Plumbers Local Union No 17

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1262 (N.L.R.B. 1976)

1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plumbers Local Union No 17 of the United Associa-
tion of Journeymen , Plumbers and Pipefitters of the
United States and Canada , AFL-CIO (FSM Me-
chanical Contractor, Inc) and Thomas J Mahoney
Cases 26-CB-1035 and 26-CB-1109
June 18, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On February 4, 1976, Administrative Law Judge
James L Rose issued the attached Decision in this
proceeding Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed a
brief in support of the Administrative Law Judge's
Decision
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith
The consolidated complaint alleges that Respon-
dent discriminatorily denied Charging Party Thomas
J Mahoney (hereinafter Thomas) I membership and
that it had failed and refused to place his name on a
hiring hall list or to refer him to prospective employ-
ers in violation of Section 8(b)(1)(A) and 8(b)(2) The
Administrative Law Judge found that Respondent
did deny Mahoney membership, because he had filed
unfair labor practice charges against Respondent, in
violation of Section 8(b)(1)(A) However, the Admin-
istrative Law Judge dismissed the remaining
8(b)(1)(A) allegation and all of the 8(b)(2) allegations
of the complaint, finding in the process that Respon-
dent did not operate an exclusive hiring hall, that
Mahoney did not request that his name be placed on
the referral list until August 20, 1975, and that Gen-
eral Counsel failed to establish any specific incident
subsequent to that date in which Respondent caused
or attempted to cause any employer not to hire Ma-
honey We disagree with the Administrative Law
Judge's dismissal of these allegations
The Respondent's collective-bargaining agreement
with the Memphis Mechanical Contractors' Associa-
tion, Inc (herein MMCA), an association of plumb-
1 This is to distinguish him from his brother Robert Mahoney who is
Respondents business agent
mg and heating contractors, provides that the Union
will be a source of employees but that the individual
employer will have the sole right to determine who is
hired Employers call the hiring hall and are read the
names of individuals available for work They select
the employees from that list Employers who are
members of the MMCA or signatory to the MMCA
contract with Respondent will not employ individu-
als until they have been cleared by the Respondent
and, according to the testimony of Robert Mahoney
(hereinafter Robert),' do procure their manpower ex-
clusively through Respondent 3 They apparently do
so, at least in part, because Respondent's members
are subject to fines for working with nonunion em-
ployees if they work with men who have not been
referred or cleared by the Respondent
As more fully discussed in the Decision of the Ad-
ministrative Law Judge, Thomas had been a member
of Respondent until February 1970 when he with-
drew to establish the General Plumbing Company
On February 2, 1975, Thomas tendered an applica-
tion for membership in Respondent which subse-
quently was rejected by both the executive board and
the membership because, as noted previously, he had
filed charges with this Board against Respondent
Robert testified that Thomas stated at the time he
applied for membership on February 2 that he want-
ed to try to get work Robert further testified that
when a member, or an individual whose application
for membership has been approved, declares that he
does not have a job or that he would like work his
name is automatically placed on the referral list
However Robert testified that an individual whose
membership application is rejected, as Thomas' was
here, is required to request formally and explicitly
that his name be placed on the referral list,4 that
Thomas did not explicitly make such a request until
August 20, 1975,5 and that, hence, Respondent did
not place Thomas' name on the referral list until that
date Robert also testified to having been told by
Walter Raggett, a coowner of FSM Mechanical Con-
2 See fn I supra
3 This is so even though Tennessee is a right to work State Thus Robert
testified
Q Would it be a fair statement to say that employers with whom
you have a contract do hire exclusively through the Union
A Yes sir
4 Robert testified that Thomas is the only nonmember to have requested
that his name be placed on the referral list other than 20 permit men
who when they had requested placement on the list had membership apple
cations pending They were referred in the summer of 1974 following a
strike by Respondents members when there were not enough available
members to fulfill manpower needs
5 The Administrative Law Judge found that Thomas did not actually re
quest that his name be placed on the referral list until August 20 1975 when
he sent Respondent a telegram In making this finding the Administrative
Law Judge erroneously found that the first reference to an unlawful refusal
to refer was in the first amended charge of October 8 1975 In fact Thomas
initial charge filed on June 4 1975 alleged an unlawful refusal to refer
224 NLRB No 173
PLUMBERS LOCAL UNION NO 17
tractor, Inc , a signatory to the contract between
MMCA and Respondent, that FSM had given
Thomas a letter to the effect that they would hire him
"if he got straightened with the Union " And, Tol-
bert Morris, owner of another member of the
MMCA, Morris Plumbing and Heating Company,
Inc , testified that in late July 1975 he called Respon-
dent and asked for the names of the out-of-work em-
ployees, that Thomas' name was not read to him,
and that had it been he would have hired Thomas
The Administrative Law Judge concluded that Re-
spondent does not operate an exclusive hiring hall,
finding that "Respondent's referral system does not
appear to be more than an availability service for use
of out-of-work members and contractors in need of
work," and therefore, Respondent's refusal to refer
Thomas does not violate Section 8(b)(2) of the Act
We disagree By the Union's own admission, the re-
ferral system is much more than "an availability ser-
vice " It is the consistent practice of MMCA mem-
bers and signatories to the MMCA contract to hire
those cleared or referred by Respondent, and the Re-
spondent is aware of this practice Indeed, the sub-
jection of members to fines if they work with non-
members is obviously designed to make sure the
practice continues Thus, in reality Respondent has
an unwritten exclusive hiring hall arrangement with
MMCA members and employers who are signatory
to MMCA contracts 6
As indicated by the Administrative Law Judge, it
is well established that where there is an exclusive
hiring arrangement and the union refuses to refer or
clear an individual for discriminatory reasons the
union violates Section 8(b)(2) I In this case there are
at least two grounds for finding such a violation with
respect to Respondent's treatment of Thomas
First, Respondent is not entitled to differentiate
between members and nonmembers in its referral
practices Respondent's business agent realized as
early as February 1975, that Thomas was out of work
and that he was seeking clearance so that he could
secure employment with MMCA members and
MMCA contract signatories Despite this, Thomas'
name was not placed on the referral list even though
Respondent admits that the names of members are
routinely placed on the list, even in the absence of an
explicit request, when Respondent is informed they
are seeking work Respondent states Thomas' name
6 Where an exclusive hiring hall arrangement exists in practice there is no
requirement that the arrangement be embodied in a written contract United
Derrickmen & Riggers Association Local 197 of New York All Long Island
and Vicinity (Domestic Stone Erectors Inc) 205 NLRB 58 (1973 ) Intern
tional Union of Operating Engineers Hoisting and Portable Local No 513
AFL-CIO (McFry Excavating and Demolition Co) 197 NLRB 1046 (1972)
7 Domestic Stone Erectors Inc supra McFry Excavating and Demolition
Co supra
1263
was not included because Respondent requires non-
members to be explicit in making their request Hav-
ing assumed the benefits of operating an exclusive
hiring hall, Respondent cannot lawfully require that
nonmembers specifically request placement on a re-
ferral list while not subjecting members to the same
requirements 8 Thus, by placing the more stringent
requirement on Thomas because of his nonmember-
ship, thereby keeping him off the list and precluding
consideration of him for hire, Respondent, as early
as February 1975, attempted to and did cause em-
ployers using its exclusive hiring hall to discriminate
against Thomas in violation of Section 8(a)(3) of the
Act
Second, Respondent's unlawful denial of member-
ship to Thomas adversely affected his employment
opportunities as well It is clear that the names of all
out-of-work applicants are automatically placed on
Respondent's referral list upon approval of their ap-
plications for membership, and that the application
itself, therefore, also serves as a request for place-
ment thereon Consequently, we find that Thomas'
request for membership constituted an application
for referral, too, and that but for the discriminatory
denial of membership to him, his name, like those
whose membership applications have been approved,
would have been placed on the referral list, in his
case, sometime in March 1975, the date Respondent
refused to readmit him into its membership Accord-
ingly, it follows that Respondent violated Sectik n
8(b)(2) when, as part of the unlawful rejection of his
application for membership, it refused to place
Thomas' name on the referral list, thereby depriving
him of employment with employers relying exclusive-
ly on Respondent's hiring hall as the source for their
employees 9
Accordingly, we find that Respondent violated
Section 8(b)(2) and 8(b)(1)(A) by discriminatorily re-
fusing to place the name of Thomas J Mahoney on
its referral list
THE REMEDY
Having found that Respondent engaged in and is
engaging in unfair labor practices described by Sec-
tion 8(b)(2) and (1)(A) of the Act, it will be ordered
that it cease and desist therefrom and take certain
affirmative action designed and found necessary to
effectuate the policies of the Act
As recommended by the Administrative Law
Judge, Respondent will be ordered to accept, upon
8International Union of Elevator Constructors Local No 6 AFL-CIO
(Westinghouse Electric Corporation Elevator Division) 204 NLRB 578
(1973)
e Ibid
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request, Thomas Mahoney's application for member-
ship and to post an appropriate notice to members
Contrary to the Administrative Law Judge, we
have found that the Respondent unlawfully attempt-
ed to cause and caused FSM Mechanical Contractor,
Inc, and other employers party to the MMCA col-
lective-bargaining agreement with Respondent, to
discriminate against Thomas J Mahoney because of
his lack of membership in Respondent, tnereby vio-
lating Section 8(b)(1)(A) and 8(b)(2) of the Act
Therefore, it will be ordered that the Respondent no-
tify FSM Mechanical Contractor, Inc, and other em-
ployers who utilize Respondent's referral system as
the exclusive source for securing plumbers and pipe-
fitters, in writing, with a copy of such notice to
Thomas J Mahoney, that it has no objection to the
employment of Mahoney In addition, Respondent
shall make Mahoney whole for any loss of pay he
may have suffered by reason of the unlawful refusal
to refer or clear him for employment by paying to
him a sum of money equal to that which he would
have earned from February 2, 1975, the date of such
refusal, to 5 days after the date Respondent notifies
FMS Mechanical Contractor, Inc, and other em-
ployers who utilize Respondent's referral system that
it has no objection to the employment of Mahoney,
less his net earnings elsewhere during said period 10
Respondent also will be ordered to reimburse Maho-
ney for any loss of benefits he may have suffered as a
result of the discrimination practiced against him
during this period Such losses of earnings and bene-
fits shall be computed on a quarterly basis in the
manner set forth in F W Woolworth Company, 90
NLRB 289 (1950), and shall include interest at the
rate of 6 percent per annum as provided for in Isis
Plumbing & Heating Co, 138 NLRB 716 (1962)
CONCLUSIONS OF LAW
1 FSM Mechanical Contractor, Inc, is an em-
ployer engaged in commerce and in operations af-
fecting commerce within the meaning of Section 2(6)
and (7) of the Act
2 Respondent is a labor organization within the
meaning of Section 2(5) of the Act
3 By refusing the Charging Party's application for
membership upon tender of the usual initiation fee
because he had filed charges and prosecuted them
before the National Labor Relations Board, the Re-
spondent violated Section 8(b)(1)(A) of the Act
10 Although the record establishes no discriminatory failure or refusal to
refer Mahoney after August 20 1975 the date his name was placed on the
referral list there is no evidence that employers were apprised of the fact
that Respondent had no objections to Mahoney s employment and that
they could therefore employ him with impunity
4 By attempting to cause and by causing FSM
Mechanical Contractor , Inc, Memphis Mechanical
Contractors ' Association, Inc (herein MMCA), and
its members to discriminate against Thomas J Ma-
honey in violation of Section 8(a)(3) of the Act, and
by its refusal to place Mahoney on its referral list,
Respondent violated Section 8(b)(2) and 8 (b)(1)(A)
of the Act
5 The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board hereby orders that the Respondent,
Plumbers Local Union No 17 of the United Associa-
tion of Journeymen , Plumbers and Pipefitters of the
United States and Canada, AFL-CIO, Memphis,
Tennessee , its officers , agents, and representatives,
shall
1 Cease and desist from
(a) Restraining or coercing employees in the exer-
cise of the rights guaranteed them in Section 7 by
refusing Thomas J Mahoney , or any other employee,
membership in its organization because he filed a
charge against Respondent with the National Labor
Relations Board
(b) Causing or attempting to cause FSM Mechani-
cal Contractor , Inc, or any other employer, to dis-
criminate against Thomas J Mahoney , or any other
employee , in violation of Section 8(a)(3) of the Act
(c) In any other manner interfering with , restrain-
ing, or coercing employees or applicants for employ-
ment in the exercise of rights guaranteed in Section 7
of the Act
2 Take the following affirmative action necessary
to effectuate the policies of the Act
(a) Upon request, and upon tender of the initia-
tion fees uniformly required , accept Thomas J
Mahoney's application for membership in its organi-
zation effective March 7, 1975 , and reimburse Thom-
as J Mahoney for any loss of benefits plus 6-percent
interest per year, provided that Thomas J Mahoney
shall not be required to pay dues from March 7,
1975, to the date he is admitted to membership, ex-
cept such portion of the dues which is regularly allo-
cable to benefits accruing to the Respondent's mem-
bers, if any
(b) Make whole Thomas J Mahoney for any loss
of pay he may have suffered by reason of the dis-
crimination against him with interest at 6 percent per
annum in the manner set forth in the remedy section
of this Decision
PLUMBERS LOCAL UNION NO 17
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
work lists, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this Or-
der
(d) Notify FSM Mechanical Contractor, Inc, and
other employers who utilize Respondent's referral
system, in writing, with a copy to Thomas J Maho-
ney, that Respondent has no objection to the hiring
or employment of Mahoney
(e) Post conspicuously at all places where notices
to employees, applicants for referral, and members
are posted copies of the attached notice marked "Ap-
pendix " 11 Copies of said notice, on forms provided
by the Regional Director for Region 26, after being
duly signed by the Union's representative, shall be
posted by the Union immediately upon receipt there-
of, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to its members are customarily posted
Reasonable steps shall be taken by the Union to in-
sure that said notices are not altered, defaced or cov-
ered by any other material
(f) Forthwith mail to the Regional Director for
Region 26, signed copies of said notices for posting
by FSM Mechanical Contractor, Inc, and all other
employers who utilize Respondent's referral system if
they are willing, in places where notices to its em-
ployees are customarily posted
(g) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with
11 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals the words in the notice reading Posted by Order
of the National Labor Relations Board shall read Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we, Plumbers Local
Union No 17 of the United Association of Journey-
men, Plumbers and Pipefitters of the United States
and Canada, AFL-CIO, violated the National Labor
Relations Act and ordered us to post this notice and
abide by its terms
1265
WE WILL NOT refuse membership to any per-
son, or discipline any member, because he files
with the National Labor Relations Board unfair
labor practice charges against our organization
or otherwise participates in the proceedings of
the Board
WE WILL NOT cause or attempt to cause FSM
Mechanical Contractor, Inc, Memphis Me-
chanical Contractors Association, Inc , or any
other employer to discriminate against Thomas
J Mahoney, or any other employee, in violation
of Section 8(a)(3) of the Act
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees or applicants
for employment in the exercise of their rights
protected by Section 7 of the National Labor
Relations Act
WE WILL, upon request, accept the application
of Thomas J Mahoney for membership in our
organization, without prejudice to any rights or
privileges to which he may be entitled as of and
since March 7, 1975, and reimburse him, with
6-percent interest per year, for any losses or ex-
penses suffered by him because of the absence
of benefits during the period after March 7,
1975
WE WILL notify FMS Mechanical Contractor,
Inc, and other employers who utilize our refer-
ral system, in writing, with a copy to Thomas J
Mahoney, that we have no objection to the hir-
ing or employment of Thomas J Mahoney
WE WILL make whole Thomas J Mahoney for
any loss of pay suffered by reason of the dis-
crimination practiced against him with interest
at the rate of 6 percent per year
PLUMBERS LOCAL UNION No 17 OF THE
UNITED ASSOCIATION OF JOURNEYMEN,
PLUMBERS AND PIPEFITTERS OF THE UNITED
STATES AND CANADA, AFL-CIO
DECISION
STATEMENT OF THE CASE
JAMES L ROSE, Administrative Law Judge This matter
was heard at Memphis, Tennessee, on November 19 and
20, 19751 The General Counsel' s complaint alleged, in
substance, that the Respondent Union had discriminatorily
denied the Charging Party membership and had failed and
refused to put his name on a hiring-referral list or to refer
him to prospective employers in violation of Section
8(b)(1)(A) 2
All dates are in 1975 unless otherwise noted
2 The General Counsel moved to reopen the record and to consolidate
Continued
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the record as a whole,3 including my observation
of the witnesses, briefs, and arguments of counsel, I make
the following
FINDINGS OF FACT
I JURISDICTION
Jurisdiction is based upon the Respondent's contractual
relationship with employers in the construction industry,
particularly including FSM, a heating and air conditioning
contractor whose principal place of business is at Mem-
phis, Tennessee, and in whose course of business each year
receives directly from points outside the State of Tennessee
goods and products valued in excess of $50,000 It is al-
leged, the Respondent admits, and I find that FSM is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
It is alleged, the Respondent admits, and I find that the
Respondent is now, and at all times material has been, a
labor organization representing employees of employers
engaged in commerce within the meaning of Section 2(5) of
the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Factual Background
Thomas Mahoney's family is prominent in the Memphis
plumbing industry His father was a member of the Union
His three brothers are plumbers, two operating companies
and one, Robert, the Union's current business agent The
factual situation giving rise to this matter probably began
in 1958 when, as a member of the Respondent, the Charg-
ing Party was fined $500 for working nonunion He paid
the fine and subsequently was elected to the Union's Exec-
utive Board in 1960 and 1963, and he was appointed to
other positions of authority within the Union
In 1970, Thomas determined to go into the contracting
business and in February of that year took a withdrawal
card from the Union and resigned his offices He then op-
erated the General Plumbing Company
In connection with this business, he was a party to the
collective bargaining agreement then existing between the
Union and the Plumbing Contractors in the Memphis area
with the instant complaint the complaint in Case 26-CB-1109 in which it is
alleged the same facts as here further constitute a violation of Sec 8(b)(2)
The General Counsel made a motion to the same effect at the hearing
which as now was objected to by the Respondent I denied the motion to
amend at the hearing because it appeared that such constituted a substan
tive matter of which the Respondent had not been given reasonable notice
Since the parties are in agreement that no further evidence need be adduced
with regard to the 8(b)(2) allegation and since it is now the subject of a
complaint which must be disposed of I hereby grant the General Counsels
motion The record is reopened to include as exhibits the charge in Case 26-
CB-1109 the complaint the answer General Counsels motion and the
Respondents objection thereto
3 The General Counsel moved to correct the record in certain specific
respects which absent objection is granted
Although somewhat hazy from the record, it appears
that some time in the latter part of 1971 a company known
as Central Plumbing Company was organized The princi-
pal organizer, from the testimony, was Hugh Bagwell, a
journeyman plumber who had gone to work for General
Plumbing in March or April 1971 Bagwell's testimony was
to the effect that the Charging Party had no ownership
interest in Central But it further appears from the totality
of his testimony, as well as that of other witnesses, particu-
larly including Gordon Hollingsworth, who has a whole-
sale plumbing supply company, and William W Watts, a
general contractor, that Thomas was in fact involved if not
the driving force of Central
It was apparently this relationship between the Charging
Party and the nonunion Central Plumbing Company which
precipitated the Union's actions in 1971 against both Gen-
eral and Central This resulted in Thomas filing a charge
which led ultimately to the issuance of a complaint and
findings by an Administrative Law Judge in 1972 that the
Union had violated Section 8(b)(4) of the Act
The evidence here shows that the Charging Party was in
fact closely connected to, if not an actual principal of, the
nonunion Central Whether Central Plumbing was there-
fore "an ally," however, is not material to this case In any
event, such has been fully litigated in the previous unfair
labor practice case and is resjudicata
What is material, however, is the Charging Party's posi-
tion with relation to both General and Central Plumbing
Companies and the conclusion of the union members, par
ticularly including his brother, the business agent, that in
fact he was operating both a union and nonunion shop
Following the determination of the Administrative Law
Judge in 1972, there was apparently little contact between
the Charging Party and the Union until early 1975, at
which time he filed an application for membership (there is
no provision for reinstatement as such) in the Union At
that time he tendered the appropriate initiation fee which
was rejected, although the application was submitted to the
Executive Board and subsequently to the membership
without recommendation
Robert Mahoney, the business agent, testified that he
abstained himself from discussion both before the Execu
tive Board and the membership because the application
involved "blood kin " He wanted both the Executive Board
and the membership to feel free to say whatever they
wished concerning the Charging Party's application
The application was denied by unanimous vote of the
membership on March 7 No one present at the meeting
was called to testify
There is unrebutted testimony that Bobby Jacobs, a
member of the Executive Board, on the night that the
membership voted on the Charging Party's application,
stated that he did not want to see the Charging Party re
gain membership in the Union-that he had been in before
and had filed charges, that he was a "ratty son-of-a-bitch "
Also unrebutted is a statement attributed to Joe Blount,
the Union's president, that Thomas' application had been
turned down because he had filed charges
On March 11, an attorney representing the Charging
Party, not his current counsel, wrote the Union demanding
that it grant the Charging Party's application On June 4,
PLUMBERS LOCAL UNION NO 17
the initial charge was filed On June 5, and several times
thereafter, according to his testimony, he asked his brother
to be put on the job referral list and was told "Okay " Then
by telegram of August 20, Thomas made a written request
that his name be placed on the list and that he be referred
for employment to contractors calling for workers His at-
torney then sent a series of eight letters in which placement
on the referral list was demanded
Robert testified that upon receiving the August 20 tele-
gram he did put his brother's name on the referral list and
since that time when contractors have called for names of
those "loafing" he has read the Charging Party's name
along with names of others
The Charging Party's name in fact appears second on
the referral list currently being used Robert testified that
as his practice , he puts the names of those "loafing" on the
list when they call in to say that they are out of work He
then works from the list scratching off people who are re-
ferred to jobs until the piece of paper is filled Then he
transfers the names of those who have not been referred to
another piece of paper and starts over again
Tolbert Morris, a plumbing contractor, testified cred-
itably that in late July he called Robert Mahoney and
asked for the names of employees who were loafing At
that time he stated the name of Thomas Mahoney was not
read to him and had it been, he would have hired Thom-
as-who has a reputation of being an excellent plumber
Morris testified he called back the first week in August and
still the Charging Party's name was not read Robert ad-
mitted that Thomas' name was not put on the list until
August 20
Robert testified that during the past calendar year
plumbing work in the Memphis area has been extraordi-
narily slow A greater than normal number of union mem-
bers have been out of work Also, according to his testimo-
ny, approximately two-thirds of the plumbing work done in
the Memphis area is done by nonunion contractors
B The Violation of Section 8(b)(1)(A)
Section 8(b)(1)(A) states in effect that it shall be an un-
fair labor practice for a labor organization to restrain or
coerce an employee in the exercise of his rights guaranteed
by Section 7, provided that a labor organization may pre
scribe its own rules with respect to becoming a member or
retaining membership
It is alleged that by denying the Charging Party member-
ship in the Union, the Respondent thereby violated Section
8(b)(1)(A) The Respondent argues that under the proviso,
it had a right to reject the Charging Party's application,
particularly inasmuch as the membership believed that he
had set upon a course of conduct holding the Union up to
ridicule, and had operated a nonunion plumbing shop in
breach of his oath
A fair evaluation of the testimony in this matter is that
indeed the Charging Party was substantially involved with
a nonunion plumbing contractor to the point that his
brother, as well as other members of the Union, could rea
sonably conclude that he was attempting to engage in the
plumbing business, both union and nonunion Whether
this was in fact the case is not particularly material Mate-
1267
nal is what the Respondent and its members reasonably
thought concerning the Charging Party's activity with re
gard to the nonunion shop
Beyond that, however, is the additional question of
whether one reason, at least, why the Charging Party was
denied his application for membership involved his having
filed charges with the Board and having testified in the
earlier Board proceeding From the totality of the evi
dence, it must be found that the filing of charges and sub-
sequent prosecution before the Board was one reason why
Thomas was denied membership
In this respect, I rely in part on undenied statements
attributed to two officers of the Union to the effect that the
Charging Party had been turned down for membership for
having filed a charge 4 In addition, it is noted that in a
previous dispute with the Union over having been involved
with a nonunion shop, the Charging Party was fined but
not denied membership He paid the fine and thereafter
held offices in the Union This indicates that working non-
union is not considered enough, by itself, to deny member-
ship
On balance, and given the past history of this matter, it
is concluded that while his involvement with a nonunion
shop was an important aspect in being denied membership,
one factor was his having filed a charge with the Board
To deny an individual membership in a labor organiza-
tion because he has taken advantage of the Board's pro-
cesses, particularly including filing an unfair labor practice
charge against his union, is not permissible under the pro-
viso set forth in Section 8(b)(1)(A) To do so is a violation
of the Act N L R B v Industrial Union of Marine and Ship
building Workers of America, AFL-CIO, 391 U S 418
(1968)
Such is a public policy proviso to the proviso in Section
8(b)(A) that a union can set standards for its own member-
ship No labor organization, or indeed anyone else, ought
to be able to limit a person's access to the courts or to the
Board
The General Counsel made out a prima facie case that
the filing of an unfair labor practice charge was a reason
the Charging Party was denied membership The Respon-
dent brought forth no evidence to the contrary, other than
Robert's speculation which is not sufficient Thus, it must
be concluded that in fact the Respondent violated Section
8(b)(1)(A) when on and after March 7, 1975, it denied the
Charging Party's application for membership
C The Violation of Section 8(b)(2)
Section 8(b)(2), in material part, prohibits a union from
causing or attempting to cause an employer to discriminate
against an employee in violation of Section 8(a)(3)
It is found that the Charging Party in fact did tender
appropriate initiation fees and thereafter was unlawfully
denied membership to the Union Therefore, it would fol-
low that the Respondent violated Section 8 (b)(2) if it can
4 Given the offices held by these individuals-President and Executive
Board member-these statements amount to admissions by a party oppo
nent and are therefore not hearsay Federal Rules of Evidence Rule
801(d)(2)
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also be established that in some manner the Respondert
caused or attempted to cause an employer not to hire the
Charging Party 5
Here , the General Counsel's proof fails and I must there-
fore conclude that the Respondent has not violated Section
8(b)(2) of the Act or , in this respect , Section 8(b)(l)(A)
The General Counsel argues that the Respondent oper
ates an exclusive hiring hall for its members who work for
the mechanical contractors with whom it has agreements
He further contends that on February 24, when the Charg-
ing Party requested readmission to the Union , he thereby
implicitly requested that his name be placed on the hiring
hall list which it was not Therefore the Union caused em-
ployers to discriminate against the Charging Party by fail-
ing to give his name to employers who called for workers
There is no allegation that a specific employer either called
specifically for the Charging Party or that a specific em
ployer called and the Charging Party's name was not read
until some time in the latter part of July
Thus, in the alternative , the General Counsel argues that
when Tolbert Morris called for employees in late July,
Robert Mahoney failed to read the Charging Party's name,
yet had he done so , Morris would have hired the Charging
Party
While the record is somewhat vague with regard to the
nature of the hiring hall in this matter , a fair interpretation
of Robert Mahoney's testimony and the documentary evi-
dence , not denied by the Charging Party or other witnesses
is that at best the Union operates a rather loose sort of
referral system In the Respondent's collective-bargaining
agreement with the Contractor 's Association , it is agreed
that the Union will be a source of employees , but that the
individual employer will have the sole right concerning
who is hired Thus it is that the business agent keeps a
referral or what he refers to as a "loafing" list 6 When a
member then is out of work and is unable to get another
5 Such would also be violative of 8(b)(1)(A) requiring a backpay remedy
6 The Charging Party s name is second on the list produced by the Re
spondent in compliance with the General Counsels subpoena duces tecum
This subpena was issued on October 7 and served on October 10 Robert
testified that the list he produced was started about 3 weeks before the
hearing or about the last week in October And as is his practice he de
stroyed the previous lists The General Counsel therefore argues ( I) that
Robert deliberately destroyed a subpenaed document (2) that the previous
list must not have included Thomas name (3) that the list produced is
phony and (4) Robert s testimony that he put Thomas name on the list on
August 20 should be discredited
While an analysis of this list against the referral receipts is not too helpful
such indicates that the list has been in use longer than Robert testified-
perhaps since September because there are names scratched off where the
latest referral is mid September There are however five names scratched
off and no corresponding referral receipt
In any event I conclude that the list is authentic and the one currently
being used To conclude otherwise would require finding that Robert had
engaged in a deliberate act of perjury There was nothing in his demeanor to
indicate perjury on this point On the contrary I felt his testimony was
straightforward even if his posture throughout this matter was less than
totally cooperative with the General Counsel Further if in fact Robert
deliberately destroyed the list he was using in October he would have done
so after receiving the subpena on or about October 10 but before October
16 the return date However there was no allegation in the complaint set
for hearing October 16 concerning Thomas name not being on the referral
list or Thomas not being referred There was no reason to destroy the list
and phony a new one Finally Robert complied with every other call in the
subpena albeit reluctantly Reluctance does not imply a perjurious intent
job, he will call the business agent or the business agent's
secretary and say that he is loafing , at which time his name
will be placed on the list Then , when a contractor calls for
plumbers, the business agent will read the names on the list
and the contractor may or may not ask that one or more of
those individuals be sent to him
In the case of Morris , the names of all the loafers were
read but he did not choose to hire any of them
The loafing list kept by the business agent does not re-
late to the job referral receipts he also keeps These job
referral receipts are signed by the employee when he takes
on a new job whether he has been referred by the Union
off the list or gets the job in some other way Basically the
job referral receipt includes information necessary for the
employer to make out a W-4 form, and contains a checkoff
authorization signed by the employee for health and wel
fare, pension, and vacation benefits
Each individual who works for an employer under the
union contract must initially have signed the checkoff au-
thorization and, of course , have given the employer the
information required for tax withholdings The business
agent keeps a copy of this information In evidence are the
job referral receipts kept by the Respondent covering the
period December 4, 1974, through November 19, 1975
While my analysis could be slightly in error because the
exhibit is sometimes hard to read in fairly accurate terms, I
find that during the 11-1/2-month period , 120 of the
Union's 360 members got job referral forms , 56 more than
one This means that about two-thirds of the Union's mem-
bership did not have a job referral with a receipt kept by
the Union Either these members had no work during that
period, worked for an employer not covered by the con-
tract (both of which are highly unlikely), or worked at ajob
which they had obtained prior to December 4 The latter is
consistent with this industry where most employees work
steadily at one plumbing shop rather than going from con-
structionjob to constructionjob From October 27 through
November 19, there are 21 referral receipts, of which only
5 were names on the loafing list This suggests that the
other 16 got their respective jobs in some way other than
being referred through the Union
There is no evidence that the Respondent operates a
strict and exclusive hiring hall by which only employees
who are on the referral list are sent to jobs in order of
seniority On the contrary, the Respondent 's referral sys-
tem does not appear to be more than an availability service
for use of out-of-work members and contractors in need of
men
It is reasonable to conclude , however, that everyone who
works for a signatory company is expected to be a member
of the Respondent Union and that when a signatory com-
pany needs an employee and cannot otherwise find one, it
will call the Union for a man , expecting to get a union
member It is also reasonable to conclude from Robert
Mahoney s testimony that the only person who was not a
member of the Union , did not have an active application
on file , and who sought to be on the referral list was the
Charging Party From this, however, it cannot be conclud-
ed that Robert did not in fact read his brother's name to
those employers who called after August 10, 1975
It is noted in this regard that the Charging Party filed the
PLUMBERS LOCAL UNION NO 17
instant charge on June 4, 1975, and a complaint had issued
on August 19, 1975 Under the gun of an unfair labor prac-
tice complaint, even one not alleging an unlawful refusal to
refer, it is unlikely that Robert Mahoney would have delib-
erately failed to do so Robert would surely know that not
to read his brother s name to any employer who might call
could be detrimental The same applies to the question of
whether Robert actually put Thomas' name on the list on
August 20
From the totality of the evidence, it is concluded that
after receiving the telegraphic request of August 20, Robert
did in fact put his brother's name on the referral list and
has since that date read Thomas' name to employers
There is no evidence to the contrary, logic does not suggest
the contrary, and to find the contrary would be to con-
clude that the Respondent engaged in this type of unfair
labor practice because it has engaged in others No such
conclusion is warranted
Nor do I believe that the Union violated Section 8(b)(2)
in failing to put the Charging Party's name on the referral
list in February The General Counsel in this respect ar-
gues that because the Charging Party told his brother that
he was out of work and because he filed an application for
membership in the Union, he thereby implicitly requested
that his name be put on the referral list and this should
have been done
Such an argument might have some merit if in fact the
Respondent was operating an exclusive hiring hall whereby
employers could hire only through union referral and must
hire off the list in order of placement This, however, is not
the case nor do I believe the Charging Party particularly
intended that his name be put on the loafing list as of
February To the contrary, I believe that the question of
being put on the list did not enter this matter until much
later His interest in February was to get back into the
Union The March I1 letter written by his then attorney
did not mention the referral list-only the matter of mem-
bership
Nor do I credit the Charging Party and his claim that on
a number of occasions, on and after June 5, he asked his
brother to put his name on the loafing list Rather, I credit
Robert and find no actual request was made by the Charg-
ing Party that his name be put on the referral list until he
sent the telegram on August 20
If in fact the Charging Party requested that his name be
put on the referral list and it was not, and it can be shown
that as a result he was denied employment, then a violation
would be proved The Respondent admits that Thomas'
name was not put on the list until August 20 The testimo-
ny of Morris establishes that Thomas' name was not read
in July and that had it been he would have been hired
Thus the significant question here is whether Thomas in
fact asked that his name be placed on the list on June 5
and thereafter, as he testified, or not, as Robert testified
A credibility resolution is inescapable Although Thom-
as' version is possible, on balance I choose to credit
Robert's I base this in part on my observation of their
demeanor at the hearing Robert seemed to be more
straightforward and credible, especially on this critical
question
While I have no doubt that in any conversations Robert
1269
may have had with his brother he was resistant, it does not
follow that Thomas ever made a specific oral request to be
placed on the referral list
Further, the objective facts are simply not consistent
with a specific request by Thomas in June to be put on the
list
The initial charge was filed June 4 and did not include
an allegation of refusal to refer nor did the initial com-
plaint issued on August 19 following the General Counsel's
investigation The first reference to an unlawful refusal to
refer came in the first amended charge of October 8, which
allegation was thereafter incorporated in the amended
complaint of October 28 Had the Charging Party really
asked his brother to be put on the referral list on June 5
and several times thereafter, but before August 20, he sure-
ly would have told the Board investigator and this would
have been included in the initial complaint Further, it is
hard to believe that on such a critical matter counsel would
have suggested an oral request rather than a written one
The Charging Party in fact did make a written request on
August 19 and thereafter on eight different occasions as
did his attorney The advice he received concerning the
referral list must have been formulated during the per.od
when the charge was being investigated I therefore con-
clude that the matter concerning being placed on the refer-
ral list did not begin to take shape in the Charging Party's
mind until on or about August 20, 1975, regardless of how
he now remembers it
Concluding that the Union did not unlawfully fail to put
the Charging Party's name on the referral list before Au-
gust 20, it follows that, when Robert Mahoney failed to
read the Charging Party's name to Morris or any other
employer prior to August 20, he did not thereby discrimi-
nate against Thomas
Finally, I cannot agree with the General Counsels theo-
ry that after August 20, the Respondent must have refused
to read the Charging Party's name to prospective employ-
ers because he was not hired Again, the General Counsel
makes an assumption that is not supported by the objective
evidence It is noted for instance, that on the loafing list,
which was in existence from at least the latter part of Octo-
ber through November 19, of the 34 names II were
scratched as having found jobs but 23 were not To say
that the Charging Party would have been one of the 11
rather than one of the 23 simply does not follow
To establish a violation of Section 8(b)(2) based upon an
unlawful refusal to refer, the General Counsel must prove
his case with facts and not with speculation Iron Workers
Local Union No 167, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO (Mid
Sheet Inc), 220 NLRB 70 (1975) To reiterate, the General
Counsel has offered no specific incident where the Respon-
dent caused or attempted to cause any employer not to hire
the Charging Party The General Counsel's total case rests
upon inference and conjecture Such is not sufficient to
sustain the allegation
CONCLUSIONS OF LAW
1 By refusing the Charging Party's application for
membership upon tender of the usual initiation fee because
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had filed charges and prosecuted them before the Na-
tional Labor Relations Board , the Respondent and its
membership violated Section 8 (b)(1)(A) of the Act
2 The Respondent did not violate Section 8(b)(l)(A) by
refusing to refer the Charging Party for employment to any
employer
3 The Respondent did not violate Section 8(b)(2) by
causing or attempting to cause any employer to discrimi-
nate against the Charging Party
4 The unfair labor practice engaged in by the Respon-
dent and its membership , occurring in connection with the
Respondent 's representation of employees in an industry
affecting commerce , has a close, intimate , and substantial
relationship to trade, traffic , and commerce among the sev-
eral States and tends to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce
and is therefore an unfair labor practice affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act
THE REMEDY
It having been found that the Respondent has commit-
ted the unfair labor practice noted above , it will be recom-
mended that the Respondent be ordered to cease and de-
sist from such unlawful conduct in the future It will also
be recommended that the Respondent be ordered to ac-
cept, upon request, the Charging Party's application for
membership and to poet an appropriate notice to members
[Recommended Order omitted from publication ]