Local 28, Sheet Metal Workers

National Labor Relations Board - Board Decisions

Aug 3, 1979

243 N.L.R.B. 1061 (N.L.R.B. 1979)

LOCAL 28. SEET METAl WORKERS
IAcal 28, Sheet Metal Workers International Associ-
ation, AFL-CIO (Treadwell Corporation) and Joel
Howard. Case 29 CB 3130
August 3 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENElIl.
AND TRUESI)AI.
On May 18, 1979. Administrative Law Judge Nor-
man Zankel issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act. as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings.' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified below.'
I The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to iover-
rule an administrative law judge's resolutions with respect to credibility un-
less the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard Dr} Wall Producti, Inc.. 91 NLRB
544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined
the record and find no basis for reversing his findings
In addition, the Respondent has excepted to the Administrative Law
Judge's findings that both Slinger and Moore testified that Moore was pre-
sent at the early Apnl 1977 meeting dunng which the Employer's represent-
ative, Willis, agreed with the Respondent's president. Reichert. that Howard
would be the second man recalled to the Astoria jobsite if the work resumed.
Since the record is clear that Moore was not present at the early Apnril 1977
meeting when the recall agreement was made, we find merit in the Respon-
dent's exception However. inasmuch as the credited testimony reveals that
Moore acknowledged his awareness of the recall agreement during the April
8, 1977. meeting when all of the employees at the Astona jobsite were noti-
fied of the layoff, we agree with the Administrative Law Judge's finding that
the recall agreement was made at the early April meeting and that Moore
was aware of the agreement at all times material herein.
2 In adopting the Administrative Law Judge's conclusion that the Respon-
dent violated Sec. 8(b)1XA) of the Act by threatening Howard that he
would not be referred to jobs because of his activity protected by Sec. 7 of
the Act, we rely upon the credited testimony that Moore told Howard at the
October 12, 1977, executive board meeting that he would not refer Howard
to any position at the Astoria jobsite because of Howard's opposition to the
80-percent rate then In effect at that jobsite. Thus, we disavow that portion
of the Administrative Law Judge's analysis in which he noted that the Re-
spondent's threat not to refer Howard as steward to the Astoria jobsite was
evidence of an 8(b)1 XA) violation
The Respondent has excepted to the Administrative Law Judge's remedy
and recommended Order requinng the Respondent to make Howard whole
for the threat not to refer Howard to work. Since the complaint alleged
solely that the Respondent threatened not to refer Howard because of his
opposition to union policies, and inasmuch as the record is completely silent
as to whether the threat not to refer Howard was actually carried out by the
Respondent, we find merit in the Respondent's exception. Accordingly. we
have deleted the "make whole" provisions of the Administrative Law Judge's
recommended Order in our Order below
ORDER
Pursuant to Section 10(c) of the National abor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge. as modified be-
low, and hereby orders that the Respondent. Local
28. Sheet Metal Workers International Association,
AFLCI10, Brooklyn, New York. its officers. agents.
and representatives, shall take the action set forth in
the said recommended Order, as so modified:
I. Delete paragraph 2(a) and reletter the subse-
quent paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NoII(Ei To MEMBERS
POSTED BY ORDER OF 1111
NAIIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present evidence and cross-examine witnesses,
the National Labor Relations Board has found that
we violated the National Labor Relations Act, as
amended, and has ordered us to post this notice. We
intend to carry out the order of the Board and abide
by the following:
The National Labor Relations Act. as amended.
gives all employees the following rights:
To engage in self-organization
To form. join. or assist any union
To bargain collectively through representa-
tives whom they themselves select
To engage in activities together for the pur-
pose of collective bargaining or to act together
in order to seek improvement in their wages.
hours, working conditions, and other terms
and conditions of employment.
To refrain from any and all such activities.
WE WILL NOT threaten Joel Howard or any
other employees not to refer them to work
through our referral hall because they oppose
any of our officers or their policies, or engage in
any other activities protected by the National
Labor Relations Act, as amended.
WE WILL NOT in any like or related manner
restrain or coerce you in the exercise of any of
the rights guaranteed you by the National Labor
Relations Act. as amended.
LOCAL 28, SHEET METAIL WORKERS INIFR-
NATIONAL ASSOCIATION, AFL CIO
243 NLRB No. 176
1(1
I)0E'ISIONS OF NATIO()NAI. IABOR RK(LATIONS BOARI)
DECISION
S IAIlMEN1 OF Fill! CASE
NORMAN ZANKEtI. Administrative Law Judge: This case
was heard before me on March 29. 1979, at Brooklyn, New
York.
The charge was filed by Joel Howard on November 28,
19772t On February 13, 1978, a complaint and notice of'
hearing was issued by the Regional Director for Region 29
of the National Labor Relations Board, hereinafter the
Board.
In essence, the complaint alleges that Local 28. Sheet
Metal Workers International Association, AFL CIO. here-
inafter the Union, restrained and coerced employees in vio-
lation of Section 8(b)( I )(A) of the National Labor Relations
Act, as amended (hereinafter the Act), by threatening How-
ard that he would not be referred for job opportunities be-
cause he had opposed the Union's internal policies and
practices or engaged in other protected concerted activities.
The Union filed a timely answer to the complaint, and
amended it at the hearing. The Union admitted certain alle-
gations but denied the substantive allegations and denied
that it had committed any unfair labor practice.
All issues were fully litigated at the hearing: all parties
were represented by counsel and were afforded full oppor-
tunity to examine and cross-examine witnesses. to introduce
evidence pertinent to the issues, and to engage in oral argu-
ment. Counsel for the General Counsel argued orally. Post-
hearing briefs have been received from the Board's counsel
for the General Counsel and from counsel for the Union.
The various arguments have been carefully considered.
Upon the entire record, and from my observation of the
witnesses and their demeanor in the witness chair, and
upon substantial, reliable evidence, "considered along with
the consistency and inherent probability of testimony"
(Universal Camera Corporation v. N.L.R.B., 340 U.S. 474.
496 (1951)). 1 make the following:
FINDINGS AND CONCLUSIONS
I. THE EMPLOYER'S BUSINESS
The employer involved herein is Treadwell Corporation.
Treadwell, a New York corporation with a principal office
and place of business at 1700 Broadway, New York, New
York, is engaged in performing engineering, general con-
struction, and related services.
During the calendar year immediately preceding issuance
of the complaint, a representative period. Treadwell per-
formed services valued in excess of $50,000. of which ser-
vices valued in excess of $50,000 were performed in, and for
various enterprises located in, States other than New York
State. The activities involved herein relate to a jobsite lo-
cated in Astoria, New York.
Treadwell admits, the record reflects, and I find it is an
employer engaged in commerce within the meaning of Sec-
tion 2(2). (6), and (7) of the Act.
I All dates hereinafter refer to 1977 unless otherwise stated.
The Union admits, the record reflects and I find that it is
a labor organization within the meaning of' Section 2(5) of
the Act.
111. Ilt/ At I li(ill) NIAIRAOR I t()R PRAt 11(t IS
A. The lcit.v'
At all times material herein, Treadwell was engaged in
construction work at the Astoria site.
In approximate February 1975 Arthur Moore. then the
Union's business mnaiager, referred Howard to the Astoria
site. Upon referral, Moore appointed Howard job steward.
This action was taken pursuant to the terms of the existing
collective-bargaining agreement under which Treadwell
and the Union operated.
In April 1977, Treadwell required a layoff of sheet metal
workers at the Astoria site. At that time Williamn R. Slinger
was Treadwell's construction superintendent. Harry Rueck-
ert was acting union president. The General Counsel con-
tends Slinger (on behalf of' Treadwell) and Rueckert (on
behalf of the Union) agreed that Howard and Foreman
Brewer would be recalled to work if it resumed. The Union
argues no such agreement existed. The determination of'
this issue depends upon certain credibility resolutions
which follow.
Slinger testified he had a conversation with Rueckert
shortly before the April layoffs. oward, Brewer, and
Moore were present. Slinger further testified Rueckert
asked if' Slinger objected to returning Brewer and Howard
to work if it resumed. According to Slinger, he agreed How-
ard and Brewer would be the first to be recalled. Slinger
later vacated his superintendent's position. Hie was replaced
by Roy Willis in September or October.
Slinger also testified he recommended to Willis that
Howard and Brewer be rehired.
The work. in fact, resumed virtually simultaneously with
Willis' accession as superintendent. Willis first staffed the
jobsite with approximately 10 sheet metal workers. They
were not obtained through the Union's referral hall. Em-
ployee Tucci became acting steward from among these 10
employees.
Shortly thereafter. Willis needed more sheet metal work-
ers. He asked the Union to provide about 10 additional
personnel. This request was made of Moore, who was then
union president.
Moore complied with the call for workers. Howard. who
was available was neither referred to the job by Moore nor
appointed steward. Instead, Moore appointed employee
Cioffy to be steward.
Willis denied he had been informed by Slinger of' any
agreement to return Howard and Brewer to work. Willis
also denied having any conversation with Slinger regarding
hiring of Howard and Brewer.
2 The facts cited in this section are a composite of the credited testimony of
witnesses of the General Counsel and the Union where they agreed or which
otherwise appears uncontradicted. Where material variations exist. hey are
discussed and resolved. Although only the facts relevant to the issues are
recited. I have considered all matters litigated and arguments of counsel
thereon Omitted matter is deemed not credible irrelevant. or superfluous.
11. I life RISt'()NI)IN I NlO)N
1062
LOCAL 28. SHEET METAL WORKERS
During his testimony on behalf of the Union. Moore de-
nied he was party to any conversation with Rueckert during
which Rueckert extracted the commitment to recall How-
ard and Brewer. Moore testified he was present during the
conversation at which, as Howard testified. Willis agreed to
recall Howard and Brewer. However. Moore was not asked
to be any more specific about that conversation. Thus, the
Union's counsel only elicited Moore's self-serving denial of
any agreement relative to recall of Howard and Brewer.
Howard presented a more comprehensive and direct de-
scription of the events attending the disputed conversation.
Thus, Howard testified that on April I, Slinger, together
with Bert Willis,' agreed Brewer would be the first man
back and Howard. as steward, would be next to be recalled.
According to Howard, another meeting was held April 8.
The layoff occurred on that date. Rueckert and Moore met
with the 28 sheet metal workers affected by the layoff.
Rueckert told the men that Treadwell had agreed to try to
rehire them all and that Brewer and Howard would "be the
first and second back." Howard testified, further, that
Moore told the employees he (Moore) and Howard. as
steward, would "be keeping an eye" on the site in the in-
terim. Howard testified Moore then confirmed to the men
that Brewer and Howard would be the first and second
employees returned to work.
Resolution of the various descriptions of the alleged com-
mitment to return Howard is necessary. The resulting find-
ings are important to give meaning to Moore's appointment
of Cioffy as steward after the work was revived.
In resolving this limited issue. I do not rely upon the
testimony of Slinger and of Superintendent Willis. How-
ever, based upon the inherent consistency of his other testi-
mony and the fact it most nearly conforms to that of How-
ard, whom I shall credit, I otherwise credit Slinger.4 My
failure to rely upon Slinger and R. Willis on this issue is due
to their contradiction of one another as to whether any
arrangement had been made for priority recall of employ-
ees.
The ultimate choice of making my findings of fact in
general and resolving credibility is based upon my observa-
tion of the demeanor of the witnesses, the weight of the
respective evidence provided by them, established or admit-
ted facts, inherent probabilities, and reasonable inferences
which may be drawn from the record as a whole. North-
ridge Knitting Mills, Inc.. 223 NLRB 230 (1976): Walrren ..
Rose Casting, Inc., d/a V & Wu Castings. 231 NLRB 912.
913 (1977): Gold Standard Enterprises, Inc., 234 NLRB 618
(1978).
In the credibility contest between Howard and Moore, I
credit Howard. As noted, he was more direct and compre-
hensive than Moore on this issue. Indeed, Moore, the sole
witness proffered by the Union, was to a large measure
corroborative of Howard in areas except concerning self-
serving denials of critical matters.
B. Willis is president or vice president of Treadwell and a brother to Job
Superintendent R Willis.
'Such a division of my credibility resolution is proper. A trier of fact is
"not required to discount everything witnesses) testified to because he did
not believe all of it and nothing is more common than to believe some and
not all ofwhat a witness says." Edwards Tran.sporation Compn,. 187 NLRB
3 (1971), enfd. per curiam 437 F.2d 502 (th Cir 1971)
In assessing credibility. I have also considered that
Moore was evasive in a significant area. When counsel for
the General Counsel asked him whether Howard referred
to the UJnion's agreement, Moore answered. "[Hie (How-
ard) might have, I don't know."
Next, I consider that Moore engaged in obfuscation.
Thus, at one point he sought to offer a secondary excuse for
his failure to refer Howard by claiming "the contract that
Treadwell had . . . gave them the right to hire who they see
fit. Thes had a contract the could hire and fire as ihet see
fit." (Emphasis supplied.) Moore's statement is accurate.
However, it blatantly ignores the evidence which shows
Moore personaliv sent approximately 10 men to the jobsite
at Treadwell's request. Thus, Moore attempted to cast the
burden of Iis responsibility to Treadwell. In addition to this
effort to obscure the context, I consider this testimony of
Moore to comprise a shifting defense. This action casts
doubt upon the validity of the Ulnion's principal defense.
In contrast. Howard impressed me with his apparent sin-
cerity, and his testimony is inherently consistent.
I am also mindful that Rueckert was not called to testify.
Rueckert's unavailability was not explained. Considering he
was acting union president during the disputed conversa-
tion, it was clearly to the Union's benefit to call him as a
witness in the hearing before me. Presumably. Rueckert is
yet within the Union's control. In these circumstances. I
infer that Rueckert's testimony would have been adverse to
the Union had he testified. lnter.state Circuil, 1i .I ' L lited
Staie's, 306 U.S. 208 (1939): Mfonahan F[r/ ( orporation /
Flushing. 173 NLRB 204 (1968): 2 Wigmore. 'trideic.
§ 28,(a).
Additionally. Bert Willis did not testif\. Accordin to
Howard's version, B. Willis was privy to the initial conver-
sation where the recall priority agreement was made.
Upon all the foregoing. I find. consistent with oward's
testimony that Treadwell and the Union agreed to accord
Brewer and Howard priority privileges. I find these employ-
ees were to he the first and second recalled. respectiel'.
Additionally. I find that Moore. at all material times. was
aware of this arrangement.
Butressing this conclusion is Howard's testimony. which
I credit, that he visited the Astoria site four or five times
between the layoff and June. These visits were at Moore's
instruction, in part. to maintain a watchful eye over the site.
This was to protect the sheet metal workers' interest. I con-
sider this instruction consistent with the statement of recall
priority attributed by Howard to Moore.
In June. it appeared Treadwell had boilermakers remove
the sheet metal work. Howard. Moore. and Rueckert com-
plained about the situation to Treadwell's management.
They were informed that sheet metal workers would have
to agree to work at 80 percent of their prevailing wage rate
in order to regain the work.
Also, the Union had a scheduled June election for its
officers. Moore ran against Acting President Rueckert.
Howard was a candidate for business agent. During that
election campaign. Moore asked Howard to publish his en-
dorsement of Moore for presidential office. Howard de-
clined. He told Moore he (Howard) "wasn't too pleased
with his performance as Business Agent." This opposition
1063
DECISIONS OF NATIONAL LABOR RELATIONS BOARD)
was not further publicized by Hloward. Moore was elected
president. Howard lost his bid for business agent.
On August 18. Moore presented a contract addendum to
the union membership. The addendum contained a new
proposal formulated at Moore's instigation for the sheet
meial workers to work at 80 percent of the prevailing wage.
At the union membership meeting. Howard spoke
against acceptance of the addendum. He also composed
and distributed literature opposing the addendum. Moore
presented a favorable recommendation. The membership
ratified the proposal.
On October 10, Howard visited the union office. This
visit was prompted by rumors that some sheet metal work-
ers had been referred to the jobsite by the Union. During
this visit, union Recording-Secretary Joseph Casey con-
firmed there had been at least two referrals.
Howard testified that Casey asked, "W]hat happened to
you. I thought you were supposed to be the second man
back there." I credit Howard in this regard. Casey was
called as a witness by the General Counsel. He was not
questioned concerning the comment attributed to him by
Howard. Casey gave no testimony during the Union's de-
fense. Thus, Howard's version of his conversation with Ca-
sey stands uncontradicted. I consider that Casey's remarks
to Howard further confirm the existence of the priority hir-
ing arrangement and of its widespread knowledge. How-
ard's conversation with Casey ended by Howard's request-
ing an appearance before the Union's executive board.
On October 12. Howard attended a regularly scheduled
union executive board meeting. Moore and Casey. together
with other execuiive board members, were present. Howard
told them he understood some sheet metal workers had
been referred to the Astoria jobsite. Howard reminded
those present it had been arranged he would be the second
man recalled. Howard asked the executive board to "look
into the matter."
Howard testified Moore said, "I'll answer that." Moore
testified he responded to Howard.
What was next said is in conflict. Howard testified Moore
told him the "reason that I (Howard) was not sent back on
the job was because I opposed his policies on the 80 percent
rate-that I had gone so far as to put literature out on the
chairs." (This remark apparently refers to Howard's activi-
ties at the August 18 union membership meeting.)
During his direct testimony, Moore was not asked specif
ically to deny he made the comments quoted above. At that
point, Howard's testimony was uncontradicted. During
Moore's cross-examination, counsel for the General Coun-
sel asked: "Did you tell the Executive Board that you
wouldn't send Mr. Howard back to the job because he cam-
paigned against the 80 percent rate?" Moore replied "No. I
did not." However, while being cross-examined by counsel
for the General Counsel as a union witness. Moore admit-
ted saying he would not send Howard back as steward be-
cause he campaigned against the 80-percent rate.
I conclude Moore's responses do not affect the uncontra-
dicted character of Howard's narration. The question posed
by counsel for the General Counsel alters the context of
Howard's version. It is not phrased in retrospect. Howard's
testimony shows what Moore gave as a reason for How-
ard's failure to have been referred. The question of Moore by
counsel for the General Counsel asks Moore to describe
what Moore said, or did not say, with respect to what the
reason might be for failure to refer Howard prevenlh or in
the filaure. Although I do not wish to exalt form over sub-
stance, I believe the distinction made is valid for purposes
of assessing credibility. Accordingly. I find Howard's ac-
count of what Moore said on October 12 the most reliable
for determination of the salient facts.
Howard described further events at the October 12 ex-
ecutive board meeting. Thus. HIoward said Moore added he
(Moore) "felt if I [Howard] were back on that jobsite I'd do
nothing but cause trouble." Howard requested Case to
make a verbatim record of Moore's statements in the min-
utes of that meeting. Also, Howard testified he asked how
two sheet metal workers had been referred. Moore an-
swered that Treadwell had called for a foreman and stew-
ard, and he referred them. The two referred were John Bal-
lerinie and Joe Tucci. Tucci. as previously noted, acted as
steward until Business Agent Fiore appointed Ciofl stew-
ard.
On October 20 a general union meeting was held. The
October 12 executive board minutes were read. oward
believed those minutes did not accurately reflect what
Moore told him on October 12. Howard orall\ sought to
correct the executive board minutes. Moore and (Casey were
present. Neither objected that I loward's requested changes
were erroneous.
It is disputed whether How ard's efforts to crrect the
minutes were the accepted and effeclise nmethod of accom-
plishing his purpose. This dispute needs no resolution. I'he
minutes of the October 12 executive board meeting are in-
corporated into those of the October 20 meeting. Ihere is
faint relevance to those minutes. 'Ihe October 12 minutes
lend slight support to Moore's testimon of' what he said to
Howard. However, the minutes also contain language
equally supportive of peripheral aspects of Fow ard's narra-
tion of what happened on October 12.
I have accorded the oral testimony before me consider-
ably more weight than the minutes. his is because the
minutes admittedly are a summarized version of what took
place on October 12. Casey prepared the minutes. He is an
incumbent officer of the Union. His testimony concerning
what Moore may have said on October 12 is somewhat at
variance from Moore's. It is not as comprehensive as How-
ard's. As already noted. Howard's testimony was explicit
and to the effect that Moore admitted he had not referred
Howard to the Astoria site because of Howard's opposition
to Moore's policies on the 80-percent rate and because he
distributed opposing literature on that subject. In the total
context herein, the minutes are considered as secondar
self-serving declarations unworthy of the same reliability as
the sworn oral testimony of the participants to the disputed
conversation.
Howard was never referred to the jobsite again either as
a steward or as a journeyman-sheet metal worker.
B. Analivsis
In skeletal form, the credited evidence reveals:
(I) The Union (through Rueckert) and Treadwell
(through Slinger and B. Willis) made a priority recall agree-
1064
LOCAL 28. SHEET METAL WORKERS
ment. Brewer and Howard. in that order, were to be the
first sheet metal workers recalled.
(2) Moore knew of, and apparently initially concurred
in, the priority recall agreement.
(3) Moore undeniably and unilaterally ignored the
agreement when he declined to refer Howard for recall.
Why was Howard not referred pursuant to the agreement?
The answer is found in the evidence of Moore's motivation
and the existence of an intervening event.
As to motivation, Moore admitted his antipathy toward
Howard when he agreed he told the executive oard he
would not refer Howard as steward because Howard op-
posed Moore's endorsement of the 80-percent rate.
More than that, in accord with Howard's credible ac-
count, I have found Moore actually admitted his neglect to
refer Howard to an, position at the Astoria site was due to
Howard's opposition to Moore's policy regarding the 80-
percent rate. I conclude that opposition was the intervening
event which triggered Moore's repudiation of the priority
recall agreement.
In reaching the above conclusion. I have considered an-
other element not previously discussed. Howard testified.
without contradiction, that in his 19 years' experience at
work as a sheet metal worker, he never knew a shop stew-
ard to be replaced. This factor constitutes evidence that
Howard was treated in a disparate manner by Moore. even
if credence were accorded Moore's version of uwhat he said
on October 12. instead of adopting Howard's narration.
This disparate treatment is evidence of an 8b( )(A) iola-
tion even in the absence, as herein, of an allegation that
employees suffered discrimination in violation of Section
8(b)(2). Chauffeurs Union Local 923, International Brother-
hood of Teamsters, Chaufl'curs, 4(arehousemen and Hellrs
of America (Yellow Cab Compan. 172 NLRB 2137. 2138
(1968).
The record contains further evidence of discriminatory
motivation. Thus, Howard told Moore he would not sup-
port him in his election bid. It is immaterial that Houard
did not notoriously express his opposition to the electorate.
It is reasonable to presume, as I do. that Moore was subjec-
tively affected by Howard's comment that he did not ap-
prove of Moore's performance as business agent. This infor-
mation surely cast Howard in a role which Moore could not
view as anything but hostile.
In any event, in 8(b)(1)(A) cases the test is not motive.
Rather, if conduct reasonably tends to restrain and coerce.
it violates the Act. Activities of a Union agent which inter-
fere with employee rights protected by Section 7 provide
the predicate of a violation. Chauffeur's Union Local 923,
supra.
I find Howard's opposition to the 80-percent policy insti-
gated by Moore a protected activity. In American Steam-
ship Company, a subsidiary of General A merican Transporta-
tion Corporation, 222 NLRB 1226. 1236-37. an employee, in
part, had criticized the adequacy of some fringe benefits of
a proposed collective-bargaining agreement. In salient part.
the union's request to have the employee discharged was
held to constitute a violation of Section 8(b)( 1)(A) and (2).
As noted, it is not alleged herein that the Union discrimi-
nated against Howard. However, the absence of such an
allegation does not adversely effect the Board's concluSion
in .4A1eric(al Slteat.ship that criticis m o' contract proposals
is a protected activity.
I find Moore's October 12 admission that he did not reter
Howard because of his opposition to the 80-percent rate
constitutes a threat proscribed b Section 8bH 1 )(A. Osten-
sibly. Moore's remark is only a statement of reason 'for his
actions. tloeser. I conclude a reasonable interpreation oft
Moore's remark bears the tendencs to coerce emplo)ees. A
clear meaning attaches: namely. the opposition to policies
sponsored. initiated. or endorsed b the Ulnion's leadership
will result in loss of job opportunities. Such a meaning is
enhanced when the remark is viewed in the backdrop ot
Moore's animus toward Howard. Such disriminator
threats are violarive of Section 8(b)( 1 )( ). lloisti. g 1d1 Por-
table Engiteers, Local 'o. 4 The ( 'arlsot C rporatlion). 89
Nl.RB 366 (1971 ).
Urpon all the foregoing. I find that the nion SiLlated
Section 8(b)( 1)(A) of the Act. as alleged.
ULpon the basis of the above findings of fact and upon the
entire record in the case. I make the tollouinme:
ON( t sIoNs O I..A\
1. 'readwell Corporation is an emploer engagied in
commerce within the meaning of Section 2(2). 6). and (7)
of the Act.
2. he Union is a labor organization ithin the meanin
of Section 2(5) of the Act
3. 'Ihe Inion restrained and coerced employees mn \iolia-
tion of' Section 8(b) 1 IA) of the Act by implicitlx threaltei-
ing Hovard on October 12. 1977. that he kould not hbe
referred to ohs because oft his ictlts l'l protected hb Section
7 of the Act.
4. he unftir labor practice described abihoe :atlct coni-
merce within the meaning of Section 2I6) and (7) of the Act.
rfin Rtil)
Having found that the Union iolated Section 8(h( I (A)
by issuing the threat to Hoard. I shall recommend that it
cease and desist from engaging in such conduct in the fu-
ture and affirmativel take such action as , ill dissipate the
effect of its unthir labor practices.
Also, because the discriminator\ threat eectisel de-
pried Howard of employment opportunities. I deem it ap-
propriate that the Order require the Union to make Hov-
ard whole. Hoistig and Portable Engieers Local ' o. 4.,
supra at 376.'
Upon the above findings of tfact. conclusions of law, and
the entire record in the case. and pursuant to Section l(c)
of the Act. I hereby issue the followuing recommended:
' Counsel for the (;eneral Counsel ha nl addressed the Is\ue ,I hackpap
I conclude this remed? is especiall appropriate here hecaluse . hiring hall
procedure exists: the unlalful threat is perasil e atd cinrlining. nd there
is no eidence that tloward had been rclerrecl t, v. ork h he t meonl a am
time atter the hreati sas made
1065
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 6
The Respondent, Local 28. Sheet Metal Workers Inter-
national Association, AFL CIO. Brooklyn, New York, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Threatening employees that they will not be referred
to work because they engage in union or other protected
concerted activities.
(b) In any like or related manner restraining or coercing
employees in the free exercise of rights guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(a) Make whole Joel Howard for any loss of earnings he
suffered as a result of the Union's threat to fail and refuse to
refer him to work by payments to him of a sum equal to
that which he would have earned as wages on and after the
date he should have been employed by the Treadwell Cor-
poration if the priority recall agreement had been imple-
mented by Union President Moore. Also, Howard should
be reimbursed all lost earnings which can be attributed to
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recomnmended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
the fulfillment of the October 12 threat.' The make-whole
provision shall be with interest computed in accordance
with the Board's established standards contained in F W.
Woolworth Company, 90 NRLB 289 (1950). and Florida
Steel Corporation, 231 NLRB 651 (1977).8
(b) Post at its principal office and place of business. and
also at the Astoria jobsite of Treadwell, and also at the
location where general membership meetings are held, cop-
ies of the attached notice marked "Appendix.'? Copies of
said notice. on forms provided by the Regional Director for
Region 29, shall be duly signed and posted immediately
upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter. in conspicuous places. including all
places where notices to members are customarily posted,
Reasonable steps shall be taken by the Union to insure that
such notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
'Establishing the backpay sums due in the peculiar circumstances herein
may be accomplished in the compliance stage of these proceedings.
8 See. generall), Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
9 In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nalional
Labor Relations Board."
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