Local Union No. 18, IUOE, AFL-CIO, Etc.

National Labor Relations Board - Board Decisions

Mar 15, 1963

141 N.L.R.B. 512 (N.L.R.B. 1963)

512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with the
operations of the Employer Martino's as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor proctices,
it is recommended that the Respondent cease and desist from engaging in such unlaw-
ful activities.
On the basis of the foregoing findings of fact, and upon the entire record in this
case, there are hereby made the following:
CONCLUSIONS OF LAW
1. Martino's Complete Home Furnishings is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
3. The object of the picketing which occurred on and after December 7, 1961, was
to force recognition of Respondent as the bargaining representative of Martino's
employees.
4. By the acts described above, Respondent Union did engage in and is engaging
in unfair labor practices within the meaning of Section 8(b) (7) (C).
[Recommended Order omitted from publication.]
Local Union No. 18, International Union of Operating Engineers,
AFL-CIO and its Agent , George E. Miller (Earl D . Creager,
Inc.) and Paul Lewis. Case No. 9-CB-1044-1. March 15, 1963
DECISION AND ORDER
On December 3, 1962, Trial Examiner Samuel M. Singer issued
his Intermediate Report in the above-entitled proceeding, 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 at-
tached Intermediate Report. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
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 In-
termediate Report and the entire record in the case, including the
1 Respondent excepts to the Trial Examiner's conduct of the proceedings, and a1legps
bias and prejudice on the part of the Trial Examiner and denial of due process. We are
satisfied, on the basis of the entire record, that the Trial Examiner conducted the hearing
fairly and that his factual findings and ultimate conclusions are supported by the record.
,See Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F. 2d 362 (C.A. 3) ;
A. 0. Smith Corporation, Granite City Plant, 132 NLRB 339; Baker Hotel of Dallas,
Inc., 134 NLRB 524, enfd . 311 F. 2d 528 (CA. 5).
141 NLRB No. 47.
LOCAL UNION NO. 18, IUOE, AFL-CIO, ETC. 513
exceptions and brief, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner 2
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
2 For the reasons set forth in the dissenting opinion in Isis Plumbing & Heating Co.,
138 NLRB 716, Member Rodgers would not award interest on backpay.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed April 30, 1962, by Paul Lewis, an individual, the General
Counsel on July 26, 1962, issued a complaint alleging that Respondents, in violation
of Section 8 (b) (2) and (1) (A) of the Act, attempted to cause and caused the Em-
ployer, Earl D. Creager, Inc., to discharge the Charging Party who had been employed
by the Employer. Respondents, in their answer, conceded certain allegations of the
complaint but denied the commission of the alleged unfair labor practice. The case
was heard before Trial Examiner Samuel M. Singer at Dayton, Ohio, on Septem-
ber 24, 25, and 27, 1962. All parties appeared, were represented by counsel, and
were afforded full opportunity to be heard and to examine and cross-examine wit-
nesses. Briefs were thereafter filed by the General Counsel and the Respondent
Union which have been fully considered.'
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER; THE STATUS OF THE RESPONDENT
Earl D Creager, Inc., the employer of the Charging Party at the time of his dis-
charge, is an Ohio corporation with offices in Dayton, Ohio, where it is engaged in
the building and construction industry as a general contractor. During the past 12
months, which is a representative period, the Employer had a direct inflow of goods
and materials, in interstate commerce, valued in excess of $50,000, which were shipped
to it directly from points outside the State of Ohio. Upon these admitted facts, I find
that Earl D. Creager, Inc., is an employer within the meaning of the Act, and that
it is appropriate for the Board to assert jurisdiction.
Respondent, Local Union No 18, International Union of Operating Engineers,
AFL-CIO, is conceded to be a labor organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
The basic issue presented in this case is whether, as the complaint alleges, Respond-
ent 2 violated the Act by causing the Employer (Earl D. Creager, Inc.) to discharge
the Charging Party (Paul Lewis) because he was a member of a group which was
opposed to, and sought to effect the removal of, the incumbent leadership in a pend-
ing union election. Respondent admits that it had requested the discharge of Lewis
but contends that the sole reason for this request was Lewis' alleged failure to abide
by the terms and conditions of the referral system which was in effect under a
collective-bargaining agreement between the Employer and Respondent. The facts
pertinent to the consideration of this issue are detailed below.
A. The antiadministration campaign in the pending union election and employee
Lewis' role in that campaign
Respondent Local 18, whose area of jurisdiction covers portions of Ohio and sev-
eral counties in Kentucky, is composed of "six districts." Frank Converse has been
1 Respondents also filed a "motion to strike" the General Counsel 's brief because it
"misquotes " portions of the record and makes "erroneous" or "non -existent" citations
The motion is denied . I have, of course , ignored any quotations and citations which
I found erroneous.
2 For convenience , Local 18 and Its agent , Miller, are herein referred to collectively as
Respondent.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business manager of the local for over 20 years, and, as such, is "in full charge of its
affairs" under the direction of the local's executive board. Under him and working
under his direction is George E. Miller, the "District Representative" of District No. 4,
situated in Dayton, who, as such, is "in charge" of this district.3 He is assisted by
David Young, a business agent, and two clerks. At the time of the hearing, there were
approximately 1,300 members in District 4.
Lewis, the dischargee, has been a member of District 4 for many years. In Septem-
ber 1961, he joined a group which sought to depose the incumbent leadership of Re-
spondent Local 18 in the next union election to be held in June 1962. Commencing
with September 1961, and ending with June 1962, the antiadministration group held
monthly meetings in various cities in Ohio, attendance at the meetings ranging from
60 to 100. While the earlier meetings were attended primarily by members of Dis-
trict 4, members of other districts of the local joined in subsequent meetings. Foster
McComas, a District 4 member, was the chairman of the antiadministration drive.
Lewis, along with others, took an active part in the campaign. He not only at-
tended the insurgents' meetings, but also passed out antiadministration literature and
cards, solicited members to attend the meetings, and "talked to the boys around the
union hall." Lewis was not, however, a candidate for any office Two of the princi-
pal candidates heading the anti-Converse administration slate were William Brewer
and Gordon Body who came from District 4.4 George Miller was a candidate on the
Commerce slate for the local's State executive board and for conductor.5
Miller conceded at the hearing that he and several of the local's business agents
made it a practice to visit the meeting places of the insurgents. Miller and the agents
would stand in the hall or lobby, a few feet from the entrance of the meeting places,
and distribute proadministration campaign literature, the local's bylaws and consti-
tution, and other items such as pencils. Miller admitted that he was not welcome at
these meetings, stating, "I wasn't allowed in the meetings. I was there." Miller did
not dispute that he met Lewis in the lobby of the hotel at one of the first meeings
which he covered.
Miller further conceded that he also covered two social functions held by the in-
surgents to raise campaign funds. One of these was a dance held in a wooded area
in the country, late at night, on Saturday, February 17, 1962, for the purpose of pro-
moting "a free and democratic election in Local 18." The other function-also a
dance-was likewise held in a rural area. Miller, who at least on one of these occa-
sions was accompanied by his assistant, David Young, would station himself outside
the dance hall, drive around the building, and question members as to the identity of
the men attending the function and as to "what went on in the meetings." 6
The record shows, and I find, that Miller resented the antiadministration activities
of the insurgents, including that of Lewis. Ellen R. Collings, who was employed as
a clerk in the office of the local until February 1962, credibly testified that in a con-
versation with Miller concerning Lewis' registration card sometime in November
1961, Miller referred to Lewis as a "damn rebel." Lewis credibly testified that at a
regular meeting of the local sometime in April 1962, Miller, after remarking that
Lewis was "hired off bank to Cripps." 7 told him that "some of your so-called buddy
rebels put you up to go out there and get that job." Miller, on direct examination,
flatly denied that he had ever referred to Lewis or any other member as a "rebel."
On cross-examination, Miller retracted somewhat, stating, "I don't recall it, sir. I
don't remember using the word." When confronted with his prehearing statement, he
retracted still further, stating, "I referred to the group as that, but never did I call
anyone to his face a rebel."
The union election, held June 24, 1962, was won by the incumbent slate by a vote
of approximately 2,700 to 1,700.
3 Miller is also identified in the record as a "business agent."
4 The slate, selected at the January 1962 meeting of the antiadministration group, came
to be known as the Body-Shimman-Brewer slate.
B The "conductor" checks the membership status of employees for admission to union
meetings
6 Miller conceded that he made these inquiries, but be also testified that he went to these
functions, as an agent of District 4, to determine "if they were bootlegging if it was
held under the name of Local 18." I do not credit Miller's explanation of the motive
which allegedly prompted his surveillance of the insurgents' social gatherings On the
record as a whole, I find that Miller's presence near the dance halls, as well as at the
business meetings of the insurgents, was motivated by his desire to ascertain the identity
of the antiadministration supporters and to discourage, if not intimidate, the attendants
7 See snfra The term "hired off bank" refers to the procedure followed by employees
in securing employment outside the referral system or, in the local's view, in violation of
that system.
LOCAL UNION NO. 18, IUOE, AFL-CIO, ETC. 515
B. The Union's request for the discharge of Lewis and his consequent discharge
Lewis is an experienced operating engineer, having worked in that capacity for
many years.8 The items of machinery which he has operated include dozers, side
loaders, and all types of rubber equipment He was employed by Earl Creager,
Inc., from June until the latter part of September 1961, when he was laid off. On
September 24, Lewis registered as an applicant for employment with the Union.
From the middle of October until the middle of November, he was again employed
after which he again registered for employment with the Union. He returned to
work for Charles H. Shook on November 24 and worked there through Novem-
ber 29. On December 29 he registered once more with the local but remained
unemployed until March 26, 1962. In the meantime, he reregistered for employment
on January 23, February 20, and March 16, 1962.
Responding to an ad placed in a newspaper by Robert S. Cripps, Lewis was hired
by Cripps on March 26 and worked there 9 hours that day; Lewis did not report this
employment to the Union.9 The next day, March 27, Lewis reported to work for
Earl D. Creager, Inc., in response to a direct call from Creager.i0
There is a sharp conflict in the record as to whether Lewis had reported his em-
ployment with Creager to the Union within 24 hours as required by the Union's
rules and the referral agreement then in effect between Creager and the Union.ii
Lewis testified that prior to leaving for work on March 27, he instructed his wife
to telephone Miller that he was "going back to work for Earl Creager." Mrs Lewis
confirmed her husband's testimony, stating that she made the call, as instructed, the
same day, between 9 and 10 a.m. Miller was not in the office, whereupon she told
the office clerk with whom she spoke to "please tell him that Paul went back to
work" for Creager that day.12 The witnesses called by Respondent, including
Miller and the Union's two office girls, could not recall receiving such a call from
Mrs. Lewis. One of them testified that she receives numerous calls, on some days
hundreds of them, and the other protested that she had no information regarding
the Lewis matter.13 Miller himself first testified that he was not in the office on the
morning of March 27,14 but then testified that he did not know whether he was
present. I was favorably impressed by Mrs. Lewis' straightforward and forthright
testimony on this and other points,15 and find her to be a credible and trustworthy
witness. Under all the circumstances, I credit her testimony that she made the
telephone call notifying the local's office that her husband returned to work to
Creager.
8 Miller testified that he has known Lewis for 10 years, that each has visited the other
socially, and that he has worked with him in the past
9 Under the referral system, described infra, an applicant for employment is obligated
to report his employment to the Union's office within 24 hours of such employment
Cripps, who testified at the hearing, indicated that he was not subject to the referral
system, as he had resigned from the association before it had executed the current referral
agreement with the Union in behalf of its members (see infra). As hereafter noted,
Respondent disputes that the resignation was effective.
ii There is no dispute that Creager was a union employer and bound by the referral
agreement between the Union and the employer association of which Creager was a
member. See infra
"Admittedly Creager did not hire Lewis through the Union. Miller testified that
although direct hiring by an employer is a violation of the written referral agreement,
the Union "would accept" such hiring procedure if the employee reports his employment
within 24 hours
1" As indicated infra, it was customary for members of an employee's family to make
such telephone calls on behalf of the employee.
13 The latter, Rozella Rains, appeared to me most anxious to prove that she knew noth-
ing about the Lewis case and did not wish to be involved in it.
14 When asked if he was in the office on March 27, Miller replied, "I would say that
I was maybe at midnight," indicating that he was in Cleveland that day from which city
he does not normally return to his office in Dayton until 11 p.m or midnight When
asked at a later point whether, if one of the office girls received Mrs Lewis' call she
could have ignored it, Miller replied, "It's possible, but I don't believe it happened " At
one point in his testimony Miller acknowledged that in a conversation with Lewis on
April 30 or May 1, subsequent to Lewis' discharge, infra, Lewis had called his attention
to the fact that his wife had made the telephone call in question
15 Mrs Lewis also testified as to her husband's periods of employment during the period
here involved on the basis of meticulously kept records. Her testimony jibes with the
Union's own records (the registration cards).
708-006-64-vol. 141-34
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime during the week of April 2, Charles D. Creager, a foreman of Earl
D. Creager, put in a call to the Union for some operating engineers. Miller assured
Craeger that he would furnish the operators but complained that the Company had
been violating the referral agreement by hiring operators directly, citing the case of
Lewis and eight other operators whom the Company had hired in this manner 2 or 3
days previously.16 Miller claimed that there was a violation, because neither the
Company nor the operators called "the Union Hall." Miller then said if the
Company "didn't lay Paul Lewis off they were going to shut the job down." Nothing
was said with reference to the other men hired directly by the Company.17
On April 10, Miller called Earl Creager himself, requesting that he discharge
Lewis because he was not "eligible" to work under the referral system. Creager
agreed to do so provided the request was made in writing. Thereupon, Miller for-
warded to Creager a letter dated April 11, 1962, requesting Lewis' "immediate re-
lease and discharge from your employment" because Lewis had allegedly failed to
report his employment to the Union within 24 hours of securing such employment.
In it he recited the language of section 2(E) of the referral agreement in effect
between the Union and the Company (see infra). Creager discharged Lewis on
April 13 "per Union request."
During the next month, Lewis discussed his discharge with Miller on three separate
occasions. When Lewis sought to reregister as an applicant for employment, Miller
declined to register him, stating that his only recourse was to file an appeal with
the board of review and arbitration-a procedure set up in the referral agreement
(see infra). According to Miller, at their last meeting in the middle of May, Lewis
asked "when this hearing [before the Board] was coming up." Miller replied by
asking Lewis if he had made a formal written request. Miller could not recall
Lewis' reply, but he did recall telling Lewis "that I felt that he had chosen to take
his case to the Labor Board rather than through the board of review and
Arbitration." 18
In the meantime, on April 17, 1962, Lewis obtained employment "on [his] own,"
at Cripps-the employer for whom he had worked briefly on March 26. Lewis
was again laid off at the end of July.
C. The referral agreement and hiring procedures
Reference already has been made to various provisions of the referral agreement
between Earl D. Creager and the Union. These provisions were embodied in a
collective-bargaining contract, executed June 5, 1961, by the Union and the Miami
Valley Association Contractors, of which Creager was a member.19 The referral
agreement provides, among other things, for referrals of qualified personnel on a
nondiscriminatory basis and without restriction to union membership. The Union
is to set up and maintain a register or roster of available applicants. Referrals are
to be made in accordance with a system of priority, depending on length of employ-
ment and experience as operating engineers in the State of Ohio. The employer
reserves the right to reject any applicants referred to him. He may also, as we have
16 The foreman took the position that the Company had before this similarly recalled
employees who had worked for it during the past year, and stated that he did not think
that this action was a violation of the agreement Apparently Miller similarly construed
the referral agreement on May 14, 1962, when he signed his prehearing affidavit. At that
time he stated, "If Lewis had not gone to work for Cripps in violation of the referral
system, his going to work for Creager would not have been a violation, since he had
worked for them within the past twelve months " However, at the hearing, Miller re-
pudiated this statement as incorrect and as a "slipup" on his part. The applicable pro-
vision in the referral agreement, described infra, reads: "Employers may hire through
this Referral Policy by name former employees who have been employed within the State
of Ohio during the past twelve months and who are registered and available for work,
notwithstanding their place on the register."
17 Miller admitted that he had threatened "to pull the operators out at Earl Creager's"
but claimed that he did so because of Creager's violations of the referral agreement re-
specting other hirings and not respecting Lewis alone. I do not credit Miller's version,
particularly in view of the fact, noted infra, that the Union did not resort to the drastic
step of requesting their discharge, as it had done in the case of Lewis.
Is Lewis filed his charge in this proceeding on April 30, 1962. He never filed a formal
appeal with the board of review and arbitration.
19 The agreement, under its terms, was to expire May 1, 1964. However, the association
actually "closed" and became defunct on May 15, 1962. 'George Miller was one of the
signatories on behalf of the Union.
LOCAL UNION NO. 18, IUOE, AFL-CIO, ETC. 517
seen (supra, footnote 15) request referral of a specifically named employee who has
worked for him the past 12 months, irrespective of the employee's position on the
register. Provision is also made for applicants to notify the Union "by telephone
or letter or telegram, or in person, of their continued availability for employment,
within thirty (30) days after the date of last registration or re-registration, in order
to maintain their places on the registers." The names of applicants employed for
5 or more days are to be removed from the register. With respect to the applicant's
obligation to report employment-an obligation which, the Union contends, Lewis
flouted-the referral agreement (section 2(E)) states:
When an applicant is actually employed, he shall notify the Union's office at
which he is registered within twenty-four hours. Failure to do so is an imposi-
tion upon those registered and not employed, and, therefore, such applicant will
be barred from re-registering unless and until he had made application to the
Board of Review and Arbitration, provided for in Section 6 . . . and shows
good cause for his failure to give such notice.
Section 6, referred to above, permits a registrant or an employee who feels "ag-
grieved by the operation of this referral system," to appeal to a tripartite Board, com-
posed of a representative of the Union, of the employer, and a third person selected
by these two.20
George Miller, the district representative, is in overall charge of the operation of
the referral system He credibly testified that an applicant for employment registers
by completing a registration or referral card in which he sets forth, among other
things, the work for which he is qualified, his previous employers, and his last date
of employment. One of the Union's clerks then classifies the card according to the
employee's priority group and files it according to chronology; 21 she also puts the
information on a "Rol-dex" which shows alphabetically, under the registrant's name,
the date of registration. If the applicant obtains employment for 12 days within 30
days after registration, the clerk "pulls" it and places it in a "dead" file 22 If the
applicant does not obtain employment, he must reregister at the end of the 30-day
period-otherwise his card is also "pulled" and turned over to George Miller. Miller
testified that he keeps these cards in the left drawer of his desk "for further reference."
He further testified that if an applicant "comes in later after the thirty days, he is
asked to fill out a new referral card"; if he does not reregister at all, his card is placed
in the "dead file."
Miller testified also that reregistration could be effected personally and by tele-
phone or mail from the applicant or a member of his family; the receiver of the call,
whether it be Miller or any of the office clerks, would then enter the date of registra-
tion on a card. Similarly, the records shows, and I find, that an applicant or a mem-
ber of his family could, and did, report by telephone that he secured employment.
Maxine Howar, one of the Union's clerks, credibly testified that when such a call
came in it was her practice to record it on a piece of paper and put it on Miller's desk
along with the referral card of the applicant; no permanent record of the call, how-
ever, was made.
At the hearing the General Counsel and the Charging Party conceded the validity
of the written referral agreement. They contended, however, that it was applied
in a discriminatory manner, to the detriment of the anti administration group, of
which Lewis was a member. In support of this contention, evidence was adduced
purporting to show that members of this group, including Foster McComas, the in-
surgents' campaign chairman, and others, were either not referred to jobs or were
referred only sporadically, during the major part of the campaign, January-May
20 Section 6 reads: "Any registrant or any Employer who may feel aggrieved by the
operation of this referral system shall have the right to file his grievance in writing
within ten (10) days after the occurrence of the event concerning which he complains,
with a Board of Review and Arbitration, consisting of one representative of the Union,
one representative of the Employer, and an impartial third member to be selected by
agreement of the Union and the Employer , and the decision of this Board shall be final
and binding on all parties"
21 Lewis was classified in the top priority group as an employee who, among other
things , had worked at least 120 days per year during each of the past 4 years as an
operating engineer.
22 If the employee works less than 12 days, he is restored to his previous position on
the register As already noted, the contract itself fixes the period of employment as
5 days, not 12 days. According to the Union this departure from the contract was brought
about by "mutual agreement" because there were "many complaints by members that they
had short spans of employment."
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1962. Respondent , on the other hand, adduced evidence purporting to negate the
existence of discrimination-claiming that neither McComas, nor Lewis , nor other
antiadministration members were treated differently . In view of the findings and
conclusions hereinafter made and, further , in view of the failure of the complaint to
allege any violation on the part of Respondent by reason of the discriminatory appli-
cation of the referral agreement , I do not find it necessary to resolve the conflicting
evidence on this point.
Conclusions
It goes without saying-and Respondent does not contend otherwise-that the
activities of employees , such as those of Paul Lewis , to oust the incumbent union
leadership and elect new union officers in a forthcoming union election , are con-
certed activities protected by Section 7 of the Act. Local 138 , International Union of
Operating Engineers AFL-CIO (A. Crestone Co.), 118 NLRB 669, enfd. 254 F.
2d 958 (C.A. 2); Falstaff Brewing Corporation, 128 NLRB 294, 305, enfd. 301 F.
2d 216 (C.A. 8). Hence , if, as the General Counsel contends , Respondent brought
about the discharge of Lewis because of his antiadministration activities , Respondent's
action was a violation of Section 8(b)(2) and 1(A) of the Act. On the whole
record , and particularly in view of the considerations set forth below, I find and
conclude that the General Counsel met the burden of establishing that the Union
caused the discharge of Lewis because of his opposition to the union leadership,
and not because of his alleged failure to comply with the Union's referral system, as
claimed by Respondent.
1. The record shows, and I find, that Lewis , a member of long standing in the
Union, took an active role in the campaign to depose the union leadership , including
Miller , the district representative of District No. 4 who ran for office on the admin-
istration slate headed by Converse , his superior . Lewis joined the antiadministration
drive early in the campaign (September 1961) even before the antiadministration
slate was selected . He attended the insurgents ' meetings, passed out antiadministra-
tion literature, solicited others to attend the meetings, and spoke to members around
the union hall about the insurgents ' cause.
2. Miller had known Lewis for many years and, indeed, had worked with him
in the past and each visited the other socially. The record shows, and I find, that
he was aware of Lewis' alignment with the antiadministration group and that he
resented his activities, as well as those of the group he joined. Miller, as did other
proadministration business agents, stationed themselves outside the meeting
places of the antiadministration group held in different cities in Ohio, and
admittedly saw Lewis at one of these meetings . He even observed the two dances
held by the insurgents in isolated rural areas, where he questioned members concern-
ing the identity of the attendants. Miller's resentment of the antiadministration
adherents is evidenced by his characterization of these adherents as "rebels" and
Lewis as a "damn rebel."
3. The insubstantiality and inadequacy of the explanations advanced by Respond-
ent for its request to discharge Lewis also reflects on the motive of its conduct. Cf.
N.L.R.B. v. International Brotherhood of Electrical Workers, Local 340, 301 F. 2d
824, 827 (CA. 9). As already found, Lewis, unemployed since December 1961,
decided to secure a job on his own-without awaiting union referral-on March 26,
1962. Hired for the job by Robert S. Cripps, Lewis worked 1 day. The next day
Lewis went to work for Earl D. Creager, who called him directly to take the job.
Respondent contends that Lewis on each occasion violated the referral system by
failing to report his employment within 24 hours, and that these two violations
motivated its request for discharge. There is no claim that Lewis violated the referral
system in any other respect. As already noted, Lewis regularly registered with the
Union when he became unemployed. He renewed his registration every 30 days
to remain current, his last registration prior to his discharge being March 16, 1962,
10 days before he secured the Cripps job.
4. I have already found that, contrary to Respondent's contention, Lewis (through
his wife ) had made a timely report of his employment with Creager , in compliance
with the referral system. Hence, the question here is whether Lewis' failure to comply
with the 24-hour rule respecting the Cripps job motivated or justified the Union's
request for his discharge . In disposing of this question I need not pass upon the
contention of the General Counsel and the Charging Party that Lewis was not re-
quired to report this employment under the referral system because ( a) the employ-
ment was only of brief duration (9 hours in a 1-day period ) and, if anything, the
violation was de minimis; and (b ) Cripps was not a union contractor , bound by the
referral agreement between the Union and the Miami Valley Associated Contractors,
because he had resigned from the Association before the execution of the current
LOCAL UNION NO. 18, IUOE, AFL-CIO, ETC. 519
agreement . Cf. District Council No. 19 and Local 334, Brotherhood of Painters,
etc. (William B. G. Pitman Co., Inc.), 137 NLRB 682 .23 I shall, for purposes of this
,case, assume that Lewis was required to make a report of his employment with
Cripps under the 24-hour rule. I find and conclude, however, that the alleged violation
of the 24-hour rule was not the real cause for the Union 's instigation of Lewis'
discharge and that in any event his antiadministration activity was at least a con-
tributory factor, but for which the discharge request would not have been made. I
further find and conclude that even if the claimed violation had been the sole factor
in the Union's request for the discharge, Respondent's defense is not justifiable in law.
5. The record shows, and I find, that the Union, far from strictly enforcing the 24-
hour rule, frequently condoned and waived it with respect to other employees.
Admittedly, the eight operators whom Creager had hired 2 or 3 days before Lewis
was engaged on March 27, did not give the required 24-hour notice and, yet, there is
no evidence that any of them was discharged 24 One employee, Druscher, who
testified that he had obtained a job directly through Creager, stated that he did not
make a report until 1 week later (through his mother) and this employee is still
employed by Creager; Druscher, though sympathetic with the antiadministration
cause, did not campaign in its behalf. Respondent also waived the 24-hour rule
against another employee, Charles Johnson, although Respondent first attempted to
enforce it against this employee also 25 Significantly, the two office girls who, under
Miller's supervision, handled the day-to-day operations of the referral system,
could not even recall the existence of the 24-hour rule. One of them testified that
the only time she would "pull" a registration card was when an employee would
fail to reregister after 30 days of unemployment. Under all the circumstances, I
find that Respondent would have condoned Lewis' noncompliance with the 24-hour
rule-particularly as to a brief 9-hour job-were it not for the fact that Lewis
was an active adherent of the antiadministration group which Miller resented.
In any event, in seeking to justify the discharge of Lewis, Respondent relies on two
alleged instances of noncompliance with the 24-hour rule. Since I have found that
Lewis did comply in one instance (the Creager job), I must conclude that Respondent
at best had mixed motives-one legal and one illegal-for effecting the discharge.
The legal effect of Respondent's conduct is therefore the same as though the illegal
reason for its action were the only operative one. Cf. N.L.R.B. v. Whitin Machine
Works, 204 F. 2d 883, 885 (C.A. 1); N.L.R.B. v. Jamestown Sterling Corp., 211 F.
2d 725, 726 (C.A. 2).
6. Moreover, if I am correct in my finding with respect to Lewis' compliance as to
the Creager job, Respondent brought about the discharge of Lewis at Creager for an
alleged past violation, which took place while Lewis was in the employ of another
employer (Cripps). I do not believe that a union may even under a valid hiring hall
agreement exact such sanction. A union may well be within its rights in seeing to
it that an employee on a job holds that job in accordance with a valid referral agree-
ment. When, however, it seeks to remove an employee from a job because of a past
infraction of the referral agreement, having nothing to do with his present employ-
ment, then it is seeking to apply punitive sanctions rather than merely seeking en-
forcement of the referral agreement. This is not to say that the union may not
still discipline its member for his past infraction , but whatever internal sanctions are
imposed (e g., fine, suspension , expulsion ), these must not affect the right of the
28 By a letter dated May 24, 1961, Cripps informed the association that he was resign-
ing from it as of August 1, 1961. Although the current contract was executed June 5,
1962, Respondent took the position that Cripps remained bound by the new contract as
his resignation was not effective and timely under the bylaws of the association, a view
supported by the executive secretary of the association , whom Respondent called as a
witness.
24 While Miller testified that some of them reported their employment at a later period,
he could not say that all had done so.
25 Johnson , like Lewis, had filed unfair labor practice charges against Respondent.
Miller sought to justify the different treatment meted out to Johnson and Lewis, by ex-
plaining that Johnson , unlike Lewis , was repentant, had acknowledged the errors of his
ways, and had withdrawn the unfair labor practice charges In seeking to differentiate
Lewis' attitude , Miller emphasized that Lewis , in a conversation subsequent to the dis-
charge, told Miller , "To hell with the Union and the referral " Lewis ' denied making this
statement I credit Miller 's testimony on this point rather than Lewis as it is quite prob-
able that he made such remarks, considering Lewis' temperament and the fact that Lewis
felt himself unjustly discriminated against. I do not, however , credit Miller 's testimony
that it was this remark by Lewis which motivated the different treatment of Lewis.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member to retain his job. See Union Starch & Refining Co. v. N.L.R.B., 186 F. 2c1
1008, 1012-1013 (C A. 7), cert. denied 342 U.S 815.26
7. One additional point raised by Respondent merits comment, though only
briefly. Respondent seeks to negate the existence of discrimination by contending
that no similar charges were lodged against it for discriminating against other anti-
administration adherents-even the more prominent ones such as the candidates on
the insurgents' slate. Apart from the fact that the General Counsel and the Charg-
ing Party adduced evidence purporting to show otherwise, 27 It is clear that a discrimina-
tory motive otherwise established is not disproved by a showing that a union or
employer did not also discriminate against others. See N.L R.B. v. W. C. Nabors,
d/b/a W. C. Nabors Company, 196 F. 2d 272, 275-276 (C.A. 5), cert. denied 344
U.S. 865.28 Respondent may well have believed that it could succeed in its objective
by making "an example" (N L R.B. v. Link-Belt Company, 311 U S. 584, 602) of
Lewis. Moreover, to have caused the discharge of the more prominent members on
the opposition slate might have been too obvious. Finally, Lewis, who succeeded
in securing a job at the height of the election campaign, may well have appeared
to be the best target for Respondent's action.
For all of the foregoing reasons, I find that the preponderance of evidence sup-
ports the allegation in the complaint that Respondent caused the discharge of Paul
Lewis because he was a member of a group that was opposed to, and sought to-
unseat, the incumbent union leadership and, hence, that Respondent thereby violated
Section 8(b)(2) and (1)(A) of the Act.
III. THE REMEDY
Having found that Respondents engaged in certain unfair labor practices, I will'
recommend that they cease and desist therefrom and take certain affirmative action
to effectuate the policies of the Act. And having found that Respondents have caused'
Earl D. Creager, Inc, to discharge Paul Lewis, I shall further recommend that Re-
spondents notify Lewis and Creager in writing that Respondents have no objection to
his employment by Creager. I will also recommend that Respondent Union make
Lewis whole for any loss of earnings suffered by reason of the discrimination against
him.29 Respondent Union's liability for backpay shall terminate 5 days after it notifies
Creager and Lewis as aforesaid Loss of earnings shall be computed in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289. The backpay
obligation of the Union shall include the payment of interest, to be computed in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the nature of the unfair labor practices committed, the commission
by Respondents of similar and other unfair labor practices may be anticipated. The
remedy should be coextensive with the threat. I will therefore also recommend
that Respondents be ordered to cease and desist from infringing in any manner on
the rights of employees guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. By causing and attempting to cause Earl D. Creager, Inc , to discharge Paul
Lewis because of his sympathies for, and activities on behalf of, a group of employees
26 See also N L R B v Murphy's Motor, Freight, Inc, et al., 231 F lid 654 (C.A. 3) ;
N L.R B. v. Spector Freight System, Inc, et al., 273 F 2d 272, 275-277 (C.A. 8), Bert
denied 362 U.S 962; N.L.R.B. v. International Union, United Automobile, Aircraft, Agri-
cultural Implement Workers of America, AFL-CIO, and Local 899, UAW-AFL-CIO (John
1. Paulding, Inc.), 297 F. 2d 272 (C.A. 1) ; N.L R B. v. International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers o f America, CIO, Local 291 (Wis-
consin Axle Division, Timken-Detroit Axle Co ), 194 F. 2d 698, 701-702 (C A. 7) ; cf.
Marlin Rockwell Corporation, 114 NLRB 553
27I have already noted that in view of the disposition herein, resolution of the con-
flicting evidence on this point is not necessary.
27 See also N L.R B. v. Shedd-Brown Mfg Co., 213 F 2d 163, 174-175 (C.A. 7), cert
denied 344 U.S. 865; N L R.B v. Local 369, International Hod Carriers' Building and
Common Laborers' Union of America, AFL (A. C Frommeyer Co.), 240 F. 2d 539, 543
(C A. 3) ; N L.R B. v. L. J. Williams d/b/a Williams Lumber Company, et al., 195 F. 2d
669, 672 (C A. 4), cert. denied 344 U.S. 834.
29 As Respondent George E. Miller merely acted as agent for the Respondent Union, an
order requiring him personally to reimburse the discriminatee for losses suffered is not
necessary to effectuate the policies of the Act. Myles Worstell, Business Agent of Local
2023, et al. (Baker & Coombs, Inc), 114 NLRB 503, 514.
LOCAL UNION NO. 18, IUOE, AFL-CIO, ETC. 521
which sought to defeat the reelection of incumbent union officers, Respondent Union
and its agent, George E. Miller, caused an employer to discriminate against an em-
ployee in violation of Section 8(a) (3) of the Act and thereby engaged in unfair labor
practices within the meaning of Section 8(b) (2) of the Act.
2. By the foregoing conduct, Respondents also restrained and coerced employees
in the exercise of their rights guaranteed in Section 7 of the Act and thereby com-
mitted unfair labor practices within the meaning of Section 8 (b) (1) (A) of the
Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, Respondent Union, Local Union No. 18, International
Union of Operating Engineers, AFL-CIO, its officers, agents, representatives, suc-
cessors, and assigns, and George E. Miller, its agent, shall:
1. Cease and desist from.
(a) Causing, or attempting to cause, Earl D. Creager, Inc., its officers, agents,
successors, or assigns, to discharge employees for seeking to defeat the reelection of
union officers or otherwise engaging in concerted union activities in violation of
Section 8 (a) (3) of the Act.
(b) In any like or other manner restraining or coercing employees of said Company
or any employee member of Respondent Union in the exercise of the rights guar-
anteed in Section 7 of the Act, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization, as authorized in
Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action designed to effectuate the policies of
the Act
(a) Notify Earl D. Creager, Inc., in writing, that they have no objection to
Lewis' employment, with a copy to Lewis individually, and that they request Lewis'
immediate and full reinstatement to his former or substantially equivalent position
(b) Post at their offices and meeting halls, copies of the attached notice marked
"Appendix." 30 Copies of said notice, to be furnished by the Regional Director for
the Ninth Region, shall, after being duly signed by Respondent Union's representative
and Respondent George E. Miller, be posted immediately upon receipt thereof, and
be maintained by Respondents for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are customarily posted. Reason-
able steps shall be taken by Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
3. In addition, Respondent Union shall take the following affirmative action
designed to effectuate the policies of the Act:
(a) Make whole Paul Lewis for any loss of pay he may have suffered by reason
of the discrimination against him, in the manner set forth in "The Remedy" section
of the Intermediate Report
4. Respondents shall notify the Regional Director for the Ninth Region, in writing,
within 20 days from the receipt of this Intermediate Report and Recommended Order,
what steps have been taken to comply therewith.3i
"In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
ai In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read* "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, as amended , we hereby notify you that.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT cause or attempt to cause Earl D. Creager, Inc., to discharge
employees because they have sought to defeat the reelection of union officers
or otherwise engaged in concerted union activities, or to discriminate against
Paul Lewis or any of its employees in violation of Section 8(a)(3) of the Act,
as modified by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL notify Earl D. Creager, Inc., in writing , that we withdraw our ob-
jection to the employment of Paul Lewis and request his reinstatement to his
former or a substantially equivalent position.
WE WILL NOT in any other manner restrain or coerce employees of Earl D.
Creager, Inc., or any employee member of this Union, in the exercise of rights
guaranteed in Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization as a
condition of employment , as authorized in Section 8(a)(3) of the Act, as
modified by the Labor- Management Reporting and Disclosure Act of 1959.
This Union WILL make Paul Lewis whole for any loss of pay suffered because
of the discrimination against him.
LOCAL UNION NO. 18, INTERNATIONAL UNION
OF OPERATING ENGINEERS , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
GEORGE E. MILLER, AGENT, LOCAL UNION No. 18, INTERNATIONAL
UNION OF OPERATING ENGINEERS , AFL-CIO,
Individual.
Dated ------------------- By--------------------------------------------
GF.OHGE E. MILLEIL
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.
Employees may communicate directly with the Board 's Regional Office, Transit
Building, Fourth and Vine Streets, Cincinnati 2, Ohio , Telephone No. Dunbar 1-1420,
if they have any question concerning this notice or compliance with its provisions.
Cal-Style Furniture Manufacturing Co. and International Union,
Allied Industrial Workers of America, AFL -CIO. Case No.
21-CA-4610. March 15, 1963
DECISION AND ORDER
On December 17, 1962, Trial Examiner Morton D. Friedman issued
his Intermediate Report in the above-entitled proceeding, 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 Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a brief in support of the exceptions, and the
General Counsel filed a memorandum in support of Intermediate
Report and Recommended Order of the Trial Examiner.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate Re-
141 NLRB No. 45.