Plumbers Local 572 (Mk-Ferguson)

National Labor Relations Board - Board Decisions

Jan 31, 1990

297 N.L.R.B. 691 (N.L.R.B. 1990)

PLUMBERS LOCAL 572 (MK-FERGUSON)

691
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO, Local
#572 (MK-Ferguson Company) and Bruce
Northcutt. Case, 26-CB-2531
January 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 29, 1989, Administrative Law
Judge John H West issued the attached decision
The Respondent filed exceptions and a supporting
brief, to which the General Counsel filed an an-
swering brief
The National Labor Relations Board has delegat-
ed its authonty in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs, and has
decided to affirm the judge's rulings, findings,' and
conclusions, as modified, and to adopt the recom-
mended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, Local #572, Nash-
ville, Tennessee, its officers, agents, and representa-
tives, shall take the action set forth in the Order
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We agree with the judge that the Respondent violated Sec 8(b)(1)(A)
and (2) by refusing to refer members of Local 407 for discriminatory rea-
sons In so doing, however, we note that the judge mistakenly stated that
a violation of Sec 8(b)(2) can be found where there is disparate treatment
for discriminatory reasons in the operation of a nonexclusive hiring hall
See, e g, Laborers Local 135 (Bechtel Corp), 271 NLRB 777, 780 (1984),
Plasterers Local 121 (Associated Building Contractors), 264 NLRB 192, 195
(1982), where the Board noted that an exclusive referral system is a pre-
requisite to finding such conduct in violation of Sec 8(b)(2) (although It
is not a prerequisite for finding a violation of Sec 8(b)(1)(A))
However, this error is not prejudicial to the judge's 8(b)(2) finding be-
cause the record uncontrovertedly shows, as asserted by the General
Counsel, that the Respondent's referral system is exclusive Thus, as stip-
ulated by the parties into evidence, the Respondent's referral procedure,
which by its terms is binding on employers signatory to an agreement
with the Respondent, states that, "The Union shall be the sole and exclu-
sive source of referral of applicants for employment" For this reason, we
find that a violation of Sec 8(b)(2) by the Respondent's discriminatory
administration of its referral procedure has been established
Jane Vandeventer, Esq , for the General Counsel
James G Stranch III, Esq (Branstetter, Kilgore, Stranch &
Jennings), of Nashville, Tennessee, for the Respondent
DECISION
STATEMENT OF THE CASE
JOHN H WEST, Administrative Law Judge Pursuant
to a charge filed in the above-entitled case on February
21, 1989, by Bruce Northcutt against the United Associa-
tion of Journeymen and Apprentices of the Plumbing
and Pipefittmg Industry of the United States and Canada,
Local #572 (Local 572), a complaint was issued, as
amended, alleging that Local 572 (1) violated Section
8(b)(1)(A) of the National Labor Relations Act (the Act)
by telling specified applicants from Local 407 of the
same Union who were looking for employment in De-
cember 1988 and January and February 1989 that they
would not be referred out of Respondent's hiring hall as
long as J T Lewis remained their business manager,
and that if they had not had him or got rid of him as
their business manager, or brought internal charges
against him, they could be referred for employment, and
(2) violated Section 8(b)(2) 'of the Act by failing to regis-
ter and refer said applicants for employment to available
jobs Respondent denies these allegations
A hearing was held on August 9, 1989, in Nashville,
Tennessee Briefs were filed by the parties
On the entire record in this proceeding, including my
observation of the witnesses and their demeanor, and
after considering the aforementioned briefs, I make the
following
FINDINGS OF FACT
I JURISDICTION
Local 572 and counsel for General Counsel stipulated,
General Counsel's Exhibit 2, as follows
1 MK-Ferguson Company, herein called Fergu-
son, is a corporation with an office and place of
business in Cleveland, Ohio, [and it] has been en-
gaged in the business of mechanical contracting at
the E I DuPont jobsite location in New Johnson-
ville, Tennessee, at all times material herein
2 During the past 12 months, Ferguson, in the
course and conduct of its business operations de-
scribed above in paragraph 1, purchased and re-
ceived at the DuPont jobsite products, goods, and
materials valued in excess of $50,000 directly from
points located outside the State of Tennessee
3 Ferguson is now, and has been at all times ma-
terial herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of
the Act
Respondent admits, and I find, that it is now and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act I also find
that Local 407 is now and has been at all tunes material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act
297 NLRB No 106
,
692

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
Northcutt has been a member of Local 407 for 15
years Local 407 is located in Jackson Tennessee which
is about 120 miles from Nashville As here pertinent
during the period from December 1988 to March 1989
its business manager was J T Lewis On occasion,
Northcutt works out of other locals of the Union The
normal procedure for obtaining a referral is to have
Lewis telephone other locals to find out if they have
work If they do, Lewis would send Northcutt among
others, with either a travel card or a referral to the other
local to be sent out to the job
On December 14, 1988, Northcutt went to Local 572 s
hall in Nashville He had asked Lewis on several differ
ent occasions between August and December 1988 to
telephone Local 572 to see if he could get some work
Lewis advised him that Local 572 did not have any jobs
to refer Northcutt out on At Local 572 Northcutt spoke
to its business manager Billy Borchert who told North
cutt that as long as Lewis was business manager at Jack
son, he, Borchert, was not referring any Jackson mem
bers to a Local 572 job 1 According to Northcutt s testi
mony Borchert also said that he was the most powerful
union man in the State of Tennessee and the ball was in
his court and he was going to keep it there No referral
list or card was mentioned by Borchert to Northcutt
And Northcutt was not referred out of Local 572 that
day While Northcutt had been referred out of Local
572 s hall three or four times prior to 1988 he had never
signed a list or a card when he was referred out 2 On
December 14 1988 he did not see a clerical secretary
first at Local 572, Borchert was the first person he spoke
with Also Northcutt did not see a copy of Respondent s
referral rules 3
Patricia Jones has been the clerical secretary for Local
572 for 6 years She sponsored Respondent s Exhibit 1
which is a photograph of the outer office of Local 572,
Respondent s Exhibit 2 which is a photograph of what
purports to be Respondent s referral rules hanging on a
glass partition near where she normally sits in the office
and Respondent s Exhibit 3, which is a card titled RE
FERRAL LIST 4 Regarding the referral system, Jones
gave the following testimony
Q Are you familiar with the referral system?
A Not every word of it but this is it
Q That s it Who maintains the referral system?
Keeps the records and stuff?
1 Northcutt testified that Lewis told him that Borchert would not talk
to him Lewis and that he did not know what the problem was
2 Over the last 15 years Northcutt estimated that he worked out of
between 40 or 50 other locals and other than Los Angeles California he
has never had to sign a list as a traveler On those occasions however
Local 407 s business agent would send him out Regarding Local 572
Northcutt testified that he did not know that Respondent had a list for
out of town people to sign He was however aware that in a luring hall
anyone can come in and sign the referral list
3 Respondent s referral procedure was received by stipulation of the
parties as G C Exh 3
4 The card has spaces for name social secunty number classification
date experience etc
A It s posted on the window the cards are in
file box—
Q The actual referral slips that are signed who
generally fills those out and sends them?
A I fill them out
Jones went on to testify that the involved referral system
was adopted sometime Just before Borchert was elected
as business manager in June 1988 that if someone asks to
sign the referral system she would be the one to give
them a card to fill out that if a traveler asked for a card
to fill out in December 1988 or January 1989 she would
have given out a card, that she is not allowed to deny
anyone the opportunity to fill out a card that she is not
supposed to volunteer the cards and that the posted re
ferral rules had been torn down about 5 times during the
past year and each time she would post another copy of
the rules on the partition
Harold Boyd, who was elected business agent of Local
572 in June 1988 and who assumed his position in July
1988, testified that in July 1988 there were about 200
people on the out of work list that by January or Febru
ary 1989 Local 572 was able to refer out some travelers,
that when Lewis telephoned work for his people Local
572 did not have spots available for him , and that
when Local 572 has more jobs than people on the refer
ral list he would call other locals calling first those
which had given work in the past to Local 572 s mem
bers On cross examination Boyd could not remember
whether at anytime between December 1988 and Febru
ary 1989 Local 572 reached the point where he tele
phoned other sister locals and said he had work available
and did they have the people 5
Robert Glover, who has been a member of Local 407
for 11 years, was told by Lewis before January 1989 that
Local 572 claimed that it had members out of work 6
Glover testified that he heard however that there was
work available out of Local 572 On January 12 1989
he and two other members of Local 407 Bill Taylor and
Roger Owens went to Local 572 s hall They asked the
clerical secretary to see Borchert Borchert told the
three
that him and [Lewis] had had a little
conflict there and that [Lewis] had re
fused him work one time besides having this prob
lem with Charlie Bray and that he was very sorry
it had to be us but he really didn t think he could
work any of [Lewis] people with the situation
being like it was unless [Lewis] become man
enough to make an apology
a The General Counsel and Respondent stipulated that between De
cember 14 1988 and March 7 1989 approximately 185 applicants were
referred out of the Local 572 hall from Groups 2 or 3 (a lower priority
than group 2) under the referral procedure The Involved Local 407
members would have been a group 2 placement
6 Sometime in 1988 Glover was referred out of Local 572 s hall but
Lewis had made the arrangements and Glover did not have to sign a list
Glover testified that he was aware that members and travelers had to
sign Local 407 s out of work book in order to be eligible to be referred
out for work from his Local
PLUMBERS LOCAL 572 (MK-FERGUSON) 693
[Lewis] had promised to vote for [pray]
to go to the Union convention, and then he
dropped the ball when it come time for him to hold
up to his part of it, and changed his mind and voted
for somebody else, and it caused a conflict
there
Glover also testified that Borchert said that the situation
between the two Locals could be a lot better if Lewis
was not Local 407's business manager While they were
there on January 12, 1989, Borchert said nothing to the
three Local 407 members about signing a list or a card
Glover saw various papers posted along the walls in the
office of Local 572 but he did not ask to see nor did he
see the referral rules or the referral book He did not ask
if there was something he could do to become eligible
for the referral system
In mid-January 1989, Willie McClearen Jr, who had
been a member of Local 407 for about 15 years and who
heard—contrary to what he was being told by Lewis—
that there was work available out of Local 572, went to
visit Local 572's hall with Wayne Babb After speaking
with the secretary at the hall, he asked Borchert if he
had any work available Assertedly Borchert replied that
Lewis was selling credentials to people who were not
qualified to be journeyman pipefitters and Lewis broke
his word when he did not vote for Bray to attend the
union convention 7 Also, assertedly Borchert said that
the members of Local 407 should get rid of Lewis be-
cause he was not doing the job right and if they did get
rid of him, they "could probably go to work then"
McClearen was not referred out of Local 572 as a result
of this meeting He testified that he did not ask to sign a
referral book although he knew that was how one gets
into the referral system, and that he had no intentions of
following Local 572's referral system when he came to
their hall
Babb, who has been a member of Local 407 for 11
years, testified that when he and McClearen walked into
Local 572's hall in mid-January 1989, Paul Gandy, who
is the financial secretary of Local 572, motioned them to
come back and he talked to them for a few minutes and
they "got" the forms for filing charges against Lewis
Regarding their subsequent discussion with Borchert,
Babb testified that Borchert
was very nice and polite and said he was sorry for
our sake that he wasn't able to work us, but as
long as J T Lewis was our Business Agent, we
wouldn't be able to work out of Nashville
And we brought to his attention that we were
going to bring charges against J T, and if we
brought charges against J T would he consider us
for a job then, and he told us to bring the charges
and then come back and he would think about it
1 McClearen was not sure if Borchert made these statements dunng
this meeting or during a February meeting which is covered below
before we walked out of the office, I think he
said if J T hadn't been our Business Agent, we'd
already been up there working
Babb testified that Borchert did not say anything about
signing a list or card and that he did not see the clerical
secretary who sits in the outer office when he was
there 8 Babb did not ask to sign the referral book
On February 20, 1989, McClearen again met with Bor-
chert Either Earl Mathes or Glover accompanied him
McClearen first spoke with the clerical secretary in the
outer office McClearen testified that Borchert spoke
with him alone asking him if he had done anything re-
garding getting nd of Lewis McClearen explained to
Borchert that he had not been able yet to bring internal
union charges because they had to be voted on at a regu-
larly called union meeting Allegedly Borchert said to go
ahead and bring the charges and after that he would try
to put Local 407 members to work on Local 572 jobs
Borchert did not refer McClearen out that day
McClearen testified that on February 20, 1989, some
people from Augusta, Georgia were in Local 572's hall
and they told him they were getting their call cards and
paying their travel dues which are paid when you work
out of another local
Taylor, who has been a member of Local 407 for 10
years, testified that while he intended to use the referral
system at Local 572, he just failed to ask, he never asked
to see the rules and he never asked to sign the referral
book Taylor also testified that he was sure he came to
Nashville on February 10, 1989, because he keeps a cal-
endar with his mileage for income tax purposes, that on
February 20, 1989, Borchert said that he would put
Local 407 members to work at Cumberland City, Ten-
nessee, and that later Borchert telephoned McClearen
who then told Local 407 members to go up to Cumber-
land City On cross-examination, Taylor testified that he
was present when McClearen spoke with Borchert and
that he, Taylor, did not remember any mention of
charges that he or the other members of Local 407 were
going to file concerning Lewis
On March 2, 1989, Glover and six other Local 407
members9 went to Local 572's hall and they were re-
ferred out without signing a book or a list 10 McClearen
testified that Borchert asked them what progress they
were making on their internal union charges against
Lewis and he, McClearen, advised Borchert that the
membership would be voting on the charges, General
Counsel's Exhibit 4, at the regularly scheduled union
meeting on the first Friday in March," and that the job
8 In Apnl 1988 Lewis sent him to Nashville and he took his travel card
and got a referral and went to a job without signing a list
8 Owens, McClearen Jr. Mathes, Taylor, and Lindsey Vincent Glover
could not remember who the sixth man was
1 ° At the time of the heanng herein, Glover had signed an out-of-work
list at Local 572
"The charge alleges that Lewis failed to maintain an effective system
of referrals and he allowed contractors to hire employees, bypassing the
referral system McClearen testified that he would have proceeded with
the charge whether or not Borchert had said anything
694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
began on March 13 1989 in Cumberland City
McClearen also testified that they did not have to sign a
book, list or card that day at Local 572 12 Additionally,
he testified that they took their travel cards from Local
407
On March 27 1989 Northcutt went back to Local
572 s hall and placed his name on a list after he was told
there was a list
In April Northcutt was offered a job through Local
572 s hall
Borchert testified that he had instructed the secretary
at Local 572 (1) to put up a set of the referral rules as
soon as they were torn down and (2) to give a referral
card to anyone who asked for one, that when he has
more jobs than he has people signed up for the referral
system he calls other locals which have referred mem
bers of Local 572 out in the past that his problems
with Lewis Include (a) the aforementioned Bray matter
(b) the fact that once 7 or 8 years ago when Borchert
himself sought a referral from Lewis Lewis practically
ran him out of the office," and (c) his belief that Lewis
was somehow responsible in part, for the past financial
problems of Local 572, that he admits that he did not
call Local 407 when he needed extra hands, that while
he had no work for J T Lewis he might ye had
work for 407 members that if Northcutt Glover,
McClearen Babb Owens, Mathes or anyone else listed
in the complaint had signed the referral card, they would
have been put to work when work was available" and
that he did not tell anyone that they were not going to
get a job out of Local 572 unless they filed charges
against Lewis and there was no deal made on this point
On cross examination Borchert testified that he did not
tell Northcutt, McClearen, or Babb that they should sign
a card to be referred out that he believed that the six
members of Local 407 who were referred out in early
March 1989 were told about the referral before the
charge was filed herein and they signed referral cards
that he spoke to Northcutt one time and he Borchert
believed that it was in August 1988 that he told North
cutt that Lewis was a son of a bitch and he would not
deal with him and Lewis needed straightening out," and
that he told Glover and Taylor that they would be better
off without Lewis as their business manager
12 McClearen testified that between 5 and 10 times before March 1989
he was referred out of Local 572 s hall and he never signed a list or card
before getting the referral On each occasion however Local 407 s bum
ness manager made the arrangements
13 Borchert testified that he went to Lewis seeking employment but
there was no need for him to attempt to sign up on the referral system
because Lewis cut him off short and he left As Borchert testified It
would ve been futile for me [to attempt to sign up]
14 Borchert testified as follows
Q If a person signs a card and a job comes open what happens9
A As soon as I get a job open for him /send him out We don t
discnmmate [Emphasis added ]
Also he testified that before December 1988 he referred Ed Phifer
who is a member of Local 407 to the aforementioned E I Dupont job
at New Johnsonville
' a Borchert conceded that Lewis tried to talk with him but he would
not talk with Lewis
B Contentions
On brief, the General Counsel contends that unions
which operate hiring halls are held to a high standard of
impartiality with respect to their conduct in referring ap
plicants to employment that any arbitrary invidious or
capricious actions with respect to such referrals will be
found by the Board to violate the Act that a union
which discriminates in referrals against nonmembers,
against travelers, against members of a different local or
against opponents of its officers for example will be
found to have violated the Act, that a number of Board
cases have rejected defenses based on the failure of a job
applicant to fulfill some technical requirement such as
signing a list especially when it would appear to be
futile to do so that although Borchert speciously
claimed that he would have referred the employees had
they actually signed the referral list he admitted that
they asked for jobs and he admitted that he refrained
from telling them that they should sign the referral list,
that as found in Glenn Machine Works, 277 NLRB 658
(1985) requesting to be referred to employment was tan
tamount to requesting to be placed on the referral list,
and this is especially true where the past practice of Re
spondent with which all of the applicants were familiar,
did not require that they sign any type of list or card
that additionally even Borchert recognized that asking to
sign a list after one has already been told that one will
not be referred under the circumstances would be a futile
act and that the Board would not accept a defense based
on such a technical omission particularly where as here
such a defense is disingenuously proffered to insulate Re
spondent from a blatant violation of the Act
Respondent on brief argues that the Charging Party
and the alleged discnmmatees did not make an effort to
qualify for the system and no one gave a reason why
their failure to comply with the written rules should be
excused that Jones the clerical secretary runs the refer
ral system making the actual referrals which is a mimste
nal function based on the order of sign up that in De
cember 1988 Respondent did not have full employment
in that many of its members, who had signed up on the
referral system in group 1 were working out of the juns
diction because there were not sufficient jobs and these
individuals have pnonty over applicants in group 2 that
it is accepted that a union may prescribe rules and re
stnctions on its referral system if (a) the rules are in the
interest of the bargaining unit (b) the rules are nondis
cnmmatory in purpose and (c) the rules are applied in a
nondiscriminatory manner that in the case at bar this
three pronged standard has been met that a contention
that it would have been futile for the involved Local 407
members to sign up for the referral system is not sup
ported by the record since such a contention rests on the
ill will of Borchert toward Lewis and it was not demon
strated that such ill will bleed over into Respondent s
course of business since the clerical secretary and not
the President runs the referral system inasmuch as the
secretary is the one who makes the referral and writes
out the slip and there is no evidence which would indi
cate that the President performs any of these func
tons that the President has a nght to his feelings, and
PLUMBERS LOCAL 572 (MK-FERGUSON) 695
clearly the Respondent has not adopted his feelings- in
their policy, and that it cannot be said the involved
Local 407 members did not understand their obligations
nor is it proper to infer that they believed it would have
been futile to sign up since no testimony was directly
elicited from them on this subject
C Analysis
In my opinion, Respondent violated Section 8(b)(1)(A)
and (2) of the Act as alleged
Contrary to Respondent's assertions on brief, the
record herein does not demonstrate that only Jones was
responsible for making referrals Considering the record
as a whole, quite the opposite appears to be the case As
here pertinent, Borchert, in the final analysis, decides
who is referred out to a job in that he decided whether
Local 407 would be told about available jobs and he de-
cided not to refer the involved Local 407 members out
when they personally came to him Also, contrary to Re-
spondent's assertion on brief, Borchert's personal feelings
did "bleed over" into the way Respondent handled its
business
Any need for Local 407 members to sign up at Local
572 to get referrals was obviated when the Local 407
members personally told Borchert they were looking for
work At that point, Borchert should have placed their
names on Local 572's out-of-work list or he should have
explained the procedure to the Local 407 members
Glenn Mdchine Works, supra He did neither Rather, he
told them that for the various aforementioned reasons he
did not like Lewis and as long as he was business manag-
er of Local 407, the members of that Local should not
expect to work out of Local 572 It would have been
futile, after hearing this, for the involved members to
then ask if they could participate in Local 572's proce-
dure to obtain referrals Borchert made it clear that the
only way the Local 407 members would get referrals
would be if they filed charges against Lewis to get him
removed from office At one point Borchert indicated
that he wanted an apology from Lewis But when Lewis
attempted to talk to him he, Borchert, would have none
of it Consequently, one must conclude that Borchert
would only be satisfied if Lewis was removed as business
manager of Local 407
The date of filing on the form for filing union charges,
which form was obtained from the financial secretary of
Local, 572, is "2-14-89" The involved Local 407 mem-
bers were referred out by Borchert in March 1989 He
believed he told them about the referral before the
charges were filed herein on February 21, 1989 Howev-
er, Borchert also believed that the involved Local 407
members signed referral cards at Local 572 for this refer-
ral The involved Local 407 members testified that they
did not have to sign a list, card, or book at Local 572 for
this referral No list, card, or book was ever introduced
herein showing that they signed at Local 572 for this re-
ferral Consequently, it appears that Borchert was, at
best, mistaken about this He could just as easily have, at
best, been mistaken about when the involved Local 407
members were first told about the referral
. Borchert was not a credible witness and I do not
credit his testimony that if the involved Local 407 mem-
bers had signed up for the referral system they would
have been referred out Borchert viewed the involved
Local 407 members' desire to obtain work out of Local
572 as leverage which he could use against Lewis And
he used Local 407 members to do that which he either
could not or would not do himself directly He wanted
Lewis out of office And he went so far as to indicate
that he would try to put Local 407 members on jobs
after they filed charges against Lewis In employing the
tactics he utilized, he caused Respondent to violate Sec-
tion 8(b)(1)(A) and (2) of the Act
While the complaint herein alleges that Respondent
had an agreement with Ferguson which calls for Re-
spondent to be the sole and exclusive source of referrals
of employees to employment with Ferguson and other
employers, in its answer the Respondent neither admitted
nor denied these allegations As noted above, a stipula-
tion was entered into but the stipulation does not speak
to these matters The record is silent on this Conse-
quently, it appears that I cannot reach conclusions re-
garding Respondent causing Ferguson to violate Section
8(a)(3) of the Act And, as pointed out by Respondent on
brief, the record is bare as to whether the referral system
is exclusive or not Even if Respondent were operating a
nonexclusive referral service, it must not engage in un-
lawful discnmmation Operating Engineers Local 4 (Carl-
son Corp), 189 NLRB 366 (1971) And a violation of
Section 8(b)(2) can be found where there is disparate
treatment for discriminatory reasons in the administration
of a nonexclusive hiring hall
CONCLUSIONS OF LAW
1 Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act
2 MK-Ferguson is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act -
3 By (1) telling members from Local 407 that they
could not be referred out as long as they had their then
current business manager, (2) telling members of Local
407 that they would be referred out if they got rid of
their business manager, (3) telling members of Local 407
that they would have been working already if they did
not have their then current business manager, (4) giving
members of Local 407 charge forms to file intraumon
charges against their business manager, indicating that
they should come back after the charges were filed, (5)
telling members of Local 407 that if they brought
charges against their then current business manager that
Borchert would refer them out to jobs, and (6) refusing
to refer members of Local 407 out because Respondent's
business manager had a dispute with their business man-
ager, Respondent engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) and (2) of the
Act
4 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
5 Except as specifically found herein, it has not been
demonstrated that Respondent engaged in any other un-
lawful conduct •
696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has violated Section
8(b)(1)(A) and (2) of the Act as set forth above it will be
recommended that it be ordered to cease and desist from
such conduct and take affirmative action designed to ef
fectuate the policies of the Act
Having found that Respondent unlawfully denied con
sideration for referral and referral to Bruce Northcutt
Robert Glover Billy Taylor, Roger Owens Wayne
Babb and Willie McClearen Jr it shall be ordered to
make them whole for any loss of earnings suffered as a
result of the discrimination against them by payment to
them of sums of money equal to that which they normal
ly would have earned as wages from the date of discnm
mation against them until such time as Respondent prop
erly refers them to employment pursuant to the lawful
operation of its referral system less net earnings during
such period Backpay and interest thereon is to be corn
puted in the manner set forth in New Horizons for the Re
tarded, 283 NLRB 1173 (1987) 16
Respondent will be ordered to operate its referral
system in a nondiscriminatory manner
On the basis of these findings of fact and conclusions
of law and on the entire record in this case I issue the
following recommended' 7
ORDER
Respondent United Association of Journeymen and
Apprentices of the Plumbing and Pipefittmg Industry of
the United States and Canada Local #572 its officers
agents, and representatives shall
1 Cease and desist from
(a) Telling members from Local 407 that they cannot
be referred out as long as they had their then current
business manager
(b) Telling members of Local 407 that they would be
referred out if they got rid of their business manager
(c) Telling members of Local 407 that they would
have been working already if they did not have their
then current business
(d) Giving members of Local 407 charge forms to file
mtraumon charges against their business manager mdi
catmg that they should come back after the charges were
filed
(e) Telling members of Local 407 that if they brought
charges against their then current business manager that
they would be referred out to jobs by Respondent
(t) Refusing to refer members of Local 407 out be
cause Respondent s business manager had a dispute with
their business manager
(g) In any other manner restraining or coercing em
ployees in the exercise of rights guaranteed in Section 7
of the Act
le Under New Horizons Interest is computed at the short term Federal
rate for the underpayment of taxes as set forth in the 1986 amendment
to 26 U S C § 6621
17 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall a provided in Sec 102 48 of the Rules be adopted by the
Board and all objections thereto shall be deemed waived for all purposes
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Maintain and operate the involved job referral
system in a nondiscriminatory manner
(b) Make Bruce Northcutt Robert Glover Billy
Taylor Roger Owens Wayne Babb and Willie
McClearen Jr whole for any loss of earnings suffered as
a result of the discrimination against them by payment of
sums of money equal to that which normally would have
been earned as wages during the period Respondent dis
crumnated against them in the manner set forth in the
remedy section of the decision
(c) Preserve and on request make available to the
Board or its agents for examination and copying any
records reports and other available documents necessary
to analyze the amount of backpay due under the terms of
this Order
(d) Post in conspicuous places of its business office and
meeting places copies of the attached notice marked
Appendix 16 Copies of said notice, to be furnished by
the Regional Director for Region 26 after being signed
by Respondent s representatives shall be posted by Re
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous 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) Notify the Regional Director m writing within 20
days from the date of this Order what steps Respondent
has taken to comply
le If the Board s Order is enforced by a judgment of a United States
court of appeals the words in the notice reading Posted by Order of the
National Labor Relations Board shall read Posted Pursuant to a Judg
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
WE WILL NOT tell members from United Association
of Journeymen and Appentices of the Plumbing and
Pipefittmg Industry of the United States and Canada
Local #407 (Local 407) that they cannot be referred out
as long as they have a certain business manager
WE WILL NOT tell members of Local 407 that they
will be referred out if they get rid of their business man-
ager
WE WILL NOT tell members of Local 407 that they
would be working out of our referral hall if they did not
have a certain business manager
WE WILL NOT give members of Local 407 charge
forms to file mtraumon charges against their business
PLUMBERS LOCAL 572 (MK-FERGUSON) 697
manager, indicating that they should come back after the
charges are filed
WE WILL NOT tell members of Local 407 that if they
bring charges against their business manager, we will
refer them out to jobs
WE WILL NOT refuse to refer members of Local 407
out because our business manager had a dispute with
their business manager
WE WILL NOT in any other manner restrain or coerce
employees in the exercise of rights guaranteed in Section
7 of the Act
WE WILL maintain and operate our job referral system
in a nondiscriminatory manner
WE WILL make Bruce Northcutt, Robert Glover, Billy
Taylor, Roger Owens, Wayne Babb, and Willy
McClearen Jr whole for any loss of earnmgs suffered,
with interest, as a result of the discrimination against
them
UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING AND
PIPEFITTING INDUSTRY OF THE UNITED
STATES AND CANADA, AFL-CIO, LOCAL
#572
,