Glaziers Local 513 (National Glass)

National Labor Relations Board - Board Decisions

Jul 13, 1990

299 N.L.R.B. 35 (N.L.R.B. 1990)

GLAZIERS LOCAL 513 (NATIONAL GLASS) 35
Glaziers, Architectural Metal and Glassworkers
Local Union No. 513, affiliated with Interna-
tional Brotherhood of Painters and Allied
Trades, AFL-CIO and National Glass & Glaz-
ing, Inc. and Christopher R. Nellie. Cases 14-
CB-6645 and 14-CB-6708
July 13, 1990
DECISION AND ORDER
By CHAIRMAN STEpHENS AND MEMBERS
DEVANEY AND OvIATT
On September 13, 1989, Administrative Law
Judge William A Pope II issued the attached deci-
sion The Respondent filed exceptions and a sup-
porting brief and the General Counsel filed cross-
exceptions, a supporting brief, and an answering
brief
The National Labor Relations Board has delegat-
ed its authority 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 2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Glaziers,
Architectural Metal and Glassworkers Local No
513, affiliated with International Brotherhood of
Painters and Allied Trades, AFL-CIO, St Louis,
Missouri, its officers, agents, and representatives,
shall take the action set forth in the Order, except
that the attached notice is substituted for that of
the administrative law judge
'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 Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
We grant the General Counsel's limited exception that fn 26 of the
judge's decision should begin, "I do not find "rather than "I do find
2 The Respondent did not except to the judge's conclusion that its dis-
cipline of Lawrence Hilboldt, a member of the Respondent Local and a
co-owner of National Glass & Glazing, Inc , violated Sec 8(bX1)(A), (B),
and (2) of the Act
We amend the judge's third conclusion of law to omit the words "and
8(b)(2) of the Act"
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 ordered us to post and abide by this notice
WE WILL NOT cause or attempt to cause Nation-
al Glass & Glazing, Inc to discriminate against
Steven D Stewart, Christopher R Nelke, Tony
Accardi, John Barry, or Joe Kortkamp, or any
other employee of National Glass & Glazing, Inc
similarly situated, in violation of Section 8(a)(3) of
the National Labor Relations Act, by laying off,
discharging, or otherwise discriminating against
them because they are not members of Local
Union No 513
WE WILL NOT maintain or enforce article XXIV,
section 3, of our bylaws and trade rules prohibiting
members of our Union from working at glazing
with other than members of the International
Brotherhood of Painters and Allied Trades, AFL-
CIO, against Lawrence Hilboldt, or other employ-
er/members, thereby causing or attempting to
cause them to discriminate against nonunion em-
ployees, in violation of Section 8(a)(3) of the Act
WE WILL NOT denigrate, intimidate, or otherwise
harass, insult, or use derogatory or perjurative lan-
guage or gestures towards any persons, including,
but not limited to, Steven D Stewart, who are or
may be eligible for membership in Glaziers, Archi-
tectural Metal and Glassworkers Local Union No
513, under its bylaws and trade rules, or under the
constitution of the International Brotherhood of
Painters and Allied Trades, AFL-CIO, to restrain
or coerce such persons in the exercise of their Sec-
tion 7 rights, including seeking membership in
Local Union No 513
WE WILL NOT in any like or related manner re-
strain or coerce employees of National Glass &
Glazing, Inc or any other employee, in the exer-
cise of the rights guaranteed them by Section 7 of
the Act, except to the extent that such rights may
be affected by an agreement requinng membership
in a labor organization as a condition of employ-
ment in accordance with Section 8(a)(3) of the Act
WE WILL notify National Glass & Glazing, Inc,
in writing, that we have no objection to its em-
ploying persons who are not members of Local
Union No 513, and have not been referred by us,
to do glazing work, and WE WILL furnish Steven
D Stewart, Christopher R Nelke, Tony Accardi,
299 NLRB No' -8
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
John Barry, and Joe Kortkamp with a copy of
such notification
WE WILL make Christopher R Nelke whole for
any loss of earnings or benefits he may have suf-
fered by reason of Local Union No 513 causing
National Glass & Glazing, Inc to lay him off, or
otherwise terminate his employment, because he is
not a member of our Local Union
WE WILL remove from our records all references
to unlawful charges and fines imposed by Local
Union No 513 against employer/member Law-
rence Hilboldt, WE WILL rescind all fines imposed
on him for working at glazing with other than
members of the International Brotherhood of Paint-
ers and Allied Trades, AFL-CIO, and, WE WILL
notify Lawrence Hilboldt, in wntmg, that this has
been done
GLAZIERS, ARCHITECTURAL METAL
AND GLASS WORKERS LOCAL UNION
No 513
Dorothy D Wilson, Esq , for the General Counsel
Jeffrey E Hartnett, Esq , of Clayton, Missouri, for the
Respondent
DECISION
STATEMENT OF THE CASE
WILLIAM A POPE II, Administrative Law Judge The
complaint in Case 14-CB-664i, filed on April 10, 1987,
by the Regional Director for Region 14 of the National
Labor Relations Board (the Board), alleges that the Re-
spondent, Glaziers, Architectural Metal and Glasswork-
em Local Union 513 (the Union), violated Section
8(b)(1)(A), (B), and (2) of the National Labor Relations
Act (the Act) by attempting to cause National Glass &
Glazing, Inc (the Charging Party in Case 14-CB-6645)
to discharge certain of its employees because they were
not members of the Union, by attempting to cause the
Charging Party to discriminate against certain of its em-
ployees because they were not members of the Union,
and by unlawfully fining and disciplining an employer!-
member The original charge in Case 14-CB-6645 was
filed by National Glass & Glazing, Inc on March 6,
1987 The complaint in Case 14-CB-6708 was filed on
May 5, 1988, by the Regional Director for Region 14 of
the Board and consolidated with Case 14-CB-6645 by
order, dated May 19, 1988, alleges that the Respondent
violated Section 8(b)(1)(A) and (2) of the Act, by caus-
ing the Respondent to lay off its employee, Christopher
R Nelke, the Charging Party in Case 14-CB-6708, be-
cause he was not a member of the Union, and by causing
the Respondent to discriminate against its employees be-
cause they were not members of the Union The original
charge in Case 14-CB-6708 was filed by Charging Party
Nelke on July 14, 1987
Trial was held before me in St Louis, Missouri, on
May 18 and 19, 1987, on Case 14-CB-6645, and on June
14, 1988, on consolidated Case 14-CB-6708 1
I BACKGROUND FACTS
National Glass & Glazing, Inc has been engaged in
the commercial glazing business in the St Louis, Missou-
ri area for over 4 years 2 Lawrence Hilboldt, his brother,
Dennis Hilboldt, their mother, and an individual named
Malcolm Sweet each own 25 percent of the corporation
Dennis Hilboldt, National Glass' president, and Law-
rence Hilboldt, National Glass' vice president, share the
responsibility of supervising the Company's jobs Law-
rence Hilboldt handles personnel matters for the Compa-
ny, and deals with the Union's representatives in collec-
tive-bargaining matters
During the year preceding the hearing in May 1987,
National Glass had 8 to 12 employees, the number vary-
ing from job to job The employees included eight or
nine glaziers, helpers or permit workers, and, at times,
bricklayers Permit workers were not members of the
Union, but had written permission from the Union, in the
form of work permits, authorizing them to do bargaining
unit work
National Glass & Glazing, Inc is a member of the
Glazing Contractors of the St Louis, Missouri area, a
multiemployer bargaining association, and has been a
party to collective-bargaining agreements between the
association and the Union since it started in business 4
years previously The most recent agreement covers the
period from November 1, 1986, to October 31, 1989
Under the 1986-1989 collective-bargaining agreement
(as well as in the 1983-1986 agreement), the Employer
(The Glazing Contractors of the St Louis, Missouri
area) recognized the Union as the exclusive representa-
tive and bargaining agent for "its employees who are
employed by the Employer" in doing glazing work as
defined in the agreements
The 1983-1986 collective-bargaining agreement pro-
vided that work covered by the agreement would be
performed by journeymen and apprentices, and specified
what the ratio of journeymen to apprentices would be
for various types of jobs No provision was included in
the agreement for operation by the Union of a referral
system to provide journeymen and apprentices to the
employers
A change included in the 1986-1989 agreement gave
the Union the right to operate a nonexclusive referral
system for the purpose of recommending journeymen
By Order dated April 22, 1988, Cases 14-CB-6697, 14-CB-6793-1,
and 14-CB-6797 (Case 14-CB-6792 was inadvertently omitted from the
Order) were consolidated with Case 14-C13-6645, and the heanng was
ordered reopened By further Order dated May 19, 1988, Cases 14-CB-
6792 and 14-CB-6708 were consolidated with Case 14-CB-6645 and the
other cases previously consolidated with Case 14-CB-6645, and a hearing
in the consolidated cases was set for June 14, 1988 By further Order
dated June 1, 1988, granting a motion by the General Counsel, Cases 14-
CB-6697, 14-CB-6792, 14-CB-6793-1, and 14-CB-6797 were severed
from Cases 14-CB-6645 and 14-CH-6708, and remanded to the Regional
Director for approval of withdrawal requests based on non-Board settle-
ments
2 National Glass & Glazing, Inc does commercial glazing, installs exte-
nor walls, and Installs "skins" or "curtain walls" on new construction
GLAZIERS LOCAL 513 (NATIONAL GLASS) 37
and apprentices as job applicants as needed by the em-
ployers 3 The stated purpose of the arrangement was to
enable the Union to compete with other sources in the
placement of journeymen and apprentice employees The
employers agreed to give applicants referred by the
Union "due and fair consideration consistent with the
provisions of the National Labor Relations Act," and
agreed not to discriminate against any applicant by
reason of his union membership The employers agreed
to notify the Union whenever employees were hired,
giving their names and addresses and the job classifica-
tion in which they would work An added provision
gave union journeymen the right to select the employers
for whom they desired to work The employers pledged
to lay off employees in the order of helpers first, then
apprentices and/or journeymen 4
Although both the 1983-1986 and 1986-1989 agree-
ments use the term "journeymen," the agreements do not
limit "journeymen" status to union members, or others
whom the Umon recognizes as "journeymen" Also re-
ferred to in the collective-bargaining agreements, but
otherwise undefined by the agreements, is a category of
workers, called "apprentices" Both agreements provide
for an apprenticeship program to be operated by the
Union, with funding to be provided by the employers
But, while the Union and the employers agreed to con-
stitute a "joint committee" for the purpose of working
out a "suitable Apprenticeship Training Program," that
program is not specified as the only source of appren-
tices
The caption or job title appearing on the work permits
issued by the Union to helpers or permit workers was
"Temporary Service Employee" The permits, which
were purchased from the Union for a fee of $2 per day,
bore the signature of Union Business Manager Patrick
Hughes Printed on the permits were a number of rules,
including a requirement that the permit holder "must
work with [a] journeyman at all times," a provision that
the permit holder "may be the 3rd man on a 4-man unit
or larger," and a requirement that the "no two service
employees may work on the same unit" In the fall of
1986, the Union changed the term of the work permits
from biweekly to day to day, and refused to accept fee
payments from the holders
The constitution of the International Brotherhood of
Painters and Allied Trades, of which the Union in this
case (Local Union 513) is a member, limits membership
in the Brotherhood to persons who "have followed one
of the branches of the trade for three years "5
3 The new sec 4, art 1, states that the "parties recognize the fact that
the Union's knowledge and expenence within the industry here involved,
together with the sources of competent manpower available to it, can be
of assistance to the Employer in recruiting Journeymen and Apprentices
as employees"
4 There appears to be no other reference in either the 1983-1986 or
1986-1989 agreements to "helpers"
5 Persons seeking to learn the vanous trades are required to serve a
minimum apprenticeship of 3 consecutive years After initiation, appren-
tices are authorized to participate in all union activities with the right to
vote, but are not authorized to hold union office or serve as a union dele-
gate When the apprentices complete their term of service and become
qualified journeymen, they are placed on the Union's rolls as regular
members
A member is authorized to transfer his membership to
the local union of the special branch of the trade (includ-
ing to the Glaziers, Architectural Metal and Glasswork-
ers' Union) in which he is engaged in a locality where
such a union exists, provided he is qualified in that
branch of the trade Glaziers, architectural metal work-
ers, and glassworkers are not permitted to work in juris-
dictions other than those covered by the local union in
which they are members, except by "deposit[mg] their
card in the nearest established Glaziers, Architectural
Metal and Glassworkers' Local Union" Local unions
must accept cards of members of other local unions 6 If
no district councils have been established in their areas,
local unions are authorized to establish examining boards,
whose duty shall be to examine, among others, all mem-
bers desiring to deposit their clearance cards in a local
union of a special branch of the trade 7 The boards may
reject a member's clearance card upon finding after ex-
amination that the member is not a qualified mechanic
Both the 1983-1986 and 1986-1989 agreements contain
a "Controversy or Dispute" article, providing for no
"suspension of work" in the event of controversies or
disputes, and providing for an arbitration procedure
Issues
The complaint in Case 14-CB-6645 (Glaziers, Archi-
tectural Metal and Glassworkers Local Union No 513
and National Glass & Glazing, Inc ), alleges that the
Union violated Section 8(b)(1)(A) and (2) by 8
(1) On or about January 28, 1987, denigrating an em-
ployee of the Charging Party (National Glass & Glazing,
Inc ) "because he was not a member of Respondent and
Respondent sought to preserve employment exclusively
for its members"
(2) On or about January 28, 1987, informing an em-
ployee of Charging Party that he would not be permitted
to work for the Charging Party because he was not a
member of Respondent, and Respondent sought to pre-
serve employment exclusively for its members
(3) On or about February 18, 1987, revoking the work
permits of Charging Party's employees Tony Accardi,
John Barry, Joe Kortkamp, and Chris Nelke because
they were not members of the Respondent, and advising
the employees that "they were being laid of from Charg-
6 The International Brotherhood's constitution provides for a "clear-
ance card" procedure to be used by members leaving the jurisdiction of
their local union Sec 229 of the constitution provides that no local union
"shall refuse to accept a Clearance Card of any traveling member or
members in search of employment or employed," providing the clearance
card is properly filled out, except under conditions not applicable to this
case
7 Such boards are to be composed of delegates elected by the local
union or unions
8 Respondent's motion at the conclusion of the General Counsel's case
to dismiss par 6A of the complaint was granted Par 6A of the com-
plaint alleges that Respondent violated Sec 8(b)(1)(A) and (2) by filing a
grievance on February 12, 1987, demanding that the Charging Party not
continue to employ Tony Accarch, John Barry, Joe Korticamp, Chris
Nelke, and Stephen D Stewart, and Instead accept the exclusive referrals
of Respondent's members, notwithstanding that there was no "practice,
agreement or understanding requiring that Respondent be the sole and
exclusive source of referrals of employees to employment with the
Charging Party" Respondent's motion to dismiss pars 5A and 6C of the
complaint was denied
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing Party notwithstanding that [there was no] prac-
tice, agreement or understanding requiring that the Re-
spondent be the sole and exclusive source of referrals of
employees to employment with Charging Party"
(4) On or about March 30, 1987, advising the Charging
Party that its employee, Stephen D Stewart, "could con-
tinue to be employed by Charging Party only upon ex-
clusive referral by Respondent and that no such referral
had been, or would be, made by Respondent notwith-
standing that [ there was no] practice, agreement or
understanding requiring that Respondent be the sole and
exclusive source of referrals of employees to employ-
ment with Charging Party"
(5) Imposing a fine on Lawrence M Hilboldt, an
employer/member [of the Union], by letter of December
8, 1986, for violating article XXIV, section 3 of Re-
spondent's bylaws, in an attempt to cause the Charging
Party to discriminate against its employees who are not
members of Respondent
(6) All of which was done by Respondent in an at-
tempt to cause the Charging Party to discriminate
against its employees "who are not members of Respond-
ent"
The complaint in Case 14-CB-6708 alleges that the
Union violated Section 8(b)(1)(A) and (2) of the Act, by
on or about July 9, 1987, instructing its shop steward to
refuse to work with Charging Party Nelke, in an attempt
to cause, and causing National Glass to lay off Charging
Party Nelke, for reasons other than Charging Party
Nelke's failure to tender periodic dues and initiation fees
uniformly required as a condition of acquiring or retain-
ing membership in Respondent
II ARGUMENTS OF THE PARTIES
A General Counsel's Theory of the Case
General Counsel alleges that the Respondent commit-
ted the violations alleged in the complaints in an effort to
find employment for 'its members For a 7-year period
ending in 1986, there had been full employment for gla-
ziers in the St Louis area In 1986, however, the em-
ployment situation changed, and a number of Respond-
ent's members were laid off, and remained unemployed
To make room for its laid-off members, Respondent ille-
gally attempted to force National Glass to terminate its
employees who were not members of Local Union 513
Although the Union was not constituted an exclusive
hiring hall by the collective-bargaining agreement cover-
ing the 1986-1989 period, it engaged in a series of ac-
tions intended to force National Glass to recognize it as
the sole source of its glassworker employees
In an effort to achieve its goal, Respondent revoked
the "permits" of nonunion member "permit workers"
employed by National Glass, and demanded that Nation-
al Glass lay them off and replace them with union mem-
bers referred by the Respondent Although the Union
was not successful in achieving its goal, its attempt to
cause the layoffs violated the Act The Union further
violated the Act by imposing a fine of $410 on employer-
member Larry Hilboldt, vice president of National Glass,
for working on a Saturday without the Union's permis-
sion, and working with members of another trade (brick-
layers), all in an attempt to intimidate Hilboldt into com-
plying with the Union's demands To further restrict the
pool of employees available to do glazier work in the St
Louis area, Respondent refused to accept the transfer
into Local Union 513 of Steven Stewart, an employee of
National Glass who was a member of a Dallas, Texas
local union of the Glaziers, Architectural Metal and
Glassworkers Union As part of a deliberate pattern of
conduct intended to force Stewart, a traveler, to quit his
job with National Glass, Respondent's agents used pro-
fane and abusive language towards him, and brought in-
ternal union charges against him General Counsel asserts
that in the absence of an exclusive hiring hall agreement,
Respondent's attempts to interfere with Stewart's em-
ployment violated the Act
General Counsel argues that Respondent further vio-
lated the Act by causing National Glass to lay off its em-
ployee, Christopher R Nelke, as part of Respondent's ef-
forts to make jobs available for its members In February
1987, National Glass laid off its "permit workers" for
economic reasons Of the four permit workers laid off,
only Nelke was subsequently recalled The Union violat-
ed the Act by the actions of its agent, Shop Steward Bob
Lynch, who walked off a National Glass job, and re-
fused to return so long as Nelke was employed on the
job Because of Lynch's refusal to set glass with Nelke,
National Glass laid off Nelke on July 9, 1987 General
Counsel asserts that it made a prima facie showing that
Lynch acted as Respondent's agent, and that Respondent
failed to provide any evidence to overcome that show-
ing
B Respondent's Theory of the Case
Respondent asserts, with regard to paragraph 5A of
the complaint, that the use by Respondent's business
agent, Frank Scimo, of denigrating language towards
Steven Stewart, even assuming that such an incident oc-
curred, was no more than "animal exuberance," which
the Board has often recognized in labor relations Re-
spondent argues that characterizing such words as a
statement "akin to an 8(a)(1) statement by an employer,"
"trivializes the Board process" Otherwise, Respondent
asserts that there was no testimony supporting the
Board's allegations that Respondent sought to preserve
employment exclusively for its members, or that Stewart
was told that he could not work because he was not a
member of the Union
Respondent contends that it did not violate the Act, as
alleged in paragraph 6 of the complaint There is nothing
unlawful, asserts the Respondent, in a union seeking the
discharge of employees who have circumvented a hiring
hall in violation of a collective-bargaining agreement Al-
though it was stipulated that the Union has a nonexclu-
sive referral system, it is exclusive, nevertheless, to the
extent that it "give[s] the Union first opportunity to
make referrals of employees" The employer must come
to the union first for certain classes of employees There
was no violation of the Act by the Union in revoking
work permits, in an effort to preserve operation of a tra-
ditional or agreed-upon referral system
GLAZIERS LOCAL 513 (NATIONAL GLASS)

39
Respondent sees no connection between imposing a
fine on Lawrence M Hilbo1dt, and restraint and coer-
cion of employees who are not members of the Union
Respondent denied that it restrained or coerced Nelke
in the exercise of his rights guaranteed by the Act, or
that it caused or attempted to cause National Glass to
discriminate against Nelke
Findings and Conclusions
I
The Union's activities in 1986 and 1987 concerning
helpers or permit workers, and National Glass' journey-
man glazier, Steven D Stewart, who was a union
member but not a member of Local Union 513, marked a
departure from the Respondent's past actions When
viewed in the perspective of the changed employment
picture for glaziers in the St Louis, Missouri area begin-
ning sometime in 1986, it is apparent that Local Union
513's actions concerning National Glass' employees were
intended to create jobs for members of Local Union 513
by forcing National Glass to lay off its employees who
were not members of Local Union 513
During a period of full employment in the glazing
trade in the St Louis area prior to 1986, the Union
raised no objection to National Glass employing non-
union workers as helpers doing bargaining unit work, or
to its employing as a journeyman glazier Steven D
Stewart, who was not a member of Local Union 513, al-
though he was a member of a Glaziers, Architectural
Metal and Glassworkers' local union in Dallas, Texas
Indeed, the Union not only did not object to employ-
ment by National Glass of nonunion helpers, but fol-
lowed the practice of issuing work permits, for a fee, to
workers in this category The Union initially authorized
Steven D Stewart, a journeyman glazier who was a
member in good standing of his local union, to go to
work for National Glass in the St Louis area after he
presented his paid-up journeyman's card from his local
union
The situation changed, however, in late 1986 A down-
turn in the construction industry in St Louis reduced
employment opportunities for glaziers Because of the re-
duced need in the construction industry for glaziers,
members of the Respondent Union were laid off and
could not find work Respondent Business Manager Pat-
rick Hughes acknowledged the changed employment
picture, which he said affected all the construction indus-
try unions, not just the Glaziers
In a letter dated July 28, 1986, Frank Scimo, Local
Union 513's apprentice coordinator, informed National
Glass that the Union was "implementing the new four
year apprentice program " 9 The letter said that the ap-
prentices would be working from a pool and would re-
ceive their assignments from the union hall Scimo said
that the Union was eliminating the helper program, and
replacing the helpers with apprentices Scimo went on to
say that the helpers' last day would be August 1, 1986,
9 There is no provision in the current collective-bargaining agreement
for a "four year apprentice program" Even assuming that Local Union
513 actually implemented such a program, It was a unilateral act
and that National Glass should call the Union's office for
replacements National Glass did not comply with the
letter
On or about October 24, 1986, Lawrence Hilboldt,
who is an employer-member of Local Union 513, re-
quested approval from Patrick Hughes, Local Union
513's business manager, for glaziers to work overtime on
the next day, Saturday, on a National Glass job In the
past when Hilboldt had requested approval for overtime
work from Hughes, it had been given On this occasion,
however, Hughes denied approval for overtime work by
either glaziers or bricklayers Although Hilboldt did not
put other glaziers to work the next day, Hilboldt,
worked on the jobsite with two bricklayers employed by
National Glass During the day, Frank Scnno appeared
at the jobsite, and asked Hilboldt if any glaziers were
working When Hilboldt answered "no," Scimo respond-
ed by saying, "What about you?"
By letter dated November 18, 1986, Hilboldt was in-
formed by Local Union 513 that internal union charges
had been filed against him by Frank &Imo for violating
union rules on Saturday, October 25, 1986, and that a
hearing would be held on the charges by the Union's
tnal board on December 2, 1986 Hilboldt appeared at
the hearing In substance, he was told that he had violat-
ed union rules by working on that Saturday without per-
mission and with another trade He was found guilty of
violating the Union's bylaws and trade rules, and a fine
of $410 was imposed Hilboldt has not paid the fine, and
the Union has refused since then to accept dues pay-
ments from him The Union notified Hilboldt that he
could not work with his tools
Dennis Hilboldt, National Glass' president, according
to his estimate, had as many as 10 conversations with
Business Manager Hughes during 1986 and early 1987
about laying off permit workers One such conversation
took place in January 1986, when Hughes asked Hilboldt
to lay off National Glass' permit workers Later in the
spring or summer of 1986, Hughes asked Hilboldt to lay
off permit workers to make room for an out-of-work
member of Local 513 named Don Elrod Hughes said
that Elrod, who was a B-glazier, had lost his job to an
out-of-work A-glazier Hughes told Hilboldt during the
conversation that if National Glass were to employ
Elrod, and an A-glazier later became available, Elrod
would have to be laid off again After that, on another
occasion when Hughes asked Hilboldt to lay off the
permit men, and Hilboldt refused, Hughes said, "See you
in court then" Hilboldt said that he told Hughes on all
the occasions when they discussed permit workers that
he would not lay off his permit workers Hilboldt stated
that Hughes did not make any threatening remarks or
threaten job action
National Glass continued to employ its four permit
workers until a business slowdown and a delay in glass
delivery caused it to lay them off from on or about Janu-
ary 30 to on or about February 12, 1987 It is undisputed
that Dennis Hilboldt suggested to the permit workers
that they tell the Union that they were taking vacations,
rather than being laid off, and the permit workers did as
Hilboldt suggested The permit workers were recalled on
ao DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or about February 12, 1987, and continued to work until
on or about March 6, 1987, when they were again laid
off Two weeks later, National Glass laid off all of its
employees for economic reasons As of the time of the
hearing (May 1987), of the four permit workers, only
Nelke had been recalled On or about July 9, 1987, after
Bob Lynch, Respondent's shop steward for National
Glass, refused to work with Nelke, Dennis Hilboldt
off Nelke Nelke was recalled on July 22, 1987 Since
October 1987, Nelke has worked for Acme Glass, an-
other glazing contractor
Dennis Hdboldt admitted that when slow business con-
ditions forced him to lay off his four permit workers
from January 30 to February 12, 1987, he offered the
workers the choice of taking a vacation or being laid off
Offered that choice, the four permit workers notified
Local Union 513 that they were taking their vacations
Hilboldt admitted that during a phone conversation he
told Hughes that the men had taken a vacation There is
no dispute that the purpose of characterizing the layoff
as a vacation was to enable the employees to draw vaca-
tion pay from the Vacation Trust Fund administered by
Local Union 513 during a period when they were actual-
ly laid off because of lack of work Hilboldt said in his
Board statement that the workers had been temporanly
laid off
After Barry was laid off by National Glass for eco-
nomic reasons in February 1987, he received a letter
signed by Patrick Hughes, business manager of Local
Union 513, in which Hughes said that the Union that had
been informed that Barry had been laid off, and told him
to contact the union hall for the purpose of putting his
name on the availability list In the letter, Hughes told
Barry that he had to go through the hall for all job refer-
rals Barry admitted that after receiving the letter he had
called the union hall "and told them that I had not been
laid off, that I took the week off to take care of personal
stuff"
On February 12, 1987, by letter signed by Frank
Seim% Local Union 513 notified National Glass that it
was filing a grievance under the collective-bargaining
agreement, because National Glass had failed to comply
with the contract provision giving the Union an opportu-
nity to recommend applicants for employment, and had
hired employees directly
Working with Dennis Hilboldt on National Glass'
Fairview Heights Job on February 17, 1987, were Tony
Accardi, John Barry, and Joe Kortkamp, and two mem-
bers of Local Union 513, Journeyman glazier Charlie
Tankersley, and apprentice Bob Lynch, who, Hilboldt
said, is Union Business Manager Hughes' son-in-law At
or about 9 30 a m that day, after Tankersley had called
the union hall twice, the two members of Local Union
513 walked off the job, and did not return that day
Lynch and Tankersley remained off the job until they
called on February 18, asking for their jobs, and were
told to come back to work
Working with Dennis Hilboldt on the Fairview
Heights Job on the next day, February 18, 1987, were
Tony Accardi, John Barry, Joe Kortkamp, and Hil-
boldt's two brothers, Pat and Jackie Hdboldt, both of
whom are Journeymen glaziers and members of Local
513 At 10 or 10 30 a m, Hilboldt observed Union Busi-
ness Manager Hughes on the Jobsite talking to Joe Kort-
kamp Hilboldt told Hughes that as long as he had work
he would continue to employ Kortkamp Later, Hilboldt
heard Hughes tell Tony Accarch and John Barry that he
was pulling their permits, and that he was laying them
off '° When Hilboldt interjected that Hughes could not
lay off National Glass' employees, Hughes replied that
he just had Hughes said that he had 14 glaziers out of
work, and that the situation regarding the permit work-
ers had "come to a head" Hughes said to Hilboldt, "You
do what you got to do, I will do what I got to do"
Local 513 first issued John Barry a work permit in
May 1985, and after that issued new permits to him
every 2 weeks, until September 8, 1986, when he was
issued a day-to-day permit On that occasion, Business
Manager Hughes told Barry that the permit was good on
a day-to-day basis, and that he would let Barry know
when to pay his fees The Union did not issue any more
permits to Barry, and Barry did not pay any more fees
Barry applied for entrance into the Union's apprentice-
ship program in June or July 1985, again in August or
September 1986, and for a third time on February 25,
1987 None of his applications led to acceptance in the
program It was not until May 16, 1987, that the Union
allowed Barry to put his name on the work availability
list maintained by the Union
Tony Accardi, an employee of National Glass from
June 1985 to February 27, 1987, received a permit from
the Union every 2 weeks beginning in June 1985 until
September 1986, when Business Manager Hughes
changed the term of the permit to day to day Hughes
revoked Accarch's permit on February 18, 1987, and told
him that he was laid off However, Accarch continued to
work for National Glass until it laid him off for econom-
ic reasons Accardi and Chris Nelke went to the union
hall on February 28, 1987, to place their names on the
out-of-work list 11
Among the National Glass employees laid off in
March 1987 was Steven D Stewart, a member of a Gla-
ziers local union in Dallas, Texas, who had worked for
National Glass at various times in St Louis and Dallas
Stewart had first worked for National Glass on a job in
Dallas, Texas, in October 1982 During the same year, he
transferred his membership in the Glaziers Union from
local union 106 in Duluth, Minnesota, to local union
1837 in Dallas
Stewart went to work again for National Glass for a 2-
week penod in October 1984, this time in the St Louis
area On that occasion, he showed his journeyman's card
to a secretary at Local Union 513's office, and was told
to go to work Stewart followed the same procedure in
June 1985, when he next worked for National Glass in
the St Louis area With Local Union 513's concurrence,
"Union Business Manager Hughes admits that on February 18, 1987,
he went to National Glass' jobsite, and while there revoked the work
permits of National Glass' four permit workers, Tony Accardi, John
Barry, Joe Kortkamp, and Chris Nelke
Accarch said that he and others had filed a lawsuit against the
Union, and that their lawyer had told them to go to the union hall to sign
the out-of-work list
GLAZIERS LOCAL 513 (NATIONAL GLASS) 41
Stewart worked for National Glass on this occasion for
approximately 1 month Stewart's current period of em-
ployment by National Glass 'began in February 1986,
when Stewart again received clearance from Local
Union 513 Following the March 1987 layoff, Stewart
was recalled by National Glass on March 30, 1987 Stew-
art was still working for National Glass at the time of
the hearing in this case, May 1987
During a meeting with Patrick Hughes and Frank
Scimo on February 6, 1987, Stewart told them he
wanted to clear into or join Local Union 513 Stewart
had obtained a clearance card, dated January 28, 1987,
from his local union m Dallas, Texas (local union 1837)
Hughes responded by saying "no way" Hughes and
Scimo told Stewart that they had been kind enough to
let him work in the past, but now times were slow and
they wanted him to leave Stewart said that during the
meeting he was told that he had come to the St Louis
area to make "big bucks," and "now" would not leave
Hughes called him a "back stabber," and left the room
Scimo told him that "they had to take care of their
own"
Stewart's wife, acting for her husband, complained to
the International Brotherhood about the treatment he
had received As a result of his wife's telephone calls,
Stewart was contacted on February 10 or 11, 1987, by
Jerry Krause, the International's area representative,12
who asked Stewart to send the International a letter ex-
plaining the situation Stewart complied by letter of Feb-
ruary 15, 1987, addressed to Richard Zach, vice presi-
dent of the International Brotherhood of Painters and
Allied Trades By telegram dated March 23, 1987, the
International notified Stewart that the following tele-
gram had been sent to Patrick Hughes, business repre-
sentative of Local Umon 513
This is in furtherance to Brother Stephen Stewart's
efforts, since February 1987, to deposit his clear-
ance card into Glaziers Local Union #513 As per
Section 229 of the Constitution, Local Union #513
is to immediately accept Brother Stephen Stewart's
clearance card and the examining board of Local
Union #513 shall give Brother Stephen Stewart any
qualifying test as permitted by Section 185 of the
Constitution by no later than March 27, 1987 Fail-
ure on your part or any other officer of Local
Union #513 to comply with this directive will sub-
ject the offender(s) to penalties spelled out in Sec-
tion 44 (F) of the Constitution
Stewart was instructed in the telegram to present his
clearance card to Patrick Hughes, and request the date,
time, and place to take the qualifying test 13
12 Prior to becoming the International Brotherhood's representative,
Krause was the business agent for Local Union 513 General Counsel's
motion to correct the spelling of Krause's name from "Crowsy," as It ap-
pears in the record, to "Krause," is granted
13 By letter of February 24, 1987, Patrick Hughes had notified Stewart
that the "Glazier Placement Test for acceptance to Glaziers, Architectur-
al Metal & Glassworkers Local Union No 513" would be given on June
22, 1987
In apparent compliance with the International's direc-
tive, the Respondent administered a 50-question written
test to Stewart on March 27, 1987 14 Stewart did not
pass the test International Brotherhood Representative
Jerry Krause told Stewart that he could not join Local
Union 513, but that would not prevent him from work-
ing in the area Krause told Steward to keep on paying
Ins dues to the Dallas local union
After taking the test, which Stewart said was com-
posed of 50 mostly multiple choice questions, Scimo and
Krause went over the test with Stewart, showing him
answers for some of the test questions in a book Stewart
thought was called "Glazing Manual "15
The test was drafted by Local Union 513's apprentice
coordinator, Frank Scimo, possibly with some help from
members of the apprentice committee, approximately 5
days before it was administered to Stewart Scimo took
the multiple choice test questions (39 of 50 questions)
from questions at the end of each chapter in the National
Apprentice Training Manual, a multivolume book sup-
plied by the International Brotherhood The remainder
of the questions were fill-in-the-blank questions involving
general knowledge of glazing, which were taken from
other tests and qtuzzes given to apprentices Scum ad-
mitted that the test had been made up specially for Stew-
art, and that it was not the same test administered to
other individuals trying to clear into Local Union 513
Scimo stated that no one had told Stewart what the sub-
ject matter of the test would be, or what books he could
study in preparation for the test Stewart said that he
thought the test was administered fairly Scimo acknowl-
edged that other glaziers had been allowed to clear into
Local Union 513 without being tested Those individuals,
including Dennis and Lawrence Hdboldt, had worked
for a contractor who had a national agreement allowing
their glazing foremen to clear, or become members of,
Local Union 513 without taking a test
There is no dispute that Stewart's troubles with Local
Union 513 did not end with the test Shortly after Stew-
art returned to work for National Glass on March 30,
1987," Local Union 513 Assistant Business Agent and
14 Prior to the test, Stewart said Krause told him there was no book
that he could study for the test, and that Local Union 513 had four dif-
ferent tests, of varying degrees of difficulty, and It would administer the
most difficult one to Stewart
13 Stewart contends that some of the test questions had two possible
answers One such question, to which Stewart's answer was scored as In-
correct, asked what is applied to the back of a mirror Stewart answered,
"silver nitrate" The answer from the Glazing Manual was "silver" Ac-
cording to Stewart, silver nitrate is applied to to the back of a mirror,
and after the nitrate evaporates, a deposit of silver remains Parenthetical-
ly, the nature of this question appears to bear out Krause's remark to
Stewart, to the effect that Local Union 513 would give him their hardest
test The question is sufficiently ambiguous, so that either "silver" or
"silver nitrate" arguably could be the correct answer In any event, the
question, itself, appears to have little bearing on Stewart's qualifications
as a glass installer or glazier
Accordmg to Stewart, he was laid off by National Glass from
March 25 through 27, 1987, because of lack of work Stewart took the
test on March 27 On March 30, he called National Glass, inquiring about
the availability of work He was told that work was available, and he re-
turned to work on that day Stewart said that all of National Glass' em-
ployees had been laid off on March 25
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Apprentice Coordinator Scimo filed internal union
charges against Stewart for violating the Union's consti-
. tution." Prior to the union hearing on the charges by
Scimo, Stewart sent a letter to Hughes, asking what arti-
cles of the Union's constitution he had broken, and for a
30-day postponement of the hearing. Hughes refused to
provide any information to Stewart concerning which
union work rules he had broken. Stewart was not grant-
• ed a postponement.
At a hearing held by Local Union 513 on May 5, 1987,
Stewart was found guilty of a union violation by going
back to work for National Glass without first being re-
ferred by Local Union 513. 18 Local Union 513 officials
told Stewart that they were going to levy a fine against
him, but as of the time of the hearing in this , case, the
fine had not been levied."
• Business Manager Hughes admitted that, as alleged in
the complaint, on or about February 18, 1987, he re-
voked the work permits of four employees of National
Glass: Tony Accardi, John Barry, Joe Kortkamp, and
Chris Nelke. According to Hughes, at about noon on
that date, he arrived at National Glass' Fairview Heights
jobsite, and there, after talking first to Jackie Hilboldt, a
brother of Dennis and Lawrence Hilboldt, two of the
owners of National Glass and its president and vice
president, respectively, informed John Barry and Tony
Accardi, two holders of Local Union 513 work permits,
that he was "pulling" their permits. Hughes denied that
he told the two employees of National Glass that he was
laying them off. According to Hughes, he told them they
could work that day, but their permits were no longer
any good. According to Hughes, he said nothing to them
about working the next day. Hughes testified that there
•were not any other helpers holding union permits work-
ing for other employers at that time.
After taking into consideration Hughes' demeanor as a
witness, and the record, as a whole, I find that Hughes
did say that the permit workers were laid off.
Hughes further acknowledged that, as alleged in para-
graph 6(c) of the complaint, on or about March 30, 1987,
he told National Glass that it could continue to employ
Steven D. Stewart only upon referral by the Respond-
ent, and that no such referral would be made by the Re-
" Specifically, in a letter from the Respondent, dated April 8, 1987,
Stewart was informed that he was charged by Scimo with violating three
provisions of art. 248 of the constitution of the International Brotherhood
of Painters and Allied Trades on March 30, 1987: (1) disloyalty to the
Brotherhood; (2) violation of union trade rules; and (3) violation of
orders "issued by representatives acting under the direction of the Gener-
al Officers or of the General Executive Board."
18 The basis of the charge, according to Local Union 513, was a letter
from International Union Representative Krause purportedly saying that
Stewart was to go through Local Union 513 to find jobs, not find them
on his own. Whether or not there was such a letter, Stewart said he did
not receive it, and he did not recall Krause saying that to him. The Re-
spondent, on the other hand, did not produce a copy of the letter or call
Krause as a witness. On the record before me, I find no credible evidence
that such a letter was ever delivered to Stewart.
' 9 Stewart testified that he was attempting to negotiate a settlement
with Local Union 513 by agreeing to leave the area if the Union would
drop the charges. Stewart testified that Local Union 513 Vice President
Walsh told him that the Union would hold the fine in abeyance. Walsh
said that at a different time and under different circumstances Local
Union 513 would have welcomed his transfer with "open arms," and that
the Union's difficulties with National Glass just added to the problem.
spondent. Hughes said that he told National Glass' repre-
sentative that National Glass had breached the collec-
tive-bargaining agreement by hiring Stewart without
going through the union hall. Hughes said that he inter-
preted the provisions of the new collective-bargaining
agreement to include a requirement that out-of-town gla-
ziers, apprentices, and helpers be cleared through the
Union before employers who are parties to the agree-
ment can hire them. Hughes said that under the agree-
ment the only ones who are free to get their own jobs
are journeymen members of Local 513. Hughes said that
he filed a grievance over the vacation/layoff incident,
but that he did not file a grievance about National Glass'
employment of Stewart because charges had been filed
with the Board by then, and, after talking to the Union's
lawyer, he decided "to let this thing ride."
Christopher Nelke first applied for membership in
Local Union 513 in 1985 when he started working for
National Glass. After filling out an application, he took a
test, but heard nothing more from the Union about be-
coming a member of the Union. In February 1987, Nelke
applied for the Union's apprentice program. On June 17,
1987, after negotiations between Nelke's attorney and the
Union, Nelke, along with 19 or 20 other people, took a
test given by the Union for entry into the apprentice
program. A week or so later when Nelke asked Scimo
about the results of the test Scimo said it had not been
graded yet.
On June 15, 1987, Bob Lynch, Union Business Manag-
er Hughes' son-in-law, an apprentice employee of Na-
tional Glass and the Union's shop steward at National
Glass, refused to set glass with Nelke, giving as his
reason that the union hall would not let him set glass
with Nelke on a National Glass job. Upon learning of
this, Dennis Hilboldt told them to do all the metal work
they could, unload some metal, and then go home since
they could not set glass. On July 7, 1987, when Nelke
and Lynch were next given glass setting work to do to-
gether, Lynch again refused to set glass with Nelke, stat-
ing that the union hall would not permit it because it was
unsafe to set glass with Nelke. On this occasion, Dennis
Hilboldt laid Nelke off, stating that the layoff was neces-
sary because he could not get anyone to set glass with
Nelke. Nelke returned to work for National Glass on
July 22, 1987, and continued working for National Glass
until he accepted other employment in October 1987.
Nelke began working for National Glass in the
summer of 1985. In March 1986, Dennis Hilboldt in-
creased Nelke's pay to the level of a journeyman glazier,
so that, as Hilboldt explained it, Nelke could do journey-
man's work. According to Hilboldt, it was accepted
practice that someone paid at a journeyman's rate could
do journeyman's work. National Glass continued paying
Nelke journeyman's wages until he was laid off in
August 1987, because of lack of work. During the 1986-
1987 period National Glass paid journeyman's wages to
approximately six employees, including permit workers
Joey Kortkarnp and Tony Accardi.
On July 9, 1987, after Lynch walked off a National
Glass job rather than set glass with Nelke, Hilboldt told
Nelke that he was laid off after completing that day's
GLAZIERS LOCAL 513 (NATIONAL GLASS) 43
work, because Hilboldt "couldn't have constant interrup-
tions about who was going to work with him" Hilboldt
called Lynch back to work the next lay, explaining to
Lynch that he had laid off Nelke and that he had work
for Lynch Hilboldt put Nelke back to work on July 22,
1987, after receiving a letter from Nelke's attorney
Hilboldt admitted that he had laid off \Nelke, because
he was aggravated by Lynch's refusal to \set glass with
him No gnevances were filed because of the incidents
involving Lynch and Nelke
II
I find that the Respondent violated Section (b)(1)(A)
. and (2) of the Act, as alleged in paragraphs 5(i) and
(n), 6C, and D of the complaint in Case 14-CB-6645
(a) Paragraph 5 of the complaint alleges that the Re-
spondent denigrated an employee of National Glass "for
his attempts to obtain membership in Respondent or
clearance from Respondent" to work for National Glass,
and that Respondent told the employee "that he would
not be permitted to work for the Charging Party because
he was not a member of Respondent and Respondent
sought to preserve employment exclusively for its mem-
bers
The employee referred to in paragraph 5 of the com-
plaint is Steven D Stewart, who, at the time set out in
the complaint, was an employee of National Glass, and a
member of Glaziers, Architectural Metal and Glass
Workers' Local Union 1837 in Dallas, Texas After ob-
taining a clearance card from Local Union 1837 in Janu-
ary 1987, Stewart attempted to transfer his union mem-
bership to Local Union 513 He was immediately re-
buffed in that effort by Local Union 513's business man-
ager, who made it clear that Stewart was not wanted as
a member of the Local Union, and would not be accept-
ed as a member During a meeting on February 6, 1987,
with Local Union 513 Business Manager Patrick Hughes
and Apprentice Coordinator and Assistant Business Rep-
resentative Frank Scimo, Hughes told Stewart that there
was "no way" he would be allowed to join Local Union
513 Hughes and Scimo told Stewart that he had come
to the St Louis area to make "big bucks" and "now"
would not leave Hughes called him a "back stabber,"
Scimo told him that the Local Union 513 had to take
care of its own
The evidence establishes beyond any question that
Hughes and Scimo intended by coercion and improper
application of union rules to prevent Stewart from be-
coming a member of Local Union 513, and to use his
lack of membership as part of a continuing effort to in-
timidate Stewart into giving up his job with the Charg-
ing Party, so that it could be filled by a member of
Local Union 513 20 In that context, the statements which
20 There is ample evidence suggesting that Hughes and Scimo were
not deterred in their efforts to keep Stewart out of Local Union 513,
even after Stewart had successfully secured the intervention of the Inter-
national Union When ordered by the International Union to accept
Stewart's clearance card and permit him to take any qualifying test per-
mitted by the constitution of the International Union, Scimo prepared a
' written test of dubious fairness and relevancy, which, predictably, Stew-
art failed Following his return to work for National Glass on March 30,
1987, Stewart was charged by Frank Scimo with violating union work
Hughes and Scimo made to Stewart indisputably were
denigrating and clearly were made for the purpose of re-
straining and coercing him in his attempt to become a
member of Local Union 513 The pejorative reference to
Stewart as a "back stabber," by any definition, was deni-
grating and coercive
There being no doubt that Local Union 513's officials
engaged in the conduct alleged, for the purposes alleged,
it remains only to determine whether that conduct, under
the exigent circumstances, violated Section 8(b)(1)(A) of
the Act I find that it did
Section 8(b)(1)(A) of the Act makes it an unfair labor
practice for a labor organization to restrain or coerce
employees in the exercise of Section 7 nghts Teamsters
Local 515 (Roadway Express), 248 NLRB 83 (1980)
It is well established that it is a violation of Section
8(b)(1)(A) of the Act for a union to engage in a "deliber-
ate pattern of conduct consisting of threats and coercion
designed to force" travelers into quitting their jobs so
that the jobs can be filled by local union members Iron-
workers Local 111 (Steel Builders), 274 NLRB 742, 745
(1985), enfd in relevant part 792 F 2d 241 (D C Cir
1986), citing Sachs Electric Co, 248 NLRB 669 (1980)
Not only was the Respondent's attempts to intimidate
Stewart into abandoning his job with National Glass a
violation of the Act, it was a violation of specific provi-
sions of the constitution of the International Brotherhood
of Painters and Allied Trades, with which Respondent is
affiliated The International Union's constitution, which
is binding upon Respondent, provides that glazier-mem-
bers are permitted to work in the jurisdiction of local
unions other than the one to which they belong simply
by depositing their clearance card in the nearest estab-
lished local union Section 229 of the International
Union's constitution provides that "no local union shall
refuse to accept a Clearance Card of any traveling
member or members in search of employment or em-
ployed" Stewart had fully complied with the require-
ments of the International Union's constitution by depos-
iting his clearance card with Local Union 513 Upon re-
ceipt of Stewart's clearance card Local Union 513 had
no right under the Internal union rules by which it is
bound to arbitrarily refuse to accept Stewart as a transfer
member of Local Union 513 or interfere in any way with
his continued employment by National Glass, or, for that
matter, employment by any other employer in the St
Louis area Respondent's actions were a clear violation
of Stewart's Section 7 rights
rules, and subsequently was found guilty of violating union work rules by
going to work for National Glass without first being referred by the
union Hall The charge was spurious There is no credible evidence that
Stewart was given such an order by a union representative Further, even
if such an order had been given, it would be unlawful because it discrimi-
nated against Stewart for belonging to an out-of-town local union Stew-
art had complied with the constitution of the International Brotherhood,
which permits glaziers to work in out-of-town junsdictions by depositing
their card with the local union having geographical junscliction Further,
the collective-bargaining agreement between Local Union 513 and Na-
tional Glass authorizes Local Union 513 Journeymen to select the em-
ployer for whom they wish to work It would be an 8(bX1XA) and (2)
violation for Local Union 513 to selectively apply this provision only to
Local 513 journeymen and not to journeymen from other local unions
properly working with Local Union 513's Junsdiction
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Paragraphs 6C and D of the complaint allege that
on or about March 30, 1987, Respondent "advised
Charging Party that its employee Stephen D Stewart
could continue to be employed only upon exclusive re-
ferral by Respondent and that no such referral had been,
or would be, made by Respondent," and, in this manner,
"attempted to cause Charging Party to discharge" Stew-
art
Respondent does not dispute that Business Manager
Hughes made the alleged statements to a representative
of National Glass, or that his purpose was to cause Na-
tional Glass to terminate Stewart's employment (See
part I, above ) Respondent contends, however, that
Hughes' statements did not violate the Act because Na-
tional Glass had violated the collective-bargaining agree-
ment by hiring Stewart without going through the union
hall I find that defense to be totally lacking in merit
The collective bargaining in effect at that time (on or
about March 30, 1987) clearly does not support the Re-
spondent's position A change was incorporated into that
agreement, covering the 1987-1989 penod, permitting
the Union to operate a nonexclusive referral system for
the purpose of recommending journeymen and appren-
tices as job applicants, as needed by the employers (in-
cluding National Glass) who are bound by the agree-
ment As stated in the agreement, the "parties recognize
that the Union's knowledge and experience within the in-
dustry here involved, together with the sources of com-
petent manpower available to it, can be of assistance to
the [employers] in recruiting Journeymen and Appren-
tices as employees" The employers are required to give
applicants referred by Local Union 513 "due and fair
consideration" The employers are further obligated to
notify the Union when employees are hired, giving their
names, addresses, and job classifications There is nothing
in the collective-bargaining agreement that requires the
employers to hire only applicants referred by the Union
In this case, the occasion for Hughes' statement to Na-
tional Glass concerning its continued employment of
Stewart was National Glass' recall of Stewart on March
30, 1987, after he and all of Respondent's other employ-
ees had been laid off for economic reasons earlier in the
month When an employer already has available to it ex-
penenced employees on layoff who can be recalled, the
employer has no need to recruit new employees It being
explicitly stated in the collective-bargaining agreement
that the purpose of the nonexclusive referral system is to
permit the Union to bnng its expertise and resources into
play to assist the employers in recruiting journeymen and
apprentices, it follows that this provision of the agree-
ment does not apply to situations, such as a recall, in
which the employer already has available to it qualified
employees, and has no need to recruit anyone else
National Glass did not violate the nonexclusive refer-
ral provision of the collective-bargaining agreement by
recalling employee Steven D Stewart following the end
of a general economic layoff of all employees without
first seeking a referral of applicants from the Respond-
ent There having been no violation of the collective-bar-
gaining agreement, Respondent cannot use the collective-
bargaining agreement as justification for the actions of its
business manager, Patrick Hughes, in attempting to cause
National Glass to terminate Stewart's employment
Section 8(b) makes it an unfair labor practice for a
union "(1) to restrim or coerce (A) employees in the ex-
ercise of rights guaranteed in Section 7," and "(2) to
cause or attempt to cause an employer to discriminate
against an employee in violation of subsection 8(a)(3) "
Sheet Metal Workers Local 16 (Parker Sheet Metal), 275
NLRB 867 (1985)
In the absence of a lawful, negotiated exclusive hiring
hall referral system, it is unlawful for a union to force or
attempt to force an employer to use its referrals as a sole
source of labor Sheet Metal Workers Local 16, supra, Op-
erating Engineers Local 17 (Combustion Engineering), 231
NLRB 1287 (1977) It is also well established that it is a
violation of Section 8(b)(2) for a union to attempt to
force an employer to discharge nonunion employees and
replace them with union members Carpenters District
Council of Miami (Bruchard Designs), 238 NLRB 1683,
1684 (1978)
By attempting to cause National Glass to fire employ-
ee, Steven D Stewart because he was not a member of
Respondent and had not been referred as a job applicant
by Respondent, and by further stating that Stewart
would not be referred by Respondent in the future, Re-
spondent's business manager, Patrick Hughes, violated
Section 8(b)(1)(A) and (2) of the Act
III
I further find that Local Union 513 violated Section
8(b)(1)(A) and (2) of the Act, as alleged in paragraphs 6B
and 6D of the complaint
Specifically, I find that on or about February 18, 1987,
Respondent, acting through its business manager, Patrick
Hughes, revoked the union work permits which had
been issued to National Glass' employees Tony Accardi,
John Barry, Joe Kortkamp, and Chris Nelke, 21 and in-
formed the employees that they were laid off, all in an
effort to cause National Glass to discharge the employ-
ees because they were not members of the Respondent
Union, and to force the employees to stop working for
National Glass
Business Manager Patrick Hughes admitted revoking
the employees' work permits, as alleged, however, he
denied telling them that they were laid off or saying any-
thing to them concerning their future employment by
National Glass After hearing the testimony of all the
witnesses, including Hughes, and observing the witness'
demeanor, I find that Hughes, in fact, did tell National
Glass employees Tony Accardi, John Barry, and Joe
Kortkamp that he was revoking their work permits, and
that they were laid off I find Hughes' denial not to be
credible
There is an abundance of evidence that Hughes' ac-
tions of February 12, 1987, were a sequential step in an
escalating campaign by Local Union 513's officials to
force or intimidate National Glass into termmatmg its
21 Chns Nelke was not present on that occasion, however, It is clear
that Hughes intended to Invoke Nelke's permit, as well as those of Ac-
card', Barry, and Kortkamp, and to cause the layoff of all four of Nation-
al Glass' permit workers
GLAZIERS LOCAL 513 (NATIONAL GLASS) 45
employment of glaziers and helpers who were not mem-
bers of Local Union 513, and replacing the workers with
members of Local Union 513 (See part I of Findings and
Conclusions, above ) It is also abundantly clear that
Local Union 513 had no right under the 1986-1989 col-
lective-bargaining agreement between it and the Glazing
Contractors of the St Louis, Missouri area, of which Na-
tional Glass is a member, to operate an exclusive hinng
hall The collective-bargammg agreement states only that
the Union has the right to operate a nonexclusive referral
system for the purpose of recommending journeymen
and apprentices as job applicants as needed by the em-
ployers who are a party to the agreement The nonexclu-
sive referral system set up in the collective-bargaining
agreement does not extend at all to the somewhat vague
category of employees called helpers
Fmally, whatever the applicant referral system ar-
rangements may have been between Local Union 513
and National Glass, the four permit workers were em-
ployees of National Glass, not Local Union 513, and the
Respondent had absolutely no right to interfere in the
employee-employer relationship by, itself, brazenly at-
tempting to lay off National Glass' employees for any
reason Even if National Glass' employment of the four
helpers somehow violated the collective-bargaining
agreement, which it did not, Local Union 513's remedies
lay m other directions which do not include undertaking
to lay off the Employer's employees
As previously noted, Section 8(b) makes it an unfair
labor practice for a union "(1) to restrain or coerce (A)
employees in the exercise of rights guaranteed in Section
7," and "(2) to cause or attempt to cause an employer to
discriminate against an employee in violation of subsec-
tion 8(a)(3) " Sheet Metal Workers Local 16, supra And,
as also previously noted, in the absence of a lawful, ne-
gotiated exclusive hiring-hall referral system, it is unlaw-
ful for a union to force, or attempt to force, an employer
to use its referrals as a sole source of labor Sheet Metal
Workers Local 16, supra, Operating Engineers Local 17,
supra Finally, it is also well established that it is a viola-
tion of Section 8(b)(2) for a union to attempt to force an
employer to discharge nonunion employees and replace
them with union members Carpenters District Council of
Miami, supra
Just as Respondent's attempts to interfere m the em-
ployee-employer relationship between National Glass
and its employee, Steven D Stewart, violated the Act,
so did its similar attempts to cause National Glass to ter-
minate its employment of Tony Accardi, John Barry, Joe
Kortkamp, and Chris Nelke because they were not mem-
bers of Respondent
IV
I further find that Respondent violated Section
8(b)(1)(A), (B), and (2) of the Act, as alleged in para-
graph 8 of the complaint
Paragraph 8 alleges that Respondent attempted to
cause National Glass to discriminate against its employ-
ees who are not members of Respondent by maintaining
and enforcing against Lawrence M Hilboldt, an
employer/member of Respondent, through imposition of
monetary fine, article XXIV, section 3, of its bylaws and
trade rules, prohibiting members from "working and
glazing with other than members of the IBPAT"
Assistant Business Agent Frank Scum filed the inter-
nal union charge against Hilboldt after he observed Htl-
boldt working on a National Glass job on Saturday, Oc-
tober 25, 1986, with two bricklayers but no glaziers This
situation had been precipitated by Business Manager
Hughes' arbitrary refusal the day before to authorize
overtime work for glaziers, for no other apparent reason
than to apply additional pressure on National Glass to
discharge its permit workers in order to open up jobs for
Local Union 513's members Hilboldt was charged with
violating section XXIV, articles 3 (part 2) and 9, 22 of
Local Union 513's bylaws and trade rules, and section 1
of articles I and II of the collective bargaining agree-
ment The cited provisions reqture union approval of
overtime work," and prohibit union members from
"working and glazing with other than members of the
IBPAT "24 Hilboldt subsequently was found guilty by
the Union's trial committee of violating these provi-
sions 25 For these alleged violations of union rules,
Local Union 513 imposed a fine of $410, which Hilboldt
continues to refuse to pay
In an earlier case, Local Union 513 was found to have
violated Section 8(b)(1)(A) and (2) of the Act by main-
taining and enforcing the same provision of section
XXIV, article 3, of its bylaws and trade rules, against an
employer/member for doing glazing work with an em-
ployee who was not a member of Local Union 513, with
the intent to cause the employer/member to terminate
the employment of his employee Glassworkers Local 513,
200 NLRB 617 (1972) A similar provision in the consti-
tution of a local union of the International Brotherhood
of Electrical Workers, as applied against an
employer/member, was found to be violative of Section
8(b)(1)(A) and (2) of the Act in a later case Electrical
Workers IBEW Local 952 (Tr-Bar Electric), 269 NLRB
608 (1984), enfd 758 F 2d 436 (9th Cir 1985), Plumbers
Local 589 (L & S Plumbing), 294 NLRB 616 (1989)
Under similar circumstances here, there is no question
but that Respondent again violated Section 8(b)(1)(A)
and (2) of the Act, by maintaining and enforcing the
same provision against another of its employer/members,
as part of a continuing attempt to cause the employer to
fire nonmembers of Local Union 513 and hire in their
places members of Local Umon 513
Section 8(b)(1)(B) of the Act makes it an unfair labor
practice for a labor organization or its agents to restrain
22 This charge apparently refers to art XXIV, sec 3 and 9, of Local
Union 513's bylaws and trade rules
23 Art XXIV, sec 9, of Local Union 5I3's bylaws and trade rules, and
Art II, Sec 1, of the collective-bargaining agreement
24 Art XXIV, sec 3, of Local Union 513's bylaws and trade rules
25 This, despite the fact that there were no glaziers, members of Local
Union 513, or not, other than Hilboldt, himself, at work on the job that
Saturday This left Hilboldt, an owner of the company and one of its offi-
cers, in the rather puzzling predicament of having been charged with,
and found guilty of, violating union rules by approving overtime work, if
Indeed that it what it was, for himself on his own company's job This
application of its union rules by Local Union 513 is further evidence that
its real motive was to bnng pressure on National Glass to discriminate
against its nonmember employees, in violation of their Sec 7 rights and
Sec 8(a)(3)
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or coerce "an employer in the selection of his representa-
tive for the purpose of collective bargaining or the ad-
justment of grievances"
As vice president, and an owner, of National Glass,
Lawrence Hilboldt handles personnel matters for the
Company, and deals with Local Union 513's representa-
tives in collective-bargaining matters In view of his
duties and responsibilities, Hilboldt clearly is an employ-
er's representative within the meaning of Section
8(b)(1)(B) Electrical Workers IBEW Local 113 (Pride
Electric), 283 NLRB 39 (1987)
The discipline imposed by Respondent on employer!-
member Lawrence Hilboldt was for the purpose of caus-
ing Hilboldt and National Glass to discriminate against
some of its employees, in violation of Section 8(a)(3) of
the Act, by discharging them because they were not
members of the Respondent Union Rather than involv-
ing a matter of internal union discipline, the Respond-
ent's disciplinary action against Hilboldt quite clearly
was directly related to its dispute with National Glass
over its continued employment of helpers and glaziers
who were not members of Respondent As such, it vio-
lated Section 8(b)(1)(B) Electrical Workers IBEW Local
113 (Pride Electric), supra
V
The complaint in Case 14-CB-6708 alleges that Re-
spondent violated Section 8(b)(1)(A) and (2) of the Act,
on or about July 9, 1987, by causing and attempting to
cause National Glass to lay off employee Christopher R
Nelke because he is not a member of Respondent The
complaint charges that Respondent caused Nelke's layoff
by refusing to permit Shop Steward Bob Lynch to work
with Charging Party Nelke
On the record before me, I find that factually there is
no doubt that Respondent's shop steward, Bob Lynch,
acting on Respondent's instructions, refused on two oc-
casions to set glass with Charging Party Nelke, and that
the cumulative effect of Respondent's repeated refusals
to permit its members to set glass with Nelke, and the
delay and inconvenience that caused National Glass in
completing its jobs, caused National Glass to lay off
Charging Party Nelke on July 9, 1987 I find that the tes-
timony of Dennis Hilboldt and Charging Party Nelke is
credible on these points 26 Respondent's actions in June
and July 1987 with regard to Nelke were consistent with
its long and well established pattern of repeated efforts
to force National Glass to discharge its nonunion
member employees, in order to create jobs from mem-
bers of Local Union 513 Respondent offered no testimo-
ny or other evidence to rebut the testimony of Hilboldt
and Nelke, or to dispute that Shop Stewart Lynch was
22 I do find that the testimony of either Hilboldt or Nelke should be
discredited because they misled the Respondent concerning the February
1987 layoff of National Glass' four permit workers Both Hilboldt and
Nelke admitted their actions Although their actions were dishonest or, at
least, deceitful, Respondent created the climate of hostility in which these
actions occurred by its own illegal actions, and, under these circum-
stances, can hardly be said to have clean hands It is of no significance
that Charging Party Nelke accused Respondent of other Illegal acts upon
which the General Counsel declined to act As a layman, Nelke is not
presumed to know the intncacies of labor law Their is no indication that
he acted maliciously in bringing charges against Respondent
Respondent's agent, acting on directions received from
Respondent In the absence of any evidence to the con-
trary, I find that Lynch acted as Respondent's agent, and
that Respondent is bound by his actions
For reasons stated in section III, above, and equally
applicable here, Respondent's action with regard to
Charging Party Nelke violated Section 8(b)(1)(A) and (2)
of the Act 27
CONCLUSIONS OF LAW
1 Respondent, Glaziers, Architectural Metal and
Glassworkers Local Union No 513, is a labor organiza-
tion within the meaning of Section 2(5) of the Act
2 National Glass & Glazing, Inc is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act
3 Respondent Union, by denigrating Steven D Stew-
art for his attempt to obtain membership in the Respond-
ent Union, and by telling him that he would not be per-
mitted to work for National Glass & Glazing, Inc , the
Charging Party, because he was not a member of the Re-
spondent Union, violated Section 8(b)(1)(A) and (2) of
the Act
4 Respondent Union, by attempting to cause National
Glass & Glazing, Inc , the Charging Party, to discharge
employee Steven D Stewart because he was not a
member of Respondent Union, and had not been referred
as a job applicant by Respondent Union, violated Section
8(b)(1)(A) and (2) of the Act
5 Respondent Union, by attempting to cause National
Glass & Glazing, Inc , the Charging Party, to discharge
employees Tony Accardi, John Barry, Joe Kortkamp,
and Christopher R Nelke because they were not mem-
bers of Respondent Union, violated Section 8(b)(1)(A)
and (2) of the Act
6 Respondent Union, by maintaining and enforcing ar-
ticle XXIV, section 3, of its bylaws and trade rules, pro-
hibiting members of Respondent Union from working
and glazing other than with members of the International
Brotherhood, against employer/member Lawrence Hil-
boldt, vice president of National Glass & Glazing, Inc ,
the Charging Party, through initiation of internal union
charges and imposition of a fine upon him, all for the
purpose of causing Lawrence Hilboldt and National
Glass & Glazing, Inc to discriminate against some of its
employees, in violation of Section 8(a)(3) of the Act, by
discharging them because they were not members of the
Respondent Union, violated Section 8(b)(1)(A), (B), and
(2) of the Act
7 Respondent Union, by causing National Glass &
Glazing, Inc to terminate employment of employee
Christopher R Nelke, the Charging Party in Case 14-
CB-6708, because he was not a member of Respondent
Union, violated Section 8(b)(1)(A) and (2) of) the Act
27 It may be argued that National Glass violated the Act by acceding
to the pressure brought upon It by Respondent to terminate Nelke's em-
ployment National Glass, however, is not a party in Case 14-CB-6708,
and, therefore, is not subject to a remedial Order in this case
GLAZIERS LOCAL 513 (NATIONAL GLASS) 47
8 The above unfair labor practices affect commerce
within the meaning of Section (2)(6) and (7) of the
Act 28
REMEDY
Having found that Respondent Union, Glaziers, Archi-
tectural Metal and Glassworkers Local Union No 513,
has engaged in certain unfair labor practices, I further
find that the Respondent Union must be ordered to cease
and desist and to take certain affirmative action designed
to effectuate the policies of the Act
Respondent Union, having engaged in certain unfair
labor practices In violation of Section 8(b)(1)(A), (B),
and (2) of the Act, shall be ordered to cease and desist
from engaging in those unfair labor practices, and shall
remove from its records all references to internal union
charges filed against its employer/member Lawrence
Hilboldt in or about October or November 1986, and
shall rescind the $410 fine which it imposed upon Law-
rence Hilboldt
Respondent Union, having violated Section 8(b)(1)(A)
and (2) of the Act by causing National Glass & Glazing,
Inc , to discriminate against its employee, Christopher R
Nelke, by terminating his employment because he was
not a member of Respondent Union, shall make Christo-
pher R Nelke whole for any loss of earnings which he
may have suffered as a result of its unlawful conduct,
less any net interim earnings, as prescribed in F W
Woolworth Co, 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987) 29
On these findmgs of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 3 0
ORDER
The Respondent Union, Glaziers, Architectural Metal
and Glassworkers Local Union No 513, St Louis, Mis-
souri, its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Maintaining or enforcing article XXIV, section 3,
of its bylaws and trade rules, prohibiting its members
from working and glazing other than with members of
the International Brotherhood of Painters and Allied
Trades, AFL-CIO, against employer/member Lawrence
Hilboldt, by initiating internal union charges against him
28 I reject General Counsel's request for a visitatonal clause, whether
It be broad or narrow in scope Such clauses are not routinely included in
the Board's orders In this case, there are no grounds for issuance of
either type of visitatonal clause The record does not show there to be
any basis for a broad visitatonal clause, such as a likelihood that the Re-
spondent would fail to cooperate or otherwise seek to evade compliance
with any order the Board should issue in this case Nor is there any basis
for including a narrow visitatonal clause There is no question in this
case concerning how and by whom compliance with any order of the
Board is to be effected See Cherokee Marine Terminal, 287 NLRB 1080
(1988)
33 Interest accrued before January 1, 1987, shall be computed in ac-
cordance with Florida Steel Corp, 231 NLRB 651 (1977)
3 ° 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, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
and/or imposing a monetary fine upon him, all for the
purpose of causing or attempting to cause Lawrence Hil-
boldt and National Glass & Glazing, Inc, to discriminate
against its employees, in violation of Section 8(a)(3) of
the Act, by terminating their employment because they
are not members of Glaziers, Architectural Metal and
Glassworkers Local Union No 513
(b) Causing or attempting to cause National Glass &
Glazing, Inc , or any other employer, to discriminate
against its employees, including, but not limited to,
Steven D Stewart, Christopher R Nelke, Tony Accardi,
John Barry, and Joe Korticamp, and any other employees
similarly situated, in violation of Section 8(a)(3) of the
Act, by discriminatory denying employment to, or termi-
nating the employment of, persons who are not members
of the Respondent Union, Glaziers, Architectural Metal
and Glassworkers Local Union No 513
(c) Denigrating, intimidating, or otherwise harassing,
insulting, or using derogatory or pejorative language or
gestures towards any persons, including, but not limited
to, Steven D Stewart, who are or may be eligible for
membership in Glaziers, Architectural Metal and Glass-
workers Local Union No 513, under its bylaws and
trade rules, or under the constitution of the International
Brotherhood of Painters and Allied Trades, AFL-CIO,
in order to restrain or coerce such persons in the exer-
cise of their Section 7 rights, including seeking member-
ship in Local Union No 513
(d) In any like or related manner restraining or coerc-
ing employers, union members, job applicants, or regis-
trants in the exercise of the rights guaranteed to them by
Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Make whole Christopher R Nelke for any loss of
earnings or benefits which he may have suffered as a
result of Respondent Union, Glaziers, Architectural
Metal and Glassworkers Local Union 513, having caused
or attempted to cause National Glass & Glazing, Inc , to
terminate his employment, or otherwise deny him em-
ployment, on and after July 9, 1987, in the manner set
forth in the section of this decision entitled "Remedy"
(b) Notify National Glass & Glazing, Inc, in writing,
that Glaziers, Architectural Metal and Glassworkers
Local Union No 513 has no objection to its employing
persons who are not members of Local Union No 513,
and have not been referred by Local Union No 513, to
do glazing work, and, furnish Steven D Stewart, Chris-
topher R Nelke, Tony Accardi, John Barry, and Joe
Kortkamp with a copy of such notification
(c) Rescind the internal union disciplinary action taken
against employer/member Lawrence Hilboldt in or after
October 1987, including, but not limited to, imposition of
any monetary fine, because he worked with, or did glaz-
ing work with, persons other than members of the Inter-
national Brotherhood of Painters and Allied Trades,
AFL-CIO
(d) Remove from its files any reference to internal
union disciplinary action proposed or taken against em-
ployer member Lawrence Hilboldt, in or after October
1986, because he worked with, or did glazing work with,
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
persons other than members of the International Brother-
hood of Painters and Allied Trades, AFL-CIO, and
notify Lawrence Hilboldt that this has been done and
that no evidence of such disciplinary action shall be used
by Glaziers, Architectural Metal and Glassworkers
Local Union No 513 for any purpose whatsoever
(e) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
hiring records, dispatch lists, referral slips or cards, and
any other documents necessary to compute the amount
of backpay due under the terms of this Order
(1) Post at its business offices, hmng hall, and meeting
places in St Louis, Missouri, and elsewhere copies of the
attached notice marked "Appendix " 31 Copies of the
notice, on forms provided by the Regional Director for
3 'If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
Region 14, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(g) Additional copies of the attached notice marked
"Appendix" shall be signed by an authonzed representa-
tive of Glaziers, Architectural Metal and Glassworkers
Local Union No 513 of the International Brotherhood of
Painters and Allied, AFL-CIO, and forthwith returned
to the Regional Director for Region 14 for posting by
National Glass & Glazing, Inc , it being willing, at its
places of business in St Louis, Missouri, or elsewhere,
where notices to its members are customarily posted
(h) Notify the Regional Director in wntmg within 20
days from the date of this Order what steps the Re-
spondent has taken to comply