Plumbers Local Union 521

National Labor Relations Board - Board Decisions

Sep 14, 1972

199 N.L.R.B. 84 (N.L.R.B. 1972)

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union 521, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-
CIO (Huntington Piping , Inc.) and Arnold Glass-
burn and Herbert Lewis. Cases 9-CB-2126-1 and
9-CB-2126-2
September 14, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On May 15, 1972, Trial Examiner Anne F.
Schlezinger issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed limited
exceptions and supporting brief. The Respondent did
not file exceptions or a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and brief and has decided to affirm the Trial
Examiner's rulings, findings, and conclusions and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
the Respondent, Local Union 521, United Associa-
tion of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and
Canada, AFL-CIO, its officers, agents, and represent-
atives, shall take the action set forth in the Trial
Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER , Trial Examiner : Upon charges
and amended charges filed respectively on December 30,
1971, and February 7, 1972, by Arnold Glassburn and Her-
bert Lewis , individuals , the General Counsel , by the Re-
gional Director for Region 9 (Cincinnati , Ohio), issued a
complaint on February 15, 1972 , and an order amending
complaint on March 20 , 1972. The complaint, as amended,
alleges in substance that Local Union 521, United Associa-
tion of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada,
AFL-CIO, referred to herein as the Respondent or the Un-
ion, attempted to cause and caused Huntington Piping, Inc.,
referred to herein as the Employer, to discriminate against
its employees Glassburn and Lewis by discharging them in
violation of Section 8(a)(3) of the Act, and thereby has
engaged in and is engaging in unfair labor practices as
defined in Section 8(b)(I)(A) and 8(b)(2) of the National
Labor Relations Act, as amended. In its answer, duly filed,
the Respondent admits certain allegations of the complaint
but denies the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before me at
Huntington, West Virginia, on April 6 and 7, 1972. All
parties appeared at the hearing and were afforded full op-
portunity to be heard, to examine and cross-examine wit-
nesses, and to introduce relevant evidence. Subsequent to
the hearing, a brief was filed by the General Counsel which
has been duly considered. The Respondent in a telegram
stated that it "does not desire to file brief ... and renews
motions made during hearing .... "I
Upon the entire record in this case and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
Huntington Piping, Inc., is a West Virginia corpora-
tion engaged in the erection of piping systems and allied
equipment at Huntington, West Virginia, and other cities,
with its principal place of business located in Huntington.
During the past 12 months, which was a representative peri-
od, Huntington performed services valued in excess of
$50,000 for customers located outside the State of West
Virginia, and purchased goods valued in excess of $50,000
which it caused to be shipped directly from points outside
the State of West Virginia to its Huntington location. I find,
as the complaint alleges, and the Respondent' s answer as
amended at the hearing admits, that at all times material
herein the Employer has been an employer engaged in com-
merce and in operations affecting commerce as defined in
Section 2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent's answer ad-
mits, and I find that Local Union 521, United Association
of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Issues
The General Counsel contends that the Respondent
on certain dates threatened to and did instigate work stop-
1 The Respondent moved , at the close of the General Counsel's case in
chief and at the conclusion of the hearing , that the complaint be dismissed
on the ground of failure to establish a prima facie case These motions were
denied at the hearing The motion to dismiss renewed in the Respondent's
telegram is hereby denied for the reasons set forth below.
199 NLRB No. 16
PLUMBERS LOCAL UNION 521
pages on projects where employees of the Employer were
working, and thereby attempted to cause and caused the
Employer to discharge Glassburn and Lewis in violation of
Section 8(a)(3) of the Act, thereby violating Section
8(b)(1)(A) and 8(b)(2) of the Act.2 The Respondent, by the
testimony adduced at the hearing, apparently maintains
that the Respondent's actions were warranted by the failure
of Glassburn and Lewis to complete the membership re-
quirements established by its constitution and bylaws.
B. The Facts
The facts herein, established by credible and in large
part unrefuted testimony, show that the Employer is a me-
chanical contractor engaged in installing piping systems
and allied equipment, and that Marshall Hood is president
of the Employer and has been for many years a member of
the Respondent. They also show, as the complaint alleges,
that Burton, the Respondent's business agent, Wright, or-
ganizer and International trustee, and Kitchen, Snodgrass,
and Collins, shop stewards, are agents of the Respondent
within the meaning of Section 2(13) of the Act. The
Respondent's answer admits this allegation of the com-
plaint "subject however, to the proof of acts either done or
omitted by prior business agents and shop stewards."
1. Employment history of Glassburn and Lewis
The Employer first hired Glassburn in June 1966.
Glassburn did some pipefitting but worked primarily on
welding. Lewis, who had been employed by the Employer
for about 15 years, began working as a laborer, and was a
member of a laborers union. He worked with pipefitters and
welders and learned to do this work, particularly the weld-
ing, and began working as a welder for the Employer in
about June 1966. Both men had been referred by the Re-
spondent, Glassburn by Prince, the business agent at the
time, and Lewis by Frye, who was the business agent before
Prince. Both Glassbum and Lewis took and passed tests
given by the Employer and others on whose projects they
worked, and both were certified as welders on the basis of
these tests. In 1966 Hood needed welders on a Goodyear
Tire project. He called the Respondent but was told all the
welders were working. He then obtained permission to put
Glassburn and Lewis to work as welders on permits, and
permits were issued to both by Prince, at that time the
business agent. A month or two after obtaining these per-
mits, Glassburn and Lewis made repeated applications for
membership in the Respondent. Some of these applications
were submitted directly to Prince. The applications in some
2 The Act provides in Section 8 that-
(b) It shall be an unfair labor practice for a labor organization or
its agents-
(1) to restrain or coerce (A) employees in the exercise of the rights
guaranteed in section 7- Provided, That this paragraph shall not impair
the right of a labor organization to prescribe its own rules with respect
to the acquisition or retention of membership therein, .
(2) to cause or attempt to cause an employer to discriminate against
an employee in violation of subsection (a)(3) or to discriminate against
an employee with respect to whom membership in such organization has
been denied or terminated on some ground other than his failure to
tender the periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership
85
instances were rejected and as to others there was no re-
sponse.
Glassburn worked for the Employer until October 1966
when he was laid off for lack of work. He went to the union
hall a few times to see Prince, who referred him to a job in
Middletown, Ohio. His referral slip, dated November 7,
1966, and signed by Prince, shows his occupation as "Weld-
er" and contains a handwritten note that "This Boy has
been working as a welder for us on application. I called you
about this Boy." Glassburn worked in Middletown until
about June 1967, when he was told by an uncle, who had
recommended him for membership in the Respondent, that
his application was coming before the Respondent's board
and Glassbum should be present. Glassburn quit his job in
Middletown and returned to Huntington. He did not appear
before any board of the Respondent, however, as this appli-
cation was rejected. No reason was given him for this action,
and he made no inquiries of the Respondent about the
matter.
About 6 months later Glassburn went to see Prince
who referred him again to the Employer. He returned to
work for the Employer about December 1967 or January
1968. After that he reapplied for membership in the Respon-
dent but received no response. Thereafter Hood, president
of the Employer, brought Glassburn another application,
which he filled out and, with Hood as his reference, gave to
Prince at the union hall. Lewis had also continued to seek
membership in the Respondent. Shortly after Glassburn
and Lewis filed their latest applications for membership,
Hood told each of them that he had been advised their
applications were about to be accepted and that each of
them was to make certain payments to the Respondent.
Accordingly, each of them on or about July 13, 1970, paid
to the Respondent $194.10, and received a receipt dated
July 17, signed by P. M. Ginger, who at that time was the
union secretary, showing receipt of payments covering: July
dues $8, insurance premium $9.10, building trades card $3,
initiation fee $150, and examination fee $24, totaling
$194.10. Thereafter, both Glassburn and Lewis paid quar-
terly dues at the rate of $8 a month and, in some quarters,
insurance premiums, by handing checks in person to a sec-
retary at the union office. They received receipts as well as
the stamps which members affix to their books to show dues
payments are current. Neither Glassburn nor Lewis had
ever received one of these books so they attached their
stamps to the receipts. Both received receipts signed by
Ginger showing payments through April 1971.
During this period of paying dues but not having
books, Glassburn and Lewis continued to work for the Em-
ployer with no objection by fellow employees, who knew
they did not have books, or by representatives of the Re-
spondent. Glassburn and Lewis questioned union repre-
sentatives from time to time about their books. They were
told by Prince that the books would come through eventual-
ly but sometimes took a year or two, and by Ginger that
they should not worry about it as long as they were work-
ing.3 Neither Glassburn nor Lewis attended union meetings
3 Hood testified that during the time Prince was business agent, Wright,
organizer and International representative , came to Huntington to discuss
with him the status of Glassburn, Lewis, and two other employees, that
Continued
: 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as Prince said they had to be members and have books to
do so.
The situation changed when Burton became business
agent in March 1971. When Glassbum thereafter tendered
his dues, the secretary at the union hall told him she could
not find a record of his book and therefore could not accept
his money. Lewis went to the union hall in late July 1971
and tendered his dues, but the secretary said she could not
accept his dues as Burton was out of town, could not be
reached, and had not given her permission to accept Lewis's
dues. Lewis asked if he could leave the money there until
she got in touch with Burton so he would not be in arrears
as that was his last day to pay his dues. She refused, and told
him that he should return the following evening and she
would get in touch with Burton in the meantime. When he
said it was almost impossible for him to get there from his
job by 5 o'clock, she said she would stay 10 or 15 minutes
later. He arrived the next evening at 5 but she had already
left. Glassburn and Lewis have not paid any dues since the
dues they tendered were rejected by the secretary, who was
acting in accord with instructions given her by Burton.
On about August 26, Glassbum was working on a
Goodyear Tire project of the Employer when he was called
to the office and told by the project superintendent that it
was necessary to lay him off until his book situation was
straightened out. On this same date, Lewis was told by the
superintendent to report to the field office, and there told
to report to Hood's office, where Hood, as Lewis testified,
said "he was laying me off on account of union problems
.... He said that he had been pressured so hard by the union
that he had no other alternative he said but to lay me off."
Both Glassbum and Lewis went back to work for the
Employer on the Goodyear Tire project a week or two later.
When that project was nearing completion, both were trans-
ferred about September 20 to the Employer's International
Nickel project in Huntington. After they had worked a short
time at this project, Collins, shop steward, about September
20 asked if Glassburn.had received his book yet, and Glass-
bum replied that he had not. At Collins' request, they went
to the office trailer where Collins telephoned Burton, the
Respondent's business agent at that time. At the conclusion
of this conversation, Glassburn testified, Collins said that
"Mr. Burton said to go fishing"; Glassburn asked if Collins
wanted him to put up his tools and Collins assented; and
Collins told the other men on the project of Burton's re-
marks. Lewis testified that he heard Collins say that "Mr.
Burton said let's go fishing. He said otherwise that means
you put the tools up and go home and he said I'm going
home you can do what you want to." All the members of
the Respondent, including those working for other employ-
ers, left the jobsite.
Collins was not called as a witness . Burton's testimony
on this matter was self-contradictory and evasive. He testi-
fied that his conversation with Collins was in person on a
Thursday when Collins came into his office after the men
had walked off the International Nickel job. He also testi-
fied at different points that the expression "go fishing" was
Wright told Prince to put all four on the cash sheet, and that later the other
two men were given books.
used, that it was "just an expression we use" like "Philadel-
phia lawyer," that he did not know who used it, that he used
it, and that he did not use it . I discredit this testimony of
Burton. In any event, I find, on the basis of the credited and
undenied testimony of Glassburn and Lewis, that Collins,
an admitted agent of the Respondent, told them and other
men on the project that Burton "said to go fishing."4
After the walkout Lewis went to see Hood, who told
him he was laid off "until it was straightened out." He
telephoned Hood the following Monday when he heard the
other men had returned to work. As Lewis testified, Hood
said "We didn't have union books and he said we would
have to get straightened up with the union before we went
back." Hood told Glassburn on or about September 23 that
he had had to terminate Glassburn because of pressure by
the Respondent, and that Glassbum was discharged.
About 2 weeks after their discharges Lewis telephoned
Burton and arranged a meeting at a doughnut shop. Glass-
bum was also present. Burton told them that he was sorry
to see anyone out of work and he would do all he could to
help them, but that his hands were tied and he could do
nothing until he got approval from national headquarters.
Lewis telephoned Burton in about January from his
attorney's office to ask if there was any word about the
books. He testified that Burton "said he went to Washing-
ton and he said I almost had you boys books through and
you went and filed suit against the union and ... He said
if you would drop the case I could probably get your
books." Burton never thereafter called Lewis or Glassbum
about the books. Neither of them received a book or was
admitted to membership in the Respondent. And neither of
them has since September 20 been reemployed by the Em-
ployer.
2. The Respondent's conduct
Ginger and Prince, who no longer held office in the
Respondent at the time of the hearing, were not called as
witnesses.5 Burton, who did testify, was elected business
agent of the Respondent on March 6, 1971, and was ap-
pointed acting financial secretary and treasurer on April 13,
1971. As the Respondent has been in trusteeship since April
13, 1971, Burton, the chief local official, operates under the
supervision of an International representative located in
Washington, D.C. After Burton became acting financial
secretary and treasurer, he checked the Respondent's cash
sheets and other records and found funds missing , as well
as records in a state of confusion 6 He found Lewis' applica-
tion for membership among the documents on hand but was
unable to find one by Glassburn.7 He also found that both
Glassburn and Lewis had paid their initiation fees and dues
up to the time he assumed office.
4 See Laborers' International Union of North America (F F Mengel Con-
struction Company), 196 NLRB No. 62.
5 According to Burton , both were working in West Virginia in the jurisdic-
tion of another local
6 Burton testified that when the Respondent's books were audited after he
took office, over $18,000 appeared to be missing , and that the bonding
company later "paid off $15,000, on Mr Ginger, Mr Prince and Mr De-
Hart "
7 Scott Webb and Clyde Kitchen, members of the Respondent's executive
board, testified as witnesses for the Respondent that they had passed upon,
and rejected, an application of Lewis but had never seen one by Glassburn
Webb also testified that he did not know Glassburn and Lewis had paid
initiation fees and dues
PLUMBERS LOCAL UNION 521
Burton's check of the records disclosed, and Glassburn
and Lewis admitted, that they had not complied with all of
the Respondent's procedures for the acquisition of member-
ship. They had not served apprenticeships. They failed to
present affidavits showing work in the trade for the required
length of time. Their applications had not been approved by
the membership, the executive board, or the examining
board. They had not been given oral or written examina-
tions or personal interviews. They had never been assigned
card numbers, and their dues payments had never been
recorded on the cash sheets and could not be thus recorded
without numbers.8 And they had never taken the oath as
members . Burton testified that they were not admitted to
membership because they had not complied with the
Respondent's prescribed procedures. Burton 'admitted that
the refusal of the secretary to accept dues from Glassburn
and Lewis was in accord with instructions he gave her, and
that he also told Hood to discontinue payments Hood had
been making for their fringe benefits. He maintained that
while he did everything he could to clear up this unprece-
dented situation, he was not authorized to grant member-
ship to Glassburn and Lewis as they had not complied with
the requirements for admission, nor to refund their initia-
tion fees or dues while the Respondent was in trusteeship.
In April or May Burton had several discussions with
Hood about the Glassburn and Lewis situation. He testified
that he told Hood he was trying to work something out with
the International representatives, but warned that if Hood
worked Glassburn and Lewis with other men "it would
probably cause trouble and the men would walk off the
jobs." Burton admitted that at least some of the members
knew for a long time that Glassburn and Lewis did not have
books, and that no member had ever refused to work with
Glassburn or Lewis or was threatening to do so to his
knowledge, but he assumed their lack of books would cause
trouble. On about August 26 Burton had another meeting
with Hood in which he admittedly indicated that some of
the labor problems Hood was having would probably stop
if Hood removed Glassburn and Lewis. On August 26 Hood
sent Burton a telegram which stated in part:
WHEREAS THE MEMBERSHIP OF L.U. * 521 HAS SEEN FIT TO HARASS
ME AND MY COMPANY BY MAKING THREATS OF STRIKES , REVOK-
ING OF LOCAL WORKING AGREEMENTS, REVOKING OF U.A.
AGREEMENT AND OTHER ACTS OF COERCION IF I DID NOT RE-
MOVE CERTAIN EMPLOYEES ... I HAVE TODAY IN AN EFFORT TO
PROMOTE HARMONY BETWEEN MY COMPANIES AND YOUR UNION
DISCHARGED THESE EMPLOYEES UNTIL A FINAL AND BINDING
DECISION HAS BEEN REACHED ....
Hood testified that the employees referred to were Glass-
burn and Lewis, and Burton testified that he took for grant-
ed they were the employees in question.
After their layoff on August 26, Glassburn and Lewis
were put back to work by the Employer about September
6, and were transferred to the International Nickel project
about September 20. When Burton learned of this, he called
Snodgrass , a job steward on the Goodyear Tire project, and
asked if Glassburn and Lewis had earlier worked at that
project. When Snodgrass said they had, Burton replied, as
8 One of the receipts made out to Lewis bore a number, but there was no
number on any of the other documents issued by the Respondent to Glass-
burn and Lewis.
87
Snodgrass testified, that they did not have their books and
that "he might have to pull the job so he would call me back
if he did but he never did call back." Snodgrass, who had
never checked the books of Glassburn and Lewis because
they had been working for the Employer long before he
went there to work, told some of the men on the job what
Burton said about pulling the job. Burton admitted that he
called Snodgrass, asked Snodgrass if the two men had
worked on that job, and said it might be necessary for him
to pull the job for that reason.
As set forth above, it was at about this time that Collins
told the men on the International Nickel project, where
Glassburn and Lewis were then working, that Burton said
they were to "go fishing."
Burton also called James Kitchen, job steward on the
Employer's Goodyear Tire project in Chapmansville, West
Virginia, on Thursday evening, September 23. Kitchen testi-
fied that Burton said the Employer was hiring nonunion
men and that on the Employer's other jobs the men had
walked off, and asked how Kitchen felt about it. When
Kitchen said he did not know anything about this, Burton
said, as Kitchen testified, "as far as he was concerned if the
contractor was unfair on one job then he is unfair on all of
them." Kitchen told Burton he agreed with him and "If the
other fellows shut their jobs down then we wouldn't work
Friday." Kitchen also testified that, while Burton did not
mention Glassburn or Lewis by name, "There was no need
to because I knew who he was referring to because there had
been a discussion over it for three or four years about their
books, whether they were going to get them or not." Burton
admitted that he called Kitchen although Glassburn and
Lewis had never worked to his knowledge at the Chapmans-
Ville job, that he told Kitchen there was a problem about
Glassburn and Lewis not having books, that he told Kitchen
that the Chapmansville project should be "shut down be-
cause if a contractor is unfair at one place he is unfair at
another place," that Kitchen indicated he did not know
what the situation was, and that he advised Kitchen that the
job should be shut down until he could get this situation
straightened out and that if necessary he would shut down
all the Employer's jobs.
Kitchen told the men at the project the next morning
that the Employer was working nonunion men, and "the
other projects they were doing had shut down and we were
going to do likewise." The men agreed to walk off. Members
of other trades asked Kitchen if they should leave also.
Kitchen replied that it was up to them whether they worked
or left as long as they did not do the Respondent's work.
Hood called Kitchen on Sunday, said he had settled his
differences with the Respondent, and asked if the men were
going back to work. Kitchen said he would check and, if the
differences were settled, the men would be back at work on
Monday. Kitchen was not able to reach Burton, whose tele-
phone was busy, but finally got in touch with the president
of the Respondent who, as Kitchen testified, "said as far as
I know all the jobs will go back to work Monday and so we
were back on the job Monday morning."
On Thursday, September 23, in a conversation with
Collins, job steward, about the Glassburn-Lewis situation of
having stamps and receipts without books, Burton admit-
tedly told Collins that if Hood sent him a letter or telegram
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the effect that he would not work Glassburn and Lewis
until their situation was settled, "we could put the men back
to work." Accordingly, when he received a telegram from
Hood the next day that "the two men in question are not
assigned to any job and will not be," he testified, "I put the
men back to work" He did so by calling the stewards and
telling them "it was all settled to go back to work."
Burton testified further that he did not know why his
predecessors in office had accepted initiation fees and dues
from Glassburn and Lewis without granting them member-
ship. He admitted, reluctantly, that he "assumed" both
would be found qualified by a union examining board. He
also testified that he made every effort to get their situation
straightened out, and that he knew from the time he took
office that they were not responsible for their lack of Union
books. He maintained nevertheless that, as they had not
satisfied the procedural requirements for membership in the
Respondent, they would not have been allowed to work in
building trade jobs in the Respondent's jurisdiction; that he
felt warranted in shutting down jobsites to force their dis-
charge; that if they had not been put back to work in Sep-
tember, after their August 26 layoff, he would not have
called Chapmansville and "there would have been no work
stoppage"; and that if Hood had not furnished him with a
written statement that he would no longer work Glassburn
and Lewis, he was prepared to shut down every job of the
Employer within his jurisdiction.
3. The position of the Employer
Hood testified that both Glassburn and Lewis had
been referred to the Employer by the Respondent, that he
had observed the work of both, that both had been tested
and certified by his foremen and other employers, that they
were qualified to do some types of pipefitting as well as
welding, that he employs members of the Respondent
whose principal duty is welding, and that he had no ques-
tion as to the competence of Glassburn and Lewis to do the
work.
The General Counsel placed in evidence a "Working
Agreement" between Huntington Master Plumbers Associ-
ation and the Respondent effective by its terms June 1,
1969, through May 31, 1972. Burton testified, however, that
he had been unable to find a copy in the files of an agree-
ment signed by the Employer, that he had this agreement
signed by the Employer "about two or three weeks ago,"
and that there was no collective-bargaining agreement in
effect with the Employer prior to that time .9 Hood on the
other hand testified that he signed this agreement as an
individual contractor as he was not a member of the associa-
The agreement provides under the heading "Union Security" as follows:
All Journeymen and Apprentices hereunder , members of the Union
now in the employ of the Employer shall remain members in good
standing in the Union during the term of this Agreement . All Journey-
men and Apprentices covered by this Agreement, hereinafter employed
by the Employer, shall become members of the Union on the earliest
date provided by applicable Federal law after their employment , or date
of the contract , whichever is later and shall remain members of the
Union in good standing during the term of this Agreement .
9
Burton referred to this agreement as "kind of a closed shop" under which
signatory contractors have agreed to hire only members of the Respondent
The General Counsel has not alleged that the agreement is violative of the
Act.
tion, that he signed it when it was negotiated, that it took
effect on or about June 1, 1969, and that in accord with its
terms he paid into health and welfare and other funds for
Union fringe benefits on behalf of employees including
Glassburn and Lewis. On the record as a whole, I credit
Hood's testimony as to his contractual relationship with the
Respondent. Shortly after Burton took office, he required
Hood to delete the names of Glassburn and Lewis from his
reports of contributions. Hood testified that until Burton
assumed office no question was raised about the inclusion
of Glassburn and Lewis in these funds, no employees re-
fused to work with them although they knew about the lack
of books, and no union representative questioned their em-
ployment by the Employer.
Concluding Findings
The evidence establishes, and I find, that Glassburn
and Lewis had taken steps to become and remain members
of the Respondent, and the Employer was satisfied with the
work they performed. Nevertheless, when Burton became
business agent and acting financial secretary and treasurer
of the Respondent, he arbitrarily directed that their dues be
rejected, that the Employer discontinue payments on their
behalf into the Union's fringe benefit funds, and that the
Employer terminate their employment, on the ground that
Glassburn and Lewis had not complied with all the proce-
dural requirements for attaining full membership status in
the Respondent. It is manifest, therefore, and I find, that
Glassburn and Lewis was each "an employee with respect
to whom membership in such organization has been denied
or terminated on some ground other than his failure to
tender the periodic dues and the initiation fees uniformly
required as a condition of acquiring or retaining member-
ship." It is also clear from all the relevant evidence, and I
find, that Burton carried out his purpose to force the
Employer's discharge of Glassburn and Lewis by threats of
work stoppages and by causing work stoppages on the
Employer's projects, including projects where Glassbum
and Lewis were not working, which ended only when he was
assured by the Employer, in writing, that Glassburn and
Lewis would no longer be employed. The Respondent is
therefore clearly responsible for such work stoppages, which
it threatened to and did cause, the immediate consequence
of which was that the Employer was compelled to remove
Glassburn and Lewis in order to carry on its work. 10 In these
circumstances, I find no merit in the apparent contentions
of the Respondent, as indicated by the testimony of its
witnesses, that Burton could not authorize any walkouts,
which must be approved by the executive board, so the
walkouts in issue were wildcat strikes for which the Respon-
dent cannot be held responsible; that the Respondent
should not be held responsible for the acts and conduct of
the union officials no longer holding office who accepted
initiation fees and dues from Glassbum and Lewis without
granting them membership, and who left the Respondent's
records and finances in complete confusion; that Glassbum
and Lewis were properly denied membership because they
10 See Local 120, Laborers International Union (Edward J DeBartolo Corp),
174 NLRB 1012, Bricklayers and Stone Masons (Linbeck Construction Corp),
185 NLRB No 94
PLUMBERS LOCAL UNION 521 89
had not complied with all the established procedures for
obtaining membership; that in view of this lack of complet-
ed membership status, Burton's conduct herein was war-
ranted by the Union's constitution and bylaws, by the
"closed shop" trade practice in the Respondent's jurisdic-
tion, or by a collective-bargaining agreement."
Accordingly, I conclude and find that the Respondent
attempted to and did cause the Employer to discharge
Glassbum and Lewis in violation of Section 8(a)(3) of the
Act, and thereby restrained and coerced Glassbum and
Lewis in violation of Section 8(b)(1)(A) and attempted to
and did cause discrimination against them in violation of
Section 8(b)(2) of the Act.I2
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III
above, occurring in connection with the operations of the
Employer described in section I above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce 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
unfair labor practices, I shall recommend that it be ordered
to cease and desist from such conduct and from any like or
related unfair labor practices' 3 and to take certain affirma-
tive action designed to effectuate the purposes of the Act.
As I have found that the Respondent attempted to and
did cause Huntington Piping, Inc., to discriminate against
Arnold Glassburn and Herbert Lewis in violation of Section
8(a)(3) of the Act, I shall recommend that the Respondent
be ordered to cease and desist from such conduct, and to
notify Huntington Piping, Inc., in writing, with copies to
Glassburn and Lewis, that it has no objection to the employ-
ment of Glassburn and Lewis. The record shows that, ab-
sent the Respondent's unlawful activity, the Employer
would not have laid off Glassburn and Lewis on August 26,
1971, and would not, after reemploying them, have dis-
charged them on or about September 20. I shall therefore
recommend that the Respondent be ordered to make Glass-
bum and Lewis whole for any loss of earnings each of them
may have suffered by reason of the discrimination practiced
against him 14 by payment to him of the amounts he would
II See Union Starch and Refining Co, 87 NLRB 729, enfd 186 F.2d 1008
(C A. 7), cert. denied 342 U.S. 815, Local Union No. 749, International Broth-
erhood of Boilermakers (California Blowpipe & Steel Co., Inc), 192 NLRB No
58, Chicago Local No 245, Lithographers (Alden Press, Inc), 196 NLRB No.
97; N L R B. v. Brotherhood of Teamsters, 470 F.2d 509 (C A. 9, March 1972),
holding that , where a union credited dues and took other action evidencing
membership of an individual , that individual and his employer "had a right
to rely upon these official acts of the Union "
12 Local 120, Laborers International Union, supra, Bricklayers and Stone
Masons, supra, Local Union No 58, of the United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry (Heyse Sheet Metal),
187 NLRB No. 22
17 Local Union No 58, of the United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry, supra, N.LR B v Brotherhood
of Teamsters, 470 F.2d 509 (C.A 9, March 1972).
14 See Bulletin Company, 181 NLRB 647, Newport News Printing Pressmen's
normally have earned as wages from the date of the discrim-
ination against him to the date 5 days after the Respondent
serves the written notice required above, less his net earn-
ings during this period. Backpay shall be determined in
accordance with the formula prescribed in F. W. Woolworth
Company, 90 NLRB 289, including interest thereon at 6
percent per annum in accordance with Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Huntington Piping, Inc., is an employer engaged in
commerce within the meaning of Section 2 (2), (6), and (7)
of the Act.
2. Local Union 521, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. By causing and attempting to cause the Employer to
discharge Glassburn and Lewis in violation of Section
8(a)(3) of the Act, the Respondent has engaged in and is
engaging 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 Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of
law, and the entire record , and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:l5
ORDER
The Respondent, Local Union 521, United Associa-
tion of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada,
AFL-CIO, Huntington, West Virginia, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Huntington Piping,
Inc., its officers, agents, successors, and assigns, to dis-
charge Arnold Glassburn, Herbert Lewis, or any other em-
ployee in violation of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or coerc-
ing employees of Huntington Piping, Inc., in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Notify Huntington Piping, Inc., in writing, that it
has no objection to the employment of Arnold Glassburn
and Herbert Lewis, and furnish each of them with a copy
of such notification.
(b) Make Arnold Glassburn and Herbert Lewis whole
and Assistants Union (The Daily Press, Inc), 188 NLRB No. 73, Marine
Warehouses Local 1454, et aL, 196 NLRB No 14.
IS 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 , 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
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for any loss of earnings each of them may have suffered by
reason of the discrimination against him in the manner set
forth in the section of this Decision entitled "The Remedy."
(c) In the event that Arnold Glassburn or Herbert Lew-
is is at present serving in the Armed Forces of the United
States, notify him, in writing, that it has no objection to his
employment, in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Post at its business office and all places where no-
tices to its members are customarily osted copies of the
attached notice marked "Appendix."'? Copies of said no-
tice, on forms provided by the Regional Director for Region
9, after being duly signed by the Respondent's representa-
tive, shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter.
Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(e) Deliver to the Regional Director for Region 9
signed copies of said notice to be posted by Huntington
Piping, Inc., if willing, in all places where notices to employ-
ees are customarily posted.
(f) Notify the Regional Director for Region 9, in wnt-
ing, within 20 days from the date of the receipt of this Deci-
sion , what steps the Respondent has taken to comply here-
with. "
Piping, Inc., to discharge Arnold Glassburn, Herbert
Lewis, or any other employee, in violation of Section
8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain
or coerce employees of Huntington Piping, Inc., in the
exercise of rights guaranteed in Section 7 of the Na-
tional Labor Relations Act.
WE WILL notify Huntington Piping, Inc., in writing,
that we have no objection to the employment of Arnold
Glassburn and Herbert Lewis, and we shall furnish
each of them with a copy of such notification.
WE WILL make Arnold Glassburn and Herbert
Lewis whole for any loss of earnings each of them may
have suffered by reason of the discrimination against
him.
Dated By
16 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall 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 "
17 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read. "Notify
the Regional Director for Region 9, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Huntington
LOCAL UNION 521, UNITED ASSOCIA-
TION OF JOURNEYMEN AND APPRENTICES
OF THE PLUMBING AND PIPE FITTING IN-
DUSTRY OF THE UNITED STATES AND
CANADA, AFL-CIO
(Labor Organization)
(Representative ) (Title)
In the event that Arnold Glassburn or Herbert Lewis is at
present serving in the Armed Forces of the United States,
we will notify him, in writing, that we have no objection to
his employment, after discharge from the Armed Forces, in
accordance with the Selective Service Act and the Universal
Military Training and Service Act, as amended.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Federal Office Building, Room
2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.