Laborers Local 644 (Kellerman Construction)

National Labor Relations Board - Board Decisions

Mar 21, 1986

278 N.L.R.B. 1104 (N.L.R.B. 1986)

1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers International Union of North America,
AFL-CIO, Local Union No. 644 (Kellerman
Brothers Construction Company) and Joseph H.
Baker . Case 14-CB-6261
21 March 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 27 November 1985 Administrative Law
Judge Lawrence W. Cullen issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting 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 brief and has
decided to affirm the judge's rulings,' findings,2
and conclusions 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 , Laborers
International Union of North America, AFL-CIO,
Local Union No. 644, Pinckneyville, Illinois, its of-
ficers, agents, and representatives, shall take the
action set forth in the Order.
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 We note the following errors in the judge's decision (1) In the third
paragraph of sec III of his decision, the judge refers to Kellerman's son
as "Steve" instead of "Frank " (2) In sec III, par. 4, the judge states that
"Moore threatened to establish a picket line if Baker went to work for
Moore " It should read "Moore threatened to establish a picket line if
Baker went to work for Kellerman " (3) The first line of Conclusion of
Law 6 should refer to the Employer rather than the "Respondent."
Steven D. Smith, Esq., for the General Counsel.
Fred A. Ricks Jr., Esq. (Wiley, Craig, Armbruster & Wil-
burn), of St. Louis, Missouri, for the Respondent.
1984, and an original order of the Regional Director
withdrawing complaint and deferring the matter to con-
tractual grievance procedures on 24 December 1984. In
the complaint dated 27 June 1985, the Regional Director
issued an order revoking contractual grievance proce-
dures, revoking order, withdrawing complaint, and re-
issuing complaint and notice of hearing. Respondent's
answer to the complaint dated 27 June 1985 was filed on
3 July 1985. The complaint alleges that Laborers Interna-
tional Union of North America, AFL-CIO, Local Union
No. 644 (the Union), violated Section 8(b)(1)(A) of the
National Labor Relations Act by restraining and coerc-
ing employees of Kellerman Brothers Construction Com-
pany (the Employer) in the exercise of their rights under
Section 7 of the Act; by picketing the Employer's jobsite
to cause the Employer to hire only members of Re-
spondent while denying membership in Respondent to
the Charging Party; by threatening the Employer in the
presence of employees with picketing and/or a strike if
the Employer employed the Charging Party at the job-
site; by telling an employee that said Respondent Union
was denying Charging Party membership in Respondent
and threatening violence if Charging Party was em-
ployed at the jobsite. The complaint further alleges that
Laborers violated Section 8(b)(2) of the Act by picket-
ing, and by letter, attempting to cause and causing the
Employer to discharge and otherwise discriminate
against the Charging Party, attempting to cause and
causing the Employer to hire only union members while
denying membership to Charging Party, by telling the
Employer that employees would return to work if
Charging Party were removed from the jobsite, by tell-
ing the Employer that the only reason that Respondent
Union was attempting to keep Charging Party from
working was Charging Party's nonmembership in Re-
spondent, by threatening to picket' and/or strike, and by
threatening unspecified reprisals' attempting to and caus-
ing the Employer to discharge the Charging Party. The
complaint alleges that Respondent Union engaged in the
conduct described above because the Charging Party
was not a member of Respondent and for reasons other
than the Charging Party's failure to tender periodic dues
and the initiation fees uniformly required as a condition
of acquiring or retaining membership in Respondent. The
Respondent, by its answer, has denied any violations of
the Act.
Upon the entire record including my observations of
the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel and the
Respondent I make the following
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard by me at St. Louis, Missouri, on 23
and 24 July 1985. The charge was filed by Joseph H.
Baker, an individual , on 9 October 1984, and the com-
plaint issued on 27 June 1985. This followed the issuance
of an original , complaint in this matter on 26 October
1984 and original answer of Respondent on 31 October
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges, Respondent admits, and I find'
that Kellerman Brothers Construction Company is, and
has been at all times material, an Illinois corporation, and
has maintained its office and place of business in Pinck-
neyville, Illinois, and has been engaged as a general con-
tractor in the building and construction industry, and-
that during the 12-month period ending 30 September'
278 NLRB No. 162
LABORERS LOCAL 644 (KELLERMAN CONSTRUCTION)
1984, the Employer , in the course and conduct of its
business operations described above, purchased , and re-
ceived at its Pinckneyville, Illinois facility , products,
goods, and materials valued in excess of $50,000 directly
from points outside the State of Illinois , and that the Em-
ployer is now, and has been at all times material herein,
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits , and I find
that Respondent (Union) is and has been at all times ma-
terial a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
As set out above, the Employer is engaged in the con-
struction industry in the Pinckneyville area. The Em-
ployer is a small builder with a number of small projects.
At the time in question , it had one major project under
construction and this was the Holts Prairie Baptist
Church. Since 1983 the Employer has been a member of
an employer association , the Southern Illinois Builders
Association (SIBA), a multiemployer bargaining associa-
tion , which negotiates along with several other contrac-
tors' associations on behalf of various employers in the
State of Illinois, who utilize construction trade services,
including laborers . These contractors' associations and
the International Union, Laborers International Union of
North America, Southern Illinois Laborers District
Council have entered into a series of collective -bargain-
ing agreements covering employees of those employer
'members who have assigned the associations their bar-
gaining rights . The Employer in this case had not as-
signed the association its bargaining rights, but had, sub-
sequent to the negotiation of two industrywide agree-
ments, entered into these agreements individually on
each occasion . These agreements contained a referral
procedure by which members and nonmembers alike
have the right to register with the Union and sign a re-
ferral list from which the Union refers out employees in
:he order of their signing the list (except in those cases
Where special skills or qualifications are requested by the
Employer and the Union then refers out the first em-
)1loyee on the list who meets these qualifications). Addi-
ionally, section 2 of the labor agreement provides that
he employers who are "signatory" to the agreement
nay request "key laborers ," notwithstanding their place-
pent on the list under certain circumstances (i.e., the
econd and the sixth laborer employed).
In August 1984 Albert Kellerman , the Employer's
'resident , employed Joseph Baker as a laborer shortly
fter the termination of Kellerman 's son, Frank Keller-
ian, who left to return to school, and who had been
reviously employed as a permanent employee and had
een then sold a card by the Union , according to the un-
;butted testimony of Albert Kellerman . Prior to Baker's
nployment , Albert Kellerman had made a verbal re-
iest in August 1984 to the Union's business manager,
onald Moore, an admitted agent of the Union, that
1105
Jack Jones , a union member, be referred to him as a re-
placement for his son . Moore initially indicated agree-
ment and his approval of this procedure if Jones wished
to accept . Moore testified he knew Jones was on the re-
ferral list but acknowledged on cross -examination that he
had not suggested that Jones was next on the list for re-
ferral at the time of the request by Kellerman . Accord-
ing to the testimony of Moore at the hearing, the
member in question refused the position . According to
Albert Kellerman , he did not. According to the unrebut-
ted testimony of Kellerman , his son Frank had been the
only permanent laborer employed by him, although he
had employed other laborers in addition to his son for
specific projects. Additionally , Kellerman employed ap-
proximately three carpenters on a permanent basis, in-
cluding two of his sons, Pat and Pete Kellerman.
In early September 1984 Albert Kellerman and Baker
went to the home of Moore , which functioned as the
Union's business office, and in which Moore (who also
held the position of recording secretary ) maintained the
Union 's records . On this occasion , according to the testi-
mony of Albert Kellerman and Baker , Kellerman advised
Moore that he wanted to hire Baker (a nonmember of
the Union) as a permanent replacement for his son, Steve
Kellerman, and asked Moore to "sell Baker a book"
(accept him as a member of the Union upon payment of
the initiation fees) and clear him to work as a laborer for
Kellerman . According to the testimony of Albert Keller-
man and Baker , Moore told them that he would not
honor this request, as he had too many members out of
work , and would only agree to sell Baker a union card if
Baker were not employed on the Holts Prairie Baptist
Church jobsite . This was the only major construction job
on which the Employer was then engaged . According to
the testimony of Moore, he told Kellerman and Baker
that Baker was not registered with the Union (referring
to a procedure whereby persons seeking referral must fill
out an application form with the Union setting out their
qualifications) and that he was not on the Union 's refer-
ral list, and further that there were others on the referral
list ahead of Baker who would be entitled to referral
prior to Baker . At the hearing, Moore also testified that
at the end of each union meeting each month the doors
are open to anyone who wishes to be referred for em-
ployment within the Union 's jurisdictional district, and
these persons line up on a first -come, first-serve basis ir-
respective of their membership or nonmembership in the
Union, and are referred out in the priority in which their
name appears on the list . Moore testified at the hearing
that he explained this to Baker . Kellerman and Baker tes-
tified that Moore did not explain this to Baker , but rather
refused to allow Kellerman to employ Baker.
Union Business Agent Donald Moore testified that on
20 September 1984, he contacted SIBA and learned that
the Employer was a member of SIBA , but had not as-
-signed its bargaining rights to SIBA. Moore was certain
that the Employer had signed the then -current 1982-
1985 labor agreement but was unable to locate the signed
copy in the Union 's files . He then immediately delivered
unsigned copies of the labor agreement and the participa-
tion agreement which provides for the deduction of.pen-
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion and other benefit payments for employees, and told
Richard Pressman, a union steward and vice president
who was then working on the Holts Prairie site for the
Employer, to ask Albert Kellerman to sign the docu-
ments on behalf of the Employer. Pressman , an admitted
agent of the Union, reported that Albert Kellerman had
signed the participation agreement, but was refusing to
sign the labor agreement. Albert Kellerman testified that
on this date Moore threatened to establish a picket line if
Baker went to work for Moore.
Albert Kellerman testified that on 22 September 1984,
he called Moore again and asked Moore if he had
changed his mind about Baker and that Moore again re-
fused to let Baker work. Albert Kellerman testified that
he then told Moore that since Moore would not sell
Baker a card, Baker would be at work Monday without
one and that Moore replied, "Well, you know what will
happen." Moore testified he did not recall this conversa-
tion. Kellerman testified further that on 24 September
1984, he put Baker to work and that the Union began
picketing at each of the Employer's jobsites. Moore testi-
fied that the signs read "Laborers Local 644 on Strike at
Kellerman Brothers Construction for a Contract." Kel-
lerman testified further that the laborers who were em-
ployed on the projects participated in the picketing. The
picketing continued from 24 September until 3 October.
Following the commencement of picketing on 24 Sep-
tember, Moore sent Albert Kellerman a letter dated 27
September 1984, enclosing a memo which had been
signed on the same date by the Union's executive board,
which stated that Albert Kellerman had signed the par-
ticipation agreement but would not sign the labor agree-
ment until the Union accepted Baker into the Union. The
memo went on to state that all executive board members
present, all of whom are admitted agents of the Union,
had voted "to keep the pickets up on Al Kellerman, and
not let Joe Baker into labor Local 644." Moore's letter to
Albert Kellerman said in part:
Sorry:
Let's forget Baker, you sign and we will build
the church.
Albert Kellerman testified further that on 3 October
1984, he met with Moore on the U.S. Gypsum jobsite
where the Employer was also engaged in construction
and told Moore he would sign the labor agreement, but
he was not going to lay Baker off and, as far as he was
concerned, Baker still had a job. He then handed the
signed agreement to Moore and Moore said, "Get Joe
Baker out of there and we will go to work." Kellerman
then took Baker off the U.S. Gypsum jobsite where he
had been working and the union members ceased picket-
ing and returned to work. Kellerman drove Baker to the
Holts Prairie Baptist Church jobsite on 4 October 1984
as he needed another laborer on the project. Richard
Pressman, who was working on that site, told, Kellerman
that if Moore saw laborers working with Baker, that
Moore "would jerk them off the job and put up a picket
line." Pressman then went to call Moore but was unable
to reach him. Kellerman removed Baker from the job-
site.
Pat Kellerman testified that on 4 October 1984, Moore
arrived at the Holts Prairie Baptist Church jobsite and
talked to laborers Tom and Dan Falk, two brothers who
had been referred by the Union to the Employer. Pat
Kellerman testified he heard Moore tell either Tom or
Dan Falk that he would not sell Baker a card, and if
Albert Kellerman brought Baker back, to hit him on the
head with a two-by-four. At the hearing, Moore denied
having made this statement, as did Dan Falk who was
asked by Moore to testify. Tom Falk was not called to
testify. Additionally, Albert Kellerman testified that on 4
October he talked with Moore at the Holts Prairie Bap-
tist Church jobsite and Moore had two laborers with
him, and told him that these were the two additional la-
borers that he had requested and that he (Moore) "didn't
want to hear any more of that Joe Baker shit."
Baker testified that on 5 October 1984, he went a
second time to Moore's house to try to obtain clearance
or referral to work for the Employer and that Moore re-
fused to allow him to do so. Baker asked if he could put
his name on a list to obtain a card and get his job back.
Moore replied there were already 50 names on the list
and that he had sold just one card to an American Indian
to keep the blacks out of Pinckneyville (Illinois), and
that he had offered Albert Kellerman a "deal" at their
first meeting at Moore's home to give Baker a card if he
did not work at the Holts Prairie Baptist Church jobsite.
He testified that Moore then stated, "Now at this stage
... there is no way I will let you in the Union."
Section 2 of the labor agreement entitled "Referral
Clause" sets out the referral procedures for referrals to
employers who are signatory to the labor agreement, and
in pertinent part is as follows:
The Union and the Employer recognize that the
Union is in a position to aid the Employer in re-
cruiting needed employees who can meet the stand-
ards of the trade and who can promote the efficien-
cy and safety of operation of the Employer, and
shall use the facilities of the Union referral offices
to recruit job applicants, exclusively.
In order to maintain an efficient system of pro-
duction in the industry to provide for an orderly
procedure of referral of applicants for employment,
and to preserve the legitimate interests of employees
in their employment, the employer and the Union
agree to the following plan of referral of applicants
for employment.
(a) Any Employer shall be allowed two (2) key men
on any project or job if signatory to this Agreement.
On Heavy and Highway Construction the allowed key
men shall be the second and fourth men employed. On
Building Construction the allowed key men shall, be
the second and sixth men employed. Any additional
number of key men shall be determined at a pre-job,
conference or an agreement between the Employer'and
the Business Representative of the Union. The Em-
ployer shall notify the Union of its need for all
other employees. At no time shall the number' of
key men exceed the number of referred employees
as stated above on any project or job. The Employe]
shall not recruit or hire applicants directly. A key mar
LABORERS LOCAL 644 (KELLERMAN CONSTRUCTION)
shall have twelve (12) months experience working as a
laborer during the past five (5) years and must be
from the geographical area covered by this agreement.
(b) Employers may request former employees for
referral to a job or project, and the Union referral
office shall refer said former employees to the job
or project provided they are properly registered ap-
plicants in the referral office , are available for work
at the time of the request , and have been employed
by the requesting Employer in the geographical
area of the referral office within six (6) months
prior to the request ; and provided further , that no
employees shall be laid off or discharged to make
room for such former employees.
(c) The Employer retains the right to reject any
job applicant referred . The Employer shall have the
right to determine the qualifications of his employ-
ees and shall have the right to hire and discharge
accordingly . Hiring of employees shall be on a non-
discriminatory basil and shall in no way be affected
by Union membership, by-laws, rules, regulations, con-
stitutional provisions or any other aspect or obligation
of Union membership, policies or requirements
(d) Registration and referral of applicants shall be
on a non -discriminatory basis, and shall in no way be
affected by Union membership, by-laws, rules, regula-
tions constitutional provisions or any other aspect or'-
obligation of Union membership, policies or require-
ments. There shall be no discrimination by the
Union or the Contractor, against any employee or
applicant for employment with respect to hiring,
firing, rate of pay, work assignment , or any term or
condition - of employment, for reasons of race, reli-
gion , color, sex, age or national origin.
(e) The Employer in requesting referrals shall
specify to the Union (1) the number of employees
required ; (2) the location of the project ; (3) the
nature and type of construction, demolition, etc., in-
volved; (4) the work to be performed , and (5) such
other information as is deemed essential by the Em-
ployer in order to enable the Union to make proper
referral of qualified applicants.
(f) The Union shall register and refer all applicants
for employment covered by this contract, on the follow-
ing basis
(1) The Union shall require all job applicants who
i have not previously registered to submit a resume in
writing on forms, of their experience and qualifica-
tions, in order to determine their ability and whether
they are qualified to perform the requisite work of the
laborers. (2) The Union shall maintain lists which,
shall contain the names of applicants in the order in
which they register for employment. The opportunity
for new applicants to register shall be on a non-dis-
criminatory basis. The hours of registration and the
rules of procedure of registration and referral shall be
posted where such notices are customarily posted, in-
'.cluding the office where referrals are made . (3) The
Union shall refer applicants in the order of their places
on the said list. Any applicant who is rejected by
the employer to whom he was referred , shall be re-
stored to his place on this list . When any referred
1107
applicant is actually employed on a job for more
than three (3) days, such referred applicant's name
shall be removed from the said list until such time
as his employment has been terminated , at which
time his name shall be placed at the bottom of the
list. If a registrant , referred for employment in regu-
lar order , refuses to accept such referral or employ-
ment, his name shall be placed at the bottom of the
list. (4) Neither the Union, its agents, nor the refer-
ral office undertakes or assumes any obligation to
locate or search for any applicant whose name ap-
pears on the registration or referral lists, if such ap-
plicant is not available when referrals are made. (5)
The Employer may request employees possessing
special skills and abilities, in which case the Union
shall refer the first applicant on the list who pos-
sesses such special skills and abilities . The Employer
shall confirm such request in writing to the Union,
within twenty-four (24) hours following an oral re-
quest. (6) In the event that the referral facilities
maintained by the Union are unable to fulfill the re-
quest of an employer for qualified employees within
twenty-four (24) hours after such request for refer-
ral is made by such Employer (Saturdays , Sundays
and holidays excepted), the Employer may employ
applicants directly . In such event , the Employer
shall notify the Union office of the names of the
persons employed and the dates of the hiring; such
notice shall be given within twenty-four (24) hours
of the hiring . (7) A referred applicant shall be con-
sidered an employee only after being actually hired
by the employer . In case an employer finds just
cause to discharge a worker who has been em-
ployed and whose work has proved unsatisfactory,
the employer must inform such employee the reason
for such discharge. [Emphasis added.]
Attached to this labor agreement is an Addendum and
Agreement For Non-Association Contractors and in per-
tinent part is as follows:
The undersigned Contractor hereby agrees to
accept and to be bound by all of the terms and pro-
visions of the foregoing agreement in effect between
Wabash Valley Contractors Association , A.G.C. of
Illinois, Southern Illinois Laborers District Council
affiliated with Laborers International Union' of
North America AFL-CIO , for the term of the said
foregoing agreement except that the following
Hiring and Referral provision shall be applicable
and effective as between the undersigned Contrac-
tor and the District Councils, in lieu of and super-
seding the Hiring and Referral Provision in the
foregoing statements.
In order that the Employer shall have a compe-
tent working force and to promote efficiency and
safety of operation , the Employer and the Union
agree that:
1. The Union shall maintain a list of persons
available for employment.
2. The Employer shall request the Union to refer
all applicants as required and shall not solicit appli-
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cants directly and-shall not in any manner circumvent
the Union in the recruitment of applicants for employ-
ment.
3. The Employer in requesting referral of appli-
cants shall specify to the Union (a) the number of
applicants to be employed, (b) the work to be per-
formed, (c) the location of the project, (d) the
nature of the construction project, (e) such addition-
al information as is deemed pertinent by the Em-
ployer in order to enable the Union to make proper
referral of applicants.
4. The Union will not discriminate either in the
maintenance of its list or in its referrals for employ-
ment against any person because of his membership or
non-membership in the Union . Selection of applicants
for referral shall not be based on, or in any way affect-
ed by Union membership , by-laws, rules, regulations,
constitutional provisions, or any other aspect or obliga-
tion of Union membership, policies, or requirements.
[Emphasis added.]
B. Contentions of the Parties
The General Counsel contends that the Union violated
Section 8(b)(1)(A) of the Act by the issuance of threats
of physical violence and threats of picketing and by its
refusal to refer out the employee and its discrimination
against the employee because of his nonmembership in
the Union ; further, that it attempted to and did cause the
Employer to discharge Baker because of his nonmember-
ship in the Union in violation of Section 8(b)(2) of the
Act. The Union contends that it was merely enforcing a
neutral referral clause which provided for referring em-
ployees on the basis of their priority of signing the neu-
tral referral list which was open to nonmembers as well
as members , and that the referral procedure and applica-
tion procedure had been explained -to Baker . The Union
further contends that Baker was not qualified as a key la-
borer, and that the Employer Kellerman was a nonasso-
ciation contractor and thus was not a signatory to the
agreement , and therefore was not entitled to key labor-
ers.
Analysis and Conclusions
It is well settled that a union violates Section
8(b)(1)(A) when it attempts to restrain or coerce employ-
ees in the exercise of their Section 7 rights (in this case
the Section 7 right to join or not to join a - union). A
union violates Section 8(b)(2) of the Act when it causes
or attempts to cause an employer to discriminate against
an employee to encourage or discourage membership in
a labor organization . A union is presumed to have acted
illegally on any occasion when it prevents an employee's
hire, or causes an employee's discharge, because such
conduct demonstrates its power to affect the employee's
livelihood in so dramatic a way to encourage union
membership among employees . Glaziers Local 558 (PPG
Industries), 271 NLRB 583 (1984). A union may rebut
this presumption "by evidence of a compelling and over-
riding character showing that the conduct complained of
was referrable to other considerations which were lawful
in themselves , and wholly unrelated to the exercise of
protected _ employee rights or to other matters with
which the Act is concerned." Millwrights Local 1102
(Planet Corp.), 144 NLRB 798, 800 (1963); Glaziers Local
558 (PPG Industries), supra. It is also well, settled that
labor agreements may lawfully include an exclusive re-
ferral or hiring hall arrangement, Teamsters Local 357 v.
NLRB, 365 U.S. 667 (1961), and that such arrangements
are valid so long as they are not utilized to discriminate
against nonunion members:
The instant case hinges on determinations of credibility
and an analysis of the above-cited clauses in the labor
agreement . At the -outset, I have considered the testimo-
ny of the witnesses at this hearing and the briefs of the
General Counsel and the Respondent in support of their
positions . With one specific exception I am convinced
that the versions given by the General Counsel's wit-
nesses, specifically Albert Kellerman , Baker, and Pat
Kellerman , should be credited over that of Union Busi-
ness Manager Moore, Union Steward' Pressman, and
member Dan Falk. I found Albert Kellerman's testimony
to be straightforward and credible in all but one aspect,
which had to do with whether he had actually signed
the 1982-1985 contract which was initially thought to be
missing by Business Manager Moore, and which Moore
subsequently found . I found Kellerman 's answers in this
regard to be evasive and nonconvincing , whereas
Moore's testimony was specific and clear and I find be-
lieveable in that instance. I find that Kellerman had in
fact signed the document in question , and that it was
subsequently found by Moore in the' filing cabinet as he
testified at the hearing. With this exception I found
Albert Kellerman 's testimony to be credible , as I did that
of Baker and Pat Kellerman . I also do not find the ques-
tion of whether the Employer would be reimbursed by a
government grant if Baker were employed , to be deter-
minative of any of the issues in this case or to reflect ad-
versely on the credibility of Albert Kellerman. I specifi-
cally' find that Moore's testimony, what he told 'Keller-
man and Baker-on the-initial occasion at his home and on
the subsequent occasion with Baker , should not be cred-
ited. I have examined the testimony of Moore and 'find
that it is interspersed with , as the General Counsel points
out in its brief, references to the membership which are
belatedly caught up with references to nonmembers as
well. It is apparent that Moore, in his dedication to:serve
the membership of the Union (as he pointed out that his
job is "wholly dedicated to the'membership") sought to
and did block Baker's membership r in the Union and em-
ployment by Kellerman solely because of Baker's non-
membership in the Union. It is clear from the testimony
of Baker and Kellerman that Baker was seeking not only
employment ' by the Respondent but obviously to, obtain
membership within the Union, or at least to pay, the initi-
ation fee and to be eligible for referral . I credit Baker
and Albert, Kellerman that Moore did not explain the ap-
plication procedure nor the referral procedure to Baker,
but rather, flatly refused to consider him for referral
while members of the Union were unemployed. It ap-
pears that the bottom line with Moore was that while
members of the Union were unemployed, there was nc
LABORERS LOCAL 644 (KELLERMAN CONSTRUCTION) 1109
way that Baker, a nonmember , would be referred to Kel-
lerman as an employee.
I reject the Union 's contention that Section 2 of the
referral clause with respect to key laborers did not apply
to this situation because Kellerman was not a signatory
to the agreement . It is undisputed that Kellerman did
sign the agreement previously negotiated by the associa-
tion . He was thus covered as a signatory to the agree-
ment by section 2, the referral clause, rather than the
Addendum and Agreement for Non -Association Con-
tractors , as he was clearly an association contractor.
Moreover, the undisputed testimony of Albert Keller-
man, with respect to the initial hiring of his son as a la-
borer, was that he requested that his son be placed as a
permanent employee, and the Union agreed to this. Fur-
thermore, he also testified that he requested a member of
the Union to be referred to him as a key employee and
that Moore initially agreed to this. Moore did not dispute
either case and testified that ' it was because of the lack of
agreement of this member to be referred to the Employ-
er that he was not referred . Moore did not testify that
this member was the first on the referral list. It is clear
that this member was also to be referred out as a key
employee in response to Kellerman 's request . Thus, in
two prior instances the Employer was permitted to
obtain key employees consistent with Section 2 of the re-
ferral clause of the contract . It was only in the instant
case wherein Baker, a nonmember, was not permitted to
serve as a key employee . I find that the Union has failed
to meet its burden of proof to demonstrate that Baker
was not qualified as a key employee as it precluded
Baker from any consideration whatever and produced no
evidence at the hearing concerning this defense.
I also credit Albert Kellerman 's testimony and that of
Pat Kellerman , with respect to the instances of the ac-
tions of the Union and the picketing and the threats of
bodily harm, as supported by the letter sent by Moore to
Albert Kellerman , which set out by its terms that the
Union was setting as a term and condition of its discon-
tinuance of its picketing of the Employer, that Baker not
be permitted to be employed and that the Employer dis-
charge him, as well as Kellerman 's refusal to sign the
labor agreement . I reject the Union's contention that it
was merely picketing to force the Employer to sign the
agreement . It is clear that this entire action was spear-
headed by the Union 's intent to preclude Baker from em-
ployment while the Union 's members were unemployed.
I also find that Moore made no attempt to determine
whether Baker qualified as a key laborer, but rather re-
fused to consider him. I thus find that the Union caused
the Employer to discharge Baker as alleged in the com-
plaint , raising the presumption that it acted illegally. I
further find that the Respondent has not established, by
compelling and overriding evidence , that its conduct was
based on lawful considerations . I thus find that the Re-
spondent has not met its burden of proof in this regard.
Glaziers Local 558, supra, citing Bricklayers Local 7 (Ma-
sonry Builders), 224 NLRB 206 (1-976), enfd. 563 F.2d 977
(9th Cir. 1977).
I thus find that the Union attempted to and did cause
the Employer to discharge Baker by its illegal actions,
including picketing of the Employer's jobsite , the letter
directed to Kellerman informing him that Baker would
not be permitted to join the Union, and that the Employ-
er must forget Baker to build the church, by Pressman's
threat to picket if Baker were not removed from the job-
site, by Moore's threat of bodily harm to Baker with re-
spect to the two-by-four incident , by Moore's statements
to Baker on two occasions that he would not permit him
to obtain membership in the Union, and his numerous re-
fusals to permit the Employer to employ Baker, 'by his
threat of an unspecified reprisal in his telephone conver-
sation with Albert Kellerman that Kellerman knew what
would happen if he employed Baker at the jobsite, and
by his direction to Kellerman to remove Baker from the
U.S. Gypsum jobsite and the employees would return to
work.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operation of the
Employer, Kellerman Brothers Construction Company,
described in section I, above, having a close , intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States, tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. By picketing the Employer's jobsite to cause the
Employer to hire only members of the Respondent while
denying membership in the Respondent to the Charging
Party, Respondent violated Section 8(b)(1)(A) of the
Act.
4. By threatening the Employer with picketing or a
strike if the Employer employed the Charging Party at
the Employer's jobsite, the Respondent violated Section
8(b)(1)(A) of the Act.
5. By telling an employee that it was denying the
Charging Party membership and by threatening violence
if the Charging Party was employed at the Employer's
jobsite, the Respondent violated Section 8(b)(l)(A) of the
Act.
6. By attempting to cause and causing the Respondent
to discharge the Charging Party, through picketing the
Employer's jobsite, through the issuance of a letter to
the Employer telling the Employer to forget the Charg-
ing Party and the employees would return to work, by
telling the Employer that the employees would return to
work if the Charging Party were removed from the job-
site, by telling the employees that the Charging Party's
nonmembership in the Union was the reason for its at-
tempt to stop the Charging Party from working for the
Employer while at the same time denying membership to
the Charging Party, by threatening to picket and strike
the Employer if the Charging Party were employed at
the Employer's jobsite , and by threatening unspecified
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reprisals, the Respondent violated Section 8(b)(2) of the
Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Union has engaged in
certain unfair labor practices in violation of Section
8(b)(1)(A) and (2) of the Act, I shall recommend that it
be ordered to cease and desist and to take affirmative ac-
tions designed to effectuate the policies of the Act.
I shall recommend that Respondent Union be ordered
to make Joseph H. Baker whole for any loss of earnings
or benefits he may have incurred as a result of the dis-
crimination against him by paying him a sum equal to
the amount he would normally have earned from the
date of his discharge until he is reinstated by the Em-
ployer to his former or a substantially equivalent posi-
tion, or until he obtains substantially equivalent employ-
ment elsewhere , less net interim earnings . The loss of
earnings shall be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as prescribed in Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB 716
(1962). 1 also recommend that Respondent be ordered to
notify the Employer in writing , with a copy to Joseph
H. Baker, that it has no objection to his employment,
and to request the employer to reemploy him. I further
recommend that Respondent remove from its files any
references to Baker's unlawful discharge , and notify
Baker in writing that such action has been taken and that
the discharge will not be used against him in any
manner . I shall also recommend that Respondent Union
be required to post the appropriate notice to members
and employees in appropriate places in its office and
meeting places.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Laborers International Union of
North America, AFL-CIO, Local Union Number 644,
its officers, agents, and representatives, shall
1. Cease and desist from
(a) Restraining and coercing employees of the Em-
ployer, Kellerman Brothers Construction Company, in
the exercise of their rights guaranteed by Section 7 of
the Act by picketing the Employer's jobsite , by threaten-
ing the Employer in the presence of employees with
picketing and/or strikes if the Employer employs the
Charging Party at the jobsite, by telling employees that
it is denying the Charging Party membership in the Re-
spondent , and by threatening violence if the Charging
Party is employed at the jobsite.
' 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.
(b) Causing, or attempting to cause the Employer to
discharge or refuse to hire Joseph Baker or any other
employee because they are not members of the Respond-
ent.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Joseph H. Baker whole for any loss of earn-
ings and other benefits he may have suffered as a result
of the discrimination against him in the manner set forth
in the recommended remedy.
(b) Notify Kellerman Brothers Construction Company,
in writing, with a copy to Joseph H. Baker , that it has
no objection to his employment , and request the Keller-
man Brothers Construction Company to reemploy him.
(c) Remove from its files any reference to the unlawful
discharge and notify the Joseph in writing that this has
been done and that the discharge will not be used against
him in any way.
(d) Post at its business office and at its meeting places
copies of the attached notice marked "Appendix."$
Copies of the notice, on forms provided by the Regional
Director for Region 14, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to members are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(e) Sign and return to the Regional Director for
Region 14 sufficient copies of the notice for posting by
Kellerman Brothers Construction Company, if willing, at
all places where notices to employees are customarily
posted.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
2 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."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
LABORERS LOCAL 644 (KELLERMAN CONSTRUCTION) 1111
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT cause or attempt to cause Kellerman
Brothers Construction Company to lay off or discharge
Joseph H. Baker or any other employee because they are
not members of the Union.
WE WILL NOT threaten Kellerman Brothers Construc-
tion Company with unspecified reprisals if it employs
Joseph H. Baker.
WE WILL NOT picket Kellerman Brothers Construction
Company's jobsites to cause the Employer to hire only
our members, while denying membership to Joseph H.
Baker or any other employees.
WE WILL NOT threaten Kellerman Brothers Construc-
tion Company in the presence of employees with picket-
ing and/or strike if it employs Joseph H. Baker at the
jobsite.
WE WILL NOT tell employees that we are denying
Joseph H. Baker membership in our organization and
threaten violence if Joseph H. Baker is employed at the
jobsite.
WE WILL NOT cause or attempt to cause Kellerman
Brothers Construction Company to lay off or discharge
Joseph H. Baker because he is not a member of our
Union.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL make Joseph H. Baker whole for any loss of
earnings and other benefits resulting from his discharge,
less net interim earnings , plus interest.
WE WILL notify Kellerman Brothers Construction
Company, in writing, with a copy furnished to Joseph H.
Baker, that we have no objection to his employment, and
we will request Kellerman Brothers Construction Com-
pany to reemploy him.
WE WILL remove from our files and ask Kellerman
Brothers Construction Company to remove from its files
any reference to the unlawful discharge, and we will
notify Joseph H. Baker, in writing, that we have done so
and that the discharge will not be used against him in
any manner.
LABORERS INTERNATIONAL UNION OF
NORTH AMERICA , AFL-CIO, LOCAL
UNION No. 644