Local 383, Lathers Union

National Labor Relations Board - Board Decisions

Jun 5, 1969

176 N.L.R.B. 410 (N.L.R.B. 1969)

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 383, Wood , Wire, and Metal Lathers
International Union , AFL-CIO and Donald Eugene
Lovely and James Paul Amirante . Case 7-CB-1836
June 5, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND ZAGORIA
On March 19, 1969, Trial Examiner Marion C.
Ladwig issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the
General Counsel filed a brief in reply to
Respondent's exceptions and supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Local No. 383,
Wood, Wire, and Metal Lathers, International
Union, AFL-CIO, its officers, agents, and
representatives , shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
nonmembership in the Local , and (b ) whether the Local
thereafter unlawfully refused to refer Lovely and
Amirante to work for Tri-City, in violation of Section
8(b)(2) and ( 1)(A) of the National Labor Relations Act,
as amended.
Upon the entire record , including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel and the Union, I
make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY AND THE UNION
INVOLVED
Tri-City, a Michigan corporation, operates places of
business in Carrollton and Flint, Michigan, where it is
engaged as a subcontractor in lathing, plastering, and the
installation of acoustical ceilings, drywalls, and movable
partitions, and where during a representative year it
purchases and receives materials valued in excess of
$150,000 directly from outside the State. The Union
admits, and I find, that Tri-City is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act, and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
If. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
During 1968, there was a shortage of journeyman
lathers in the Flint, Michigan, area -- the Union (Local
383 in Flint, with a membership of 20) being unable to
meet the need. Sometime in February or March,
journeyman lathers Donald E. Lovely and James P.
Amirante went to Flint, at the suggestion of Edward A.
Wright, a business representative for the Michigan State
Council of Lathers. (Amirante was a member of the
Chicago local. Lovely, a suspended member of the Detroit
local, was paying his reinstatement fee.) They reported to
Business Agent Garth Lavigne, who immediately referred
them to work in the area. Early in April, Garth Lavigne
referred them to Tri-City's Sports Arena job. They
worked there until May 3, when they and the other
members of the crew were temporarily laid off as a result
of a lockout caused by strikes in the construction industry
in Michigan The lockout lasted about 10 weeks, until
about July 10 or 12. On Friday, July 12, Tri-City issued
instructions to recall the crew.
All referrals were made by Garth Lavigne and his
brother, Assistant Business Agent William Lavigne, who
served as Acting Business Agent from about July 10 to
August 5, while Garth was experiencing difficulties with
an ulcer The Local did not have an office or union hall
for making referrals.
MARION C. LADwIG, Trial Examiner: This case was
tried at Flint, Michigan, on January 15-16, 1969, pursuant
to a charge filed on September 27, and amended on
October 25, 1968,1 by Donald E. Lovely and James P.
Amirante, employees of Tri-City Acoustical Company,
herein called Tri-City, against the Respondent, Local No.
383, Wood, Wire, and Metal Lathers International Union,
AFL-CIO, herein called the Union or Local, and pursuant
to a complaint issued October 29. The primary issues are
(a) whether the Local on July 16 caused Tri-City to
discharge Lovely and Amirante because of
B. Discharge After Recall
The crew resumed work on the Sports Arena job on
Monday, July 15. The next day, July 16, Acting Business
Agent William Lavigne visited the job and (as credibly
testified by Amirante) complained to Superintendent
James A. Knight and Foreman Hubert Cushman about
the "two out-of-town men," Lovely and Amirante, being
on the job when "local men" were not working. (Although
'All dates, unless otherwise indicated, refer to the year 1968.
176 NLRB No. 49
LOCAL 383, LATHERS UNION 411
denying on direct examination that he ever used, or ever
•heard used, the term "local men," Lavigne later testified,
"I'm a local man.") Lavigne testified that he informed
Knight and Cushman that Tri•City was not living up to an
oral agreement reached 2 weeks earlier in Lansing, "to
put back the men that resided in Flint and who had
seniority with contractors in Flint." Neither
Superintendent Knight nor Foreman Cushman (who was a
member of the Local's executive board) was aware of any
such agreement. They went with Lavigne to telephone
State Representative Wright. Foreman Cushman placed
the call and (in Wright's words) "told me that Bill
[Lavigne] was on the job and that he was questioning the
right of a couple of men to be on the job, that he had not
been called. . . . I told him this was a direct violation of
the working agreement and the agreement reached at
Lansing, on June 28 . ." (Wright did not know at the
time that the Local had referred Lovely and Amirante to
this same job in April, and that they had been recalled as
laid-off employees after the lockout.) Then Knight and
Lavigne spoke in turn to Wright, and Knight stated to
Foreman Cushman, "We're not going to have any union
troubles. Get rid of the men." Lovely and Amirante were
discharged.
Before the telephone call was placed, Lavigne had
questioned the right of a third lather, Frank Knight, to be
on the job. Lavigne testified that Frank Knight "had left
and ... was in Florida working" during the lockout, "and
I did not know that he was back." When asked what he
said to Frank Knight, Lavigne testified, "I asked him -
we had the understanding that he had left the state. He
had, but he had come back the week before that and he
had never taken his transfer out of the local." Upon
learning that Frank Knight had retained his active
membership in the Local, Lavigne had no objection to his
remaining on the job . Superintendent Knight, who
overheard this conversation between Lavigne and Frank
Knight, credibly testified that when Lavigne asked for
permits, "Frank Knight said he had no reason to have a
permit , because he was a local man and there was
discussion about this. And, apparently, someone was
misinformed about his transfer being taken out."
(Concerning Frank Knight's use of the word, "permit," I
note that Lavigne denied that the Local issued permits,
and testified that the Local issued "referral slips" or
"written verifications to go to work." However, Lavigne
himself used the word, "permit," testifying at one point,
"We give a man a permit from month to month , until his
transfer - if he desires to transfer - from his own local
into our local, we give him a permit from month to
month." (Emphasis supplied.) I also note that when
Lovely later went to work on Tri-City's G.M.I. job,
Business Agent Garth Lavigne gave him a slip of paper
with the notation, "Working Permit, Local 383 Flint,"
and the date "8-19-68 to 8-24-68." Lovely credibly
testified that "It's a permit so I can work.")
C. Referrals Withheld
When Lovely and Amirante were removed on July 16
from the Sports Arena job, the only journeymen left with
Foreman Cushman were Frank Knight and Garth Lavigne
(who had returned to work, despite the ulcer). As credibly
testified by Superintendent Knight, Tri-City had a
deadline to meet on the job, and needed at that time eight
or nine men there. (Foreman Cushman confirmed that
"they [were] in a hurry for the job.") Immediately, Knight
asked William Lavigne to send him some more men, and
Lavigne said he would. Later that week, Knight
telephoned State Representative Edward Wright and
asked if men were available. "Ed said for me to check
with my own local business agent, which I did" -
speaking to Garth Lavigne (then working on the job),
"and he said he would see that [we] got men." Knight
repeatedly asked Garth Lavigne for men. (Garth Lavigne
did not testify.)
In the meantime, Lovely sought permission to return
with Amirante to the Sports Arena job. On the weekend
after their discharge, Lovely asked Foreman Cushman "if
we can come back to work and he said no , not yet."
Thereafter, Lovely asked both Superintendent Knight and
Garth Lavigne for work. Knight told Lovely he could go
right to work if he got the permit - which the Local
would not give at that time. Finally, after about 4 weeks,
Lovely and Amirante were hired by Tri-City to work as
carpenters on its G.M.I. job, after they obtained permits
from the carpenters' hall. Later that week, about August
14, the Local sent them word that they could go to work
at the G.M.I. job (as lathers). They were never offered
referrals to return to the Sports Arena job.
D. No Immediate Replacements
It is undisputed that the Local did not refer anybody
immediately to the job to replace Lovely and Amirante.
As credibly testified by Superintendent Knight, it was not
until 3 to 7 days later that the Local referred one
journeyman, Blaine Lavigne (William and Garth Lavigne's
brother), and about 2 or 3 weeks after the discharges
when two more men were referred: first Dan Ruggins, an
out-of-state journeyman "that drifted through" (referred
by Garth Lavigne), and then journeyman Melvin Wright.
(William Lavigne appeared on the stand to be attempting
to fabricate a defense when he testified that Knight did
not ask him for any additional men on July 16 after
Lovely and Amirante were released, that Knight told him
on July 17 that Knight "didn't need any men at that
time," and that it was after about a week when Knight
first asked for three men. I specifically discredit this
testimony - except the admission that Tri-City requested
three men.)
When Lavigne was asked on direct examination if there
were Flint-resident men out of work on July 16, he named
journeyman Jack Wolf, two apprentices, "and, at the
time, I think my brother [Blaine Lavigne] was off and
that's why Al [Knight] put him to work on the skating
rink." (Emphasis supplied.) It would seem that if his
brother , Blaine , had in fact been out of work on July 16,
William Lavigne would have immediately referred him as
a replacement for Lovely or Amirante. Journeyman Wolf
was not referred as a replacement.
Lavigne testified that he "would say in two weeks" all
the men residing in the Flint area were back to work, and
that when "the G.M.I. job broke," he sent word to Lovely
and Amirante that they could go to work there. However
this explanation does not account for the 2-week period
between the elapse of 2 weeks when the local residents
were back at work, and the elapse of 4 weeks when the
referrals were offered Lovely and Amirante. During the
entire 4 weeks, Tri-City was seeking more men on that
job. In this connection, I note that Lovely and Amirante
alleged in their September 27 charge filed herein against
the Local, that in the weeks following their July 16
discharge, "the Union still refused to issue us a permit to
work, until they found out that we were taking action
against them." At the trial, Lovely credibly testified, "We
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were talking about [filing the charge] a month after we
were let go" (i.e., about the middle of August, when the
Local finally offered Lovely and Amirante referrals to a
different job), and that he talked it over with
Superintendent Knight, Foreman Cushman (a member of
the Local's executive board), and later Elwood Lewis.
(Lewis' status with the Local is not entirely clear. Lewis, a
member of the Chicago local, was the one who delivered
to Lovely his April referral, or "Written Verification," to
the Sports Arena job; who advised Lavigne on July 15 or
16 that Tri-City "was not living up to their agreement" on
that job; and who was sent by the Local on August 14 to
notify Lovely and Amirante that they could go to work at
Tri-City's G.M.I. job). Having considered all the evidence
and circumstances , I find that the Local refused to refer
Lovely and Amirante to available work at the Sports
Arena job from July 16 to August 14, and that it then
offered them referrals to another job because of the talk
about filing a Labor Board charge.
E. Later Referrals
After working the first day as a carpenter on the
G.M.I. job, Lovely worked there several weeks as a
lather. Thereafter, upon request, the Union referred him
to another job.
On January 9, 1969, when Lovely was referred to a
third job, the union steward showed him two documents
to sign, withdrawing the charge filed herein. The steward
said, "You don't have to sign these papers to go to work.
If you go to work without signing the papers, there won't
be a lather left on the job." Lovely left, and that evening
he and Amirante met with William and Garth Lavigne
and the steward. (Amirante had continued to work as a
carpenter.) Both Lovely and Amirante signed the
withdrawal requests, upon the understanding that
Amirante would "come back as a lather," and that the
Local would do its best to keep Lovely and Amirante
working together, at least until Lovely finished paying his
reinstatement fee.
F. The Referral Procedure
Tri-City and the Local were parties to a Working
Agreement , executed by nine lathers ' locals and the
lathing contractors in Michigan outside of Detroit. The
agreement contains a provision on "Hiring ," stating that
"In hiring journeymen lathers ," the contractor will
"afford the Local Union at least 48 hours within which to
refer competent and experienced journeymen lathers," and
that "Age, residence seniority , as to length of service as a
journeyman lather in the area , and for the Employer
requesting the referral , and ability to perform the work"
would be the factors considered , in a nondiscriminatory
manner , in determining competence and experience. The
written agreement does not state what relative weight will
be given age , seniority in the area , seniority for the
employer , and ability , and contains no provision for
replacing a properly referred person with a person having
greater "resident seniority " with the employer or in the
area.
In his opening statement at the trial , the General
Counsel stated that even if the referral procedure "may be
legal on its face," he would show that it was illegally
applied in this case , and that the referral system, "as
actually operated ," would be brought in "as it bears .. .
on what happened in this case ." Concerning the operation
of the referral procedure at the time in question , Acting
Business Agent Lavigne testified that when he was
contacted at his home for a referral, he made each referral
strictly from the top of the out-of-work list - referring
first the person out of work the longest, and considering
nothing else (i.e., disregarding the contractual criteria of
age, seniority in the area, seniority for the employer, and
ability). When asked, "Would you take into consideration
whether a person was a member of Local 383, or of
another local," he answered that a member of another
local "wouldn't have his name on my list." (He claimed,
however, that he did put Lovely's and Amirante' s names
on his list after they were discharged, and testified that he
would refer first those who have been working for the
local contractors all year long.) Lavigne's testimony and
other evidence revealed that despite Lavigne's denials, the
Local did operate a permit system. When Lavigne was
questioned about the "Working Permit" his brother,
Garth, wrote out in longhand and gave to Lovely for the
period, August 19-24 (and later, for the periods August
24-28 and September 9-13), Lavigne testified they were
"written verifications to go to work" - although, I note,
they were given to Lovely while he remained on the same
job. (He later suggested that the dates were when Lovely
paid the 20-cent-a-day business agent assessment, but
when asked why the exhibits were worded, "working
permit," he answered, "I didn't write them; I don't
know.") When Lavigne was questioned about the purpose
of the printed words, "DATE from .. . to ...... (filled
in April 7" to "May 7, 68") on the Union's official
referral form entitled "Written Verification," which had
been given to Lovely earlier that year, Lavigne first
responded, "I can't answer that," and then explained,
"We give a man a permit from month to month, until his
transfer - if he desires to transfer from his own local
into our local, we give him a permit from month to
month"; that "some people do not want to transfer out of
another local into our local"; that such a person "pays his
dues into his other local," and pays only "our B.A.
assessment to our local, so maybe the next month, he'll
put his transfer into our local." (The "Written
Verification," with the name of the International written
at the top, states "This will introduce ,
who is an applicant for membership ( ), who is a
journeyman lather ( ), membership book No........ The
second paragraph reads, "As relating to and affecting his
membership only, he has voluntarily agreed to pay
$ , per day until he pays in full his transfer
indebtness ...... initiation fee ...... reinstatement fee
dues ..... in the total amount of $
") Lavigne testified that the member of an outside
local is "supposed" to get the "written verification"
renewed at the end of the month. When asked what
happens when the referral runs out, Lavigne answered, "If
he is on that job, he's allowed to stay there." At one
point, the General Counsel asked Lavigne why he did not
tell Tri-City "to take back Lovely and Amirante first"
when Tri-City said it needed more men. Lavigne
answered, "I've got the right to send them to any job I
want to." The evidence recited in this paragraph is relied
upon only insofar as it may bear on the allegations in the
complaint that the Local caused Tri-City to discriminate
against Lovely and Amirante because they lacked
membership in the Local.
Two union witnesses testified about an oral agreement
being reached in a meeting in Lansing, Michigan, on June
28 (8 weeks after the May 3 lockout began). State
Representative Wright testified that William Lavigne
requested Tri-City President Charles DeVree in that
LOCAL 383, LATHERS UNION 413
meeting "to call the Local , according to the Working
Agreement" when the lockout was over , in order that the
"men located in this geographical area" could split up the
work, "working 2 or 3 days apiece , if necessary, until
things got back to normal ," and that DeVree agreed that
"Lavigne would be notified , so that these men could be
placed and the work split up among them ." Lavigne
testified that he asked DeVree " if he was going to put our
men back to work [first ], that they were residents of Flint
and with seniority with the companies"; that DeVree said
he would ; and that " I was to place these men wherever I
could place them ." (Emphasis supplied .) Thus , Wright and
Lavigne both testified that Tri-City agreed to call
Lavigne , who would place (or refer ) the lathers . However,
I deem it significant that Lavigne referred to "our men"
(evidently meaning members of the Local ) as those having
resident seniority . Also, I note the reason given by
Lavigne for requesting President DeVree to put "our
men" back first . When asked by union counsel "why did
you ask him this," he said nothing about an expected
shortage of work, or about the "men located in this
geographical area" splitting up the work "2 or 3 days
apiece" (as claimed by Wright). Instead , Lavigne testified,
"Because we had so much trouble with them before .. .
Placing my men, without calling the . . . local" -
indicating that . Lavigne ' s primary concern was controlling
the placement of all lathers in the area.
G. Concluding Findings
The evidence is clear that at the time Acting Business
Agent William Lavigne caused Tri-City on July 16 to
discharge journeymen Lovely and Amirante, he was not
seeking work for any resident journeymen on the Sports
Arena job. Lavigne was sure of only one Flint-area
journeyman, Wolf, being out of work on July 16, and
Wolf was not referred to the job. Despite Tri-City's
request for more men, nobody was referred until several
days later, when Lavigne referred his brother, Blaine, who
undoubtedly would have been referred immediately if he
had been seeking work on July 16. At the time of Blaine
Lavigne's referral, Tri-City admittedly had made a request
for three men on the Sports Arena job. Yet the Local still
did not refer Lovely and Amirante, nor anyone else to the
job until about 2 or 3 weeks after the discharges, when it
next referred out-of-state journeyman Ruggins , and then
journeyman Melvin Wright.
Thus, when the Local induced the discharge of Lovely
and Amirante on July 16, and thereafter withheld referrals
from them for 4 weeks, it was not motivated by a desire
to give preference in employment to local residents. Such
a motivation is belied by the failure of the Local to refer
any replacements immediately, by Lavigne later referring
only one person when admittedly three men had been
requested on the job, and by the Local referring an
out-of-state lather while still withholding referrals from
Lovely and Amirante (whom Tri-City had discharged in
order to avoid "union troubles" during the labor shortage,
and for whom Tri-City was seeking referrals to the job.)
This is not a case where nonresident members of other
locals were discharged for failure to obtain referrals
through a hiring hall. Lovely and Amirante were already
employees of Tri-City; they had been properly referred to
the Sports Arena job; they worked there about a month
before being laid off because of the May 3 lockout; and
they were recalled, not rehired. (The cases cited in the
Local's brief are inapposite.) There was nothing in the
written Working Agreement requiring new referrals
through the Local, and they had no notice of any oral
agreement to the contrary. In his brief, the General
Counsel contends that the "purported" oral agreement,
"arrived at long after the Charging Parties were hired,"
would not justify their discharge because "It is established
that to cause the discharge of an employee by retroactive
application of a hiring-hall agreement not in existence
when he was hired is a violation of Section 8(b)(2) of the
Act," citing Teamsters Local 767 (Tellepsen
Petro-Chemical Co.), 172 NLRB No. 58. However, I find
it unnecessary to rule on this contention, in view of my
other findings.
The June 28 oral agreement, according to both State
Representative Wright and Acting Business Agent
Lavigne, required Tri-City to call Lavigne for lathers and
to permit Lavigne to "place the men," rather than for
Tri-City to recall the crew which had worked on the
Sports Arena job before the lockout. But when Lavigne
went to the job on July 16, he was not seeking to enforce
that agreement nor, as found above, to obtain
employment for Flint residents. He said nothing about
Tri-City ignoring the referral procedure and recalling from
layoff one journeyman and two apprentices - who he
knew were active members of the Local. He questioned
the recall of only Lovely and Amirante, who he knew
were nonmembers of the Local, and journeyman Frank
Knight, who had been working in Florida and who
Lavigne thought had taken a transfer from the Local. As
soon as he learned that Knight was an active member of
the Local, that settled the matter. Lavigne said nothing
about discharging Knight and the three other union
members until they could be properly referred by the
Local. He insisted only on the discharge of the two
nonmembers . There was no discussion of whether the
prelockout employment of Lovely and Amirante with
Tri-City should be considered "resident seniority ... for
the Employer requesting the referral" (in the language of
the written referral procedure), as compared with the
contractual "resident seniority . . . in the area" and "for
the Employer" of anybody on the out-of-work list. While
contending at one place in its brief that Lavigne's
"interest was in securing compliance with Tri-City's
agreement to hire through the Union," the Local
elsewhere in its brief seems to concede that the Union was
concerned only with having only two of the six employees
being referred again , arguing: "We submit that the
evidence is clear that the Union complained on July 16,
1968, that Tri-City Acoustical Company violated its
agreement with the Union by placing the two charging
parties on this job without calling the Union and without
giving preference to residents of the Flint area."
(Emphasis supplied.)
As previously found, when Lavigne admittedly stated at
the June 28 meeting that "our men" were the "residents
of Flint . . . with seniority with the companies," he was
referring to members of the Local. I further find that
when Lavigne went on the job on July 16 and complained
about the oral agreement being violated and about "local
men" being out of work, it was obvious that he was
referring to men in the Local; that when he questioned the
right of journeyman Frank Knight to be on the job until
learning that Knight was an active member of the Local
- therefore not needing a permit - it was obvious that
union membership was controlling; and that when Lavigne
refused for 4 weeks to refer the two nonmembers back to
the job, as discussed above, there could be no doubt that
they were being discriminated against because of their
nonmembership in the Local. I therefore reject the Local's
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contention in its brief that "There was no deliberate
attempt by the Union to deprive them of work
opportunities" and that the "record certainly does not
show any attempt by the Union to discriminate against
these two individuals or to deprive them of employment
opportunities."
Moreover , the manner in which the referral system was
being operated confirms the discrimination against Lovely
and Amirante as nonmembers. The factors or criteria for
referring journeymen were ignored in referring union
members, who were referred strictly on a first-in, first-out
basis from the out-of-work list but, in Lavigne's words, a
nonmember "wouldn 't have his name on my list." In
referring nonmembers , no consideration was given to the
contractual factors of age and ability , nor to "resident
seniority" as defined, but Lavigne would refer first those
who have been working for the local contractors all year
long. (Although the written referral procedure states that
referrals shall not be based on union membership, the
failure of the agreement to state what relative weight
should be given to age, seniority in the area , seniority for
the employer, and ability, suggest that these contractual
criteria were intended as merely a facade, and not
intended to be the actual basis for making referrals.)
Furthermore, as contended by the General Counsel in his
brief, the Local "did not maintain such records as would
enable it to objectively and fairly operate a referral system
based on some such criterion as `resident seniority ' either
when the Charging Parties were put off the job July 16 or
... after that date."
In addition , the Local' s permit system (not mentioned
in the Working Agreement) shows a strong motivation for
Acting Business Manager Lavigne 's requiring Lovely and
Amirante to be discharged and to be referred again
through the referral procedure, whereas the union
members were permitted to remain on the job without
referrals. The requirement by Lavigne that the permit (or
"Written Verification") be renewed by nonmembers each
month, and by Garth Lavigne that the "Working Permit"
to be renewed each week , impressed upon nonmembers
the advantage of transferring their membership and
paying dues to the Local. If Lovely and Amirante had not
been required to get a union permit before continuing to
work for Tri-City, there would not be this inducement for
Lovely to finish paying his reinstatement fee, and
Amirante to transfer his membership.
Accordingly I find, in agreement with the General
Counsel, that when the Local caused Tri-City to discharge
Lovely and Amirante, and refused for 4 weeks to refer
them back to the Sports Arena job, it caused Tri-City
unlawfully to discriminate against them because they
lacked membership in the Local, in violation of Section
8(b)(2) and (1)(A) of the Act. However, I find that the
General Counsel has failed to prove that the Local caused
Tri-City again to discriminate against Lovely on January
9, 1969 , when the union steward threatened a walkout if
Lovely went to work without signing the charge
withdrawal request . (The January 9 incident was not
alleged or litigated as a separate Section 8 (b)(1)(A)
violation.)
thereby engaging in unfair labor practices affecting
commerce within the meaning of Section 8(b)(2) and
( l)(A) and Section 2(6) and (7) of the Act.
The Remedy
Having found that the Respondent has committed
certain unfair labor practices , I shall recommend that they
be ordered to cease and desist from such conduct, and to
take affirmative action , which I find necessary to remedy
and to remove the effect of the unfair labor practices and
to effectuate the policies of the Act.
The Respondent having unlawfully caused Tri-City
Acoustical Company to terminate Donald E . Lovely and
James P. Amirante on July 16, 1968 , and to deny them
employment through August 13, 1968 , I shall recommend
that the Respondent be ordered to make the two
employees whole for any loss of earnings from July 16
through August 13, 1968 , computed in the manner set
forth in F. W. Woolworth Company , 90 NLRB 289, with
interest at 6 percent per annum as provided in Isis
Plumbing & Heating Co . 138 NLRB 716, and to notify
Tri-City that the Respondent has no objection to their
employment.
Accordingly , on the basis of the foregoing findings and
conclusions , and on the entire record, I recommend
pursuant to Section 10(c) of the Act, issuance of the
following:
ORDER
Respondent, Local No. 383, Wood, Wire, and Metal
Lathers International Union, AFL-CIO, its officers,
agents, representatives , and successors , shall:
1. Cease and desist from:
(a) Causing or attempting to cause Tri-City Acoustical
Company, or any other employer, to discharge, deny
employment to, or otherwise discriminate against any
nonmember of Local 383 for not having a referral, written
verification, or working permit which is not required of
members of the Local.
(b) Refusing to refer any journeyman lather because of
nonmembership in the Local.
(c) In any like or related manner restraining or coercing
nonmembers in the exercise of their rights as employees
under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make whole Donald E. Lovely and James P.
Amirante as provided in the section of the Trial
Examiner's Decision entitled "The Remedy."
(b) Notify Tri-City Acoustical Company in writing,
with a copy to Lovely and to Amirante, that it has no
objection to.Tri-City employing them.
(c) Mail to its members, and post at its meeting place,
copies of the attached notice marked "Appendix."2 Copies
of such notice, on forms provided by the Regional
Director for Region 7 (Detroit, Michigan), after being
duly signed by an authorized representative of the
CONCLUSIONS OF LAW
By causing Tri-City to discharge Lovely and Amirante
on July 16 and to refuse them employment from July 16
through August 13 because of nonmembership in the
Local, the Local has caused Tri-City to discriminate
against them in violation of Section 8(a)(3) of the Act,
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice. In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing and Order " shall be substituted for the words "a
Decision and Order."
LOCAL 383, LATHERS UNION
Respondent, shall be mailed and posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the posted
notices are not altered, defaced, or covered by any other
material. Upon request of the Regional Director, the
Respondent shall supply him with a sufficient number of
signed copies for posting by Tri-City Acoustical Company
if Tri-City so desires.
(d) Notify the Regional Director for Region 7, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith.'
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges any violation of the Act not
specifically found herein.
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 7, in writing , within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith."
APPENDIX
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
415
WE WILL NOT require a nonmember of Local 383 to
have a working permit, referral, or written verification
to work on any job when not requiring a Local member
to have one.
WE WILL NOT refuse to refer any journeyman lather
to a job because of his nonmembership in the Local.
WE WILL pay Donald E. Lovely and James P.
Amirante for earnings lost as a result of our causing
Tri-City Acoustical Co. to discharge them on July 16,
1968, and our failure to refer them back to the Sports
Arena job.
WE WILL notify Tri-City we have no objection to it
employing Mr. Lovely and Mr. Amirante.
Dated By
LOCAL No. 383, WOOD,
WIRE, AND METAL
LATHERS INTERNATIONAL
UNION , AFL-CIO
(Labor Organization)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 313-226-3244.