Pipline Local Union No. 38

National Labor Relations Board - Board Decisions

Feb 21, 1980

247 N.L.R.B. 1250 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pipeline Local Union No. 38, affiliated with the
Laborers' International Union of North America,
AFL-CIO (Hancock-Northwest, J.V.) and Mac
Westmoreland and Marcus Warren and Marion
Smith and Floyd E. Payne and M. D. Cook
Laborers' International Union of North America,
AFL-CIO; and Pipeline Local Union No. 38,
affiliated with the Laborers' International Union of
North America, AFL-CIO and Alvin Stewart and
M. D. Cook and Tom Mitchell and Boyd Hunt.
Cases 16-CB-1258, 16-CB-1260-1,16-CB-1260-5,
16-CB-1260-7, 16-CB-1416, 16-CB-1260-3,
16-CB-1260-4, 16-CB-1285, and 16-CB-1312
February 21, 1980
DECISION AND ORDER
On December 21, 1978, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in this
proceeding. Thereafter, Respondents and the General
Counsel filed exceptions and supporting briefs, and the
General Counsel filed an answering brief.
The Board has considered the record in the attached
Decision in light of the exceptions and briefs and has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge only to the
extent consistent herewith and to adopt his recom-
mended Order, as modified.
We agree with the Administrative Law Judge's
findings that Respondents violated Section 8(b) (1)
(A) of the Act by refusing to refer employees for work
and by physically assaulting employees because of
their involvement in protected concerted activities and
Section 8 (b) (2) of the Act by causing Employer
Hancock-Northwest, J.V., to discharge employee Mac
Westmoreland because of his protected concerted
activities. With regard to the findings that Respon-
dents discriminatorily refused to refer employees for
work the Administrative Law Judge found that
Respondents discriminatorily failed to refer Charging
Party Tom Mitchell during the week ending January
23, 1977,2 and that Respondent Local discriminatorily
failed to refer Mitchell on July 11, Alvin Stewart on
August 25, and Dale Cook subsequent to April 3,
1978. The Administrative Law Judge further found
that the General Counsel failed to establish that
Respondents had discriminatorily refused to refer the
Charging Parties on other dates specified in the
' Respondents and the General Counsel have excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products.
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.
247 NLRB No. 150
complaint and recommended dismissal of those por-
tions of the complaint. As set out fully, infra, we agree
with the Administrative Law Judge's findings that
Respondent Local did not discriminatorily refuse to
refer Charging Parties Marcus Warren and Marion
Smith, but, contrary to the Administrative Law Judge,
we find that Respondents discriminatorily refused to
refer Charging Parties Stewart, Mitchell, and West-
moreland as alleged in the complaint.'
The record facts, as more fully recited by the
Administrative Law Judge, establish that Respondent
Local operates a nonexclusive referral service pursu-
ant to an agreement with the Pipeline Contractors
Association. In October 1976 the Local was placed
under trusteeship by Respondent International, and
David Solly was appointed acting business manager of
the Local. Subsequently, on May 1, 1977, Solly was
elected business manager of the Local and the Interna-
tional's trusteeship was ended. During Solly's tenure
as acting business manager under the trusteeship and
later as elected business manager for the Local he
abused his position of authority by retaliating against
individuals who had politically opposed him in the
Local. As more fully set forth in the Administrative
Law Judge's Decision, Solly violated the Act on
numerous occasions by his threats of physical violence
and by his actual physical attacks upon employees
because they had politically opposed him in the Local
and/or had filed unfair labor practice charges against
him with the Board. In addition, on a number of
occasions Solly threatened to manipulate the Local's
hiring hall and out-of-work list in order to retaliate
against his political opponents, and on a number of
occasions Solly in fact engaged in such manipulations
to retaliate against his political opponents and to force
them out of the Local. Thus, at various times during
Solly's tenures as acting business manager and as
business manager he discriminatorily referred to
undesirable jobs employees that he perceived to be his
political opponents in the Local, and on other occa-
sions he discriminatorily refused to refer such employ-
ees to any jobs. Solly also implemented new rules
governing the referral system without notifying the
membership and then removed his political opponents
from the out-of-work list when they failed to comply
with these new rules. At other times no procedures
were followed and referrals were based entirely on
Solly's and Business Agent Vaughn's personal prefer-
ences. Finally, at various times Solly destroyed hiring
hall records, fabricated hiring hall records, or kept no
records at all in anticipation of preparing a defense to
: Unless otherwise indicated all dates hereafter refer to 1977.
In the absence of exceptions we adopt the Administrative Law Judge's
recommended dismissal of the allegations that Respondents discriminatorily
refused to refer Charging Parties Floyd E. Payne and Boyd Hunt or Charging
Party Dale Coonk prior to April 3, 1978.
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PIPELINE LOCAL UNION NO. 38
a possible unfair labor practice charge alleging a
discriminatory manipulation of the hiring hall.
The Administrative Law Judge found that, based on
Solly's discriminatory conduct, Respondents had act-
ed with malice toward the Charging Parties and had
discriminatorily manipulated the hiring hall and out-
of-work list. The Administrative Law Judge, however,
refused to find that Respondents had discriminatorily
refused to refer the Charging Parties unless the
General Counsel specifically established that a Charg-
ing Party had been refused a referral to a specific job.
We find merit to the General Counsel's exceptions
that the Administrative Law Judge erred by requiring
the General Counsel to establish the existence of a
specific job referral as a prerequisite to finding that a
Charging Party has been discriminatorily refused a
referral. "We have consistently held that to establish a
violation, it is unnecessary to show that jobs were
available at the time of the request for referral."' More
recently we have pointed out that "the burden of
negating the General Counsel's prima facie case of
discrimination in hiring referrals falls upon Respon-
dent as the sole custodian of the hiring hall records.
Its failure to do so creates an adverse inference that
such evidence in its possession is not favorable to
Respondent's case.'"
In the instant case the complaint alleges that
Respondents discriminatorily refused to refer Charg-
ing Party Stewart subsequent to November 30, 1976,
and Charging Party Mitchell subsequent to January
13. As set forth above, the General Counsel estab-
lished and the Administrative Law Judge found that
on these dates and subsequent thereto Soally, as
Respondents' agent, demonstrated animus towards
Stewart and Mitchell, threatened to retaliate against
his political opponents (Stewart and Mitchell were
included in these threats), and manipulated the hiring
hall in order to discriminate against his political
opponents. In view of Respondents' failure to rebut
the General Counsel's prima facie case we find that
Respondents discriminatorily refused to refer Charg-
ing Parties Stewart and Mitchell for work on the dates
alleged in the complaint.'
The General Counsel also excepted to the Adminis-
trative Law Judge's failure to find that Respondent
Local discriminatorily refused to refer Charging Party
Warren subsequent to May 2 and Charging Party
Smith subsequent to May 24. Based on credited
testimony, however, Respondent Local established
that neither Warren nor Smith had requested referrals
Utility and Industrial Construction Company. 214 NLRB 1053 (1974). and
cases at fn. 2 therein.
' Seafarers' nternational Union. Atlantic, Gulf Lakes and Inland Waters
District. AFL-CIO (American Barge Lines). 244 NLR B 641 (1979).
Whether Stewart or Mitchell mitigated their loss of pay or to what extent
they were available for work is, of course, a matter that must be ascertained at
the compliance stage of the proceedings
from the hiring hall subsequent to those dates.
Accordingly, we agree with the Administrative Law
Judge that in the absence of a request for a work
referral from the hiring hall, unless explainable as in
the case of Westmoreland, discussed below, there can
be no finding that Respondent Local discriminatorily
refused to refer these employees for work. Thus, by
establishing that Warren and Smith had not requested
work referrals Respondent has presented sufficient
evidence to rebut the General Counsel's prima facie
case of discrimination with regard to these union
members.
Finally, the General Counsel excepted to the
Administrative Law Judge's refusal to find that
Respondent Local discriminatorily refused to refer
Charging Party Westmoreland subsequent to May 2.
Although the Administrative Law Judge found that
Respondent Local caused Employer Hancock-North-
west, J.V., to discharge Westmoreland on May 3, he
concluded that Respondent Local did not discrimina-
torily refuse to refer Westmoreland for work because
Westmoreland had not made a request for a work
referral until September 7. The Administrative Law
Judge also found that after September 7 the Local was
unable to contact Westmoreland by telephone to offer
him a job, and that therefore it did not discriminatori-
ly refuse to refer him for work after that date. We
disagree. As set forth more fully in the Administrative
Law Judge's Decision, in April and early May Solly
threatened to retaliate against Westmoreland because
of his activity in support of Solly's political opponents.
On May 3 Solly discriminatorily caused Employer
Hancock-Northwest, J.V., to discharge Westmore-
land. In these circumstances we find that it would
have been futile for Westmoreland to request a job
referral from the hiring hall. Indeed, such a request
would have fallen on deaf ears, as Respondent Local
had just caused westmoreland's discriminatory dis-
charge.'
With respect to Respondent Local's failure to refer
Westmoreland after he registered for referrals on
September 7, we note that the only "evidence"
supporting a finding that Respondent Local attempted
to contact Westmoreland with job referrals was a self-
serving memoranda prepared by Respondent Local
after Soally had destroyed the original hiring hall
records. Furthermore, that memoranda, even if credit-
ed, merely shows three phone calls were placed to
Westmoreland's home without success. Inasmuch as
the Administrative Law Judge has found that Respon-
' The Board has indicated in other contexts that it will not require an
individual to perform a futile act. See, for example, Mason City Dressed Beef
Inc.. 231 NLRB 735, 747-748, and fn. 3 (1977); Alexander Dawson. Inc.
d/b/a Alexander' Restaurant and Lounge. 228 NLRB 165. 179 (1977);
Macomb Block and Supply, Inc.. 223 NLRB 1285, 1286 (1976): and Penzel
Construction Company. Inc.. 185 NLRB 544 (1970).
1251
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent Local's job-referral procedures adopted in Au-
gust "were not an effort to end the intended discrimi-
nation . . . but were instead an attempt to justify the
discriminatory referral procedure which Solly had
secretly adopted in an endeavor to eliminate oppo-
nents from the Local's membership," we fail to see
why Respondent's conduct after September 7 was
sufficient to terminate its liability for Westmoreland's
initial discriminatory discharge.
Accordingly, we find that Respondent Local did not
rebut the General Counsel's prima facie case of
discriminatory refusal to refer Westmoreland for work
after May 3.
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent International and
Respondent Local, as set forth above, occurring in
connection with the operations of Hancock-North-
west, J.V., as described in section I of the Administra-
tive Law Judge's Decision, have a close, intimate, and
substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead and
have led to labor disputes burdening and obstructing
commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Pipeline Local Union No. 38, affiliated with the
Laborers' International Union of North America,
AFL-CIO, and Laborers' International Union of
North America, AFL-CIO, Respondents herein are
labor organizations within the meaning of Section 2(5)
of the Act.
2. Hancock-Northwest, J.V., a joint venture, is
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
3. By Acting Business Manager David Solly's threat
of physical violence to member Dale Cook in Decem-
ber 1976 for talk about running against Solly in the
election and by Solly's discriminatory refusal to refer
members Alvin Stewart and Tom Mitchell for work,
Respondents violated Section 8(b)(2)(1)(A) of the Act.
4. By causing Employer Hancock-Northwest, J.V.,
to discharge member Mac Westmoreland from his job
on May 3, 1977, because Westmoreland failed to
support Solly in the May I election, Respondent Local
violated Section 8(b)(2) of the Act.
5. By refusing to refer members Alvin Stewart, Tom
Mitchell, Mac Westmoreland, and member Dale Cook
subsequent to April 3, 1978, because of their intra-
' Although the complaint alleged that Respondent Local discriminatorily
refused to refer Westmoreland subsequent to May 2, it is clear that
Westmoreland was not available for a referral until May 3. the day on which
he was discharged.
union activities against Business Manager Solly, Re-
spondent Local violated Section 8(b)(1)(A) of the Act.
6. By threatening member Dale Cook on June 20 or
21, 1977, with serious physical harm or violence for
filing charges herein and by pistol-whipping Cook on
April 3, 1978, Respondent Local violated Section
8(b)(l)(A) of the Act.
7. The general Counsel has failed to prove that
Respondents unlawfully refused referrals to member
Dale Cook prior to April 3, 1978, or to member Boyd
Hunt and that Respondent Local unlawfully refused
referrals to members Boyd Hunt, Floyd Payne,
Marion Smith, Marcus Warren, and member Dale
Cook prior to April 3, 1978.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist therefrom and to take certain affirma-
tive action necessary to effectuate the policies of the
Act.
Respondents Local and International shall be or-
dered to make members Alvin Stewart and Tom
Mitchell whole for any loss of earnings that they may
have suffered by reason of Respondents' discriminato-
ry referral practices during the International's trustee-
ship of the Local through Solly. Respondent Local
shall be ordered to make members Alvin Stewart, Tom
Mitchell, Mac Westmoreland, and Dale Cook whole
for any loss of earnings that they may have suffered by
reason of its discriminatory referral practices after the
trusteeship. Such loss of earnings shall be computed in
the manner proscribed in F. W. Woolworth Company,
90 NLRB 289 (1950), with interest computed in
accordance with Florida Steel Corporation, 231 NLRB
651 (1977).9 Respondent Local shall also be ordered to
operate its hiring hall in a nondiscriminatory manner,
to maintain records which accurately reflect the basis
on which each referral is made, and to make available
such records for inspection by the Board's Regional
Director or his agent. Further, inasmuch as Respon-
dent Local has engaged in such egregious and wide-
spread misconduct as to demonstrate a general disre-
gard for the fundamental statutory rights of employ-
ees, we find it necessary to issue a broad order
requiring Respondent Local to cease and desist from
infringing in any other manner upon employee rights
guaranteed by Section 7 of the Act.'° Finally, because
of the pervasive effect of Respondent Local's discrimi-
'See, generally. Isis Plumbing & Healing Co.. 138 NLRB 716(1962).
"' Hickmot Foods. Inc.. 242 NLRB 1357 (1979).
1252
PIPELINE LOCAL UNION NO. 38
natory operation of its job-referral service affecting all
of the Local's members and because of the improbabil-
ity that all members (living over a wide area in Texas
and other States) would otherwise receive notice of
remedial actions the Local is required to take, we find
it necessary for Respondent Local to mail each
member a copy of the notices.
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 Administrative Law Judge, as modified
herein, and hereby orders that:
A. Respondent Pipeline Local Union No. 38,
affiliated with the Laborers' International Union of
North America, AFL-CIO, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order, as so modified:
1. Substitute the following for paragraph A,l,(b):
"(b) Refusing to offer job referrals to Alvin Stewart,
Tom Mitchell, Mac Westmoreland, Dale Cook, or any
other applicant for employment, because such appli-
cant opposes the election or leadership of the business
manager."
2. Substitute the attached Appendix A for that of
the Administrative Law Judge.
B. Respondent Laborers' International Union of
North America, AFL-CIO, and Pipeline Local Union
No. 38, affiliated with the Laborers' International
Union of North America, AFL-CIO, their officers,
agents, and representatives, shall take the action set
forth in the said recommended Order, as so modified:
1. Substitute the following for paragraphs B,2,(a),
and (c):
"(a) Make Alvin Stewart and Tom Mitchell whole
for any loss of pay and any other benefits suffered by
reason of the discrimination committed against them,
in the manner set forth in the section of this Decision
and Order entitled 'The Remedy.'
"(c) Post at the International's regional office in
Hurst, Texas, and at Local 38's office and meeting
places copies of the attached notice marked 'Appendix
B.' Copies of said notice, on forms provided by the
Regional Director for Region 16, after being duly
signed by Respondents' authorized representative,
shall be posted by Respondents immediately upon
receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
Respondents to insure that said notices are not altered,
defaced, or covered by any other material. In addition,
the authorized representatives of Respondent Local
shall mail a copy of 'Appendix B' to each of its
members."
2. Substitute the attached Appendix B for that of
the Administrative Law Judge.
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT operate our job-referral service
in a discriminatory manner.
WE WILL NOT refuse to offer job referrals to
Alvin Stewart, Tom Mitchell, Mac Westmore-
land, Dale Cook, or any other applicant for
employment, because such applicant opposes the
election or leadership of the business manager.
WE WII.L NOT cause or attempt to cause
Hancock-Northwest, J.V., or any other employer,
to discharge Mac Westmoreland, or any other
employee, for opposing the election of the busi-
ness manager.
WE WILL NOT physically assault any member
for opposing the election or leadership of the
business manager.
WE WILL NOT threaten any member with
physical harm or violence for filing an NLRB
charge.
WE WILL NOT in any other manner restrain or
coerce employees or applicants for employment
in the exercise of their rights guaranteed in
Section 7 of the Act.
WE WILL refer members for employment from
an out-of-work list on a nondiscriminatory basis.
WE WILL state on the out-of-work list the
detailed circumstances of any person referred to a
job (or sent to a job without a referral to await a
vacancy) outside the first-in, first-out order of
names on the out-of-work list, or when his name
was not on the list.
WE WILL notify the member in writing, and
state the justification, if we remove his name from
its place on the out-of-work list under any
circumstances other than his referral or employ-
ment on a Local job, or his death.
WE WILL keep a current list of referral
requests, showing the name, location, nature, and
expected length of each job, any skills required,
the reporting dates, and the time and date of all
contacts and attempted contacts made to refer
applicants to the job.
WE WILL keep current and retain for 2 years
both the out-of-work list and the referral re-
quests, and make them available for inspection at
1253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all reasonable times upon request of any member,
to enable the membership to be assured that all
referrals are made on a fair basis.
WE WILL pay Dale Cook, Tom Mitchell, Alvin
Stewart, and Mac Westmoreland for their lost
wages and benefits, plus interest.
PIPELINE LOCAL UNION No. 38,
AFFILIATED WITH THE LABORERS'
INTERNATIONAL UNION OF NORTH
AMERICA, AFL-CIO
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, during any trusteeship over
Local 38, deny job referrals to any member for
opposing the election of the acting business
manager.
WE WILL NOT, during such a trusteeship,
permit the acting business manager to threaten
any member with physical violence for opposing
the acting business manager's election.
WE WILL NOT in any other manner restrain or
coerce employees or applicants for employment
in the exercise of their rights guaranteed in
Section 7 of the Act.
WE WILL pay Alvin Stewart and Tom Mitchell
for their lost wages and benefits, plus interest.
LABORERS' INTERNATIONAL UNION OF
NORTH AMERICA, AFL-CIO
PIPELINE LOCAL UNION No. 38,
AFFILIATED WITH THE LABORERS'
INTERNATIONAL UNION OF NORTH
AMERICA, AFL-CIO
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: These
consolidated cases were heard in Fort Worth, Texas, on
October 31, November 1-4 and 14-19, December 12-15,
1977,' and after reopening of the record on June 30, 1978.
The individual charges were filed from May 23 through
August 31 and on April 7, 1978. A consolidated complaint
was issued on July 21 (amended on August 18, October 5,
and at the hearing); a second complaint was issued on May
12, 1978, and consolidated with the earlier amended com-
plaint on June 2, 1978.
Acting Business Manager David Solly was elected the
business manager of the Local on May 1, ending the
International's 7-month trusteeship over the local. These
cases arose after Solly failed to refer the Charging Parties to
jobs following their opposition to him or to his slate of
candidates in the election. The primary issues are: (a)
whether the International through Solly during the trustee-
ship and whether the local through Solly after the election
unlawfully threatened a member with physical violence for
talk about running against Solly in the election, again
threatened the member for filing a charge herein, and
thereafter pistol whipped the member because of his intra-
union activity when he sought a job referral from Solly; (b)
whether the local through Solly caused an employer to
discharge a member from his job when replacing the
member as steward following the election; and (c) whether
the International through Solly and later the local through
Solly and a business agent he selected discriminatorily
refused to refer the Charging Parties to jobs in violation of
Section 8(b)(1)(A) and (2) of the National Labor Relations
Act.
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 Respondents I make
the following:
FINDINGS OF FACT
I. JURISDICTION
Hancock-Northwest, J.V., is a joint venture engaged in
pipeline construction in Texas where it annually receives
goods valued in excess of $50,000 directly from outside the
State. Respondents International and local admit that
Hancock and other members of the Pipe Line Contractors
Association are employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that the
International and local are labor organizations within the
meaning of Section 2(5) of the Act.
11. ALLEGED UNFAIR LABOR PRACTICES
A. Background
David Solly, formerly a business agent, was first appoint-
ed as acting business manager on May 25, 1976, when the
local's executive board voted to remove Business Manager T.
P. Whitehead from office. Later, after the International
placed the local under trusteeship on October 6, 1976,
trustee John Wallace appointed Solly to continue serving as
acting business manager. Solly served in that capacity under
authority of the International until March 27 when Wallace
replaced him with Whitehead until the election was held on
May 1, ending the trusteeship.
Meanwhile on September 29, 1976 (outside the 10(b)-
limitation period which began on November 23, 1976), Solly
engaged in a fight with one of his political opponents, Acting
Secretary-Treasurer Alvin Stewart. (Solly, age 29 and about
6 feet, I inch tall, was quite muscular, weighing about 230 or
' All dales are in 1977 unless otherwise stated.
1254
PIPELINE LOCAL UNION NO. 38
235 pounds. He was regarded as a "very tough individual," a
"rough tough customer," and one of the "toughest pipelin-
ers" in the local. He bragged about being a golden gloves
champion and admitted having been involved in fights with
a steward and with foremen on previous pipeline jobs.) As
credibly testified by Steward and Tom Mitchell (two of the
Charging Parties who impressed me as being trustworthy
witnesses), Solly first struck Stewart, starting the fight, after
Stewart had refused to sign union checks to pay for
damaging machinery of a nonunion pipeline contractor.
Mitchell (then a local auditor), and Ben Simmons (then the
president), separated Solly and Stewart after Solly attempted
to throw Stewart over the railing of the motel stairs and
Stewart managed to overcome Solly's superior strength by
holding a grip around Solly's neck and the metal railing.
Later, Solly falsely reported that all three of these political
opponents attacked him. (I discredit Solly's account of the
fight. From his demeanor on the stand he appeared willing
to give whatever testimony might be considered a plausible
defense.)
B. Solly's Threats and Pistol-Whipping
I. Threats
Solly and Charging Party Dale Cook had been political
allies in the local, and Soilly had previously appointed Cook
as a steward. However, shortly after appointing Cook to
steward the McMahan construction job at Henderson,
Texas, in early December 1976 Solly accused Cook of
"trying to get the Local away from him." As Cook credibly
testified, Solly told Cook that "if he heard any more talk
about me running my mouth about trying to get his
[business manager] job or to get T. P. Whitehead back in
there, that he would come up there and peck on my door
and ask me outside, and one of us was going to the hospital."
(Throughout his lengthy testimony Cook appeared to be
endeavoring to give an accurate account of what happened.)
Charging Party Mac Westmoreland, Cook's nephew who
was present, recalled that Solly "was afraid Dale was going
to run against him in the election" and "told Dale if he
heard any more about it that he was going to come back,
pecking upon his door and one of them was going to the
hospital." Although admitting having a conversation with
Cook in Westmoreland's presence, Solly not only denied
making the threat but claimed that in December 1976,
"there was nothing to run against ... I did not know about
an election until about three or four days before the March
27th meeting." (Wallace, however, recalled that in the
October 10, 1976, meeting when he announced the trustee-
ship over the local "there were a lot of questions asked in
regard to an election," and he told the members that "the
quicker that we get the turmoil resolved . . . the quicker we
would have an election.") As alleged in the complaint I find
that Solly, while acting as business manager on behalf of the
International during the trusteeship over the local, did
coercively threaten Cook with physical violence if he did not
refrain from his intraunion activities. Accordingly, I find
that the International thereby violated Section 8(b)(IXA) of
the Act.
On June 20 or 21, after Cook and five other members had
filed charges herein, Solly telephoned Cook at home and said
"he had the charges in front of him" and "he found several
things wrong with them." Solly said- that the others did not
bother him, and that "I was the only one that worried him
so much." Then, as Cook credibly testified, Solly said that
President Roger Vaughn "had asked him to do nothing to
me, but he was going to fix me to where I would not be filing
no more charges." (Emphasis supplied.) I discredit Solly's
denials and find that the local, through this conduct of its
elected business manager, coercively threatened Cook with
serious physical harm or violence for filing the charge in
violation of Section 8(b)(1)(A) of the Act.
2. Pistol-whipping
About 9 months later, on March 26 or 27, 1978, Solly
telephoned Cook and invited him "to come to Fort Worth
and talk to him about going to work." (Cook had not done
any pipeline work since Solly stopped appointing him
steward following the Henderson job in December 1976.)
Cook arrived at Solly's home about 10 p.m. on April 3. As
Cook credibly testified, Solly "opened the door and invited
me in," and during a long conversation they had two drinks
of vodka together. Cook commented about Solly's appear-
ance, and Solly boasted that he had been running 1-1/2
miles per day and pressing 200 pounds over his head and
said "he thought that he could hold his own with anybody in
the Local." Solly showed Cook a knot on his fist and said he
had knocked a man unconscious at some town near a jobsite
about 2 weeks before. Solly stated that he respected Cook for
not being afraid to come up and talk to him and said "I'll bet
you brought some kind of weapon with you." Cook said no,
patted himself down, and said that he did not bring anything
"because you assured me that there would not be no trouble
and there was no hard feelings."
In the conversation, as Cook credibly testified, Solly said
that Cook and the other Charging Parties "had busted the
Union, that we cost them 12,000 in attorney fees, but that
he would put me back to work." Solly said that Cook could
have a pick of the jobs, and Cook asked "Such as what?"
telling Solly that "I would like something where I wouldn't
be out on the pipe gang or something like that, because I'm
too old to do it." Solly said that he would "either give me a
strawboss" job "or fences, anything where I could handle
it." However, Solly said that Cook could not go out as a
steward. Cook asked why, and Solly "told me that he had his
Union set just exactly the way he wanted it."
Cook said that he needed 2 or 3 weeks before he would be
able to go back to work because "I had my place of business
up for sale." They continued talking in the kitchen, and
Cook asked Solly for repayment of a $700 loan (which Cook
had made to Solly about 2 years earlier), stating that he
needed the money. Solly responded that his testimony for
Cook in Durant, Oklahoma, in December 1975 (when Cook
was charged with DWI when picketing) was worth that
much. Then, when Cook turned around to get a drink of
water at the kitchen sink, Solly suddenly hit him in the back
of the head and neck, stating "Now, you dumb son-of-a-
bitch I've got you up at my place .... I'm going to beat
your mn-f- head off." They struggled, and Solly "stepped
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back from me and pulled out a pistol . . . from under his
shirt," grabbed the barrel of the .357 magnum, and "hit me
hard with it, it busted my head open, cut it open. Hit me
over my right eye and my ear." After knocking Cook to the
floor Solly (wearing cowboy boots) 'kicked me in the throat
and neck . . . and in the ribs." As Cook lay on the floor, "I
told him that I was going to call the police." Solly went to
the bedroom door, picked up a shotgun, called the police
himself, and told Cook to get out of his house "and he hoped
that I had a weapon downstairs in my pickup to where he
could shoot me."
Cook left and waved down the police as they arrived. The
police searched Cook and asked him and Solly what
happened. Cook told Solly "he was a goddamn liar." Finally
Cook went to the hospital for emergency treatment. The
next day, April 4, Cook reported the beating to International
Vice President R. P. Vinall who "said if I wanted to go to
work he would see that I was put to work. And I told Mr.
Vinall that under the circumstances that I could not try to
go back to work because I had been to see Mr. Solly about
going to work and had the hell beat out of me and I'd be
scared to go back out there. He said . . . he couldn't assure
me that it wouldn't happen again."
I discredit as largely a fabrication Solly's testimony about
the incident. He claimed that when Cook arrived in town
and called him that evening wanting to go to his home to
talk to him he repeatedly told Cook that he would rather
that Cook did not. Solly claimed that he finally said, "Well,
OK," because "I knew Mr. Cook's reputation and I didn't,
to be honest, I didn't want my pickup or my car to be
bombed." (From his demeanor on the stand I concluded that
he was.not being candid.) Solly later testified that when
Cook arrived at his second floor apartment he refused to
allow Cook to enter the door, that Cook remained on the
porch throughout the long conversation, and that he did not
have anything to drink with Cook. (I find that this testimony
is also fabricated. Not only did Solly not appear to be giving
an accurate account of what actually happened, but I note
that the patrolman, Mike Womack, a defense witness,
testified that after he arrived at the scene Solly reported to
him that Solly "invited" Cook "into the house and that they
sat down and had a few drinks.") Solly admitted telling
Cook that "we paid our attorney about $12 or $13,000," and
that he had testified for Cook in Durant. However, Solly
denied that anything was said about $700 debt and denied
that Cook ever lent him any money. (In discrediting these
denials I note that another union witness, President Roger
Vaughn, testified that Cook told him the previous August
about the unpaid $700 loan and about the reason for the
loan.) Solly admitted that Cook asked to be referred to a job
where he "wouldn't have to do anything hard," stating that
he was "not the youngest guy in the world." Solly claimed
that he refused the request that Cook later said, "Well,
David, you could put me out as a steward if you wanted to,"
and that when he told Cook "There's no way in hell that I'm
going to put you out as a steward" and said he was going to
bed Cook struck him and started the fight. Solly also
claimed that he did not hit Cook with the pistol until Cook
pulled a I-1/2 or 2-inch knife and "cut at me with it a couple
of times and I tried to grab it and he cut my fingers." (I find
that Solly's testimony about a knife is also fabricated. After
testifying that Cook "cut my fingers," he added that "they
didn't even bleed. I mean it wasn't that bad. He just nicked
them when he was cutting at me." On cross-examination
Solly claimed "I think it had a brown handle," although
thereafter testifying, "Mostly, I just saw the blade sticking
out." The officer recalled that he felt a pocket knife in
Cook's pocket upon searching him, but Cook credibly
testified that the officer felt instead Cook's toenail clippers.)
Concerning the reason for the fight Patrolman Womack
testified that when he arrived on the scene Cook "said that
he had been in an argument, a fight, with Mr. Solly about a
job," and Solly "advised me that Mr. Cook had come . . .
up there to see about a job."
In its brief the local contends that Cook's version of the
incident cannot be credited, arguing that the evidence
discloses that Cook is a "thoroughly despicable character, a
master at character assassination, a racist, a cheat and a
liar." Ignoring the conflicts between Solly's and Patrolman
Womack's testimony, the local contends that when the
details of Cook's testimony are compared with theirs "it
becomes apparent that Cook's tale is one of fiction." (As
indicated above, Cook impressed me as being a truthful
witness on the stand.) Also ignoring Solly's admission that
Cook was requesting a referral to a light job where "he
wouldn't have to do anything hard," the local argues that
"the purpose of Cook's visit was to convince Solly to make
him a steward again," and that the "assault was made by
Cook on Solly" because Solly refused to put an incompetent,
lazy man out on a job as a steward. I disagree and find that
Solly struck the first blow, beating Cook with the pistol.
Also in its brief the local contends that it is clear that
"according to Cook, the reason Solly hit him was because
Solly was mad that Cook had asked for repayment of the
$700" loan. The credited evidence does show that Solly
suddenly struck Cook as he was turning around to get a
drink of water immediately after they had discussed repay-
ment of the loan. However, they had engaged in a long
discussion, lasting over hour, and had been talking about a
job referral, breaking the local with attorney fees, hard
feelings over this proceeding, and various union matters.
Furthermore, Solly indicated his longstanding resentment
toward Cook's opposition to his leadership in the local when
Solly told Cook, upon striking the first blow, "Now, you
dumb son-of-a-bitch I've got you up at my place .... I'm
going to beat your m-f- head off." Cf. Teamsters and
Chauffeurs Local Union No. 729, etc. (Penntruck Co., Inc.),
189 NLRB 696, 697 (1971), in which the Board found that
the union official's unlawful altercations with three employ-
ees were "primarily motivated" by his resentment toward
them because of their participation in an authorized work
stoppate despite intervening matters.
After considering all the evidence, circumstances, and the
arguments of the parties I find that Solly's attack on
Charging Party Cook was primarily motivated by Solly's
resentment toward Cook for his intraunion activity. I
therefore find that the local, through this coercive conduct
of its business manager, violated Section 8(b)(1)(A) of the
Act.
Furthermore, after considering Solly's previous threats of
violence against Cook I find that the pistol whipping of
Cook when he was seeking a job referral from Solly tended
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PIPELINE LOCAL UNION NO. 38
to engender fear of further beatings from Solly or his
supporters if Cook obtained employment under the local's
jurisdiction. I therefore find that as a consequence of Solly's
attack on Cook on April 3, 1978, Cook was prevented from
further seeking job referrals and was thereafter deprived of
pipeline employment through job referrals from the local.
C. Westmoreland's Discharge
About the middle of April, Solly went to the Hancock-
Northwest job at Quitman, Texas, and spoke to Charging
Party Mac Westmoreland (Cook's nephew) who was work-
ing in the crew. I credit Westmoreland's testimony (denied
by Solly) that Solly "said he had heard that I had been
campaigning against him down there, and he didn't like it";
that "He was going to whip my Goddamn ass"; and "to keep
my mouth shut about the upcoming election . . . and I
would get along all right on the job." (This is not alleged as a
separate violation evidently because Solly had been replaced
as acting business manager pending the May I election). A
few days later Acting Business Manager Whitehead appoint-
ed Westmoreland to serve as steward on the job.
On May I, the day of the election, Solly informed
Westmoreland that "if he won the election, that he was
going to replace me as the steward on the job that I was
working on down at Quitman ... because I did not support
him in the election." That evening, after Solly's victory,
Westmoreland telephoned trustee Wallace from Cook's
home and told him that if Solly did "remove me from my job
. . . I would probably file charges against the Local."
Thereafter Westmoreland returned to Quitman and worked
on Monday, May 2. About 9:30 that evening executive board
member Guy Berry (the former steward) came to the motel
and said that Solly had sent him down to replace Westmore-
land. Berry also said that he did not want to replace
Westmoreland, but that Solly "had told him that he was
going to have to or that Guy Berry was fixing to be in some
trouble." The next morning, Tuesday, May 3, Westmoreland
arrived at the job at 6:30. Berry was already there. All of the
pipeline crew members were present, leaving no vacancy for
Westmoreland if Berry replaced him. About 6:45 Westmore-
land went to the office where office manager Jim Purswell
gave him his paychecks, paying him through Monday -
thereby indicating that he was off the payroll. Westmoreland
asked Purswell "who told him to make my checks out?"
(The local's hearsay objection to Purswell's answer was
sustained, and Purswell was not called to testify.) Westmore-
land gave his steward papers to Berry and left.
The complaint does not allege Solly's replacement of
Westmoreland as steward to be a violation of the Act. (The
local's constitution provides that the business manager
"shall have the power to appoint and supervise Stewards.")
The complaint does allege that the local caused Hancock to
discharge Westmoreland from the job for failing to support
Solly in the election.
The local contends that Westmoreland was not dis-
charged, but that he quit. To support this defense the local
called the general superintendent, Vernon Lawrence, who
claimed that Westmoreland came in that morning, May 3,
and said, "Well, I guess you can write my check out. I see
your new steward has arrived." He also positively testified
that yes, there was work on the job if Westmoreland had
cared to continue working. However, on cross-examination
he revealed his lack of knowledge of whether there were any
job openings that morning. (Westmoreland, who impressed
me as being a truthful witness, credibly testified that there
were none, and Business Manager Solly's out-of-work list
reveals no referrals to that job through the remainder of the
month.) Furthermore, Lawrence finally admitted hearing
Westmoreland ask office manager Purswell that morning,
"Who told you to write these checks out?" (confirming in
part Westmoreland's testimony). Lawrence admitted this
after being shown his pretrial affidavit and after acknowl-
edging that he had no explanation for the "apparent
inconsistency" between the affidavit and his earlier testimo-
ny. (From his demeanor on the stand he appeared to be
more concerned with pleasing Solly than testifying accurate-
ly.) I discredit Lawrence's claim that Westmoreland quit
and also his denial that he had any request from any local
official to terminate Westmoreland. I further discredit
Berry's claim that he asked Westmoreland "to stay and
finish the job and work," and that Westmoreland "said he
wouldn't do it." (Vaughn admitted on cross-examination
that he had no authority to ask Westmoreland to stay on the
job and admitted that Lawrence did not ask for any person
to be hired or referred to the job after May 2.) Solly, in turn,
claimed that when he told Westmoreland on May I that he
would not stay on the Quitman job as steward if Solly won
the election Westmoreland asked "Can I stay on the job and
work?" and Solly answered "You definitely can." Solly also
claimed that after Westmoreland left the Quitman job on
May 3 Solly "asked Mr. Lawrence to keep Mr. Westmore-
land on the job if he wishes to work, but that I was not
replacing him on the job. I just wanted Mr. Berry on as
steward." I find that these claims are fabricated, and also
discredit Solly's claim that "I can't recall" talking to the
Company about stewards, about Westmoreland, or about
Berry before Westmoreland left the job. I find, to the
contrary, that Solly did induce Lawrence to discharge
Westmoreland to make room for Berry.
Accordingly, I find that Business Manager Solly went
further than merely replacing Westmoreland as steward on
the Hancock job in Quitman. Instead of first determining if
there was a job opening which Westmoreland could fill upon
being replaced as steward by a person not then employed
there (or appointing another employee on the job to serve as
steward-as Westmoreland had been appointed by White-
head a short time earlier), Solly referred an additional
person, one of his supporters, to the Quitman job to replace a
political opponent as steward and induced the Company to
discharge this political opponent. I therefore find, as alleged
in the complaint, that the local caused Hancock to discharge
Westmoreland on May 3 for failing to support Solly in the
election, thereby violating Section 8(b)(2) of the Act.
D. Discriminatory Referrals
I. Solly's motivation
Before the local's executive board appointed Solly to act
as business manager on May 25, 1976, he had been a
business agent, making some of the job referrals. (Under the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
national pipe line agreement with the Pipe Line Contractors
Association, effective from January 1, 1975, through Decem-
ber 31, 1977, the local operated a nonexclusive referral
service.)
In late May or early June 1976 after his appointment Solly
revealed to Charging Party Cook (then Solly's political ally
in the local) his determination to defeat Whitehead as the
head of the local. At the time that he was borrowing money
from Cook "Solly told me that he was going to put Mr.
Whitehead out of office, and anybody that helped Mr. Solly,
why, Mr. Solly would help them."
Later in June 1976 Solly revealed to Cook how he could
manipulate the out-of-work list. Solly went with steward
Roger Vaughn to the Pentzien construction job in Houston
where Cook was the steward. They visited another job, and
in the car on the way back to Houston, Solly told Cook and
Vaughn to look through the out-of-work list, put an "X" by
the names of persons who were not good hands, and he
would move them down to the bottom of the sheet and not
refer them out. Cook asked, "what we would do . . . if
somebody wanted to look at that out-of-work list. And he
said that he kept another list that he could show them
[emphasis supplied]." (I discredit the denials.)
Shortly before the October 10, 1976, meeting at which
trustee Wallace announced the trusteeship (also outside the
10(b)-limitation period), Charging Party Boyd Hunt and his
son Dennis were in a motel coffeeshop and overheard Solly
telling how he planned to deal with political enemies in the
local. Solly was sitting at the next booth with trustee
Wallace and members Rober Vaughn and Charles Askin.
They were discussing the trusteeship, Solly being appointed
to act as business agent, and Vaughn being appointed to act
as recording secretary to sign checks. As recalled by Boyd
Hunt, he overheard Solly say that he could not "kick" Tom
Mitchell and Ben Simmons "out of the Local because he
would have a Labor Board case on him . . . but he could
send them on small jobs . . . which they couldn't make
expenses on [emphasis supplied], and they would withdraw."
As recalled by Dennis Hunt, Solly said "that he could not
kick Tom Mitchell and Ben Simmons out of the Local, but
he could send them on small enough jobs far enough away
from home that they could not pay expenses [emphasis
supplied], and they would have to quit." (From their
demeanor while so testifying both of the Hunts impressed
me as being honest witnesses. At the time neither of them
remembered Solly also mentioning Alvin Stewart.) Stewart,
Mitchell, and Simmons (who had been serving as acting
secretary-treasurer, auditor, and president, respectively),
were Solly's political opponents in the local. As revealed by
International representative Vinall, they had been asking for
trusteeship over the local when Solly was serving as acting
business manager-evidently not realizing that the Interna-
tional president would appoint a trustee who would reap-
point Solly as acting business manager. Less than 2 weeks
before the overheard conversation in the coffeeshop Mitchell
had questioned Solly about where the out-of-work list was
and had told him "David, you've just give us the run-
around" and "You're beginning to act sorrier than you said
Roger Vaughn was." This had occurred on September 29,
1976, in the conversation in which Stewart refused to sign
checks to pay for damaging machinery of a nonunion
pipeline contractor preceding Solly's attack on Stewart (as
found above). Then, after Mitchell and Simmons separated
them, Mitchell told Solly "David, you have used us and now
you got used," to which Solly responded, "I'll kill you all
three." (In denying the Hunts' testimony defense witnesses
Solly, Wallace, and Vaughn disputed whether there was
such an overheard conversation and the timing and location
of a conversation preceding the October 10 meeting. Despite
the denials I credit the testimony about what was said.)
Following this threat to eliminate his political enemies
from the local by making discriminatory job referrals, Solly
made other threats, demonstrating his determination to
retain his leadership over the local. As found above, he
accused Charging Party Cook in December 1969 of "trying
to get the Local away from him" and threatened Cook with
physical violence if he did not refrain. Also in April, shortly
before the May I election, Solly threatened to whip
Westmoreland for campaigning against him.
2. Decision to discriminate in referrals
Solly won the May I election by the vote of a small
percentage of the total membership. He received 59 votes out
of 378 eligible voters - less than 16 percent. (The local's
jurisdiction is over the entire State of Texas and the southern
part of New Mexico. The voting rules permitted voting only
in person at the Fort Worth union hall. T.P. Whitehead and
Alvin Stewart received a combined vote of 49 ballots against
Solly. At the time of hearing the membership had increased
to about 500.)
Immediately upon winning the election with such a small
vote Solly took actions which I find were intended to
eliminate political opponents from the local membership.
Without the approval of the executive board and without
notifying the membership Solly set up a new referral system
which would enable him to remove the names of his political
opponents from the out-of-work list without their knowl-
edge. Beginning May 2 Solly followed this new procedure of
striking the name of a member and dropping the name to the
bottom of the list the first two times he placed a referral call
to the member and then striking the name completely from
the list upon the third call- without notifying the member.
It made no difference what time of the day or night he called
the member or whether he called three times in one
afternoon-even if the telephone was not answered or the
member was not at home. With few exceptions, as when a
referral did not arrive or a special skill was required (such as
that of a shooter, M-scope operator, or power saw operator),
Solly purported to go strictly down the list, without
considering physical disability, amount of notice given,
distance from the job, length of job, and other factors to
accommodate the membership. (Yet he acknowledged refer-
ring some members who were not on the list. He told others
that they could go to the jobsite without referrals to await
vacancies.) He placed collect calls to members, knowing that
they would turn the jobs down after accepting the long-
distance calls. He needlessly referred members to jobs where
they would not be expected to be satisfied and remain on the
job. At the hearing he acknowledged that "it was more
difficult the way I was trying to do it" and that he had
complaints from both stewards and contractors. He ac-
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PIPELINE LOCAL UNION NO. 38
knowledged that members repeatedly complained at mem-
bership meeting about referrals being made out of order. He
finally admitted that this system was "not appropriate."
Although Solly did purport generally to go strictly down
the list in the order the members' names appeared, he kept
no records of job requests. In the absence of a chronological
list of all referral requests from the job stewards or the
contractors-showing the time received, number and skills
of applicants required, reporting dates, and the nature and
expected length of jobs, as well as the names and circum-
stances of any members being referred although not on the
out of work list, and the time and names of members being
told to go to the jobs without referrals to await vacancies-
Solly had considerable leeway in determining who would be
hired on the better jobs and who would be offered referrals
to the less desirable jobs. (When members complained at
membership meetings about referrals being made out of
order Solly merely told them that "they were allowed to ask
anytime they wanted to why this happened and I would be
glad to answer it [orally]". However, it was revealed at the
hearing that Solly was keeping separate records for possible
use as a defense. When repeatedly asked about written
information he had before him when preparing a document
for hearing (Resp. Exh. 1), summarizing referral attempts
and other data for some of the Charging Parties, Solly
reluctantly admitted that beginning immediately after the
election he kept "notes I had made of my own" concerning
all eight of the Charging Parties and a few others "except the
ones that did not get on the referral list at all." (I draw the
inference that these special notes, which Solly admitted
throwing away 4 or 5 days before hearing, were not
considered to be favorable to his defense.)
On July 11 Business Manager Solly turned the referrals
over to Roger Vaughn. (The local's executive board on June
26 had approved Solly's recommendation that President
Vaughn serve as a business agent to assist Solly. As steward
Vaughn had complained to Solly that "we were getting
people that weren't capable of doing the job that we needed
done. This was bad for us, bad for the contractor. . . bad
for the hands.") Vaughn immediately abandoned the three-
call limit and began referring virtually whomever he pleased.
He placed only part of the referrals on the out-of-work list,
he repeatedly left the list at home when going to the jobs
around the State and making referrals while on the road, and
although realizing that this proceeding was pending he
completely stopped making any entries in the out of work
list on September 12 (7 weeks before the hearing began).
Before testifying he told one of the Charging Parties "that all
he was going to do was come in here and tell them that he
kept bad records, and there wasn't nothing they could do
about it." Accordingly, on the stand he testified "Yes, sir, I
stopped keeping this-well, I-all I can say is my bookkeep-
ing is very sloppy." He thereafter admitted "I do not have
any set rules on the out-of-work list, none whatsoever," and
further admitted that he "guessed" that under the procedure
he followed in making referrals "I could send any man that I
thought I wanted to." He also failed to keep records of
referral requests.
Despite this abandonment of Solly's three-call limit and
the straight down the list referral procedure after Vaughn
took over the referrals on July 11 on August 2 Business
Manager Solly mailed a letter dated July 19 to each of the
Charging Parties, asserting in response to the charges herein
that the local "does not intend to do anything improper"
and stating:
If you desire to be sent out to work, the Local Union
will assist you with job referrals in accordance with our
procedure. All you have to do is call into the office and
state that you want work and your name will be placed
on the "Out of Work" list in the order we receive the
calls. As jobs become available, we will call the list;
earliest requests for work first. We will call more than
once if the phone isn't answered. However, I will have
to take your name off the list after the third attempt to
reach you fails.
Before mailing the letters Solly read the text over the
telephone to Vaughn, who admittedly told Solly that he did
not believe the referrals could be made on that basis.
(Vaughn testified that it was "impossible" to follow that
procedure: "There is no way.") Yet Solly proceeded to mail
the letters.
I find that these letters sent to the Charging Parties after
the referral procedure had been changed were not an effort
to end the intended discrimination against them but were
instead an attempt to justify the discriminatory referral
procedure which Solly had secretly adopted in an endeavor
to eliminate opponents from the local's membership.
3. Discrimination established
a. Tom Mitchell
(1) After the election
At the time that Business Manager Solly secretly estab-
lished the new referral procedure immediately after his
election on May I he was aware from Charging Party
Mitchell's widely circulated April 6 letter that Solly was
being accused of threatening to discriminate against Mitchell
and others in job referrals in the hopes of getting them to
withdraw from the local. (The letter, G.C. Exh. 38, p. 10,
addressed to International Vice President Vinall, contended
that at a membership meeting in October 1976 Charging
Boyd Hunt remarked that he had overheard a threat in a
conversation between Solly and trustee Wallace, that Mitch-
ell, Stewart, and others would be referred "on little Nit-
picking jobs & kept . . . there & maybe they would quit the
Union.")
Whether the accusation was true, the evidence shows that
Solly began utilizing the new referral procedure to call
Mitchell repeatedly for referral to short unsuitable jobs.
Mitchell called in and got on the out of work list on May
9, Solly telephoned him on May II, offering him a river
crossing job for Natco, Inc., at Carthage, Texas, and stating
that the job would be at the "low pay scale" and was
expected to last 2 or 3 weeks. (The wage scale on small-
diameter pipe was temporarily reduced from $5.47 to $4.10
per hour for about the first 6 months of 1977.) Solly was
aware not only that this was a short job at the low scale
about 475 miles from Mitchell's home but also that it
involved working in "muddy swampy areas" and therefore
would be unsuitable because of Mitchell's leg injury.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mitchell responded, "David, I don't believe that I could
make it on a river crossing. You know that I have a bad leg,
and I got run over in a picket line in 1973, and I have trouble
with that leg all the time . . . That involves getting down in
the muddy water, crawling down in the ditches." Mitchell
also mentioned the low pay scale and said "so I believe,
David, I would like to turn that down." Solly's only reply
was, "Well, then you're turning the job down?" and Mitchell
said yes.
Mitchell was not aware of a second call on May 26. (The
out-of-work list, G.C. Exh. 26d, indicates that this was the
second call and that Mitchell was "Not home.")
Not being informed what referral procedure Solly was
following, Mitchell called in again on June 6 and had his
name put on the out of work list. Meanwhile Solly had
falsely indicated on the list (G.C. Exh. 26e) that Mitchell
had been given his third call on May 29. (Solly's summary,
Resp. Exh. 1, reveals that he did not call Mitchell on May 29
because the job involved "getting in & out of ditch," and
that Mitchell "Called in & got back on list before 3rd call.")
I infer that by falsely indicating on the list that he called
Mitchell a third time Solly was at the time consciously
preparing a possible defense.
On June 8 Solly called Mitchell twice, offering him short
unsuitable jobs. One was at the low wage scale at Gregory &
Cook, Inc., in Port Arthur. Solly told Mitchell that there
would be "lots of road crossings" on a small crew of six or
seven men who "will be doing all the work," building fences,
boring the roads, laying the pipe, etc. (This short job was
over 500 miles from Mitchell's home at Midland, West
Texas.) He responded, "I'll have to turn it down for the
same reason I turned down the river crossing . . . because it
would be similar work." Solly again asked, "You're turning
it down?" and Mitchell said yes.
On the other June 8 call Solly told Mitchell that there was
a job at Quitman, Texas (for Hancock-Northwest), and "It's
nearly over . . . a small job . . . with just a small crew" and
added "it is a long ways from your home," and "probably
wouldn't be over about two more weeks." Mitchell also
rejected this low pay short job. (He could not recall for
certain if this was the first or second call that day. Solly's
summary, Resp. Exh. 1, indicates that it was the first call on
June 8; the out-of-work list, G.C. Exh. 26e, indicates that the
two calls were on different days, June 6 and 8.)
On the second June 8 call Mitchell explained that he
called in the second time (June 6) to get on the list (less than
I month after his first time on May 9) because "I didn't
know how many times you was going to call." Mitchell
asked him how many times he would call, and Solly
answered that he "would call three or four times on the list."
Mitchell responded, "Well, then from now on, David, I
won't call back on the WATS line this often, until I'm called
three or four times." Solly's only reply was, "Well, that's
fine, Tom"-without informing Mitchell that although he
had contacted Mitchell only once (on May 11), he had
already stricken Mitchell off the list.
At the conclusion of the second call Mitchell told Solly,
"David, you know the disability that I have, and your
calling on these small jobs, and if you're going to continue to
call me, which you're welcome to and I will also accept your
collect call . . . but where it's only a short job that far away
from home at the low pay scale, and with my disability, I
will be turning them down." However, "If you have got a
long job, and it's something that I can do without further
injuring my disability, I'll be glad to accept the job."
(Emphasis supplied.) Then Mitchell mentioned a long job in
West Texas which he would like "but I don't want
preference ahead of anyone else. But when it comes up, I
would sure like to be called there." (In an apparent effort to
justify not calling Mitchell again Solly wrote on the out of
work list, G.C. Exh. 26f, "Did not want to work in East
Texas. Wanted to wait for job from Amarillo to Sweetwater.
Does not want me to call him until this job starts." I
discredit Solly's testimony that Mitchell "said that he
wanted to wait" until the West Texas job kicked off. This
contention is inconsistent with the notation on Solly's
summary that he thereafter placed a referral call to Mitchell
on June 27-a purported call which Mitchell did not
remember and one which is not shown on the out of work
list.) On cross-examination Mitchell credibly indicated his
willingness to work on a suitable job in East or South Texas.
He explained that every job that Solly called him on was a
"very short job" where a man "would have to do practically
all of the items . . . where there's lots of mud, lots of
timber," and at the low pay scale." However, "If he had
called me on a job that paid top wages where I could have
been on the job like swamping on a dozer or something . ..
and I could have stayed long enough to make expenses, I
would have been happy" to go.
Solly was aware of such a large suitable job on July I
when Mitchell again called in (the third time in less than 2
months), to be on the out-of-work list (indicating Mitchell's
continued eagerness to find work). On June 28 Solly had
written on the list, upon calling member Danny Brown, that
Brown "Wants to wait for job in Gladewater" (G.C. Exh.
26h). This was a reference to a job with Cap-Con Interna-
tional, Inc., which was starting a pipeline at Gladewater,
Texas, and which thereafter had continuing jobs through
Carthage, Texas, and beyond. (The steward's reports show
that Brown worked from the week ending July 10 through
the week ending October 16, G.C. Exh. 32(21), 32(39), and
the work was still continuing in November during the
hearing.)
The out-of-work list does not reflected when Brown and
most of the other members on this large job were referred or
whether they were sent to the job without referrals.
However, the list does show that Mitchell's name was on the
list on July 11 when he was passed over and not given a
chance to take the job. Solly's summary (Resp. Exh. 1)
shows that Mitchell was not called on July 11. The out-of-
work list itself (G.C. Exh. 26j) shows that Solly merely
wrote on the list "Would involve getting in & out of ditch"
and proceeded to offer referrals to four other members. (Two
of these four, Browder and Maggard, continued working at
least through October 16.)
Mitchell had been a member since 1970 and was an asset
to the local because of his skill in doing the dangerous work
of driller, loader, and shooter (using dynamite). He was also
one of the few skilled M-scope operators in the local, and he
lived in West Texas where the local was attempting to obtain
more of the pipeline work.
1260
PIPELINE LOCAL UNION NO. 38
After considering all of the evidence of Business Manager
Solly's discriminatory intentions I find that on July I 11 Solly
deliberately passed over the name of Mitchell and proceeded
to refer four other members to the Cap-Con job in order to
prevent this political opponent from obtaining suitable
employment through the hiring hall. I therefore find that the
local unlawfully refused to refer Mitchell to Cap-Con on
July II 1, thereby depriving him of work on the Gladewater
and subsequent jobs in violation of Section 8(b)(1)(A) of the
Act. See Hoisting and Portable Engineers. Local No. 4 (The
Carlson Corporation). 189 NLRB 366, 367 (1971).
(2) Under the trusteeship
I also find that the International similarly discriminated
against Mitchell earlier when Solly was acting as business
manager under the trusteeship, despite the fact that Solly
destroyed the out-of-work list which he kept during that
period of time.
Before the trusteeship, while serving as acting business
manager by appointment of the local's executive board, Solly
not only kept an out-of-work list but said that he was
keeping a second list which "he could show them" if
somebody wanted to look at the list (as found above). Yet he
did not retain the out-of-work list for the period of time from
January 3 (when Mitchell wrote in and got on the list), and
March 27, when Solly was replaced by Whitehead as the
acting business manager pending the May I election.
(Whitehead's list is in evidence, G.C. Exh. 27(a)-(c).)
Trustee Wallace, who appointed Solly, acknowledged that it
was not proper for Solly to destroy the list after the last man
on the list was referred and testified "When I was business
agent I kept a list for a period of time."
Mitchell credibly testified that he did not receive any
referrals from January 3 to late March when Whitehead
referred him to a shooter job which was already filled by the
time he reached it. The only job to which Acting Business
Manager Solly offered to refer him during the trusteeship
was a short unsuitable job inside the tank farm in Texas City
on November 22, 1976. (When Solly said that the job would
not last over 2 or 3 weeks Mitchell told him, "As far as that
is off, David, I couldn't go down there and back and make
even a living. It's 550 or 600 miles . . . You know I'm not
physically capable to climb down in ditches 12 or 15, 20 foot
deep in and out all of the time in that muddy water.")
Although Mitchell was on the out-of-work list, Solly did
not offer to refer him to the large Natco job in Carthage,
which lasted from the week ending January 23 to the week
ending March 13 (G.C. Exh. 32(136), 32(141)).
Upon being asked when Mitchell was first referred after
January 12 (January 13 being the beginning of his 10(b)-
limitation period), Solly testified that he did not know the
exact date. He later testified that Mitchell "was not at home
at times and refused calls at times." However, having
destroyed his out-of-work list during the trusteeship he was
unable to state when any such purported calls were placed or
to what jobs. (His testimony that Mitchell "refused calls at
times" obviously referred to Mitchell's subsequent dealings
with business agent Vaughn.) Solly also testified, "I think
the Local paid for some of the calls" to Mitchell, explaining
that Mitchell had stated that he intended to file charges and
"we made some calls to show that we had tried to refer Mr.
Mitchell." However, the telephone bills (Resp. Exh. 4) show
that the only time Solly charged to the local a call to
Mitchell during the trusteeship was on November 22, 1976,
when Soilly called to refer Mitchell to the short clearly
unsuitable tankfarm job. (Solly testified that he would
charge a call to the local, as a record of an attempted
referral, because "we would discard" the pages of the out of
work list when they were finished. He gave no reason for not
following the usual procedure of retaining the out-of-work
list for a period of time.)
Thus, on November 22, 1976 (about I month after Solly
was overheard telling Trustee Wallace that Solly could send
Mitchell to small faraway jobs where he could not make
expenses to cause him to withdraw from the local), Solly
offered Mitchell a short unsuitable job, and he continued to
offer him such jobs after the May I election. And in an
apparent effort to conceal his discriminatory referrals during
the trusteeship-before secretly changing the referral proce-
dure on May I to enable him to remove his political
opponents from the list without their knowledge-I find that
he deliberately destroyed the possible evidence against the
International by discarding the out-of-work list.
Under these circumstances I find that Solly discriminato-
rily refused during the week ending January 23 to refer
Mitchell to the large Natco job at Carthage because of
Mitchell's opposition to Solly in intraunion affairs. Accord-
ingly, I find that the International, upon whose behalf Solly
was acting as business manager during the trusteeship,
thereby violated Section 8(b) (I) (A) of the Act.
b. Alvin Stewart
Like Mitchell, Charging Party Stewart was one of Solly's
political opponents in the local. He sought a trusteeship over
the local when Solly was acting business manager; he filed
intraunion charges (G.C. Exh. 13) against Solly on Septem-
ber 30, 1976 (the day after Solly struck the first blow in a
fight), alleging "dishonesty . . . willfully slandering other
union officers, and committing a series of acts that injure the
best interests of Local No. 38 . . . between March 1, 1976
through September 30, 1976"; he wrote a letter to Interna-
tional Vice President Vinall on March 20 (Resp. Exh 3),
alleging that Solly "threatened my life throughout the
pipelines"; he ran against Solly for the position of business
manager/secretary-treasurer in the May I election; and he
filed intraunion charges (G.C. Exh. 22) on June 9 against
Solly, Vaughn, and other Solly supporters for "negligence
. . incompetence . . . and dishonesty . . . from Jan. 1,
1976, through June 9, 1977."
Unlike Mitchell, Stewart had other employment for
several months. Upon receiving no referrals from Solly after
September 30 (when Stewart filed the first intraunion
charges against him), Stewart took a nonunion job about
February 1. (The General Counsel has not show any job
referrals which Solly denied him from November 30-the
beginning of Stewart's Section 10(b) .. limitation period-
until the latter part of January.)
Stewart remained on the well paying nonunion job
apparently until sometime before July 19, when he requested
that his name be placed again on the out-of-work list.
1261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Stewart testified that he believed the nonunion job, about
200 miles from his home and paying $6.50 per hour, lasted
until "June or July.")
There is no dispute that Stewart's name should have been
placed on the out-of-work list on July 19 (as shown on Resp.
Exh. ). Yet Vaughn left his name off the list (G.C. Exh.
26k) at the time. (Similarly, about I week earlier when Solly
turned the referrals over to him Vaughn left the name of
Charging Party Mitchell off Vaughn's new list, even though
Mitchell's name was current at the bottom of Solly's old list,
G. C. Exh. 26j, and even though, as Vaughn admitted, Solly
gave him the name of Mitchell as being on the old list.)
Vaughn finally put Stewart's name on the out-of-work list
after the name of member Kenneth Bearden (G.C. Exh.
26m), whose "Date Put on List" was shown as August 19 (1
month after Stewart called in to be on the list), and who on
August 25 was referred to and took a job with Cap-Con at
Carthage-one of the large jobs which began at Gladewater
in July and continued at least into November during the
hearing. Thus Vaughn, having left Stewart's name off the
list, offered the long job to a member whose name should
have been lower than Stewart's name on the list.
Of course, it could not be found with absolute certainty
that if Stewart's name had been properly placed on the list
with his correct telephone number (he had changed his
number in June), Stewart would have been offered and he
would have accepted a referral to this large job. However, I
find that any doubt should be resolved in his favor rather
than in the favor of the local, which was responsible for
omitting his name from the out of work list.
Under all the circumstances I find that business agent
Vaughn's omission of Stewart's name, as well as Mitchell's,
from the out-of-work list was a continuation of the local's
discrimination against Solly's political opposition in the
local, and that Vaughn discriminatorily failed to refer
Stewart instead of a member whose name should have been
placed lower on the list to the Cap-Con job on August 25,
thereby depriving Stewart of employment for the duration of
the continuing Cap-Con jobs. The local thereby violated
Section 8(b) (1) (A) of the Act.
4. Other alleged discrimination
Dale Cook: The complaint alleges that the International
and the local refused to refer Cook to jobs after January 15.
By that date Acting Business Manager Solly had threatened
steward Cook with physical violence ran for "trying to get
the Local away from him" and had stopped appointing Cook
to serve as steward. (As indicated above, the local's
constitution provided that the business manager "shall have
the power to appoint and supervise Stewards." The com-
plaint does not allege that the refusal to refer the Charging
Parties as stewards violated the Act.) Cook had been a
steward since 1974 and was seeking further referrals as a
steward. He did not ask to have his name placed on the out-
of-work list until the hearing, when all eight of the Charging
Parties' names were placed on the list. The only time before
hearing that he indicated he would be willing to work as a
laborer on a job was once in January, when he told Solly that
he would go out as a common laborer on a future job. Yet he
did not ask for a referral to that job. Inasmuch as the job
referral procedure required members seeking job referrals to
request their names be placed on the out-of-work list and
Cook failed to do so, I find that the General Counsel has
failed to prove that the International or local unlawfully
refused to give Cook job referrals between January 15 and
the time of hearing.
Boyd Hunt: In the May I election Hunt ran unsuccessfully
for the position of recording secretary on a slate opposing
Solly's slate. The complaint alleges that he was refused job
referrals after March 1. However, he had worked only as a
steward since his first pipeline job in 1970, he was unable to
do any strenuous work because of a back injury on the job,
and he was seeking referrals as a steward. His name was not
on the out-of-work list while Solly was serving as acting
business manager before the election, and he did not ask that
his name be placed on the list between May 1 and the
hearing. Under these circumstances I find that the General
Counsel has failed to prove that the International or local
unlawfully refused to give Hunt job referrals between March
I and the time of hearing.
Floyd Payne: The complaint alleges that Payne, who ran
for auditor on Whitehead's slate in the May 1 election, was
refused job referrals after May 2. However, he was not on
the out-of-work list. After a back and leg injury on the job he
underwent surgery on March 30. He had not been released
by his doctor to return to work at the time of his testimony. I
find that the General Counsel has failed to prove that the
local unlawfully refused to give Payne job referrals between
May 2 and the hearing.
Marion Smith: He refused to run on Solly's slate and
instead for the position of recording secretary on an
opposing slate. The complaint alleges that he was unlawfully
refused job referrals after May 24. On that date Smith asked
office secretary Sandy Sellers for a transfer to work outside
the State. He claimed at the hearing that he also asked her to
put his name on the out-of-work list, but I discredit the
claim and credit Sellers' testimony that "He just wanted the
transfer and he left." (Sellers impressed me as being the
more trustworthy witness.) Thereafter, on August 9, Smith
did have his name put on the out-of-work list, but when
business agent Vaughn called him and asked if he wanted to
go to work Smith answered, "No, I don't." (Inasmuch as
Smith did not appear to be a credible witness, I discredit his
claim that Vaughn hung up without giving him a chance to
give the reason- that his wife was ill.) Thus, Smith did not
request that his name be placed on the out-of-work list until
August 9, and thereafter he indicated that he did not want to
go to work. I therefore find that the General Counsel has
failed to prove that the local unlawfully refused to give
Smith job referrals between May 24 and the time of hearing.
Marcus Warren: He ran for a position on the executive
board on a slate opposing Solly's slate. The complaint alleges
that the local unlawfully refused to refer him after May 2.
The General Counsel contends that Warren signed a yellow
out-of-work pad at the union hall when he voted on May i,
yet was not referred to any jobs until July 12, the day before
he began working outside the State as an operating engineer.
However, Warren admitted on cross-examination that he
was employed on May I (at Hancock-Northwest's Quitman
job), and that he did not quit there until after working on
Monday, May 2. I discredit his testimony that he signed the
1262
PIPELINE LOCAL UNION NO. 38
yellow out-of-work pad on May 1. (Charging Party Cook
credibly testified that he observed Warren sign the yellow
pad earlier, at the March 27 meeting.) Finding that Warren
did not request that his name be placed on the out-of-work
list, I find that the General Counsel has failed to prove that
the local unlawfully refused to give Warren job referrals
between May 2 and the time of hearing.
Mac Westmoreland: After the local unlawfully caused
Hancock-Northwest to discharge Westmoreland from the
Quitman job on May 3 Westmoreland failed to request that
his name be placed on the out-of-work list until September 7.
Beween that date and the time of hearing the local was
unable to contact him by telephone to offer his job referrals.
Accordingly, I find that the General Counsel has failed to
prove that the local unlawfully refused to give him job
referrals between the time the local caused his discharge and
the time of hearing.
Upon the reopening of the hearing in June 1978, for
litigation of latest charge that Business Manager Solly had
physically assaulted member Cook in April 1978, the parties
did not litigate the manner in which job referrals were made
following the previous closing of the hearing.
CONCLUSIONS OF LAW
I. Through Acting Business Manager David Solly's threat
to member Dale Cook in December 1976 of physical
violence for talk about running against Solly in the election
and through Solly's discriminatory refusal to refer member
Tom Mitchell to the Natco job at Carthage in the week of
January 17, 1977, the International upon whose behalf Solly
was acting during the trusteeship over the local engaged in
unfair labor practices affecting commerce within the mean-
ing of Section 8(b)(IXA) and Section 2(6) and (7) of the Act.
2. By refusing to refer member Tom Mitchell to the Cap-
Con job on July I I and member Alvin Stewart to the Cap-
Con job on August 25 because of their intraunion activities
against Business Manager Solly the local violated Section
8(bX IXA) of the Act.
3. By causing Hancock-Northwest to discharge member
Mac Westmoreland from his job on May 3, 1977, when Solly
replaced him as union steward for failing to support Solly in
the May I election the local violated Section 8(b)(2) of the
Act.
4. By threatening member Dale Cook on June 20 or 21,
1977, with serious physical harm or violence for filing a
charge herein and by pistol whipping him on April 3, 1978,
thereby depriving him of employment under the local's
jurisdiction, the local violated Section 8(bI)()(A) of the Act.
5. The General Counsel has failed to prove that the
International unlawfully refused referrals to members Dale
Cook, Boyd Hunt, and Alvin Stewart during the trusteeship,
and that the local refused referrals to Dale Cook, Boyd
Hunt, Floyd Payne, Marion Smith, Marcus Warren, and
Mac Westmoreland from the time of the May I election
until the hearing.
THE REMEDY
Having found that Respondents' International and local
have engaged in certain unfair labor practices, I find it
necessary to order them to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
policies of the Act.
As indicated by the evidence found above, this is a case of
"tough-guy rule" by Business Manager David Solly who,
following his election by a small percentage of the total
membership, has continued to engage in threats, strong-arm
tactics, and deliberate discrimination in making job referrals
to perpetuate his leadership over the local. (Respondents
concede that the General Counsel has proved that Solly was
"less than perfect" in operating the referral system, and that
business agent Roger Vaughn "deviated from even his
manager's instructions.")
Having found that immediately after the May I election,
without the approval of the executive board and without
notifying the membership, Solly set up a new referral system
designed to eliminate his political opponents from the local's
membership; having found that thereafter Vaughn began
referring virtually whomever he pleased (admitting "I do not
have any set rules on the out of work list, none whatso-
ever"), that he placed only part of the referrals on the list,
and that he stopped using the list for a 7-week period before
the hearing, stating "that all he was going to do" when
testifying "was to come in here and tell them that he kept
bad records, and there wasn't nothing they could do about
it"; and having found that both Solly and Vaughn manipu-
lated the out-of-work list to deny referrals of better jobs to
Solly's political opponents-I find it necessary to issue an
order which will insure that adequate records are kept and
retained to enable members to know that such abuses are not
continued and which will require the local to notify an
applicant when removing his name from the out-of-work list.
Respondent International, through the conduct of Solly
during the trusteeship over the local, having discriminatorily
refused to refer member Tom Mitchell before the election;
and Respondent local thereafter having caused the discharge
of member Mac Westmoreland for failing to support Solly,
having discriminatorily refused to refer members Tom
Mitchell and Alvin Stewart, and having deprived member
Dale Cook from obtaining pipeline employment through job
referrals (by Solly's pistol whipping him when he was
seeking a job referral), I find it necessary to order the
International to make Mitchell and the local to make Cook,
Mitchell, Stewart, and Westmoreland, whole for the wages
and other benefits lost as a result of the discrimination and
unlawful actions, less net interim earnings, in accordance
with the formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), plus interest as computed in Florida Steel
Corporation, 231 NLRB 651 (1977).' Inasmuch as Respon-
dent local's unlawful conduct goes to the very heart of the
Act, I find it necessary to issue a broad Order, requiring it to
cease and desist from infringing in any other manner upon
employee rights guaranteed by Section 7 of the Act. Because
of the pervasive effect of Respondent local's discriminatory
operation of its job referral service affecting all of the local's
'See, generally. Isis Plumbing d Heating Co.. 138 NLRB 716 (1962).
1263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members and because of the improbability that all members
(living over a wide area in Texas and other States) would
otherwise receive notice of remedial actions the local is
required to take, I find it necessary for Respondent local to
mail each member a copy of its notice.
Upon the foregoing findings of fact, conclusions of law,
upon the entire record, and pursuant to Section 10(c) of the
Act I hereby issue the following:
ORDER'
A. Respondent Pipelihe Local Union No. 38, affiliated
with the Laborers' International Union of North America,
AFL-CIO, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Operating its job referral service in a discriminatory
manner.
(b) Refusing to offer job referrals to Dale Cook, Tom
Mitchell, Alvin Stewart, or any other applicant for employ-
ment because he opposes the election or leadership of the
business manager.
(c) Causing or attempting to cause Hancock-Northwest or
any other employer to discharge Mac Westmoreland or any
other employee for opposing the election of the business
manager.
(d) Physically assaulting any member for opposing the
election or leadership of the business manager.
(e) Threatening any member with physical harm or
violence for filing a Board charge.
(0f) In any other manner restraining or coercing employees
or applicants for employment in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Keep current in permanent written form and retain at
the local's office available for inspection at all reasonable
times upon request by any member or applicant or by the
Regional Director for Region 16 or his agents for a period of
2 years from the date of this Order: () an out-of-work list
showing at a minimum the name, telephone, and town of the
applicants in the order they request their names be placed on
the list; the time and date when each applicant is placed on
the list and when he is referred or sent to a job (with name
and location of job and whether employed); and the name
and detailed circumstances of any person being referred to a
job (or sent without a referral to await a vacancy) outside the
chronological order on the out-of-work list or without being
on the list; and (2) a chronological list of referral requests
from the stewards or contractors, showing at a minimum the
time, date, and from whom the request is received; the name,
location, nature, and expected length of time to complete the
job; the number of applicants and the number of any
specified skills required; the reporting date or dates for the
applicants; and a chronological list of all contacts or
attempted contacts made with applicants to fill each request
(detailing how the contact was made or attempted, the time,
' 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 recommended 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.
date, name of each applicant, the response if any, and any
skilled position offered); provided that if duplicate copies are
kept of the out-of-work list or referral requests both copies
shall be retained and the second copies shall also be made
available for inspection at reasonable times; and provided
further that an applicant shall be notified in writing with the
justification stated if his name is removed from its place on
the out-of-work list under any circumstances other than his
referral or employment on a local job or his death.
(b) Make Dale Cook, Tom Mitchell, Alvin Stewart, and
Mac Westmoreland whole for any loss of pay and other
benefits suffered by reason of the discrimination or other
unlawful action committed against them in the manner set
forth in the remedy section.
(c) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all records,
reports, contractor checkoff forms, and other documents
necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Mail to its members and post at its office and meeting
places copies of the attached notice marked "Appendix A."'
Copies of the notice, on forms provided by the Regional
Director for Region 16, after being duly signed by Respon-
dent local's authorized representative, shall be mailed and
posted by Respondent local 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 Respondent local to insure that the notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
local has taken to comply herewith.
B. Respondent Laborers' International Union of North
America, AFL-CIO, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Threatening during a trusteeship over its Local 38 any
member of the local with physical violence if he does not
refrain from intraunion activities.
(b) Refusing during such a trusteeship to offer any
member of the local a job referral because of his intraunion
activities.
(c) In any like or related manner restraining or coercing
employees or applicants for employment in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make Tom Mitchell whole for any loss of pay and
other benefits suffered by reason of the discrimination
committed against him in the manner set forth in the remedy
section.
(b) Preserve and, upon request, make available to the
Board or its agents for examination and copying, any
records, reports, contractor check-off forms, and other
' In the event that this Order is enforced by 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
National Labor Relations Board."
1264
PIPELINE LOCAL UNION NO. 38
available documents necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its Regional Office in Hurst, Texas, and at the
Local 38 office and meeting places copies of the attached
notice marked "Appendix B."' Copies of the notice, on
forms provided by the Regional Director for Region 16,
after being duly signed by Respondent International's
authorized representative, shall be posted by Respondent
International immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter, in
' See fn. 4. supra.
conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by Respondent International to insure that the notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
International has taken to comply herewith.
IT IS ALSO RECOMMENI)ED that the consolidated com-
plaints be dismissed insofar as they allege violations of the
Act not specifically found.
1265