that day ' It was either November 4 or 5 when John Davis next heard from Drew 1135 Before seeking work at the Maxon jobsite, John Davis, a member of the Respondent , was employed by Drew Construction Company at Portageville, Missouri. When he reported for work at the Drew project on Friday, October 31, 1969,8 he found no one there and left . No notice had been given him that the jobsite would be closed down, although it appears that it rained that day.7 On Saturday, he returned to the project and again found it shut down. Assuming that he was laid off,8 John Davis visited the Maxon jobsite where his uncle, James Davis, was the job steward, to seek employment. At that time Maxon had openings for two oilers. The next day, November 2, James Davis unsuc- cessfully tried to reach Lester Straughan, the busi- ness agent in charge of the Respondent 's Farming- ton, Missouri, office, to request referral of two oilers, one of whom would be his nephew, John Davis. He thereupon telephoned Business Agent Bill G. Tinker, Straughan's assistant, advised him of Maxon's need for two oilers, and asked that John Davis be one of the oilers referred. Tinker stated that he would have to check the registration list be- fore sending John out. When Davis remarked that in the past the list had never been relied upon, Tinker agreed but added that he was instructed by Straughan to go by the "book" (meaning the col- lective-bargaining contract). Tinker then inquired whether John was not working. James Davis replied that John was laid off and would register for work Monday morning. The conversation ended with Davis stating that he was going to call Straughan.9 Later in the afternoon, James Davis telephoned Straughan at his home and repeated his request for referral of his nephew and another oiler to the Maxon jobsite. In response, Straughan declared that he would not refer John Davis for the reasons that he had not registered and had another job.10 About 8 o'clock Monday morning (November 3), John, at the suggestion of James Davis, ap- peared at the Respondent's Farmington office and placed his name on the registration list. In the meantime , James Davis asked Maxon superinten- dent, Tom Perala, whether he would employ John as an oiler. Perala answered that he had no objec- tion if John was capable of performing the work." There is no question that John was a qualified oiler. To comply with the contractual hiring hall require- Construction Company On that day , he received a telephone call from Drew 's superintendent , Bill Starke, who asked him whether he was return- ing to work Davis answered in the negative ° The above findings reflect the essence of the testimony of James Davis and Tinker. 10 The findings concerning this conversation are based principally on Straughan 's uncontradicted testimony While James Davis might have also mentioned in this conversation possible recourse to the Labor Board, as Davis testified , I am not persuaded from the context of the discussions that this was one of Straughan's asserted reasons for refusing to refer John In- deed , the General Counsel does not urge such a reason as a ground for find- ing a violation of Sec 8(b)(2) and ( I) of the Act " When Straughan received a copy of the charge herein on or about November 6, he spoke to Perala who confirmed James Davis' authority to ask for John 's referral by name if John could perform the work. 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments, James Davis advised Perala to instruct Foreman James Below to call the union hall and request John's referral by name. Thereupon, Below told James Davis to make the telephone call to the Union, which he did, with Below listening in on an extension telephone. In the ensuing conversation, James Davis informed Straughan that Maxon needed an oiler and was asking for John Davis by name . Straughan responded that the Company could not have him. This elicited James Davis' inquiry whether John was not on the list. Although Straughan conceded that John was on the list, he nevertheless refused to refer him. In answer to Davis' charge that Straughan was ignoring the con- tract, Straughan denied that the contract required him to honor the Company's request. When Davis then called Straughan's attention to the Additional Employer Preferences provision in the contract (see. 3.04), quoted above'12 Straughan simply replied that he would send a man , adding, in response to Davis' inquiry, that he did not know whether he would send John. After John Davis had registered at the union hall for work, he came to the Maxon jobsite where his uncle informed him of his requested referral. Between 11 and 12 the same morning, John called the Union, spoke to Bess Straughan,13 and asked why he had not been sent to the Maxon job. Without answering that question directly except to indicate that neither Lester Straughan, Tinker, nor she decided to do so, Bess Straughan told him that he was being referred to the Penzel job in Haiti, Missouri. 14 John declined the job because it did not pay as well and did not offer as much overtime as the Maxon job did. Because no oiler was referred to the Maxon job on November 3, James Davis again called Business Agent Straughan the following morning and asked whether he intended to send a man. Straughan an- swered that his wife had received the impression from John that he was going to work for Maxon. Denying that he would hire him unless he was referred by the Union, James Davis asked Straughan whether he intended to refer John. Straughan answered no but would send someone else. About noon a qualified oiler arrived at the jobsite and went to work. According to Straughan's testimony, he ad- ministers the hiring hall in the following manner: It is his general practice to refer qualified job appli- cants in the order in which their names appear on the registration list. With one exception, discussed below, he adheres to this practice even where the "Although Straughan testified that only the employer , the master mechanic, and foreman may request referral by name, it is undisputed that this was not one of the reasons given James Davis for not honoring his request for John 's referral At any rate, James Davis was authorized to act on behalf of Maxon for such purpose " She is the wife of Business Agent Lester Straughan and works in the of- fice Among other things , she handles the clerical details with respect to the referral system and, on instructions from her husband and Business Agent Tinker , refers applicants to jobs employer requests a particular employee by name. However, he will not refer any employee if he is employed at the time on another job,15 unless there are no qualified applicants on the list. In the latter event, he probably would take the requested in- dividual off the job he was then holding and refer him to the new job. Concerning the exception, Straughan further testified that the only referral priority he recognizes is the first category in the order of referral set forth in section 3.03 of the contract. Such registrants are required to have worked for the employer requesting their referral by name at least 30 days in the preceding 12-month period to be entitled to referral, regardless of their position on the registra- tion list. Admittedly, this priority does not apply to the Maxon job as the Company's last construction project within the Respondent's territorial jurisdic- tion antedated 1958. However, the contract also contains section 3.04 entitled "Additional Em- ployer Preferences," quoted above, which accords an employer other than one mentioned in the first category the right to have referred to him a limited number of employees requested by name, "ir- respective of their position on the registration list, and ... regardless of the fact that other job appli- cants would otherwise be entitled to prior referral. . .." When Straughan, under cross-examination, was confronted with this provision and was questioned whether he was familiar with it, he testified, "Not too well, no." I find Straughan's professed un- familiarity with this provision less than candid, especially in view of his incumbency as the Respon- dent's business agent for 16 years and his adminis- tration of its hiring hall for the past 3 or 4 years. There is uncontradicted testimony by James Below, foreman of the Maxon project, which I credit, that in September Straughan referred five employees,16 whom he had specifically requested by name , although all of them were then employed on other projects under the Union's jurisdiction. Straughan , however, explained that three of them were referred because they possessed special qualifications in "driving piling" and no other em- ployees with comparable qualifications were availa- ble, while the other two were sent to the job because the Union was "short of people." 7 James Davis also testified to instances where Straughan granted job referrals to individuals who were then employed on other union projects, nam- ing four such employees and the jobsites involved. Davis further testified to occasions when Straughan refused to refer individuals solely because they " It is not clear whether the Penzel job was to begin immediately or a few days later. The Respondent 's employment record of John Davis shows that he was referred to the Penzel job on November 7, 1969 "Straughan testified that , if he were aware that an employee held another job, he would not permit him to register "They were Jimmy Joe Below , Darns Dalton, James Davis, Lloyd Swain , and Harry Swinger "The Respondent did not produce the registration lists or other records to substantiate the asserted shortage LOC UN. NO. 513, OPERATING ENGINEERS , AFL-CIO 1137 were out of favor with him. Specifically, Davis testified that Straughan refused to refer an appli- cant , Bruce Shelton , whom an employer had requested , because Shelton had once directed Straughan 's brother-in-law to do an undesirable chore while they were working together on a pro- ject . Concerning another episode , Davis testified that in August Straughan initially refused to send James Below , Jim Mitchell , and Floyd Estes to a prospective cement plant job because these in- dividuals had accompanied Davis to St. Louis to discuss his forced resignation as business agent with John Murphy , Straughan 's superior , which will later be discussed . However , Davis testified that, upon his insistence , Straughan changed his mind and made those jobs available to the named individuals. It is further noted that when the cement plant pro- ject did not materialize Below was referred to the Maxon project and became foreman . Davis and Mitchell were also thereafter referred to that jobsite , while Estes retained his old job . The forego- ing testimony of Davis is not contradicted and I credit it. Subsequent to the filing of the unfair labor prac- tice charge herein , John Davis was referred to several jobs which it appears were not as desirable as the Maxon job , either because of wage rates, available overtime , expected duration , or other terms or conditions of employment. However, Davis accepted such employment. 2. Alienated relations between Business Agent Straughan and James Davis The General Counsel attributes Business Agent Straughan's refusal to refer John Davis to the Maxon job to Straughan 's internal union dif- ferences with James Davis, John's uncle, arising out of the following events: James Davis, a member of the Union since 1957, became business agent and Straughan's assistant on the latter's recom- mendation on November 1, 1968, and served in that capacity until his forced resignation on August 15, 1969. During his incumbency, Davis had sev- eral "run-ins" with Straughan, one of which in- volved Straughan's son, Joe. In about July, Davis complained to Lester Straughan that his son, as foreman on a Proctor and Gamble project , was pay- ing several employees for time not worked while refusing to do the same for other employees . Lester Straughan thereupon called a meeting at his home, which 10 or 12 employees attended, to consider this charge . After some discussion , Joe Straughan accused Davis of siding with the Teamsters Union whenever a dispute arose on the jobsite . Davis, in turn , placed substantial blame on Joe Straughan for those quarrels , suggesting that "he ought to back off a little " in those disputes . When Lester Straughan tried to end the meeting , Davis insisted on continuing the discussions "to get [at] the truth" of his charge of unequal employee treat- ment . Finally , the meeting was closed with Lester Straughan instructing the men " to go back to work and to forget the whole thing ." Davis, nevertheless, told Lester Straughan that he intended to pursue the matter further and secure the timecards to prove his charge . Subsequently , Davis produced the timecards but Lester Straughan declined to look at them and, instead , admonished Davis that "You don't pull the time cards on the foremen" or the steward who Davis stated was also involved. In response , Davis remarked that that was the only way to get at the truth. A little more than a month later , Straughan in- formed Davis that Business Manager Murphy, their superior , wanted Davis to resign and Straughan ad- vised him to do so . Davis stated that he would let him know . In the meantime , Davis telephoned Murphy at his office in St . Louis and asked what the trouble was. Murphy replied that "he was getting some heat ." Despite Davis' insistence that he was entitled to a more informative answer, Murphy was evasive and invited his resignation on Friday of that week , apparently August 15 . Before concluding the conversation , Murphy and Davis ar- ranged for a meeting at Murphy 's office on August 19. This meeting was held and was no more en- lightening than their prior telephone conversation.'8 Straughan disavowed any responsibility for Davis' resignation as business agent . He testified that there were "quite a few ruckuses" in the area involving arguments and physical combat as a result of which he was warned by Murphy that such conduct had to cease because the "pressure" or "heat" was on from "up above ," which Straughan presumed meant the International Union . Straughan further testified that about a month later, after Davis and he had become involved in separate incidents, he received a telephone call from Murphy in which Murphy alluded to his prior warning and directed him to see that Davis "step[ped] down " from his job, as business agent , adding that , if this conduct persisted , Straughan would be similarly treated. Murphy was not produced as a witness nor was his absence accounted for. In these circumstances, and considering the sequence of events and the am- biguous reason given to Davis for his forced resignation as business agent , I am not persuaded that Straughan played an innocent role in Davis' removal ; rather , I find, he was the moving cause. 18 The foregoing findings pertaining to the events leading to James Davis' resignation as business agent are derived from Davis' uncontroverted testimony, which I credit 1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Concluding Findings It is the General Counsel's contention that Busi- ness Agent Straughan's refusal to refer John Davis to the Maxon job as required by the contractual hiring hall provisions was motivated by Straughan's enmity incurred by John's uncle , James Davis, as a result of an intraunion dispute and that for this reason the Respondent violated Section 8(b)(2) and (1)(A) of the Act. The Respondent, on the other hand, argues that Straughan's action was compelled by legitimate hiring hall practices. I am satisfied that the General Counsel's position is amply supported by the evidence. As discussed above, Straughan on November 2 initially refused Davis' request for John's referral for the asserted reasons that John was not on the registration list and had other employment. Yet, the next morning after John had registered and Straughan 's assistant , Business Agent Tinker, had been informed that John had been laid off his prior job, Straughan was no more disposed to honor Davis' renewed request for John's referral made on Maxon's behalf pursuant to the Additional Em- ployer Preferences clause in the controlling collec- tive-bargaining agreement. Unquestionably, Straughan's action cannot be defended on the basis of the contractual hiring hall procedures. Moreover, his professed unawareness of this provi- sion, which obligates the Respondent to refer requested job applicants, "irrespective of their posi- tion on the registration list, and ... regardless of the fact that other job applicants would otherwise be entitled to prior referral" is equally incredible. Not only has Straughan, the Respondent's business agent for 16 years, been administering the Union's hiring hall for the past 3 or 4 years, but also his at- tention was specifically called to that provision by James Davis in his unsuccessful effort to persuade Straughan to change his mind. Similarly unconvincing is Straughan's purported reliance on nondiscriminatory practices to justify his treatment of John Davis. From the evidence recited above, it appears that those practices ac- tually were departures from the contractual hiring hall requirements to suit Straughan's purposes and that otherwise he did refer employees specifically requested by employers, regardless of their position on the registration list and whether or not they held other jobs. Moreover, even under Straughan's al- leged practices, his refusal to refer John Davis to the Maxon job is not adequately explained. The very same morning of November 3, when Maxon's request for John Davis was turned down, Straughan's wife offered to send John to a less desirable job (Penzel), although it is highly im- 19 As previously discussed, James Davis on one occasion succeeded in in- ducing Straughan to reverse himself and to refer employees Mitchell, Below, and Estes to a prospective cement plant job At first, Straughan refused these employees referral because they had accompanied Davis to St Louis to see Business Manager Murphy regarding Davis' forced resigna- tion as business agent probable that another oiler higher up on the regis- tration list was then available for referral to the Maxon job. Apart from the fact that the registration list was not produced to show availability of other applicants, it was not until noon of the following day (November 4) that an oiler was sent to Maxon in place of Davis. In view of the foregoing, I am led to the inescapa- ble conclusion that the tenuous reasons advanced for not referring John Davis to the Maxon job were really pretexts to conceal Straughan's true motiva- tion. From a realistic appraisal of the evidence, I find that the only plausible explanation for Straughan's action was his enmity for James Davis attributable to the latter's stubborn determination to prove to Straughan that Straughan' s son, as foreman on a project, was playing favorites among employees working under him, as well as Davis' refusal to heed Straughan's admonition to forget the whole affair. As noted above, James Davis was subsequently forced to resign as business agent. While it does not appear that James Davis was also personally subjected to discrimination in employ- ment as a reprisal measure ,19 I have taken this fact into consideration in assessing Straughan's treat- ment of Davis' nephew, John. It is settled law that a union which undertakes to operate an exclusive hiring hall established by con- tract or other arrangement violates Section 8(b)(2) and (1)(A) of the Act if it refuses to refer a job ap- plicant for any union-related reason whether it in- volves membership, loyalty, or conduct respecting internal union matters.20 This is precisely the case here where Straughan's discriminatory refusal to refer John Davis to the Maxon job served no less as an object lesson to other job applicants to avoid in- curring Straughan's disfavor or risk job discrimina- tion, than would discrimination practiced against James Davis himself.21 In a classic sense , such con- duct amounts to discrimination to encourage mem- bership in a labor organization within the meaning of Section 8(a)(3) of the Act. Accordingly, I find that the Respondent at- tempted to cause, and did cause Maxon to dis- criminate against John Davis in violation of Section 8(a)(3) and that the Respondent thereby violated Section 8(b)(2) and (1)(A) of the Act. IV. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, I recommend that the Respondent be or- dered to cease and desist from engaging in the un- fair labor practices found and in like and related conduct and take certain affirmative action designed to effectuate the policies of the Act. 20 Local 357, International Brotherhood of Teamsters (Los Angeles-Seat- tle Motor Express) v N L R B , 365 U S 667, Local Union 136, Muskingum Valley District Council (Frank Vlack Company), 165 NLRB 1040, United Brotherhood of Carpenters & Joiners of America, Local 1281, AFL-CIO (Raber-Kief, Inc ), 152 NLRB 629 T' Murray Golub d/bla Golub Bros Concessions, 140 NLRB 120 LOC. UN. NO. 513, OPERATING ENGINEERS , AFL-CIO To redress the discriminatory refusal to refer John Davis to the Maxon jobsite, I recommend that the Respondent notify Maxon in writing, and furnish a copy of such notice to John Davis, that it has withdrawn its objection to Davis' employment with Maxon, without prejudice to his seniority and other rights and privileges, and that it will not otherwise discriminate against Davis or any other job applicant in the selection or referral for em- ployment through its hiring hall procedures. In ad- dition, I recommend that the Respondent make Davis whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from the date of the discrimination to the date 5 days after it serves the written notice of withdrawal of objection mentioned above, less his net earnings during the said period. Backpay shall be computed with in- terest on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. To facilitate the computation, as well as to clarify Davis' right to referral and employment, the Respondent shall make available to the Board, upon request, the registration lists and other records necessary and appropriate for such pur- poses . I further recommend that the Respondent notify Davis of his right to nondiscriminatory refer- ral, on application, if he is serving with the Armed Forces of the United States. The posting of a notice is also recommended. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Maxon is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily refusing to refer John Davis on November 3, 1969, for employment by Maxon pursuant to the exclusive hiring hall procedures set forth in the Respondent's collective- bargaining agreement with Associated General Contractors of St. Louis and other employer as- sociations, the Respondent has attempted to cause and caused Maxon to discriminate against John Davis in violation of Section 8(a)(3) of the Act and has thereby engaged, and is engaging, in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. n In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions , and order, and all objections thereto shall be deemed waived for all purposes In the event 1139 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact, con- clusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recom- mended that the Respondent, Local Union No. 513, affiliated with International Union of Operat- ing Engineers, AFL-CIO, Farmington, Missouri, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to refer any applicant for employ- ment pursuant to its exclusive hiring hall procedures established by collective-bargaining agreement or other arrangement with employers, for reasons related to union membership, loyalty to union officials, or conduct involving internal union affairs. (b) Causing or attempting to cause Maxon Con- struction Company, Inc., or any other employer, to discriminate against John R. Davis or any other job applicant or employee in violation of Section 8(a)(3) of the Act. (c) In any like or related manner restraining or coercing job applicants or employees in the exer- cise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make whole John R. Davis for any loss of pay he may have suffered by reason of the dis- crimination against him, in the manner set forth in "The Remedy" section of the Trial Examiner's Decision. (b) Notify Maxon Construction Company, Inc., and John R. Davis, in writing , that it has no objec- tion to Davis' employment and will not discriminate against him or other job applicants in the selection and referral for employment pursuant to its exclu- sive hiring hall procedures established by contract or other arrangement with employers. (c) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all records pertaining to employment through its hiring hall and all records relevant and necessary for compliance with above paragraph (a). (d) Post at its business office, hiring halls, and meeting places copies of the attached notice marked "Appendix."22 Copies of said notice, on forms provided by the Regional Director for Region 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 Na- tional Labor Relations Board " shall be changed to read " Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 427-258 O-LT - 74 - 73 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 14, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (e) Mail to the Regional Director for Region 14 signed copies of the attached notice for posting by Maxon Construction Company, Inc., at its business offices, and its New Madrid and other jobsites within the geographical area of the Respondent's jurisdiction, if it is willing to do so. (f) Notify the Regional Director for Region 14, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.23 23 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 14, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO MEMBERS AND JOB APPLICANTS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to refer any applicant for employment pursuant to our exclusive hir- ing hall procedures established by collective- bargaining agreement or other arrangement with employers for reasons related to union membership, loyalty to union officials, or con- duct involving internal union affairs. WE WILL NOT cause or attempt to cause Maxon Construction Company, Inc., or any other employer, to discriminate against John R. Davis or any other job applicant or em- ployee in violation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner restrain or coerce job applicants or employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL reimburse John R. Davis for any loss of earnings suffered by him because of our failure and refusal to refer him to the jobsite of Maxon Construction Company, Inc. WE WILL notify Maxon Construction Com- pany, Inc., and John R. Davis, in writing, that we have no objection to Davis' employment and that we will not discriminate against him or other job applicants in the selection and referral for employment pursuant to our exclu- sive hiring hall procedures established by con- tract or other arrangement with employers. WE WILL notify the above-named employee if presently serving in the Armed Forces of the United States of his right to nondiscriminatory selection and referral for employment pursuant to our exclusive hiring hall procedures established by contract or other arrangement with employers, upon application in ac- cordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. LOCAL UNION No. 513, AFFILIATED WITH INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO (Labor Organization) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered , defaced , or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board 's Office , 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 314-622-4167. Copy with citationCopy as parenthetical citation