Plumbers' Local Union No. 83

National Labor Relations Board - Board Decisions

Feb 14, 1977

228 N.L.R.B. 216 (N.L.R.B. 1977)

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the
United States and Canada, Local Union No. 83,
AFL-CIO (Power City Plumbing & Heating, Inc.)
and Glen W. Mullett. Case 6-CB-3426
February 14, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On May 20, 1976, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
We agree with Respondent that the Administrative
Law Judge erroneously concluded that Respondent,
Local 83, was responsible for the discharge of Glenn
W. Mullett and thereby violated Section 8(bX2) and
8(b)(1)(A) of the Act. Mullett, the Charging Party,
was hired by Bettistelli, the Employer's president and
sole owner, to work at its Allied Chemical jobsite on
May 27, 1975, and was laid off on May 29. Mullett's
employment was a cause of concern to the members
of Local 83 because he was not a member of Local 83,
and members of Local 83 were unemployed at the
time. During the evening of May 28, union members
Patrello and Speidel called other members of the
Local to request them to refuse to work for Bettistelli
as long as Mullett remained employed . Patrello called
Stiglich and Varvorosky, who worked at the Allied
site along with Mullett , as well as Ramsey and
Schramm who worked at other jobsites of the
Employer. Ramsey advised that he did not know
what he would do, and Schramm stated that he would
not refuse to work because of his responsibility to his
family and his employer. Speidel, who had been laid
off by Bettistelli in April, called Geimer who was
working for the Employer at another jobsite. On the
morning following Patrello 's phone calls , Stiglich and
Varvorosky rode to the Allied jobsite together during
which time they discussed the Mullett matter. Upon
arrival at the site, they told the foreman that they
were going to take a couple of days off. At the same
time , Geimer told Bettistelli on the morning of May
29 that he was quitting because of Mullett. At this
228 NLRB No. 27
point Bettistelli showed Geimer a letter from Powell,
Local 83's business agent, stating that Bettistelli had
the right to hire Mullett. Notwithstanding this,
Geimer told Bettistelli that it was not right having
Mullett working while members of Local 83 were
"loafing," and continued to refuse to work. When
Bettistelli was informed that Stiglich and Varvorosky
would not work, he discharged Mullett.
Relying on the facts that it was the unwritten policy
of Local 83 for its members not to work with
nonmembers, that Patrello was a member of Local
83's conference board and negotiating committee,
and that Stiglich was acting steward at the Allied
jobsite, the Administrative Law Judge concluded that
Patrello and Stiglich were agents of Local 83, and
that Local 83 was responsible for the discharge of
Mullett in violation of Section 8(b)(2) and 8(b)(1)(A)
of the Act. We disagree with the Administrative Law
Judge's conclusion that, through the agency of
Patrello and Stiglich, Local 83 was responsible for the
discharge of Mullett.
Patrello was apparently most active in soliciting
other members of Local 83 to stop work because of
Mullett's employment. As a member of the Union's
conference board and negotiating committee (both of
which consist of the same seven members) his duties
include participating in the negotiation of collective-
bargaining agreements and being a member of a
bipartite committee, together with Employer repre-
sentatives, which attempts to resolve disagreements
with respect to contract interpretation. There is no
evidence that his union office had any function
related to encouraging a work stoppage to protest the
hiring of nonmembers of the Local, that he had such
authority in any other capacity, or that, as an agent of
the Union, he solicited members of the Local not to
work.
With regard to Stiglich, the testimony shows that
when the Allied Chemical job began he was designat-
ed acting steward by Business Agent Powell pending
selection of the regular steward. The steward's
primary function is to collect dues from out-of-town
members and bring to the attention of the Employer
matters that appear to be in violation of the contract
terms. Powell testified that only the business agent
has the authority to ask the men to stop working and
there is no contrary evidence.
Thus, with regard to both Patrello and Stiglich,
there is no evidence to support the conclusion that
either of them was authorized to act as an agent of
Local 83 in encouraging union members to refuse to
work. The extent of the solicitation and work refusal
also supports the conclusion that the conduct com-
plained of was undertaken by the individuals acting
on their own. Although the Employer employed
approximately 40 members of Local 83 at various
PLUMBERS' LOCAL UNION NO. 83 217
jobsites at the time of Mullett's employment, there is
testimony that only 5 employees were solicited to stop
work and that only 3 did in fact stop. This hardly has
the earmarks of a union effort. Geimer, as noted
above, refused to work notwithstanding the fact that
Bettistelli showed him a letter from Business Agent
Powell to the effect that Bettistelli had the right to
hire Mullett under his contract with Local 83.1 In
addition, Geimer was the only member at his jobsite
who was solicited while several other members of
Local 83 employed at the site were not solicited and
continued to work. The insubstantial results of
Patrello's solicitations are also hardly indicative of a
voice of authority. Patrello solicited four employees
but only two of them, Stiglich and Varvorosky,
engaged in the work stoppage. Moreover, if Stiglich
was the union agent at the Allied Chemical jobsite, as
found by the Administrative Law Judge, there is no
rational basis for attributing to the Union Patrello's
soliciting of Stiglich. As to Stiglich's activity as the
union's agent in this connection, the only evidence is
that he "impliedly" requested Varvorosky to refrain
from work. In these circumstances, we conclude that
Patrello and Stiglich were not agents of Local 83, and
that their conduct was undertaken in their individual
capacities. Thus, Local 83 cannot be held responsible
for their actions even though the individuals solicited
and engaged in a work stoppage in furtherance of an
unwritten union policy.2 Accordingly, we conclude
that Respondent Local 83 did not violate Section
8(b)(2) and 8(b)(1)(A) of the Act, and we shall dismiss
the complaint herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
I Geimer was solicited by Speidel, whom the Administrative Law Judge
found not to be an agent of Local 83 , and Speidel testified that Bettistelh had
laid him off 2 or 3 weeks earlier, telling him that he would call him back as
soon as work was available . Bettistelli 's subsequent hiring of Mullett plainly
gave Speidel a motive for being involved in this matter as an individual.
2 International Brotherhood of Electrical Workers, Local Union No. 43,
AFL-CIO (Execulone of Syracuse, Inc), 172 NLRB 621 (1968)
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
proceeding was heard at Wheeling, West Virginia, on
February 2, 1976, pursuant to a charge filed on July 25,
1975, and a complaint issued on November 26, 1975. The
question presented is whether Respondent United Associa-
tion of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada,
Local Union No. 83, AFL-CIO (the Union or Local 83)
violated Section 8(b)(2) and 1(A)' of the National Labor
Relations Act, as amended (the Act), by causing and
attempting to cause Power City Plumbing & Heating, Inc.
(the Company) to discharge the Charging Party, employee
Glenn W. Mullett.
Upon the entire record, including my observation of the
witnesses , and after due consideration of the briefs filed by
the Union, the Charging Party, and counsel for the General
Counsel, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company is a West Virginia corporation with its sole
place ofbusiness located in Wheeling, West Virginia, where
it is engaged as a plumbing and heating contractor in the
construction industry. During the year preceding the
issuance of the complaint, the Company performed services
valued in excess of $50,000 outside West Virginia, and in
excess of $50,000 in West Virginia for employees which are
themselves directly engaged in interstate commerce. I find
that, as the Union concedes , the Company is engaged in
commerce within the meaning of the Act, and that assertion
of jurisdiction over the instant case will effectuate the
policies of the Act.
The Union is a labor organization within the meaning of
the Act.
IT. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Glenn W. Mullett has never been a member of Local 83.
In late 1974 or early 1975, he applied to the Company for a
job. Company President Benny Battistelli said that yes, he
needed somebody . Battistelli then found out from Mullett
that he was a member of one of Local 83 's sister locals,
Local 789. Battistelli told Mullett, "for your own protec-
tion, being that you are a union member, you should go
down and clear with" Local 83.
Mullett then went to Local 83's hall, told Union Business
Agent William A. Powell 2 that Mullett had "a local
contract to employ him" (but not the employer's identity),
and asked to be referred to employment. Powell replied that
he had no work at the time, admittedly meaning work for
out-of-town people. About March 15, 1975,3 Mullett
applied for membership in Local 83. This application was
never favorably acted on. On March 20, he filed a charge
(Case 6-CB-3310) against Local 83, alleging that Local 83
had refused to refer him to the Company. In consequence
of this charge, by letter dated May 8, 1975, with courtesy
copies to the Company and the Board's Regional Office,
Powell advised Mullett:
1 The complaint contains only 8(bX2) allegations . However, counsel for
the General Counsel sets forth his 8(b)(IXA) allegations at the outset of the
hearing. Moreover , such additional allegations were fully litigated and,
indeed , turn on precisely the same evidence as the 8(bX2) allegations.
2 Powell is sometimes referred to in the record as "Jim" Powell. The
Union concedes that Powell is its agent.
3 All dates hereafter are in 1975 unless otherwise stated.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
... Plumbers Local Union No. 83 has never, nor
does it now, have any objection to your obtaining
employment with [the Company] or any other contrac-
tor working within the territorial jurisdiction of the
Union.
our Agreement with [the Company] provides
that [the Company] may hire whomever it pleases
without the necessity of obtaining Union approval prior
to hire.
Thereafter, on May 27, Mullett's charge in Case 6-CB-3310
was administratively dismissed . That same day, Mullett
returned to Battistelli , who hired him and sent him down to
the Allied Chemical job.
B. Events Allegedly Leading to Mullett's Discharge
1. Conversations while Powell was on the Allied
Chemical Job
On May 27, Mullett's first day on the Allied Chemical
job, Local 83 Business Agent Powell came to that job in
connection with another matter and saw him working there.
Employee Cavichitti, a Local 83 member, approached
Powell and (perhaps in the presence of acting steward
Joseph Stiglich) asked if Powell had referred Mullett to the
job. Powell replied either that Mullett did not have a Local
83 book or that Powell had not referred him. Stiglich asked
Powell if he had written a letter to Battistelli that Mullett
could come on the job . Powell said that he had. Powell
further told Cavichitti, Stiglich, and employee Frank
Varvorosky (a Local 83 member for 29 years), "if you want
to work with him, work, if you don't want to, that's up to
you." 4 Powell did not tell any of these employees that
Mullett had requested referral.
2. Incident involving employee Geimer
The complaint alleges, and the answer denies, that union
member James G. Speidel was an agent of the Union at
times material herein . On the evening of May 27, Speidel
telephoned union member Robert Geimer , who at that time
was working for the Company at the Wheeling Hospital
jobsite. Speidel had been laid off in April by Battistelli, who
had asked Speidel not to sign the Union 's unemployment
list because , Battistelli said , he was going to have more
work and would call Speidel back for it . Speidel, who had
never signed the unemployment list, was still on layoff
status, and he testified that he was trying to find out from
Geimer whether any vacancies were likely to open up on
the Wheeling Hospital jobsite .5 Speidel said that he himself
was not working , that Battistelli had hired Mullett , and that
Mullett was working without a referral slip.e Geimer then
called Union Business Agent Powell and asked him if it was
4 My findings in this sentence are based on Stiglich 's and Varvorosky's
mutually corroborative testimony.
Powell and Stighch testified that Powell also told Stighch that the Union's
contract with the Company provided that the Company could hire whom it
pleased . Varvorosky denied that Powell made this remark , and Cavichitti did
not testify. For demeanor reasons, I credit Varvorosky.
S As discussed infra, Local 83's internal rules require members to obtain
all their jobs through Local 83. When asked why he called rank-and-file
member Geimer about job prospects, Speidel explained , "when you're
unemployed you have a tendency to call a lot of guys, if you find out for
true that Mullett was working without a referral slip. Powell
replied that this was true and that there was nothing Powell
could do about it.
On the following morning , May 28 , Geimer told Battistel-
li that Geimer was quitting. Battistelli asked why, and
Geimer said, "you know why." Battistelli said, "no, I don't,
tell me why." Geimer said that he had had "several calls
... over the Mullett matter" from persons whom Geimer
refused to identify.r Battistelli then showed Geimer Po-
well's May 8 letter regarding Battistelli 's right to hire
Mullett. Geimer replied , "as long as it was legal [Battistelli ]
could hire him, but morally [Geimer] didn't think it was
right and [Geimer] wasn't going to work for" Battistelli.
Geimer then went home.8 Of the Company's 6 to 10
employees then working on the Wheeling Hospital job,
Geimer was the only one who left. He did not discuss with
any of them the fact that he was going to leave.
3. Patrello's telephone calls and subsequent events
on the Allied Chemical job
a. The telephone calls
The complaint alleges , and the answer denies, that union
members Philip E . Patrello and Joseph Stiglich were union
agents at times material herein . On May 28 (see infra),
about 11 p.m., Patrello, who was then working for an
employer not involved in this proceeding, telephoned
Stiglich, who was the acting union steward on the Allied
Chemical job where Mullett was working. For the reasons
stated infra, I do not believe most of the testimony of either
of them about what was said during this conversation.
However, I do believe Patrello's statement , to some extent
corroborated in this respect by Stiglich, that Patrello
brought up the subject of Mullett's employment on the
Allied Chemical job. Later that same evening, Patrello
telephoned union member Varvorosky, who was also
working for the Company on the Allied Chemical job, and
related "the trouble that was going to result from Mullett
being on the job." Patrello asked what the employees were
going to do about Mullett's being on the job, and Varvoro-
sky replied that they were going to leave the job. Patrello
further stated that he had already talked to Stiglich. Still
later that same evening , Patrello telephoned union member
Ramsey, who was working for the Company on a job (not
the Allied Chemical job) unidentified in the record, and
said that Patrello understood Mullett was working in the
Local. Ramsey replied that he did not know for sure that
Mullett was working and did not know what Ramsey was
going to do. Still later that same evening , Patrello tele-
phoned union member Everet Schramm , the sole company
employee at the Harrisville Clinic job. Patrello asked
Schramm if he "could see his way clear to stay home for a
example, if one job is going to be doing some hiring, maybe you 'll not take a
job out of town and wait for thatjob to break , so that you can go to thatjob."
6 This finding is based on Geimer's testimony, to a large extent
corroborated by Speidel . For demeanor reasons, I credit Geimer to theextent
their testimony conflicts.
7 However , there is no direct probative evidence that Geimer received any
calls from anyone except Speidel.
8 My findings as to the substance of this conversation are based on a
composite of Battistelli's and Gainer 's testimony.
PLUMBERS' LOCAL UNION NO. 83 219
few days to force Mr. Battistelli to fire" Mullett. Schramm
replied that his responsibility to his family and the
Company would not permit him to do this.9
Patrello testified that he telephoned Stiglich, Varvorosky,
Ramsey, and Schramm in that order and late in the evening
on a single day. His testimony in this respect is partly
corroborated by the testimony of Stiglich and Varvorosky. I
credit Patrello's testimony to this extent.
For the reasons stated infra, I do not believe Schramm's
testimony that Patrello telephoned him about 6 or 6:30 p.m.
Varvorosky and, in effect, Stiglich testified that Patrello
telephoned them the day before they refused to work on the
Allied Chemical job because Mullett was working there, a
refusal established by the undisputed evidence as having
occurred on May 29. I credit their testimony in this respect
and find that Patrello's telephone calls were made on May
28. I do not credit Schramm's testimony that Patrello called
him after Schramm heard that Mullett had been dis-
charged, in view of Schramm 's inherently improbable
testimony that Patrello's request that Schramm stay home
to compel Mullett's discharge was made after Schramm
told Patrello that Mullett had already been discharged. Nor
do I believe Patrello's testimony that all four of these
conversations occurred on the evening of May 29. Patrello
was an extraordinarily unpersuasive witness whose testimo-
ny was riddled with inconsistencies and improbabilities.
Thus, he initially testified that he first heard about Mullett's
hire from someone on the job where Patrello was then
working (for Dravo, 8 or 10 miles from the Allied Chemical
job); then testified that he first heard about Mullett's hire
during his telephone conversation with Stiglich or Varvoro-
sky, both of whom were working with Mullett on the Allied
Chemical job; and then testified that he telephoned then. to
find out whether Mullett was working there. Further, when
asked to explain why he called Varvorosky for the alleged
purpose of finding out whether Mullett was working on the
Allied Chemical job, Patrello gave the improbable explana-
tion that during his earlier conversation with Stiglich, who
was acting union steward on the Allied Chemical job,
Stiglich had failed to tell him "one way or the other"
whether Mullett was working there. Nor do I believe
Stiglich's testimony that his May 28 conversation with
Patrello consisted in its entirety of mutual inquiries and
affirmative responses about whether the other was working
the next day. Stiglich did not explain his alleged interest in
the work plans of Patrello, who was not working for the
Company. Moreover, Stiglich conceded that Patrello had
never called him before , but nonetheless gave the inherently
unlikely testimony that he never gave Patrello a chance to
tell him the reason why Patrello was calling him. Further-
more, when asked whether he had ever been previously
instructed what to do when local men were on the bench
and someone from outside came on the job, Stiglich
9 My findings in the last two sentences are based on Schramm's
testimony, which I credit to this extent . Patrello testified that he was "looking
for an opinion to see if [Schramm ] felt that there could be anything done
about it," and that Schramm "didn't think there could be anything done
about it." For demeanor reasons, I accept Schramm's version of the contents
of this conversation
io My finding that Suglich and Varvorosky both told Witsberger that they
were leaving because of Mullett 's employment is based on Stiglich's
testimony and on Varvorosky 's testimony before being initially excused and
then recalled to the stand at the instance of union counsel. On the basis of
testified, "No, phone calls what I had with Patrello, that's
all I had, that's all was said." I regard this testimony as an
implicit admission that during their telephone conversation
Patrello told Stiglich, in effect, to walk off the job because
Mullett was working.
b. The refusal to work on the Allied Chemical job
Stiglich and union member Varvorosky usually drove to
the Allied Chemical job in Foreman Jerry Witsberger's
truck, which Witsberger (unlike rank-and-file employees)
was permitted to drive into the plant itself. On the morning
of May 29, Stiglich told Witsberger to drive to the job
without Stiglich, because he was going to take a couple of
days off. Instead, Stiglich and Varvorosky went to work in a
vehicle driven by Stiglich. Stiglich testified that during the
drive he said that he was going to go off the job because
Mullett was on the job and Stiglich did not think this was
right. Varvorosky testified that during this drive he and
Stiglich discussed what to do and decided to leave the job
"before any trouble blew."
When Stiglich and Varvorosky reached the Allied Chemi-
cal plant, Foreman Witsberger was waiting there with his
truck to drive them in. During this ride, Stiglich told
Witsberger that Stiglich was going to take a couple of days
off "on account of this Mullett deal." Varvorosky said that
he was "going fishing" because of Mullett.10 Witsberger
replied, "It's up to you folks." Stiglich told Witsberger,
probably outside Varvorosky's hearing, that Stiglich would
come back to work if Witsberger got Mullett off the job.
Mullett then approached Varvorosky and asked what the
matter was . Varvorosky replied, "you ought to understand
why we're leaving," and he and Stiglich left the job. The
three remaining members of the Company's work force on
that job, all of them union members, stayed on the job. Two
of these were apprentices.11 The third was Foreman
Witsberger, who explained to Battistelli that Witsberger did
not leave the Allied Chemical job because the Union would
not refer him to any jobs.12
After leaving the Allied Chemical job, Stiglich and
Varvorosky drove to the union hall and told Union
Business Agent Powell that they had left the jobsite because
Mullett was on the job. P o w e l l replied, "okay ... I'm
busy," that he had to drive down to the airport at once to
pick someone up. Stiglich asked Powell to put the two
employees to work on another job. Powell said that he
would not be able to do that for a couple of weeks. The
employees told him that they could take 2 or 3 weeks off
before going back to work.
In the meanwhile, Foreman Witsberger telephoned
Battistelli that Stiglich and Varvorosky were going to take a
couple of days off, and that, although they would not give
him the reason, Witsberger thought they were doing this
Varvorosky's demeanor , I do not credit his later implied testimony that he
and Stigltch did not tell Witsberger why they were leaving.
li Battistelh testified that, if the Union had reassigned apprentices to
another job, the Union would have had to explain the reasons therefor to the
apprenticeship committee and thereby admit the Union's own guilt
However, Battistelh conceded that this was his own surmise, and that
nobody had ever advanced this explanation to him.
12 Union Business Representative Powell testified that , so far as he knew,
the Company was the only employer in the Union 's territorial jurisdiction
which had ever hired a plumber without union referral.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of Mullett . Battistelli told Witsberger to send
Mullett to Battistelli's office because "I'm going to lay him
off ... I can't take that."
When Mullett came to Battistelli 's office, Battistelli said,
"I got work but I got too many commitments , I can't afford
to be losing all my manpower like I did on two previous
other occasions .13... I have lost enough money through
Local Union 83 and I can't tolerate it . . . for your own
safety, contact your attorney." Immediately thereafter,
Battistelli telephoned Witsberger and said "get ahold of the
men that left and tell them that I have laid Mullett off and
see if they'll come back." Battistelli credibly testified that he
discharged Mullett because Battistelli feared that otherwise
over 20 of the 40 company employees who were union
members would leave the Company's 8 to 10 jobs then in
progress.
C. Employees' Testimony About Why They Left the
Company's Jobs
Geimer testified that he left the job on his own, because
he thought it was morally wrong to have Mullett working
while members were unemployed or working out of town,
and not because anyone asked , told, or forced him to leave.
Varvorosky testified that his decision not to work with
Mullett was his own personal decision and was made of his
own free will . Stiglich testified that his leaving the job was
his own individual and voluntary decision , made of his own
free will, and was not made in concert with anyone else
other than Varvorosky. While I do not believe that any of
these employees was consciously misrepresenting his mo-
tives, I give their testimony in this respect little weight in
view of their dependence on the Union and on Powell's
referrals for jobs and their strong personal interest in the
maintenance of the Union's traditional policy, implement-
ed by Powell, of giving members preference in employment
over nonmembers like Mullett (see infra, sec. II , D). See
Radio Officers' Union of the Commercial Telegraphers Union,
AFL [A. H. Bull Steamship Company] v. N.LR.B., 347 U.S.
17,50-51(1954).
D. Aftermath of Mullett 's Discharge
The next day, May 30, Geimer, Varvorosky, and Stiglich
all came back to work. Geimer testified that he returned to
work because "Joe Stiglich called me up and told me
[Battistelli ] had gotten rid of Mullett, we was going back to
work." Varvorosky and Stiglich each testified that he
returned because Witsberger telephoned him that Mullett
had left the job. Varvorosky never received any compensa-
tion for the I day's worktime he missed because of this
incident ; nor is there any evidence that such compensation
was received by Geimer or Stiglich.
The Union never disciplined Patrello , Speidel, or Stiglich
for their involvement in Mullett's discharge ; nor did it ever
discipline Geimer or Varvorosky, so far as the record
13 Battistelh testified , in effect, that he was referring to a previous union
strike to compel the Company to execute a contract negotiated by an
employer association of which the Company was not a member , and another
strike because the Company had a nonunion foreman.
14 Accordingly, I need not and do not consider the effect that Local 83's
referral policy would have on any such contractual obligation.
15 The record fails to show the exact language of Local 83 's union-
shows. In early June 1975, Powell told Battistelli that the
Union was not taking any part in Mullett 's discharge, and
that Battistelli "was taking it on himself, that he could have
[Mullett] back , hire him back on his own ." Battistelli
replied that Powell had no control over the men and that
Battistelli could not depend on not having any interference.
E. Analysis and Conclusions
The undisputed evidence shows that Battistelli dis-
charged Mullett because Mullett's employment by the
Company had led three Local 83 members to withdraw
their services from the Company and Battistelli, who knew
that Mullett was not a Local 83 member, feared that if he
was retained more Local 83 members would likewise
withdraw their services. The evidence further shows that
these three Local 83 members objected to Mullett's employ-
ment because he was not a Local 83 member and/or had
not been referred to the job by Powell, who had refused to
refer him (although without knowing that Mullett wanted
referral to the Company) because Mullett was not a Local
83 member and members were unemployed . The Company
was under no contractual obligation to hire through Local
83,14 and Local 83 does not and cannot contend that Local
83 membership could be required as a condition of
Mullett's employment on the day he was discharged.15
Accordingly, the instant 8(bX2) and (1)(A) complaint must
be sustained if Local 83 is answerable for these members'
action in withholding their services from the Company.
Local 83 's rules provide , "The Business Manager ...
shall furnish all members of this Local to employers. Any
member found guilty of soliciting his own job will be
brought before the Executive Board and fined" between
$25 and $150. Union Business Representative Powell,
whom the Union admits to be its agent, testified as follows:
Q. [By Mr. Cassidy]: Did you hear the testimony
[see infra] concerning a union policy that when people,
Local people are on the bench, outsiders cannot work?
A. Yes, sir, I heard that testimony.
Q. How is that policy implemented?
A. That policy is implemented by, I'll refer the
people that are unemployed out first, the Local people
that are unemployed.
Q. [By Mr. Bums]: Now, it is normal for Employ-
ers in this area to get their men from the Union, is that
not right?
A. Correct.
Q. Except for Power City, there have been no other
Employers who have hired a plumber without Union
referral?
A. Right.
Q. That you know of?
A. Right.
security contract with the Company. The testimony suggests that it contains
a 30-day grace period and, in any event , such a clause could not require
union membership less than 8 days after hire (see Sec . 8(f) of the Act).
Moreover , there is no claim that Local 83's refusal to grant Mullett's
application for membership involved any failure by him to tender dues and
initiation fees. See NLRB v. General Motors Corporation, 373 U.S. 734
(1963).
PLUMBERS' LOCAL UNION NO. 83
Powell further testified that it was he who had initiated both
of the two charges brought in the last 3 years against
members for soliciting their own work. Both of these
members were eventually disciplined by the Union for
working for the Company without a union referral.
Acting Union Steward Stiglich and employee Varvorosky
both corroborated Union Business Agent Powell's testimo-
ny that Local 83 had a policy that, if Local people are on
the bench, people from outside locals cannot work. Both of
them testified that this had been the policy as long as they
had been Local 83 members - 29 years in Varvorosky's
case and 25 years in Stiglich's. Moreover, Stiglich credibly
testified without contradiction to a "general understanding
within the brotherhood," although not incorporated in any
collective-bargaining agreement or in the bylaws, that any
Plumbers local would give first preference to Local people
in obtaining work. In short, any action by alleged Union
Agents Stiglich, Patrello, and Speidel in causing Local 83
members to withhold their services from the Company
because of nonmember Mullett's employment furthered a
union policy which admitted Union Agent Powell not only
recognized as such, but also implemented through his
administration of the referral system which written union
rules required him to operate, and of the internal disciplin-
ary procedure enforcing the written union rules which
required members to use that system as the sole means of
getting jobs. Such commonality of purpose provides some
support for the contention that the Union is answerable for
any such conduct by Stiglich, Patrello, and Speidel.
Combustion Engineering, Inc., 130 NLRB 184, 200-201
(1961), enfd. sub nom. International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers and Hel-
pers, Local No. 83, AFL-CIO, 321 F.2d 807 (C.A. 8, 1963);
cf. International Brotherhood of Electrical Workers, Local
Union No. 43, AFL-CIO (Executone of Syracuse, Inc.), 172
NLRB 621, 624 (1968).
Further, acting steward Stiglich credibly testified without
contradiction that it was an unwritten "union policy" to
have telephone calls made to other employees to advise
them when "someone without a good book would be
working," that "We have been doing this for years," and
that "everyone" knew about this policy, specifically includ-
ing Union Business Agent Powell. The existence of the
Union's policy in this respect affords some weight to the
contention that the Union would be answerable for a series
of telephone calls to this effect made by Patrello, who was
then working for another employer. Combustion Engineer-
ing, supra, 200-201. Furthermore, I infer that during
16 I so infer from the fact that Patrello made such requests during all three
of the May 28 calls he made after talking to Stiglich that evening ; and from
the demeanor of and improbabilities in the testimony of Patrello and
Stiglich, from which circumstances I conclude that they were trying to
conceal what they really said. N.LR.B. v. Walton Manufacturing Company &
Loganville Pants Company, 369 U.S. 404 (1962). My basis for concluding that
Patrello's conversations with Varvorosky and Ramsey constituted implied
requests to stop working is Varvorosky's undenied and credible testimony
that it was a "known fact" among "union people" that they would stay off
work if they found out that someone from another Local was working while
Local men were on the bench.
17 Stiglich testified that upon learning that Mullett did not have a Local
83 "book," Stiglich told Varvorosky, "well then, we ain't going to work with
[Mullett]." However, Varvorosky , a more reliable witness than Stiglich,
221
Patrello's May 28 telephone call to Stiglich, during which
Mullett's employment on the Allied Chemical project was
admittedly mentioned, Patrello asked Stiglich, either ex-
pressly (as with Schramm later that evening) or impliedly
(as with Varvorosky and Ramsey, also later that evening),
to stop working because Mullett was on the job.16 Also, I
conclude that such telephone calls by Patrello played a part
in Varvorosky's and Stiglich's decision not to work the
following day. Although both Stiglich and Varvorosky
testified that they found out before the close of the May 28
workday that Mullett was not a Local 83 member, there is
no evidence that before Patrello's telephone call Varvoro-
sky had reached even a tentative decision not to work the
next day, and Stiglich's testimony in this connection is
equivocal.17 Further, Powell's knowledge of the union
policy calling for such telephone notifications about the
employment of nonmembers not only lends weight to the
contention that he condoned, approved, and ratified
Patrello's calls when Powell admittedly failed to reprimand
him therefor after learning about them (Local 347, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, (D. L. Harrison Company,) 134
NLRB 776, 785 (1961)),18 but also negates Powell's
testimony that Patrello had no authority to make such calls.
Furthermore, Varvorosky testified without contradiction
that it was a "known fact among the union people" that
upon being advised that a particular fellow employee had a
"bad book" while union members were unemployed, other
union members would stay off work.19 Such testimony
lends weight to the contention that Stiglich's and Varvoro-
sky's refusal to work because of Mullett was ratified by
Powell's course of conduct in (1) telling them, in connection
with Mullett's failure to have Local 83 membership or
referral, that it was up to these union members whether they
worked or not; (2) failing to tell any of the employees on the
job where Mullett was working (including acting steward
Stiglich, who by Powell's own testimony was supposed to
enforce the contract) that the Company was contractually
entitled to hire Mullett; (3) failing to reprimand either
Stiglich or Varvorosky when Powell learned that Mullett's
employment had caused them to leave the Allied Chemical
job; and (4) failing (so far as the record shows) to send
anyone else to that job when he learned that they had left it.
I regard this fourth factor as particularly significant.
Because a sixth of Local 83's members were then on the
bench, it seems to me highly probable that Powell would
ham promptly moved to fill any vacancies due to employee
protests against the Company's exercise of contractual
testified that on May 28 there was no discussion about leaving the job, and,
in effect, that they did not find out until late that day that Mullett did not
have a Local 83 book. Moreover, Stiglich testified that late in the evening of
May 28 he told Patrello that Stighch planned to go to work the next day.
18 Powell's testimony is:
I have told [Patrello] that there was nothing that the union could do on
that, it was not a union matter. I explained to him that in the contract
the Employer could hire whomever he wanted to and I told him about
the letter that I sent ... I didn't know anything in the rules and bylaws
that I could reprimand him on.
19 Varvorosky explained , "united you stand, divided you fall, you got to
stick together."
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights which the Union had no objection to the Company's
exercising.
The General Counsel contends, and the Union denies,
that Stiglich was the Union 's agent in connection with his
role in causing Mullett's discharge. When the Allied
Chemical job began about May 1, 1975, Stiglich told Powell
that Stiglich would act as steward until Powell "gets
somebody" to serve as the regular steward. Under the
Union's rules, the steward is to be selected by the Union's
executive board from three journeymen members (other
than the foreman) on the job. So far as the record shows,
the Allied Chemical job never had more than two eligible
journeymen. Stiglich was still the acting steward at the time
of the February 1976 hearing, 8 months after the job
started.20 There is no contention or evidence that his duties
and responsibilities differed from those of a steward
appointed in the manner described in Local 83's bylaws. I
conclude that his status as an agent is unaffected by the fact
that he was an acting rather than a regular steward.
N.LR.B. v. Local Union No. 3, International Brotherhood of
Electrical Workers, AFL-CIO [New York Telephone Com-
pany], 467 F.2d 1158, 1160 (C.A. 2, 1972). Business agent
Powell testified that if an employee on thejob complained
that the employer was violating the contract, or about other
trouble with the employer, it was Stiglich's responsibility to
bring the problem up with the employer's representative,
and try to settle the matter at that level.21 The contract was
otherwise enforced and administered by the business agent.
Stiglich's duties included the protection of the Union's
work jurisdiction . He also collected assessments and out-of-
town dues . He was not paid and did not receive free dues
for his services as acting steward ,22 nor did that status
afford him special seniority. Business Agent Powell testified
that the steward did not have the authority under the
bylaws to ask the men to stop working and that only the
business agent had that authority; but nothing in the
bylaws so provides.
I agree with the General Counsel that requesting mem-
bers to refrain from working with nonmembers lay within
the general area where the Union empowered Stiglich to
represent it.23 In so finding, I rely particularly on the union
policy and the membership's conviction that nonmembers
should not work when members are employed, on the fact
that none of the other employers in the area was pressing
any contract right to hire directly, and on the absence of
credible testimony that the Company's contract right in this
respect was drawn to the attention of Stiglich or Mullett's
other fellow employees on the Allied Chemical job. I regard
as inapposite here the cases recognizing that any employee
has the right to withhold his services as an individual, and
the mere fact that such an employee happens to be a
steward does not render the Union answerable for such
20 Indeed , he testified that he "just took" the stewardship "on a trial basis,
dust temporary until I get appointed."
21 Powell 's testimony in this respect was to a substantial extent corrobo-
rated by Stighch . In any event , I regard Powell as a more authoritative
witness than Shghch with respect to this matter.
22 The Union's bylaws gave free dues to stewards on projects which
employ 30 or more UA members . The Allied Chemical job employed only
five members
23 See International Longshoremen 's and Warehousemen 's Union, CIO,
Local 6 (Sunset Line and Twine Company), 79 NLRB 1487, 1507-9 (1948);
International Brotherhood of Boilermakers , Iron Shipbuilders, Blacksmiths,
individual action.24 In the instant case , Stiglich did not limit
his conduct to withholding his own services Rather,
notwithstanding Stiglich's May 29 statement to Foreman
Witsberger to drive to the job without Stiglich because he
planned to take a couple of days off, Stiglich drove to the
jobsite with Varvorosky (who was normally Witsberger's
other passenger), thereby giving Stiglich the opportunity, in
management's absence, impliedly to request Varvorosky to
refrain from working because of Mullett, and giving
Varvorosky access to immediate transportation away from
the jobsite if he acceded to Stiglich's request. Moreover, on
the following day Stiglich telephoned employee Geimer,
who did not work on the Allied Chemical jobsite and who
(so far as the record shows) had had no prior contact with
Stiglich about the Mullett matter, to tell him that Mullett
had been discharged and "we was going back to work." I
conclude that Stiglich intentionally played a role in others'
refusal to work because of Mullett and that, therefore, his
status as acting steward made the Union answerable for his
conduct. Bricklayers, Masons and Plasterers' International
Union of America, Bricklayers Local No. 2, AFL-CIO
(Glenshaw Glass Company, Inc.) 176 NLRB 434, 435-437
(1969); Truck Drivers & Helpers Local Union No. 728, aff/w
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and He pers ofAmerica [Overnite Transport Co.] v.
N.L.R.B. 332 F.2d 693, 697 (C.A. 5, 1964), cert. denied 379
U.S. 913.
I reach a like conclusion with respect to the conduct of
Patrello, who was a member of the Union's conference
board and of the Union' s negotiating committee (both of
which had the same seven members). The "offices" of the
conference board are elected by the membership for 3
years, the same term served by, inter alia, the Union's
president, vice president, recording secretary, financial
secretary, business manager, and treasurer. The members of
the conference board receive 2 months' free dues in the
negotiating year. The members of the negotiating commit-
tee/conference board participate, on the Union's behalf, in
the actual process of negotiating collective-bargaining
agreements , and are also members of a bipartite committee,
composed half of employer and half of union representa-
tives, which as part of the grievance procedure considers the
meaning of particular contract clauses on whose interpreta-
tion the union business agent and the contractor are unable
to agree. I infer that the practice of all area contractors
(except the Company) in hiring all their plumbers through
the Union is based at least partly on the contract provisions
negotiated and/or the contract interpretations made by the
negotiating committee /conference board 25 Further, be-
cause the Union refers members before nonmembers, this
exclusive hiring practice effectuates the union policy
offended by Mullett's hire. Moreover, Patrello was working
Forgers and Helpers Local Lodge No. 169, AFL-CIO (Riley Stoker Corpora-
tion), 209 NLRB 140, In. 1(1974).
24 Building and Construction Trades Council of Tampa and Vicinity, AFL-
CIO (Tampa Sand and Material Co.), 132 NLRB 1564, 1569 (1961); Twin City
Carpenters District Council of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (August Cederstrand Company), 152 NLRB
887,889 (1%5).
25 Thus, Battistelli testified that in 1973 the Company withdrew from the
local contractors' association and tried to negotiate its own contract to "get
the hiring procedure corrected ," among other things.
PLUMBERS' LOCAL UNION NO. 83 223
for another employer at the time he requested several
employees of the Company to refrain from working and,
therefore, had no immediate personal interest in seeking
such action. In view of the foregoing considerations, and
the fact that both Patrello's purpose and his technique were
called for by union policy, I conclude that the Union was
answerable for Patrello's conduct as well.
For the foregoing reasons, I conclude that the Union
caused and attempted to cause the Company to violate
Section 8(a)(3) of the Act by discharging nonmember
Mullett. I find that by such conduct the Union violated
Section 8(b)(2) and 8(b)(1)(A) of the Act. This conclusion is
further supported by the fact that Powell's failure to make
any substantial affirmative efforts to procure a rescission of
Mullett's discharge, which Powell must have known to
constitute a company unfair labor practice, would have
constituted a breach of the Union's 8(b)(1)(A) and (2) duty
of fair representation if Mullett had requested the Union to
process a grievance against the Company on his behalf.26
The relief afforded him should not be less because Mullett
sought to pressure the Union through the invocation of
Board procedures rather than directly approaching the
Union which benefited from the conduct complained of.27
In finding that the Union unlawfully caused and attempt-
ed to cause Mullett's discharge, I do not find that Speidel
was rendered a union agent by virtue of his position as a
member of the Union's rules and bylaws committee, a
seven-member committee appointed by the Union's presi-
dent and whose members serve at his pleasure.28 The
members of this committee receive no remuneration for
their committee service, and their sole function is to put
into appropriate language any changes in the bylaws which
are proposed by the membership. Moreover, Speidel had a
strong personal interest in procuring Mullett's discharge.
The Company had laid off Speidel and had tendered him
rehire promises sufficiently strong to cause him to refrain
from seeking work elsewhere through the union hall.
Accordingly, although I believe that Speidel impliedly
asked Geimer to stop working for the Company because of
Mullett, I do not regard Speidel's position on the rules and
bylaws committee as affecting the Union's responsibility
for such conduct.
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
28 Peerless T o o l and Engineering Co, I I I NLRB 853, 858 (1955), enfd. 231
F 2d 298 (C A 7, 1956), cert. denied 352 U S 833, TIME -DC, Inc, v
N L R B, 504 F 2d 294, 303 (C A 5, 1974); Local 485, International Union of
Electrical, Radio & Machine Workers, AFL-CIO (Automotive Plating Corp),
170 NLRB 1234, 1238 (1968 ), supplemental decision , 183 NLRB 1286
(1970); original order enforced and supplemental order denied enforcement
454 F 2d 17 (C.A 2, 1972), see also Emporium Capwell Co v Western
Addition Community Organization, 420 U.S 50, 64-65 (1975); International
Association of Machinists and Aerospace Workers, Local Union No 697, AFL-
CIO (The H.O Canfield Rubber Company of Virginia, Inc), 223 NLRB 832
(1972)
27 Cf Local Union No 12, Untied Rubber, Cork, Linoleum & Plastic
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Union violated Section 8(b)(2) and (1)(A) of the
Act by causing and attempting to cause the Company to
discharge Glenn W. Mullett in violation of Section 8(a)(3).
4. This unfair labor practice affects commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Union has violated the Act in
certain respects, I shall recommend that it be required to
cease and desist therefrom and from any like or related
conduct. Because all employers in the area other than the
Company obtain all their plumbers from the Union,
because Powell admittedly refers members in preference to
nonmembers, and because the Union caused Mullett's
discharge for nonmembership and failure to obtain union
referral, I conclude that the Union's unfair labor practices
with respect to Mullett are potentially related to unfair
labor practices against other employees and with respect to
other employers, and the danger of their commission in the
future is to be anticipated from the Union's conduct in the
past. Highland House Nursing Center, Inc., 222 NLRB 123
(1976), fn. 2. Accordingly, the cease-and-desist order will
also reach union conduct with respect to employers other
than the Company and employees other than Mullett.
In addition, I shall recommend that the Union take
certain affirmative action necessary to effectuate the
policies of the Act. The Union will be required to request
the Company, in writing and with a copy to Mullett, that
the Company offer reinstatement to Mullett. I shall also
recommend that the Union be required to make Mullett
whole for any loss of earnings he may have suffered by
reason of the discrimination against him, by payment of a
sum of money which he normally would have earned from
May 29, 1975 (the date of his discharge by the Company),
until 5 days after the aforesaid written request and copy
have been delivered, less net interim earnings. Backpay
shall be computed on a quarterly basis in the manner
described in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest as described in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962). In addition, the Union will be
required to post appropriate notices.
[Recommended Order omitted from publication]
Workers of America AFL-CIO [Goodyear Tire & Rubber Co ], 150 NLRB 312
(1964), enfd 368 F 2d 12 (C.A. 5, 1966), cert. denied 389 U S. 837 (1967),
Southwestern Pipe, Inc, 179 NLRB 364, 375-376, 384 (1969), modified and
remanded 444 F.2d 340 (C A 5, 1971); Local 703, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers ofAmerica (Dominick's
Finer Foods, Inc), 188 NLRB 873 (1971), enfd. 81 LRRM 2488 (CA 7,
1972), N LR B v. Local Union 396, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America [United Parcel Service],
509 F 2d 1075 (C A. 9, 1975)
28 The Union's vice president , elected (as is the president) by the
membership, is an ex officio member of this committee