Plumbers Local 553 (Plumbing Contractors)

National Labor Relations Board - Board Decisions

Aug 31, 1984

271 N.L.R.B. 1361 (N.L.R.B. 1984)

PLUMBERS LOCAL 533 (PLUMBING CONTRACTORS)
Local Union No. 553, affiliated with United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO (Plumbing, Heat-
ing, Piping and Air Conditioning Contractors
Association of Alton, Wood River and Vicinity)
and Dan Michael and Carl Schlemmer and
Billy H. Belt
Local Union No. 553, affiliated with United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO and Rickey A.
Minor and Pipeco Fabricating Company, Party
to the Contract. Cases 14-CB-5290, 14-CB-
5290-3, 14-CB-5316, and 14-CB-5333
31 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 14 May 1982 Administrative Law Judge
Lawrence W. Cullen issued the attached decision.
The Respondent and Party to the Contract Pipeco
Fabricating Company (Pipeco) filed exceptions and
supporting briefs, and the General Counsel filed ex-
ceptions concerning the judge's notice to employ-
ees.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,} and
conclusions as modified.
We agree with the judge's findings that t'he Re-
spondent violated Section 8(b)(1)(A) of the Act by
threatening to refuse to refer for employment Carl
Schlemmer and Dan Michael, and refusing to refer
for employment Schlemmer, Michael, and Billy H.
Belt because of their intraunion political activities. 2
However, contrary to the judge, we do not find
that the Respondent violated Section 8(b)(l)(A) of
the Act by its acceptance of recognition from
i Respondent has excepted to some of the judge's credibility findings
The Board's established policy is not to overrule an administrative law
judge's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In the section of his decision entitled "Analysis of the Alleged Threats
and Refusals to Refer," 1, pars. I and 2, and in 2, par. 7, the judge inad-
vertently found Kline and McGhee to be agents of the Respondent
within the meaning of Sec. 2(11) of the Act, rather than Sec. 2(13). We
hereby correct this error.
2 In issuing an order in lieu of that recommended by the judge. we will
not include provisions in the Order which refer to the operation of the
hiring hall in general, inasmuch as the consolidated complaint attacks
only the Respondent's refusal to refer three employees
271 NLRB No. 205
Pipeco and by its execution of a collective-bargain-
ing agreement with Pipeco at such time as it re-
tained a substantial stock interest in Pipeco; that
the Respondent violated Section 8(b)(2) of the Act
by its execution of a collective-bargaining agree-
ment with Pipeco which contained a union-security
clause and required payment of dues and other
payments to the Union for pension and benefit
funds; or that the Respondent violated Section
8(b)(2) of the Act by its execution with Pipeco of a
collective-bargaining agreement which contained a
referral clause. 3
The relevant facts are not in dispute. Ivan
"Skipp" Cochran (who later become president of
Pipeco) attempted to arrange financing through a
bank for the formation of a pipe fabricating compa-
ny within the jurisdiction of the Union. When the
bank withdrew its financing, Cochran sought finan-
cial aid from the Union. At that time there were no
pipe fabricating shops in the area. The Union's
business manager, Joseph C. (Bill) McGhee, testi-
fied that he saw the establishment of the fabrication
business as an opportunity for employment of
union members and, in order to assist Pipeco in its
formation, the Union purchased 1500 shares of a
total initial issuance of 6000 shares.
The terms of the agreement of sale were such
that the Union would hold its stock only 3 years,
after which Pipeco had first rights to purchase it if
financially able to do so. In addition, proxy, voting,
and any other rights possessed by the Union as a
result of its stock ownership were assigned to Pipe-
co's corporate attorney so that the Union would
not be involved in the operation or management of
the company. The proxy was unconditional except
for an obligation to notify the Union concerning
any action taken. The Union has never (a) exer-
cised or attempted to exercise any managerial
rights; (b) influenced or attempted to influence any
managerial decision; or (c) requested to be consult-
ed on any managerial decision. Also, no officer or
representative of the Union holds or has held office
in Pipeco or its board of directors, nor has the
Union requested any such position.
Pipeco commenced operations in October 1980.
On I November 1980 Pipeco and the Union exe-
cuted a collective-bargaining agreement. That
agreement was an addendum to the "National Fab-
rication Agreement," identified at the hearing as
the "National Minimum Standards Agreement for a
I No exception has been taken to the judge's finding that at the time of
the execution of the collective-bargaining agreement between the Union
and Pipeco there was in existence a representative complement of em-
ployees, and that the Respondent did not violate Sec. 8(b)(2) of the Act
by accepting recognition from Pipeco as the employees' collective-hbar-
gaining representative on that basis.
1361
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Commercial Pipe Fabrication Shop-Pipe Fabrica-
tion Institute Shop Agreement." On 14 April 1981
the parties executed the "National Fabrication
Agreement" which contained a recognition clause,
union-security clause, and referral clause. There
were 9 employees as of the date of execution of the
initial agreement and no more than 25 employees
as of the date of the hearing.
The judge found that, by virtue of ownership of
25 percent of Pipeco's outstanding shares, the
Union retained a substantial ownership interest in
Pipeco, closely tying the Union to management.
The judge concluded that, given the Union's 25-
percent ownership of Pipeco, its acceptance of rec-
ognition from Pipeco and its execution of a collec-
tive-bargaining agreement with Pipeco (notwith-
standing that the contract provided for prevailing
wage rates and fringe benefits) precluded it from
fairly representing Pipeco employees and violated
Section 8(b)(1)(A) of the Act.
On the same basis, the judge also found that the
Respondent violated Section 8(b)(2) of the Act by
its execution of a union-security agreement, its en-
trance into an agreement with Pipeco requiring the
payment of dues and other payments to the Union
for pension and benefit funds, and its execution of a
collective-bargaining agreement containing a refer-
ral clause.
"The bargaining representative, whoever it may
be, is responsible to, and owes complete loyalty to,
the interest of all whom it represents." Ford Motor
Co. v. Huffman, 345 U.S. 330, 338 (1953). As the
Board stated in Bausch & Lomb Optical Co., 108
NLRB 1555 (1954), and in subsequent cases:4 "[A]
union must approach the bargaining table ...
'with the single-minded purpose of protecting and
advancing the interests' of the employees who have
selected it as their bargaining agent and there must
be no ulterior purpose." The Board inquiry extends
into two interrelated areas: (1) the power of the
union to control the conduct of the employer
(Pipeco), and (2) the temptation, likelihood, or in-
centive for exercising that power in order to pro-
tect the union's interest in the company (25-percent
stock ownership of Pipeco). "In short, our task is
to carefully scrutinize and weigh elements of both
power and temptation, and, from this overall ap-
praisal, determine the proximity of the danger that
a remote financial interest will infect the bargaining
process." H. P. Hood & Sons, 182 NLRB 194
(1970).
The judge found the above-mentioned violations
of Section 8(b)(1)(A) and (2) solely in the Union's
ownership of 25 percent of Pipeco's outstanding
4See Oregon Teamsters' Security Plan Office, 119 NLRB 207, 211
(1957); Anchorage Communirty Hospital, 225 NLRB 575, 576 (1976).
shares of stock. But the judge noted it is undis-
puted that the Union's sole motivation in its pur-
chase of shares in Pipeco was to improve employ-
ment opportunities for its membership and that the
Union took steps to remove itself from any control
or influence over the business of Pipeco. The
record evidence clearly establishes that the Union
under its stock purchase agreement with Pipeco
had to sell its stock interest 3 years after purchase.
The Union assigned to Pipeco's corporate attorney
its proxy, voting rights, and any other rights it pos-
sessed by virtue of its 25-percent ownership inter-
est. No officer or representative of the Union has
held or holds office in Pipeco or its board of direc-
tors, nor has the Union made such a request. The
Union has never exercised or attempted to exercise
any managerial rights. The Union has never influ-
enced or attempted to influence any managerial de-
cision. The Union has never requested to be con-
sulted on any managerial decision. Furthermore,
the executed collective-bargaining agreement does
not grant Pipeco any special treatment and calls ex-
clusively for prevailing wage rates and fringe bene-
fits. Based on these facts, the Union effectively has
divested itself from the management of the compa-
ny to such an extent that, even if tempted, it would
be powerless to "infect the bargaining process." 6
Therefore, we will dismiss so much of the con-
solidated complaint as alleges violation of Section
8(b)(1)(A) by the Union's acceptance of recognition
from Pipeco, and its execution of a collective-bar-
gaining agreement with Pipeco, and of Section
8(b)(2) in the Union's execution of a union-security
agreement with Pipeco, and its entrance into an
agreement with Pipeco requiring the payment of
dues and other payments to the Union for pension
and benefit funds. The judge also found, though
not alleged, that the Union violated Section 8(b)(2)
of the Act by the execution of a collective-bargain-
ing agreement with Pipeco which contained a re-
ferral clause. Inasmuch as we have found that the
Union and Pipeco lawfully entered into a collec-
tive-bargaining agreement, we shall reverse this
finding also.
5 The steps taken by the Union here to divest itself of actual or poten-
tial control of Pipeco in order to avoid any conflict of interest distin-
guishes the instant case from the Board's decision in St. John's Hospital,
264 NLRB 990 (1982). In St. John's the union, the California Nurses' As-
sociation (CNA), operated a nurse registry which the Board found was
an employment referral service. The Board, quoting Bausch a Lomb Op-
tical, supra at 993, found that "CNA's financial interests in maintaining
and enhancing its customers' relationship with the Employer has created
an 'ulterior purpose' that conflicts with the requirement that a collective-
bargaining agent have a 'single-minded purpose of protecting and advanc-
ing the interests' of unit employees." Because of the conflict of interest,
the Board dismissed the union's representation petition.
1362
PLUMBERS LOCAL 553 (PLUMBING CONTRACTORS)
AMENDED REMEDY
Having found that the Respondent has violated
Section 8(b)(1)(A) of the Act by threatening not to
refer for employment, and refusing to refer for em-
ployment, employees because of their intraunion
political activity, we shall order that it cease and
desist therefrom and take certain affirmative action
to effectuate the policies of the Act. We shall order
the Respondent to make whole Dan Michael, Carl
Schlemmer, and Billy H. Belt for any loss of earn-
ings they may have suffered as result of the Re-
spondent's failure to refer them for employment.
Earnings are to be computed on a quarterly basis
as prescribed in F. W Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in Florida
Steel Corp., 231 NLRB 651 (1977).
ORDER
The National Labor Relations Board orders that
the Respondent, Local Union No. 553, affiliated
with United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry
of the United States and Canada, AFL-CIO, East
Alton, Illinois, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Threatening to refer employees for employ-
ment with employer members of the Plumbing,
Heating, Piping and Air Conditioning Contractors
Association of Alton, Wood River and Vicinity be-
cause they engaged in intraunion political activities.
(b) Refusing to refer employees for employment
with employer members of the above-mentioned
Association because they engaged in intraunion po-
litical activities.
(c) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make Carl Schlemmer, Dan Michael, and
Billy H. Belt whole for any loss of earnings or
other benefits they may have suffered due to the
Respondent's unlawful refusal to refer them for
employment, paying each of them a sum equal to
what he would have earned absent the unlawful
conduct less any net interim earnings plus interest,
as provided in the section of this Decision entitled
"Amended Remedy."
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all records pertaining to employment through
its hiring hall, and all records relevant and neces-
sary for compliance with this Order.
(c) Post at its business office in East Alton, Illi-
nois, copies of the attached notice marked "Appen-
dix."6 Copies of the notice, on forms provided by
the Regional Director for Region 14, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure 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 the Respondent has taken to comply.
6 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten not to refer employees
for employment with employer members of the
Plumbing, Heating, Piping and Air Conditioning
Contractors Association of Alton, Wood River and
Vicinity because they engaged in intraunion politi-
cal activities.
WE WILL NOT refuse to refer employees for em-
ployment with employer members of the above-
mentioned Association because they engaged in in-
traunion political activities.
WE WILL NOT in any like or related manner re-
strain or coerce employees or applicants for em-
ployment in the exercise of, the rights guaranteed
them by Section 7 of the Act.
WE WILL make Carl Schlemmer, Dan Michael,
and Billy H. Belt whole for any loss of earnings or
other benefits they may have suffered due to our
unlawful refusal to refer them for employment,
plus interest.
LOCAL UNION NO. 553, AFFILIATED
WITH UNITED ASSOCIATION OF JOUR-
NEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUS-
TRY OF THE UNITED STATES AND
CANADA, AFL-CIO
1363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT AND ANALYSIS2
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was tried at St. Louis, Missouri on June 8, 9,
and 10, 1981, on the second amended consolidated com-
plaint and notice of hearing issued April 22, 1981, by the
Regional Director for Region 14, and alleges that Local
Union No. 553, affiliated with United Association of
Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-
CIO (the Union), has violated Section 8(b)(l)(A) and (2)
of the National Labor Relations Act (the Act).' The
complaint is joined by the Union's answer filed April 23,
1981, wherein it denied the commission of any violations
of the Act.
The complaint alleges that the Union operates an ex-
clusive hiring hall as the sole source of employees for
employer members of the Plumbing, Heating, Piping and
Air Conditioning Contractors Association of Alton,
Wood River and Vicinity in the State of Illinois (Asso-
ciation), and that the Union has violated Section
8(b)(1)(A) of the Act by threatening certain of its own
members that they would not be referred for employ-
ment because of their engagement in "intra-union activi-
ty and/or for other unfair, arbitrary, invidious reasons."
The complaint alleges that since about November 6,
November 6, and November 21, 1980, respectively, the
Union has failed and refused, and continues to fail and
refuse, to refer to employment with employer members
of the Association, Charging Party Michael, Charging
Party Schlemmer, and Charging Party Belt, and that Re-
spondent engaged in this conduct because Charging Par-
ties Michael, Schlemmer, and Belt engaged in "intra-
union activity and for other unfair, arbitrary and invidi-
ous reasons" and that Respondent thereby violated Sec-
tion 8(b)(2) and (1) of the Act.
The complaint further alleges that the Union violated
Section 8(b)(1)(A) and (2) of the Act by its execution
and maintenance of a collective-bargaining agreement
with Pipeco Fabricating Company (Pipeco) while Pipeco
"did not employ a representative segment of its ultimate
employee complement" and by its engagement in the
representation of employees of Pipeco at such times as it
"has a substantial ownership interest in Pipeco."
On the entire record in this case, including my obser-
vation of the demeanor of the witnesses, and after due
consideration of the positions of the parties, I make the
following
I The charge in Case 14-CB-5290 was filed by employee Dan Michael
on February 5, 1981; the charge in Case 14-CB-5290-3 was filed by em-
ployee Carl Schlemmer on February 13, 1981; the charge in Case 14-
CB-5316 was filed by employee Billy H. Belt on March 2, 1981. The
amended charge in Case 14-CB-5333 was filed by employee Rickey A.
Minor on April 16, 1981.
2 The following includes a composite of the testimony of the witness at
the hearing, which testimony is credited except as specific credibility res-
olutions are made.
I. JURISDICTION
The complaint alleges and the Union admits in its
answer, as amended at the hearing, and I find, that
Plumbing, Heating, Piping and Air Conditioning Con-
tractors Association of Alton, Wood River and Vicinity
in the State of Illinois is an organization composed of
employers engaged in the construction industry and ex-
isting for the purpose of representing its employer mem-
bers in the negotiation and administration of collective-
bargaining agreements with various labor organizations,
including the Union. The complaint alleges, the Union
admits in its answer, as amended at the hearing, and I
find that the Association and its members thereof, includ-
ing France Plumbing, Heating and Air Conditioning and
Murphy Company, were, at all times material herein, em-
ployers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The complaint al-
leges, the Union admits, in its answer, as amended at the
hearing, and I find that Pipeco was, at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. The
complaint alleges, the Union admits in its answer, and I
find that the Union is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background of the Union's Referral Process
The Union maintains its business office in East Alton,
Illinois, and has approximately 430 members of the
plumbing and pipefitting trade of which only 80 mem-
bers were active in the trade at the time of the hearing.
The Union has executed a collective-bargaining agree-
ment with the Association effective from July 1, 1980, to
June 30, 1981, and continuing thereafter from year to
year unless written notice of termination thereof is given
by the other party 60 days prior to the expiration date
(G.C. Exh. 9). Under the terms of this agreement, the
Union operates as an exclusive hiring hall in referring
out applicants for employment with employers who were
signatories to the agreement. Article XX of this agree-
ment sets out a "Referral Procedure." This procedure re-
quires applicants for referral to complete a referral appli-
cation on the first workday of each week. To maintain
eligibility for referral, article XX requires that an appli-
cant for referral "renew his referral application weekly
by giving notification to the Union of intent for renewal
on the first work day of each week." Applicants are to
"furnish such data, records, name of employers and li-
censes as are deemed necessary" and to "set forth in
their application for referral any special skills they may
possess." Applicants register as either journeyman
plumbers or journeyman pipefitters. Applicants are to be
referred for employment on the basis of three priority
groups based on length of employment within the
Union's jurisdiction as journeymen with employers who
are party to the agreement.
DECISION
1364
PLUMBERS LOCAL 553 (PLUMBING CONTRACTORS)
Article XX also provides for consideration to be given
to contractor requests for supervisors, foremen or gener-
al foremen and for particular employees by name and for
"bona fide requests by contractors for plumbers and
pipefitters with special skills and abilities."
The undisputed evidence as derived from the testimo-
ny of Union Business Manager Joseph L. (Bill) McGhee,
and as corroborated by Assistant Business Manager Jerry
Kline and Assistant Business Agent Reggie Sparks, dis-
closed that the Union does not maintain a written regis-
tration list of applicants for employment and does not
follow the order of priority set out under article XX of
the agreement. Rather, the Union maintains cards for
each member and apprentice and lists thereon various
employers to which they have been referred, the dates of
referral and the date of the last day of work with the
employer. The cards of members who are working are
kept in alphabetical order in a working file. Cards of
members who are not working are kept in the rear of the
working file. The Union also prepares a weekly out-of-
work sheet listing its members who are out of work and
who are available for employment. These sheets do not
list the unemployed members in any sequence or order of
priority for referrals and are destroyed at the end of each
week.
Members do not register on the first day of each week
to maintain their eligibility. Rather, they are required to
contact the union office after their termination or layoff
from a job and to notify the Union of their availability
for referral. This is normally done by placing a telephone
call to the union office and giving the information to the
Union's secretary or to one of the Union's business
agents. The members' cards are then placed in the out-
of-work section. There are instances in which a member
is unemployed but does not indicate his availability for
employment to the Union and is considered "not ready"
for employment. When a member is referred out to a
job, his card is removed from the out-of-work section
and placed in the working file. The card files are main-
tained under the control of McGhee and assistant busi-
ness agents appointed by him.
McGhee testified at length concerning the referral
process employed by himself and the Union's business
agents. He testified that the Union refers its members out
on the basis of their qualifications to perform the job re-
quired by the contractor. He testified that members
would be referred out on the basis of their availability
for employment in the event there are equally qualified
members for a job. McGhee testified that, when contrac-
tors request the Union to make referrals, the contractors
apprise the Union of the job requirements and the type
of skills required for a particular job and then he and the
Union's business agents refer those members available for
employment who possess the requisite skills and abilities.
McGhee testified concerning special needs of contractors
such as supervision, various types of welding skills and
employees capable of performing instrumentation work,
among other requirements. Additionally, members Mi-
chael, Schlemmer, and Belt testified concerning various
skills within the plumbing and pipefitting trades pos-
sessed by some members but not by others.
It was clear from the testimony of the witnesses for
both parties that there are varying levels and types of
skills within each of the two trade classifications (plumb-
ers and pipefitters), and that many, if not most, members
cannot perform all of the work encompassed under their
designated classification (i.e., Belt testified he is a certi-
fied welder, but is not qualified to perform all types of
welding. Schlemmer testified concerning limitations on
his ability to do "troubleshooting" with respect to refrig-
eration work and that he was not qualified to do "down-
hill welding" on a pipeline.) However, with the excep-
tion of a few areas (such as a plumbing license and cer-
tain welding certifications and welding tests performed
by the contractors), there appeared to be no objective set
of criteria or standards by which a member's capabilities
to perform various types of work could be judged.
Rather, these determinations are made by McGhee and
the Union's business agents on the basis of their subjec-
tive judgments. Although it was apparent from the testi-
mony concerning varying capabilities of the Union's
members that not all journeyman plumbers and/or pipe-
fitters could perform all aspects of the jobs required by
the contractors, the subjective judgments of McGhee
and the Union's business agents were derived from vary-
ing sources such as personal observations (many of
which were made years prior thereto) and sporadic in-
formal reports from contractors and from other members
serving as foremen on jobs. McGhee testified he normal-
ly received these reports only on members who per-
formed particularly well or particularly unsatisfactorily.
Mally received these reports only on members who per-
formed particularly unsatisfactorily.
B. The Alleged Unlawful Threats by the Union to
Members Michael and Schlemmer that It Would
Refuse to Refer Them for Employment and the
Alleged Refusal and Failure of the Union to Refer
Michael, Schlemmer, and Belt to Work
Charging Party Michael is a journeyman plumber-
pipefitter member of the Union qualified to do almost all
types of work with the exception of welding and refrig-
eration repair. He had been a member of the Union for
over 20 years at the time of the hearing. He has served
as a foreman and general foreman on occasion and has
also served as a union steward on construction jobs.
From March 1973 to December 1977 he "held the posi-
tion of financial secretary-treasurer and . . . was also ad-
ministrator and trustee [of] the [Union's] pension and
welfare funds." He left his union office on January 1,
1978, and thereafter worked for a succession of contrac-
tors. He worked in Arizona at his request from January
to April 1980, and returned to Illinois in April 1980.
Prior to his trip to Arizona, union member James H.
Ewing Sr. contacted him and discussed with him the for-
mation of an opposition slate of candidates in the Union's
next election scheduled for December 1980 to oppose the
slate of candidates headed by incumbent Business Man-
ager McGhee. The candidates campaign as a slate, but
were elected individually. Upon this return to the Illinois
area in April 1980, Michael discussed the matter further
with Ewing and with union member Jerry Kline. Ulti-
1365
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mately an opposition slate headed by James Ewing Sr.
was formed to oppose the groug of candidates running
on the slate headed by McGhee. Kline announced his
candidacy for assistant business manager in the spring of
1980. Ewing announced his candidacy for business man-
ager in August 1980. Kline was formally nominated for
the position of assistant business manager by Michael at
the November 1980 nominations meeting.
Charging Party Belt is a journeyman plumber-pipefit-
ter and had been a member of the Union for over 20
years at the time of the hearing. Belt is a certified
welder, but is not qualified to perform all types of weld-
ing. He is not a licensed plumber. On November 6, 1980,
Belt accepted a nomination to run for elective office as a
member of the Union's examining board on the slate
headed by Ewing. Belt had announced his candidacy for
this position in April 1980.
Charging Party Schlemmer is a journeyman pipefitter
and has been a member of the Union since December
1964. He testified he does not do plumbing work, but is
qualified to do welding and refrigeration work but not to
do "troubleshooting." He has performed pipeline work
and has worked in a fabrication shop. He is capable of
working as a pipefitter on a pipeline, but does not qualify
to do "downhill welding" on a pipeline.
Michael, Belt, and Schlemmer testified without contra-
diction that they actively campaigned for the Ewing
slate. Michael, Belt, and Schlemmer each engaged in the
placing of telephone calls to the Union's members and
talked to members at various locations whenever they
met them in support of the Ewing slate. Michael has not
been regarded as a supporter of McGhee in the past.
McGhee testified at the hearing that he expected that
Michael would support the slate of candidates opposing
himself. Schlemmer has been an outspoken opponent of
McGhee in the past and discussed the formation of an
opposition slate to oppose the McGhee slate in the pres-
ence of others in March and April 1980 and on one occa-
sion in the presence of McGhee's son. In addition,
Schlemmer has encountered some difficulties on the job
in the past and had been told by McGhee in June 1980
to improve his performance. I credit McGhee's version
of this conversation rather than Schlemmer's version.
This conversation apparently followed a period during
which Schlemmer was unemployed. Schlemmer was sub-
sequently referred out to a new job the day following
the conversation.
On November 3, 1980, Schlemmer reported for work
at 7 a.m. to Strange and Coleman (a mechanical con-
struction contractor) on a Shell Oil Refinery job where
he had worked since July 1980. According to Schlem-
mer, his work partner was not at work that morning, and
Cecil Crosnoe (Schlemmer's foreman on the job) told
Schlemmer that he was going to assign him to work
with a black. Schlemmer then stated that he had a trip
planned and was going to take it. At his request, Schlem-
mer was driven to the gate of the construction site and
left. Subsequently, at the union meeting held on Novem-
ber 6, 1980, Schlemmer was approached by Lindell
Johnson, the general foreman of the Shell Oil Refinery
job, and Johnson handed Schlemmer his check and told
Schlemmer that he had been laid off. Schlemmer refused
the check and told Johnson he would "be at work in the
morning." Schlemmer testified that he appeared at work
the following morning and Johnson "handed me that
same check." Schlemmer testified he asked Johnson,
"Well, who is doing this, you or who?" and that Johnson
replied, "Bill McGhee." Neither Crosnoe nor Johnson
was called as a witness in this proceeding.
Schlemmer testified that at this point he left the prem-
ises, went home, and called McGhee on the telephone.
He was unable to contact McGhee immediately. Howev-
er, later that day he returned his call, and Schlemmer
asked, "What's is going on?" McGhee stated, "I don't
have any work for you," and hung up. Schlemmer testi-
fied that he was not again referred out for work until
April 6, 1981. After the November 7, 1980, incident,
Schlemmer contacted the Union on several occasions
concerning referrals. On November 22, 1980, he present-
ed his unemployment card to Assistant Business Agent
Reggie Sparks who signed it under the category "No
work available" and returned it to Schlemmer. The word
"No" is also checked under the category "Did worker
refuse work." Schlemmer also presented his card at the
Union's office on March 10, 19, and 27, 1981. On each
occasion the card was returned to Schlemmer and
signed, indicating work was not available and that
Schlemmer had not refused work (G.C. Exh. 16).
On January 6, 1981, Union Assistant Business Manager
Jerry Kline, who was elected in the December 1980
election, telephoned Schlemmer and told him that he
wanted to talk to him. Schlemmer had been a supporter
of Kline, and testified that he had been hopeful that he
would be sent to work once again in January or Febru-
ary 1981. Schlemmer met with Kline at Kline's home on
January 6, 1981. Schlemmer testified that Kline told him,
"Shorty, I cannot send you to work. Bill McGhee is
mad. I had a meeting with him, and he won't let me
refer anybody." Schlemmer testified that Kline also told
him that at this meeting McGhee had stated, "That god-
damn Shorty Schlemmer brought in Hamor and Bodine
for this election," and "I will die and burn in hell before
Shorty Schlemmer goes to work." Schlemmer testified
that he had bought an airline ticket for member Bob
Hamor who lives and works in Minnesota in order that
Hamor could vote in the election.
Member Jerry Kline was elected in the December
1980 election as assistant business manager and assumed
office on January 8, 1981.
Kline, who was initially called by the General Counsel
and examined pursuant to Section 611(c) of the Federal
Rules of Evidence, corroborated Schlemmer's testimony.
Kline testified he could not recall the exact words
McGhee had used, but McGhee made it clear that
"Schlemmer was not going to work in this local." Kline
was recalled on rebuttal by the General Counsel and
placed the conversation with Schlemmer on January 6,
1981. Kline testified that McGhee had stated that he
"would die and burn in hell before this man would ever
work in this local again."
McGhee testified concerning his conversation with
Schlemmer on November 6 that the conversation was
short, that he told Schlemmer he had no work available
1366
PLUMBERS LOCAL 553 (PLUMBING CONTRACTORS)
for him, that Schlemmer asked him the reason for his
discharge from the job at Strange and Coleman, and that
he (McGhee) informed Schlemmer it was because he had
refused to work with a black. McGhee also testified con-
cerning the conversation with Assistant Business Manag-
er Kline and placed that conversation on January 2
rather than January 6, 1981.3 McGhee denied telling
Kline that he would burn in hell before Schlemmer
would work again in the Union, but did admit telling
Kline that he did not appreciate Schlemmer's having
brought members Hamor and Bodine to vote in the De-
cember election. He also acknowledged telling Kline that
he would not refer Schlemmer for work if Schlemmer
"did not improve his performance." McGhee testified
that Schlemmer had been reported drinking on the job
and that McGhee did not want to jeopardize the Union's
position with the contractors on the Shell Oil Refinery
job by tolerating that type of activity. McGhee denied
telling Kline that he would not refer Schlemmer out be-
cause Schlemmer had brought members Hamor and
Bodine to vote in the December election. McGhee ad-
mitted on cross-examination that he had made a determi-
nation that he would not refer Schlemmer out until such
time as he improved his performance. McGhee also ad-
mitted that he did not contact Schlemmer or explain to
Schlemmer that he was not being referred out because of
his job performance. Schlemmer was not referred again
to a job until April 6, 1981.
Gary Schumacher, a vice president of Strange and
Coleman, testified that he had observed Schlemmer's
performance approximately 6 to 8 years ago. Schu-
macher stated that Schlemmer was discharged in No-
vember 1980 by Strange and Coleman from the Shell Oil
Refinery job. Schumacher testified he was not directly
involved with the matter, but that Strange's and Cole-
man's project manager, Jim McGraw, and General Fore-
man Wendell Johnson, who were on the job, were in-
volved. Neither Johnson nor McGraw was called to tes-
tify. Schumacher's knowledge therefore was derived
from a report he received from McGraw that Schlem-
mer had been discharged for refusing to work with a mi-
nority employee. Schumacher testified that the decision
to terminate Schlemmer was made by General Foreman
Wendell Johnson, who then conferred with Project Man-
ager McGraw, and that Schumacher received a report
on that termination the same day. Schumacher testified
that he directed a letter to the Union stating that Strange
and Coleman would appreciate the Union's "cooperation
in not referring Mr. Schlemmer to any of our jobs." This
letter was written by Schumacher on February 20, 1981,
after a conversation with Assistant Business Agent
Reggie Sparks wherein he expressed his Company's op-
position to further referrals of Schlemmer, and Sparks re-
quested that he put the matter in writing. Schumacher
also testified concerning an incident involving Schlem-
mer's drinking on the job approximately 3 years prior to
the hearing date.
I3 find McGhee's recall of the date more reliable than Kline's recall. I
do not, however, regard the placement of the date as either January 2 or
6 as material herein.
Michael testified that, prior to his return from Arizona
in April 1980, he telephoned McGhee and told him that
he had finished his job in Arizona. McGhee told him to
return to the area, which Michael did. Shortly after Mi-
chael's return, he was referred to a job with the Penning-
ton Equipment Company in Whittfield (Illinois) and
worked there until sometime in June 1980 when he was
laid off when the job was finished. He then called the
union hall and told the secretary that he was out of
work. This was procedure normally followed by union
members to indicate that they were out of work and
were ready for additional referrals. Michael testified that
it is not necessary to speak to one of the agents, but
rather is sufficient to notify the secretary. Michael testi-
fied that he was not referred out for a "couple of days,"
and found out that two other individuals whom he had
been working with on the prior job had been referred
out. Michael then called the union hall and talked to
Sparks, who told him that McGhee would be in touch
with him. Michael waited an additional few days and
then called and talked to Sparks, who again told him
that "McGhee knew I was out of work and he would be
in touch." Michael testified that he then stated, "Well, I
either go to work or I go to the Labor Board, one or the
other." Michael testified that "a couple days later"
McGhee telephoned him at home and asked Michael
about his statement that he would go to the Labor
Board. Michael testified he stated, "That's just exactly
what I said and that's exactly what I mean," and that
McGhee then stated, "If that's where you're going to get
your job, that's where you can go to get all of them. I
gave you a job when you got back here from Arizona
and you started up a lot of trouble about elections
coming up and you got a lot of men stirred up.... I
don't have anything for you." Michael testified that he
then told McGhee, "I either get a job or I go to the
Labor Board," and that "When I come over here, we're
going to talk about how you're running the hiring hall,
too. We'll talk about more than just my job," whereupon
McGhee stated, "I'm running the hiring hall right." Mi-
chael retorted that McGhee was not. McGhee then
stated, "All right, I'll call you tomorrow." Michael testi-
fied that the following day he received a telephone call
to report for work and was referred to a job for Triangle
Heating in Evansville (Illinois).
Michael testified he had worked for Albers Refrigera-
tion for some time prior to December 1980, and that in
December 1980 the refrigeration units were set and piped
in. It was necessary to wait for electricians to wire the
compressors in order that the compressors could be
turned on and charged to test the units, which would re-
quired a delay of approximately 2 weeks. Michael testi-
fied that Robert Albers told the three employees who
were working that he would not single out anyone for a
layoff, but would keep them although the job was basi-
cally finished. Michael stated that he then told Albers
that he was planning on taking his daughter to California
for a vacation and, if there was no more work, he would
prefer to be laid off, whereupon Albers agreed and did
lay him off on December 16, 1980. Michael testified he
left for California the next morning. Michael returned on
1367
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 3, 1981, and called the Union's office to report
his availability for work on Monday, January 5, 1981, to
the secretary.
Michael was not referred out again until January 20,
1981, when he was referred out by Assistant Business
Manager Jerry Kline to Diestlehorst (a contractor.) On
January 26, 1981, Michael was working in Jerseyville (Il-
linois) for Diestlehorst. Kline came to the job and told
Michael, "Well, the shit hit the fan this morning ....
Bill [McGhee] found out I sent you out to work," and
that McGhee had stated, "Dan Michael is not going to
work here. He quit his last job and went to California
and he can just stay there. He's not going to work here
and you're not going to send anybody else out for
work."
Michael testified that he attended a union meeting on
February 5, 1981, at which Kline reported that he had
been told not to refer anyone out to work, but that Kline
informed the membership that he intended to refer
people out if there were jobs available and membership
were out of work. Michael testified that McGhee also
spoke at that meeting and stated that "as business manag-
er of the local union that he [McGhee] would run the
local union his way and Jerry Kline would do as he told
him" Michael testified that he was actually referred to
Diestlehorst on January 20 (1981), but did not start work
until a few days later because of inclement weather. He
worked for Diestlehorst approximately 5 days, and was
then referred to another job for 3 days. Michael testified
that he was not referred to another job from approxi-
mately February 2, 1981, until his referral to Diestlehorst
approximately February 26. Michael testified that he was
offered another job by Assistant Business Representative
Mike Carson, which was an overtime job he refused. Mi-
chael filed his charge in the instant case on February 5,
1981. Michael testified that there had never before been
an opposition slate in an intraunion election campaign
since he had been a member.
Kline testified that on approximately January 20, 1981,
he spoke with McGhee concerning Michael when
McGhee called Kline into his office and told Kline that
"I did not have the authority to send people to work,"
and that McGhee had found that Kline had referred Mi-
chael to a job. Kline testified that, at the time of the re-
ferral, he did not find Michael's card in the work file,
made a new card for Michael, and put it in the file so it
could be found by other agents. Kline testified that
McGhee told him if any cards were not in the box, the
card would be on his desk, and that if the card was on
his desk, no one was to send the member to work.
At the time McGhee told Kline he was not to refer
anyone else to work. Kline testified that McGhee re-
ferred to the last job which Michael had been on, and
McGhee stated that Michael had quit the job and left for
California and that Michael could stay in California as
McGhee did not have any work available for him. Kline
acknowledged having told Michael of McGhee's state-
ment concerning Michael. Kline acknowledged that he
had told Michael "the shit hit the fan today," and that "I
said McGhee had found out about my sending you to
work, and he really came down hard on me, something
to that effect, because he didn't want me sending you
out. He said I wasn't ever to send anybody else out
again," and "I said what we are going to have to do is
be careful, because I don't know how the man is going
to react." Kline admitted having told Michael that
McGhee had stated that "Michael is not going to work."
The General Counsel also called Robert Albers.
Albers testified that Michael worked for him from Sep-
tember until December 16 (1980). Albers testified that
the job was concluding and that a layoff was necessary
and, accordingly, Michael left and went on his vacation.
Albers testified that Michael gave him advance notice
that he was leaving and offered to stay until the job was
finished. Albers further testified that Michael was laid off
because he was the last man to be obtained of the three
men on the job.
McGhee acknowledged the conversation between him-
self and Jerry Kline which he placed at approximately a
week or so after Kline came to work in the union office
(January 8, 1981), and also acknowledged that he had
Michael's card on his desk. McGhee testified that it been
reported to him that Michael had quit a job to go on va-
cation which left an opening the Union was unable to
fill. As a result, 4 or 5 days' work had been lost to its
members. McGhee testified that he put Michael's card on
his desk so that the other agents would not refer him out
while he was gone. McGhee denied having received in-
formation of Michael's return from California and that
Michael was ready for referrals. McGhee testified that
he asked Kline why Michael had been referred out, and
Kline told him that Michael had called him and he had,
therefore, sent him out. McGhee testified that he then
told Kline that, when a card was on his desk, the man
was not to be referred out as there may be a number of
reasons why he should not be referred out such as a
person being on vacation or being required for another
job. McGhee was unable to state whether other persons
were out of work at the time Kline referred Michael to
the job. McGhee acknowledged telling Kline that he was
not to refer anyone else out at the time of the conversa-
tion concerning Michael's referral. McGhee denied
having ever made the statement to Kline or to Michael
or to anyone else that, by reason of their union political
activities, they were not eligible for referrals. He also
denied giving instructions to any of his business agents as
to whether any individual should or should not be re-
ferred out because of their political activities. McGhee
also testified that Michael called him shortly before his
returning from Arizona in 1980 and asked if McGhee
would refuse to refer him for employment "because of
his political convictions," and that McGhee replied in
the negative, told Michael to return and that McGhee
would have a job for him. McGhee testified that, shortly
thereafter, Michael was off from work for a short period
of 3 or 4 days and told Sparks that he (Michael) would
go to the National Labor Relations Board. McGhee testi-
fied that he subsequently referred Michael out to another
job, but not because of his threat to go to the National
Labor Relations Board.
Belt testified that he was laid off from a job on De-
cember 20 (1980); he contacted Agent Reggie Sparks and
told him that he had been laid off and was available for
1368
PLUMBERS LOCAL 553 (PLUMBING CONTRACTORS)
work. Belt subsequently contacted the union hall once a
week. He was not referred to work again until January
26 (1981) when he was referred to a job in Cape Girar-
deau (Missouri), where he worked for approximately 5
weeks until February 27 (1981). Cape Girardeau is a dis-
tance of 237 miles from his residence in Carlinville, Illi-
nois. Belt contacted the union hall the following
Monday, March 2 (1981), went into the office, talked to
McGhee, and told him he had been laid off. McGhee
told him, "We'll pull your card."
McGhee testified that Belt had been laid off and had
called the office inquiring about employment. McGhee
testified this occurred in either December 1980 or Janu-
ary 1981. McGhee testified he told Belt that as he had
noted in previous union meetings, they were anticipating
a period of unemployment much greater than had been
experienced in the past 10 or 12 years. McGhee testified
that Belt stated he needed employment, that he had
heard there was work in Paskel, Washington, and asked
for a referral card to Paskel. McGhee offered to check
this prior to Belt's leaving the area and did so. He was
informed that there were over 200 men there to cover
the available jobs. McGhee testified he then offered to
attempt to get Belt a job with another union local (Local
552), and that this particular job was in Cape Girardeau.
The Union's referral cards (G.C. Exh. 20) show that
numerous members were referred out for employment
(some on two or more occasions) who became eligible
for work after each of the Charging Parties. Thus, in the
case of Schlemmer, although he requested work on No-
vember 6, 1980, he was not referred out again until April
6, 1981. During this period numerous members of Re-
spondent were referred out to other jobs. Some of these
members, as pointed out by General Counsel in his brief,
received substantial numbers of referrals, including
member Rogers who, through a series of referrals, was
employed for substantially the entire period during
which Schlemmer was unemployed.
The General Counsel notes in his brief that nine mem-
bers who became available for work after January 5,
1981, the date that Michael contacted the union hall,
were referred out ahead of Michael. The General Coun-
sel also points out in his brief that, although Belt tele-
phoned the Union on December 22, 1980, to indicate his
availability for work and was told that no work was
available, and although he was not referred out once
again until January 26, 1981, several members (approxi-
mately 20) became available for work after December
22, 1980, and received referrals prior to January 26,
1981. Belt testified that he was capable of performing the
same work as these members. His testimony was unre-
butted in this regard. Additionally, approximately four of
these members received two referrals during this period.
Although Belt reported his availability on March 2,
1981, he was not referred out until April 6, 1981, al-
though during this period approximately 14 members
were referred out prior to Belt even though they had
been unemployed for a lesser period than Belt.
III. ANALYSIS OF THE ALLEGED THREATS AND
REFUSALS TO REFER
A. The Alleged Threats Made to Employees
Schlemmer and Michael
I credit the testimony of Kline and Schlemmer con-
cerning the events of January 1981, and find that Kline's
statement to Schlemmer that McGhee had declared that
Schlemmer would not be referred for work constituted a
violation of Section 8(b)(1)(A) of the Act by the Union.
Although it is clear that Kline was not the initiator of
the threat but acted rather in the role of conveying to
Schlemmer what Kline had been told by McGhee,
Kline's statement to Schlemmer was nonetheless coercive
in nature and a threat that Schlemmer would not be re-
ferred out because he had engaged in intraunion activi-
ties. This threat was clearly violative of Schlemmer's
rights under Section 7 of the Act. See Sheet Metal Work-
ers Local 28 (Treadwell Corp.), 243 NLRB 1061 (1979),
and Stage Employees 1ATSE Local 7 (Universal City Stu-
dios), 254 NLRB 1139 (1981). Kline's subjective intent is
not relevant in determining whether his statements
tended to restrain or coerce Schlemmer in the exercise of
his rights under Section 7 of the Act. See Laborers' Local
496 (Newport News), 258 NLRB 1105 (1981). 1 find that,
as an elected official (the assistant business manager) of
the Union, Kline was an agent of the Union within the
meaning of Section 2(11) of the Act. I find that he was
in a position of apparent authority, and I do not find rel-
evant or determinative his lack of formal installation at
the time he made the statement to Schlemmer. Rather, it
is clear that Kline was functioning as a representative of
the Union when he made the statement to Schlemmer,
having learned of McGhee's position regarding Schlem-
mer at the time of his initial meeting with McGhee con-
cerning Kline's own duties as an assistant business man-
ager. I also do not find relevant or determinative the
Union's argument that Kline was not representative of or
an agent of the Union by reason of his opposition to the
McGhee slate of candidates. See Teamsters Local 1780,
244 NLRB 277 (1979), and Peninsula Shipbuilders' Assn.
(Newport News Shipbuilding Co.), 239 NLRB 831 (1978).
I also credit the testimony of Kline and Michael con-
cerning the statement made by Kline to Michael on the
jobsite that Michael was not to be referred out for future
employment because he had allegedly quit a job prema-
turely to leave for vacation in California, according to
McGhee. I find that Kline was acting in his official posi-
tion as an installed assistant business manager and was an
agent of the Union within the meaning of Section 2(11)
of the Act. The threat conveyed by Kline to Michael
was a threat to refuse to refer Michael for employment
because of his having engaged in intraunion activities
and was clearly violative of Michael's rights under Sec-
tion 7 of the Act, and the Union thereby violated Section
8(b)(1)(A) of the Act. See Sheet Metal Workers Local 28
and Stage Employees, IATSE Local 7, both cited above.
The circumstances of this case clearly demonstrate that
Michael was a longstanding political opponent of
McGhee, actively supported the opposition to the
McGhee slate in the December election, and that
1369
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McGhee seized on the pretext as a reason for refusing to
refer Michael for future employment. I credit Michael's
testimony as supported by that of Albers concerning the
circumstances of his leaving the job. It is clear that
McGhee's actions in threatening to preclude Michael
from further referrals rather than discussing with Mi-
chael or Albers the circumstances of Michael's termina-
tion from the job were motivated solely by McGhee's
desire to retaliate against Michael for his engagement in
intraunion activity rather than by any genuine belief that
Michael had left the job prematurely.
B. The Union's Alleged Failure or Refusal to Refer
Charging Parties Michael, Schlemmer, and Belt for
Employment in 1980 and 1981
The operation of the Union's referral system is in issue
in this proceeding insofar as it relates to its impact on the
Charging Parties. Although I credit McGhee's testimony
concerning the varying types and levels of skills within
each of the two journeyman classifications, the lack of
readily ascertainable objective standards of the capabili-
ties of members to perform various jobs required by the
contractors makes difficult an assessment of the criteria
utilized to refer members for employment.
In the case of Schlemmer, it is undisputed that from
approximately November 6, 1980 to April 6, 1981, he re-
ceived no referral for work although he indicated his
availability for work. During this period numerous other
members were referred for work and many on more than
one occasion. Union Business Manager McGhee admit-
ted he had made a decision to refrain from referring
Schlemmer for employment until he improved his per-
formance after the November 1980 incident when
Schlemmer left his job with Strange and Coleman.
4
Moreover, admittedly McGhee did not notify Schlem-
mer that he was not to be referred for employment until
he improved his performance The Union contends that
Schlemmer's unsatisfactory job performance was the sole
reason for McGhee's refusal to refer him for employment
after the November incident. In support of its position,
the Union cited alleged instances of Schlemmer's drink-
ing on jobs. However, the Union produced direct evi-
dence of only one incident of drinking on the job several
years prior to the November 1980 incident through the
testimony of Strange and Coleman Vice President Schu-
4 The General Counsel neither alleged in the complaint nor contended
at hearing nor in his brief that the discharge of Schlemmer was unlawful.
Moreover, the individuals involved in the November 1980 incident (the
black employee with whom Schlemmer allegedly refused to work with
or Foreman Crosnoe, General Foreman Johnson, or Project Manager
McGraw) were not called to testify. Schlemmer testified that he was told
he would be required to work with a black, that he left the job because
he had previously decided to go on a trip, and that he could use the time
to get ready and was thereafter terminated from the job. General Fore-
man Johnson told him McGhee was responsible for his termination.
I did not have the impression that Schlemmer was being candid in his
relation of the incident. Rather, I found Schlemmer's account of this inci-
dent to be vague and lacking in detail. I do not base any determination
on the hearsay testimony of McGhee and Schumacher. Schlemmer's re-
fusal to work with a black employee appears to be the only plausible ex-
planation for his conduct in leaving the job, even if I were to credit
Schlemmer's account in its entirety. Accordingly, I find that there is no
evidence of any violation of the Act by the Union by the termination of
Schlemmer from the Strange and Coleman job in November 1980.
macher. In January 1981, Schumacher wrote a letter to
the Union at the suggestion of Union Business Agent
Sparks when Schumacher expressed the reluctance of
Strange and Coleman to employ Schlemmer again as a
result of the November 1980 incident and Schlemmer's
alleged drinking (alcohol) on the job. However, this
letter was written substantially after McGhee's refusal to
refer Schlemmer for employment, and I do not find that
it had any relevance to McGhee's decision. Under the
above circumstances, I find that McGhee's action in re-
fusing to refer Schlemmer for employment was arbitrary
and capricious and was not consistent with any purport-
ed attempt to have Schlemmer improve his performance,
particularly in view of McGhee's failure to notify
Schlemmer that he was no longer to be referred for em-
ployment as a result of his job performance. I find proba-
ble, from the testimony of McGhee and Schumacher
concerning Schlemmer's performance, and from the testi-
mony of Schlemmer himself, that Schlemmer may well
have not performed in a satisfactory manner in the past.
I also recognize that unsatisfactory conduct, such as
drinking on the job, will not be tolerated by contractors
and that the Union has a legitimate concern in referring
for employment members who are capable and willing to
perform in a satisfactory manner.
I also credit Kline concerning McGhee's statement
that Schlemmer would not again work in the Union's ju-
risdiction as a result of his intraunion activities in bring-
ing members Hamor and Bodine to vote in the Decem-
ber 1980 union election. Although I recognize that Kline
ran on the slate opposing McGhee's slate and that his
recall of the statements made by McGhee concerning
Schlemmer was not initially as specific as it later became
after his recollection was refreshed by Schlemmer's testi-
mony, I found Kline a credible witness and also consider
it unlikely that he would fabricate the statements made
by McGhee concerning Schlemmer. McGhee himself ad-
mitted having expressed his displeasure to Kline concern-
ing Schlemmer's having brought members Bodine and
Hamor to vote in the December elections, although he
denied making statements that Schlemmer would not
work because of this.
Under the above circumstances, I find that McGhee's
actions in refusing to refer Schlemmer for employment
following the November 1980 incident were arbitrary
and capricious and were motivated principally by
McGhee's displeasure with Schlemmer's engagement in
intraunion activities in campaigning for the slate of can-
didates opposing McGhee and his slate of candidates.
I also find that Michael suffered discrimination by the
Union's failure and refusal to refer him for employment
in the months of January and March 1981. McGhee's
withholding of Michael's card from the out-of-work file
after Michael notified the Union's secretary of his avail-
ability for work was demonstrative of McGhee's hostility
toward Michael. I credit Michael's unrebutted testimony
that he notified the secretary for work. I do not credit
McGhee's testimony that he did not believe Michael was
available for work or that he believed Michael had pre-
maturely quit his job. I credit Kline's version of
McGhee's statement that Michael could stay in Califor-
1370
PLUMBERS LOCAL 553 (PLUMBING CONTRACTORS)
nia. I find that McGhee's refusal to refer Michael out for
work at a time when other employees were being re-
ferred out for work was motivated solely by McGhee's
displeasure with Michael's intraunion activity in oppos-
ing the candidacy of McGhee and his slate in the No-
vember election.
Similarly, I find that the disparity between the lack of
referrals by the Union of Belt at a time when other mem-
bers were being referred for work during the period
from December 1980 to April 1981 was motivated solely
by McGhee's attempt to retaliate against Belt because of
his engagement in intraunion activities as a candidate for
election and a supporter of the slate opposing the
McGhee slate. In this regard, Michael, Schlemmer, and
Belt each testified that they were capable of performing
the same work as many other members who were re-
ferred for employment during their own periods of un-
employment. I credit their testimony which was essen-
tially unrebutted.
Under the above circumstances, I find that the Union,
through its Business Manager McGhee, whom I find to
be an agent of the Union within the meaning of Section
2(11) of the Act, violated Section 8(b)(1)(A) and (2) of
the Act when it failed and refused to refer for employ-
ment its members Michael, Schlemmer, and Belt as a
result of their having engaged in intraunion activity pro-
tected under the Act. A union that operates a hiring hall
under the construction industry proviso contained in
Section 8(f) of the Act is empowered with an important
trust to operate its referral system in a fair and nondis-
criminatory manner. Its actions with respect to the oper-
ation of the referral of its members affect their very live-
lihood, as was amply demonstrated in this case and, most
particularly, in the case of Schlemmer who did not work
for approximately 5 months as a result of McGhee's deci-
sion to refuse to refer him for further job opportunities.
It is, accordingly, axiomatic that a union's refusal or fail-
ure to refer its members for employment violates Section
8(b)(1)(A) and (2) of the Act when the refusal or failure
to refer the member is engaged in by the union because
of that member's having engaged in intraunion activity
or for other arbitrary or capricious reasons. See Local
808 Carpenters (Building Contractors Assn.), 238 NLRB
735 (1978); Laborers Local 282 (Millstone Construction),
236 NLRB 621 (1978); Teamsters Local 174 (Totem Bever-
ages), 226 NLRB 690 (1976); Operating Engineers Local
18 (Ohio Contractors Assn.), 204 NLRB 681 (1973); and
Stage Employees IATSE Local 7 (Universal City Studios),
cited above.
I find that the General Counsel has made a prima facie
case that the Union violated Section 8(b)(1)(A) and (2) of
the Act by its refusal(s) and failure(s) to refer
employee(s) Schlemmer, Michael, and Belt for employ-
ment because of their having engaged in intraunion con-
certed activities and for other arbitrary and capricious
reasons. As discussed herein, I do not credit the Union's
defense asserted at the hearing with respect to Schlem-
mer that the Union refused to refer him because of his
inadequate job performance in accordance with the need
to refer qualified employees to the contractor employers.
I also do not credit the Union's defense that employees
Michael and Belt were employed for substantially com-
parable periods as were other union members. The
record of referrals shows otherwise as discussed previ-
ously. I find that the Union has failed to demonstrate
that it would have refused or failed to refer employees
Schlemmer, Michael, and Belt for employment in the ab-
sence of their having engaged in intraunion activities.
Accordingly, I find that in each case the Union has
failed to rebut the General Counsel's prima facie case by
a preponderance of the evidence and find that the Union
violated Section 8(b)(1)(A) and (2) of the Act by its fail-
ure and refusal to refer employees Schlemmer, Michael,
and Belt for employment. See Wright Line, 251 NLRB
1083 (1980). See also Teamsters Local 515 (Cavalier
Corp.), 259 NLRB 678 (1981).
C. The Alleged Violations of the Act by the Union's
Acceptance of Recognition by Pipeco of Pipeco's
Employees and by the Execution and Maintenance of
Collective-Bargaining Agreement(s) with Pipeco,
Including Union-Security Provision(s) Therein
The facts are essentially undisputed with respect to
this aspect of the complaint. Pipeco is an Illinois corpo-
ration engaged in the fabrication of plastic, steel, and
stainless steel pipe to its individual customers' specifica-
tions. The fabricated products are then shipped to job-
sites. Pipeco does not perform construction work or oth-
erwise serve as a contractor at the jobsites.
Ivan (Skipp) Cochran, the president of Pipeco, was in-
volved in the formation of the corporation. In the course
of his efforts to raise sufficient capital, he contacted
Union Business Manager McGhee. McGhee testified he
saw the establishment of the fabrication business as an
opportunity for employment of approximately 50 of the
Union's members and, in order to assist Pipeco in its for-
mation, the Union purchased 1500 shares of a total initial
issue of 6000 shares of stock by the corporation.
McGhee testified that the Union's proxy, voting rights,
and control have been assigned to Pipeco's attorney in
order that the Union would not be involved in the oper-
ation of Pipeco. Under the terms of the agreement,
Pipeco has a first option to purchase the Union's stock
after a period of 3 years, after which the stock can be
sold by the Union on the open market. The Union has
not engaged in the operation of the business of Pipeco.
Pipeco commenced its operations in October 1980. On
November 1, 1980, when it employed nine production
employees, 5 Pipeco executed a collective-bargaining
agreement (entitled "Fabrication Agreements") with the
Union concerning the employees' wages, hours, and
terms and conditions of employment. The Fabrication
I i do not find as contended by the General Counsel in his brief that
Pipeco's employee complement had risen to 32 at the time of the hearing.
The parties stipulated at the hearing that G.C. Exh. 6 (on which the Gen-
eral Counsel relies for this assertion) consisted of the payroll records of
all employees who had been hired by Pipeco (excluding managerial and
engineenng employees) and included some employees who were no
longer employed. The total number of employees listed in G.C. Exh. 6 is
34. However, the records show only 17 employees as of the payroll
period ending June 9. 1981 (the date of the hearing). Even if the employ-
ees listed as of the payroll periods ending April 27, 1981, and May 26,
1981, were to be counted, this would bring the total to only 25 employ-
ees
1371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Agreement provided that it was an addendum to the
"National Fabrication Agreement" identified by Cochran
at the hearing as the "National Minimum Standard
Agreement for a Commercial Pipe Fabrication Shop-
Pipe Fabrication Institute Shop Agreement." Although
Cochran testified at the hearing that Pipeco was not im-
mediately a party to the National Fabrication Agreement
pending the processing of the necessary paperwork,
Pipeco has employed only members of the Union as its
production employees, and has deducted union dues
from employees' wages from the commencement of their
employment. The National Fabrication Agreement pro-
vides by its terms that Pipeco recognizes the Union as
the exclusive bargaining representative of Pipeco's jour-
neymen and apprentices and metal trades employees (art.
IV, "Recognition") and also provides for a 30-day union-
security clause (art. VII, "Union Security"). Pipeco and
the Union also executed a "National Minimum Standard
Agreement for a Commercial Pipe Fabrication Shop" on
April 14, 1981. Under the terms of this agreement,
Pipeco also recognized the Union as the exclusive bar-
gaining representative of its building trades journeymen
and apprentices and metal trades employees, and also
agreed to a 30-day union-security clause. As of the date
of the hearing, Pipeco employed approximately 25 pro-
duction employees.
Analysis of the Union's Relationship with Pipeco
Although it appears from the undisputed evidence in
this case that the Union's sole motivation in its purchase
of shares in Pipeco was to improve employment oppor-
tunities for its membership and that the Union took steps
to remove itself from the day-to-day control over the
business of Pipeco, certain violations of the Act must be
recognized.
I do not find, as contended by the General Counsel,
that the Employer, Pipeco, did not employ a representa-
tive complement of employees on November 1, 1980, at
the time it executed its initial collective-bargaining agree-
ment with the Union. I find that the General Counsel has
failed to show that less than 30 percent of the employ-
ment complement at the time of the hearing was in exist-
ence at the time of the execution of the collective-bar-
gaining agreement, as I have found there were 9 employ-
ees as of the date of the execution of the November 1,
1980 agreement and no more than 25 employees as of the
date of the hearing. Accordingly, I do not find a viola-
tion of the Act on the basis of the standards set out in
General Extrusion Co., 121 NLRB 1165, 1167 (1958),
concerning a requirement that 30 percent of the employ-
ee complement at the time of the hearing must be found
to have been in existence at the time of the execution of
the agreement.6
I find, however, that the Union has breached its duty
of fair representation and has violated Section 8(b)(1)(A)
of the Act by its acceptance of recognition from Pipeco
and by its execution of a collective-bargaining agreement
with Pipeco at such time as it retained a substantial stock
interest in Pipeco. By virtue of its ownership of 25 per-
6 Such standards are applied in unfair labor practice cases as set out in
Klein's Golden Manor, 214 NLRB 807 fn. 2 (1974).
cent of Pipeco's outstanding shares of stock, the Union
retains a substantial ownership interest in Pipeco, which
financial interest is closely tied to management as con-
tended by the General Counsel. Although it is undis-
puted that Pipeco and the Union executed a collective-
bargaining agreement providing for prevailing wage
rates and fringe benefits, the Union's dual position pre-
cludes it from fairly representing its members who are
employed by Pipeco. See Miranda Fuel, 140 NLRB 181
(1962), and Retail Store Employees Local 428, 163 NLRB
431 (1967). A violation of Section 8(b)(1)(A) was alleged
in the complaint and litigated at the hearing. I find that,
given the Union's primary role as a bargianing agent and
its secondary role as an employer under the circum-
stances of this case, a violation of Section 8(b)(1)(A) is
appropriate.
I also find that the Union violated Section 8(b)(2) of
the Act by its execution of a union-security agreement
with Pipeco at such time(s) as it was unable to fairly rep-
resent the employees of Pipeco by reason of its substan-
tial stock ownership of Pipeco. Accordingly, I also find
that, by entering into the agreement(s) with Pipeco re-
quiring the payment of dues and other payments to the
Union for pension and benefit funds pursuant to said col-
lective-bargaining agreement(s), the Union has violated
Section 8(b)(2) of the Act. See Supreme Equipment Corp.,
235 NLRB 244 (1978).
I also find that the Union violated Section 8(b)(2) by
the execution of the collective-bargaining agreement(s)
with Pipeco which contain(s) referral clauses therein as
these agreements are unlawful prehire agreements.
Pipeco is not an employer engaged in the construction
industry, and the collective-bargaining agreement(s) exe-
cuted by Pipeco and the Union are not exempt under
Section 8(f) of the Act with respect to employees en-
gaged in the construction industry. See W. L. Rives Co.,
136 NLRB 1050 (1962), and Custom Sheet Metal Co.,
Inc., 243 NLRB 1102, 1108 (1979).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices, as found in section II
above, in connection with the status and operations of
Respondent Local Union No. 553, affiliated with United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO, as set forth in section I, above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and lead to disputes obstructing the free flow of com-
merce.
CONCLUSIONS OF LAW
1. Respondent Local Union No. 553, affiliated with
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
2. Plumbing, Heating, Piping and Air Conditioning
Contractors Association of Alton, Wood River and Vi-
cinity is and has been an organization composed of em-
1372
PLUMBERS LOCAL 553 (PLUMBING CONTRACTORS)
ployees engaged in the construction industry and existing
for the purpose of representing its employer members in
the negotiation and administration of collective-bargain-
ing agreements with various labor organizations, includ-
ing Respondent. At all times material herein the afore-
said Association and Pipeco Fabricating Company,
France Plumbing, Heating and Air Conditioning, and
Murphy Company were employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
3. By threatening to refuse to refer employee Carl
Schlemmer for employment to employer members of the
Association on or about January 6, 1981, because of his
participation in intraunion activities protected under Sec-
tion 7 of the Act, and because of other arbitrary and ca-
pricious reasons, Respondent has violated Section
8(b)(1)(A) of the Act.
4. By threatening to refuse to refer employee Dan Mi-
chael for employment to employer members of the Asso-
ciation because of his participation in intraunion activity,
and for other arbitrary and capricious reasons, Respond-
ent has violated Section 8(b)(1)(A) of the Act.
5. By failing and refusing to refer out for employment
employee Carl Schlemmer, Dan Michael, and Billy H.
Belt because of their engagement in intraunion activity,
and for other arbitrary and capricious reasons, Respond-
ent has violated Section 8(b)(1)(A) and (2) of the Act.
6. By its acceptance of recognition from Pipeco Fabri-
cating Company of its employees at such time as it re-
tained a substantial stock ownership interest in Pipeco
Fabricating Company, and by its execution of a collec-
tive-bargaining agreement(s) with Pipeco Fabricating
Company, Respondent has violated Section 8(b)(l)(A) of
the Act.
7. By its execution of a union-security agreement(s)
with Pipeco Fabricating Company and by entering into
agreement(s) with Pipeco Fabricating Company requir-
ing the payment of dues and other payments to the
Union for pension and welfare funds pursuant to these
agreement(s), and by entering into an unlawful prehire
agreement with Pipeco Fabricating Company, Respond-
ent has violated Section 8(b)(2) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent cease and desist therefrom and take certain affirma-
tive actions designed to effectuate the policies of the
Act.
Since I have found that Respondent has discriminated
against employees Dan Michael, Carl Schlemmer, and
Billy H. Belt by failing and refusing to refer them for
employment to employer members of the Association, I
shall recommend that Respondent be ordered to make
these employees whole for any loss of earnings and bene-
fits they may have suffered as a result of the discrimian-
tion against them with interest computed thereon in the
manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977). 7
Having found that Respondent has accepted recogni-
tion from Pipeco Fabricating Company of its employees
at such time as it retained a substantial stock ownership
interest in Pipeco Fabricating Company, and having
found that it executed and maintained a union-security
agreement and other agreements in violation of the Act,
I shall recommend that Respondent be ordered to cease
maintaining and giving effect to its current recognition
by Pipeco Fabricating Company as the collective-bar-
gaining representative of its employees and to the 1980
and 1981 collective-bargaining agreements entered into
with the Pipeco Fabricating Company or any modifica-
tion, extension, renewal, supplement, or successive agree-
ment until such time as Respondent shall have been certi-
fied by the Board as the exclusive representative of the
employees in question.
As the employees of Pipeco Fabricating Company
were members of Respondent at the time of their referral
to Pipeco Fabricating Company, I find it appropriate to
effectuate the purposes of the Act, to order reimburse-
ment of their dues and other payments made by them to
Respondent pursuant to the collective-bargaining agree-
ments executed between Pipeco Fabricating Company
and Respondent, contingent in each instance upon a re-
quest therefore by the particular employee.
[Recommended Order omitted from publication.]
See generally Isis Plumbing Co., 138 NLRB 716 (1962).
1373