245 N.L.R.B. 719 (N.L.R.B. 1979)

Union Boiler Company

National Labor Relations Board - Board DecisionsSep 28, 1979

245 N.L.R.B. 719 (N.L.R.B. 1979)

UNION BOILER COMPANY Union Boiler Company and William E. Boggess International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers & Helpers, Local No. 667, AFL-CIO and Union Boiler Company International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers & Helpers, AFL- CIO and Union Boiler Company. Cases 9 CA 12280, 9 CB 3849, and 9 CB-3895 September 28, 1979 DECISION AND ORDER BY MEMBERS JENKINS, TRUESDAI.E AND MURPHY On March 9, 1979, Administrative Law Judge Da- vid L. Evans issued the attached Decision in this pro- ceeding. Thereafter, Respondent Union Boiler Com- pany, Respondent International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forg- ers & Helpers, Local No. 667, AFL-CIO, and the General Counsel filed exceptions and supporting briefs, and Respondent International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forg- ers & Helpers, AFL-CIO, filed a brief in answer to the General Counsel's exceptions. 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 2 of the Administrative Law Judge and to ' Respondent Employer. Respondent Union Local No. 667, and the Gen- eral Counsel have excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all relevant evidence convinces us that the resolu- tions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In his Decision the Administrative Law Judge finds, and we agree, that the 37 discharged employees were economic strikers. However. in his pro- posed remedy and recommended Order, he finds that the backpay period for these employees commenced as of February 24. 1978. the day on which the underlying dispute was concluded. Subsequent to the issuance of the Admin- istrative Law Judge's Decision herein, the Board issued its decision in Abili- ties and Goodwill, Inc., 241 NLRB 27 (1979) (Members Penello and Murphy dissenting), overruling prior precedent and finding that unlawfully dis- charged strikers were entitled to backpay from the date of their unlawful discharge. Accordingly, we will modify the Administrative Law Judge's rec- ommended Order by directing that backpay for these 37 employees be com- puted from February 22. 1978, the date of their unlawful discharge, rather than February 24, 1978, the date the dispute was concluded. Additionally, we will further order that Respondents Employer and Local No. 667 expunge from the records of these 37 employees any reference to their unlawful discharge resulting from Respondents' unlawful discrimina- tion against them and that they further notify said employees, in writing, of their actions. Member Truesdale concludes that the circumstances of the instant case do not warrant the provision of a broad order, and, accordingly, he would issue a narrow one. See, generally. Hickmorrt Foods, Inc., 242 NLRB 1357 (1979). adopt his recommended Order3 as modified and set forth in full below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that: A. Respondent Union Boiler Company. Nitro, West Virginia, its officers, agents. successors, and as- signs. shall: I. Cease and desist from: (a) Discouraging membership in or activities on behalf of United Steelworkers of America, Local Union No. 8621, AFL CIO CIC. or any other labor organization, or encouraging membership in or activi- ties on behalf of Respondent International Brother- hood of Boilermakers. Iron Shipbuilders, Black- smiths. Forgers & Helpers. Local No. 667, AFL -C'IO. by discharging or otherwise discriminating against its employees in regard to hire and tenure of employ- ment or conditions thereof: (b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their right to engage in or refrain from engaging in any or all the activities specified by Section 7 of the Act. 2. Take the following affirmative action, which is necessary to effectuate the practices of the Act: (a) In conjunction with Respondent Local No. 667, with said Union primarily liable, make whole the employees listed in the section of the Administrative Law Judge's Decision entitled "The Remedy" for any loss of pay they may have suffered since February 22. 1978, as a result of the discrimination against them. (b) Expunge from the records of said employees any references to their unlawful discharge, and notify said employees, in writing, of its actions. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports. and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at all its offices, on its premises, and at its jobsites within the territorial jurisdiction of Respon- dent Local, copies of the attached notice marked In his remedy the Administrative Law Judge also found Respondents Employer and Local 667 to be jointly and severally liable for any backpay due and owing the discriminatees herein. However, inasmuch as it was Re- spondent Local No. 667 that initially suggested that the 37 discriminatees be terminated and that thereafter took credit for said terminations, we find. contrary to the Administrative Law Judge. that Respondent Local No. 667 should be held primarily. and Respondent Employer secondarly liable for any backpay due and owing the discriminatees herein See Wis.mer and Becker, 228 NLRB 779, fn. 7 (1977). Accordingly. we will modif) the Ad- ministrative Law Judge's recommended Order to reflect this finding. Respondent Employer's request for oral argument is hereby denied inas- much as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 245 NLRB No. 93 719 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Appendix A."4 Copies of said notice, on forms pro- vided by the Regional Director for Region 9, after being duly signed by Respondent Employer's repre- sentative, shall be posted by Respondent Employer immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. (e) Post at the same places and under the same conditions as set forth in paragraph A, 2, (d), above, as soon as they are forwarded by the Regional Direc- tor for Region 9, copies of Respondent Local's notice herein marked "Appendix B." (f) Mail to the Regional Director for Region 9 signed copies of the notice marked "Appendix A" for posting by Respondent Local in accordance with paragraph B, 2, (d), of this Order. (g) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Decision, what steps the Respondent Employer has taken to comply herewith. B. Respondent International Brotherhood of Boil- ermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, Local No. 667, AFL-CIO, Charleston, West Virginia, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Union Boiler Company, or any other employer, to discriminate against the employees named in the section of the Administrative Law Judge's Decision entitled "The Remedy," or any other employee, in violation of Sec- tion 8(a)(3) of the Act. (b) Restraining or coercing employees in the exer- cise of their Section 7 rights by adversely affecting the employment of employee-members who refuse to comply with its concept of membership obligations, unrelated to any failure of said members to tender or pay periodic dues or fees in accordance with the pro- viso to Section 8(a)(3) of the Act, and thereby unlaw- fully encouraging fealty to and membership in its or- ganization. (c) In any other manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) In conjunction with Respondent Union Boiler '4 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." Company, with Respondent Local No. 667 primarily liable, make whole the employees listed in the section of the Administrative Law Judge's Decision entitled "The Remedy" for any loss of pay they may have suffered since February 22, 1978, as a result of the discrimination against them. (b) Expunge from the records of said employee- members any references to their unlawful discharge and notify said employee-members, in writing, of its actions. (c) Post at its business offices and meeting halls copies of the attached notice marked "Appendix B."5 Copies of said notice, on forms provided by the Re- gional Director for Region 9, after being duly signed by Respondent Union's representative, shall be posted immediately upon receipt thereof, 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 Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as those set forth in paragraph B, 2, (c), above, as soon as they are forwarded by the Regional Director for Region 9, copies of Respondent Employ- er's notice herein marked "Appendix A." (e) Mail to the Regional Director for Region 9 signed copies of notice marked "Appendix B" for posting by Union Boiler Company in accordance with paragraph A, 2, (e), of this Order. (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all insurance and pension fund records and all perti- nent records necessary to analyze the amount of backpay due under the terms of this Order. (g) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Decision, what steps Respondent Union has taken to comply herewith. IT IS FURTHER ORDERED that the complaint against Respondent International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO, Case 9-CB-3895, be, and it hereby is, dismissed in its entirety. MEMBER MURPHY, concurring in part and dissenting in part: I do not agree that backpay for the discharged strikers should be computed from the date of their unlawful discharge. Rather, for the reasons stated in my dissenting opinion in Abilities and Goodwill, Inc., supra, I would find that any backpay obligation should be computed from the date the dispute- which led to the sympathy strike in which they were I See fn. 4. supra. 720 UNION BOILER COMPANY engaged-was resolved. In this regard, I would find that the settlement of that dispute obviated the neces- sity of the strikers to indicate an abandonment of their strike and a willingness to return to work. In all other respects. I concur with my colleagues. APPENDIX A NOTICE TO EMPI.OYEES POSTED BY ORDER OF TIHE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminate against any of our employees in regard to hire or tenure of employ- ment or any term or condition of employment because they engaged in a lawful sympathy strike. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. WE WILL, in conjunction with International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, Local No. 667. AFL-CIO, with Local No. 667 primarily liable. make the following named employees whole for any loss of pay incurred as a result of our dis- crimination against them: Tommy E. Asbury Gladys Barnhill Paul L. Bayes Donald L. Bickley Fred N. Blackburn William E. Boggess Billy G. Bosher Garlen R. Burton Ray A. Bush Franklin Chapman Virgil C. Childress Thomas Earl Devaney Steve L. Dew William L. Fulknier Morton Halterman Kyle W. Justice Van Kitchen Gary W. McClure Charles C. McDavid Ernest W. McDavid Jack McDavid Estill Lee Messer James W. Midkiff Larry E. Mitchell Shirl Nibert Henry Thomas Rainey Wilbur L. Rhodes Kenneth Wayne Rice Danny D. Riffee Kenneth L. Runyan Philip G. Sampson John H. Sauer Gary K. Smith Shelburn E. Smith Larry L. Thomas Kermit C. Wolf Howard Young WE WILL expunge from the records of our above-named employees any and all references to their unlawful discharges resulting from our discrimination against them, and WE WILL notify them, in writing, of our actions herein. UNION BOILER COMPANY APPENDIX B N()IIcE I() MlMB RS P()STEI BY ORDER 01 rltl NAIIONAI. LABOR RELATIONS BOARD An Agency of the United States Government WV'E WIIl N()I cause or attempt to cause I lnion Boiler Company, or any other employer, to dis- criminate against any employees in violation of Section 8(a)(3) of the National Labor Relations Act, as amended, by causing them to be dis- charged for engaging in a lawful sympathy strike. Wt Will. NOI restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act by adversely affecting the employment of employee-members who refuse to comply with our concept of membership obliga- tions, unrelated to any failure of said members to tender or pay periodic dues or fees in accordance with the proviso to Section 8(a)(3) of the Act. and thereby unlawfully encourage fealty to and membership in our organization. WE Wll. NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE wLI., in conjunction with Union Boiler Company, with ourselves primarily liable, make the following named employees whole for any loss of pay incurred as a result of our discrimina- tion against them: Tommy E. Asbury Gladys Barnhill Paul L. Bayes Donald L. Bickley Fred N. Blackburn William E. Boggess Billy G. Bosher Garlen R. Burton Ray A. Bush Franklin Chapman Virgil C. Childress Thomas Earl Devaney Steve L. Dew William L. Fulknier Morton Halterman Kyle W. Justice Van Kitchen Gary W. McClure Charles C. McDavid Ernest W. McDavid Jack McDavid Estill Lee Messer James W. Midkiff Larry E. Mitchell Shirl Nibert Henry Thomas Rainey Wilbur L. Rhodes Kenneth Wayne Rice Danny D. Riffee Kenneth L. Runyan Philip G. Sampson John H. Sauer Gary K. Smith Shelburn E. Smith Larry L. Thomas Kermit C. Wolf Howard Young WE WIll. expunge from the records of our above-named enloyee-members any and all references to their ,,nlawful discharges resulting 721 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from our discrimination against them, and WI wiL.i notify them, in writing, of our actions herein. INIERNATIONAL BROTIIERHOOD OF BOILER- MAKERS, IRON SHIPBUILDERS, BLACKSMITHs, FORGERS ANt) HELPERS, LOCAL No. 667, AFL CIO DECISION STATEMENT OF ri'lE CASE DAVID L. EVANS. Administrative Law Judge: A hearing in this consolidated proceeding was held before me on 6 days between September 21 and 28, 1978,1 in Charleston, West Virginia, upon charges filed and complaint issued against Union Boiler Company, (herein called the Em- ployer): International Brotherhood of Boilermakers, Iron Shipbuilders. Blacksmiths, Forgers & Helpers, Local No. 667, AFL-CIO (herein called the Local); and International Brotherhood of Boilermakers, Iron Shipbuilders, Black- smiths, Forgers & Helpers, AFL-CIO (herein called the In- ternational). The original charge was filed against thee Em- ployer in Case 9-CA-122802 by William E. Boggess, an individual, on March 9; said charge was amended by Bog- gess on July 25. The charge in Case 9-CB-3849 was filed by the Employer against the Local on April 14, and the charge in Case 9-CB-3895 was filed by Employer against the In- ternational on June 6. The consolidated complaint based upon these charges alleges that on February 22 the Em- ployer discharged 37 named employees because they en- gaged in a sympathy strike on February 20-22 and that the Local and International caused or attempted to cause this discrimination. The Local admits that it attempted to cause discrimination, but denies that it in fact caused such: the International denies causing or attempting to cause any dis- crimination; the Employer admits discharging the individ- uals, but denies violating the Act by doing so. Alternatively, the Employer contends that if it is found to have violated the Act, it must be further found that its conduct was caused by the requests or demands of the Unions. The Em- ployer further contends that the entire matter should be deferred to arbitration. General Counsel and all Respondents have filed briefs which have been carefully considered. Upon the entire rec- ord, upon my observation of the witnesses, and upon the inherent probabilities and improbabilities of their testi- mony, and having taken into account all of the arguments made at the hearing and in the briefs submitted, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION The Employer is a West Virginia corporation engaged in the building and construction industry. It admits, and I find, that during the 12 months preceding issuance of the I Unless otherwise specified, all dates are in 1978. 2 This is the correct case number for the charge against the Employer. although several documents in this proceeding, including the transcript, bear the number 9-CA-12208. complaint it purchased and received goods and materials valued in excess of $50,000 which were shipped to various of its jobsites located within the State of West Virginia di- rectly from points outside said State and that it is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. I.ABOR ORGANIZATION INVOLVED It is undisputed that both the Local and the International are labor organizations within the meaning of Section 2(5) of the Act. Ill. IHE UNFAIR ABOR PRACTICES Appalachian Power Company (herein called Appala- chian), which is not a party herein, is a public utility which, at its John Amos power plant near Charleston, West Vir- ginia, produces electricity by the use of three coal-fired gen- erators. The ash created by this process is prevented from entering the atmosphere by use of two precipitators. These devices are, in essence, buildings which are each about 150 feet high and about 200 by 300 feet at the base. They elec- trostatically reduce the effluent to solid waste which can be hauled off and buried. In 1976 Union Boiler Company was retained by Appala- chian to enlarge the precipitators to bring them into com- pliance with current state environmental control standards. The work constituted new construction which was sched- uled for completion by April 1. The Employer asserts that it was subject to $30,000-per-day penalty if its work for Appa- lachian was not completed by that date. The specific work involved herein was completion of construction to a point at which one of the precipitators could be shut down, the final work done, and the precipitator then returned to ser- vice. During the "scheduled outage," as it was called, elec- tricity had to be purchased by Appalachian from other sources at a rate of between $10,000 and $30,000 per hour to substitute for the 800,000-kilowatt generator taken out of service. After 2 years of construction, extensive planning, and appeals for extensions granted by the West Virginia Air Polution Control Commission, the outage was scheduled for February 27. Employees of Appalachian, at all times material herein, were represented by United Steelworkers of America, Local Union No. 8621, AFL-CIO-CIC, herein called the Steel- workers. Employees of Respondent-Employer were repre- sented by various craft unions, each of which was a mem- ber of the Charlestown Building and Construction Trades Council. While at one time there were up to 2,000 employ- ees on the construction site, at the time of the events of this case there were 200 construction employees employed by Respondent Employer, including 45 boilermakers, repre- sented by Respondent Unions' herein, and about 150 em- 3 The "Amos Boilermakers," as they are herein called, were jointly repre- sented by the International and Local. The contract under which they worked was executed by the International and the Employer. Pertinent pro- visions thereof are: 722 UNION BOII.ER COMPANY ployees in other crafts. The Boilermakers were the "core" craft, and this was considered a "Boilermaker" job: if they did not work, there was little or nothing fobr the other crafts to do. At some time prior to the events of this case, the Steel- workers began a strike against Appalachian. On June 9 the Regional Director issued a complaint alleging that the strike, which continued until February 26, was caused by certain unfair labor practices of Appalachian. Separate gates for construction employees were established by Appa- lachian. On January 23 25 and February 2 and 3 the Steel- workers picketed the construction gates.4 It was stipulated that the 37 discharges herein did not report for work during these periods of picketing,5 they did not report in as re- quired by Employer's disciplinary rules.6 and none was dis- ciplined. On February 9 representatives of the Employer. the In- ternational, and the Local met at the Employer's office in Nitro, West Virginia. The principal topic of discussion was the prospect of further picketing and the effect it would have on the scheduled outage. Representing the Interna- tional was A. G. Walser, the International's representative for construction; representing the Local were Billy McCor- mick, business manager,7 and Jimmy McCormick (son of Billy), Rodney Hale, and Ron Bush, each of whom was an assistant business manager. Representing the Employer were: Bill McDavid, president. Rockford Dan Casey. ex- ecutive vice president in charge of the power division, Rog- er Magaw, vice president in charge of labor relations, and ARTI(I.F XXII tO( KOUT ANI) WORK SIOPPA(i- Dunng the term of this Agreement. there shall be no lockout by the Company and no work stoppages by the Union. ARTI(I E i (iRIEVAN( FS All grievances, other than those pertaining to jurisdiction or general wage rate on any work covered by this Agreement shall be handled in the following manner: Step 1. Between the Company and the Local Union Steward at the jobsite. Step II. Between the Business Representative and the Company Su- pervisor at the jobsite. Step III. Between the International Union Representative and the Supervisor or Labor Relations Manager of the Company Step IV. If the parties are unable to effect an amicable settlement or adjustment of any grievance or controversy, such grievance or contro- versy shall be submitted to binding arbitration under the rules of the Amencan Arbitration Association.... 'It is not contended by any party that either these two rounds of picket- ing, or the round which ensued on February 20. was violative of the second- ary-boycott provisions of the Act. IThe Employer's counsel refused to stipulate that the employees were striking when they did not report to work during these periods of picketing. There is abundant testimony in the record that the dischargees herein were striking in sympathy with the Steelworkers during these rounds of picketing and that Respondent Employer knew of it, and I so find. 6 As stated in an employee handbook. the Employer's "excessie absentee- ism rule." as it was called. was: 3. All absences must be immediately reported to the office manager or superintendent Anyone absent for three consecutli e da', a, ' thout so reporting. will be automatically discharged for exccslsc .ibsenleei.lsm 7At various points Bill Mc('ormick was ilso referred .s "bhlsiness agent" or "business represenluve " Michael Wallace. project superintendent of the John Amos construction site. Casey and Walser were the principal spokesmen. Casey stated that both management and the Uinions had an interest in getting the job completed on time. He noted that the Employer's contract with .Appalat- chian contained extensive penalties. lie said that the l.ocal could lose work as a result of the Steelworkers dispute. since the Steelworkers nion was seeking mainenance work in its contract negotiations with Appalachian. T'he maintenance work mentioned b Cases was that Which the Boilermakers had traditionally performed. Magav, added that the Employer considered Boilermakers strikes in sym- pathy with the Steelworkers to he a breach of' the no-strike clause in the contract between the parties. Walser and Mc- Cormick' refused to agree with this nterpretation. \Walser indicated that the Unions were quite concerned. but since crossing picket lines was historicall anathematized b the membership. the matter would be brought up at the next regular meeting, which waits scheduled for Saturday. Febru- ary I I. Hale asked permission to address the enlployees on the John Amos site and explain the problem to them. Case granted Hale permission to do so the next da. Walser tes- tified that after the meeting he requested McCormick to take the matter to the membership. apprize them of the problem, and "ask them to give some consideration to us manning the job." McCormick testified that on that evening or the following morning, he instructed the I.ocal's dis- patcher, Maynard May'. to contact all job stewards and tell them to advise all members to be at the February I1 meet- ing "so that we can explain the problems that we were hav- ing with the Steelworkers." Max did not testit}. If he told any stewards that there was anything special about the next regular meeting. it is not reflected by the record. Ray Bush. the steward on the John Amos job, denied that May called him before the February I I meeting. On February 10 Hale, McCormick, and Ron Bush con- ducted a meeting on the John Amos jobsite otf all Boiler- makers. None of these business representatives testified. but 36 of the dischargees did. While there are some minor vari- ances in the testimony of those who described the meeting. it is undisputed that Hale told them that the Local wanted them to cross the Steelworkers picket line, should it appear again, and that the Local had 50 or 60 men lined up to take their place if they refused. Hale added that Respondent Unions were asking them only to cross Steelworkers picket lines: if pickets on behalf of the United Mine Workers ap- peared. they were to be honored.' Hale did not mention the monthly meeting scheduled for the next day: he did not tell any of the employees that they' might be discharged because of anything the Local or the International had done or might do. and he affirmatively told them that if the, refused to cross a Steelworkers picket line, they would not be fined. (At least one employee-member then present had been fined for failing to cross an unauthorized picket line at some time in the past.) Several employees made various argu- "Unless otherwise specified. all retcrences to "Mc('ornmick' are 1. Hilk McCormick ' During Januars fnd t ebruarx the i ilied Ml lne i\Vorkers .t1 IlCerica engaged in a nionss ide strike ig.ilrit iih t crmpl.er-iniihcrs io illininU 1s (oa.l ()perators \sso'ii on ll ofJi Ailm.l tlll ) l:r, this peri od.. t he iilitIeC or arlious coel-tired public itltl i lt -. ih I \rpi plitlll. Ai, er psr s ,ll plikeled b\ per nlln .;iilig i ll %ii [I}iIm\s Il, \1} i, \ .rk.ts 723 I)Il(CISIONS OF NATIONAL LABOR RELATIONS BOARD ments against crossing future picket lines, and none indi- cated they would accede to the Local's wishes as expressed by Hale. On February 11 the regular monthly meeting of the membership was held. Received in evidence was a tran- script of that meeting which was attended by 106 members. 5 of whom were employed at the John Amos site. Billy McCormick conducted the "welfare of the Union" segment of the meeting. (McCormick prefaced his remarks with the statement: "I sent out a call to the stewards to have every- body come today that could.") McCormick told the mem- bership that the Steelworkers had as an object of their pick- eting securing maintenance work that had traditionally been done by Boilermakers, and: When they put a picket up on a gate I know I feel about picket lines like you feel about them; but in the past, a picket line was more or less a sacred cow. If you saw it, you went on by, you didn't stop. But when .t man puts up a picket line against you. trying to take your work from you, from us, we should walk over top of the picket line and and him, too, if he's there. In response to McCormick's plea, member Bradley made a motion "that we authorize Bill to give these people notice. publicly, that we're going to go in and do this work." Two of the five Amos Boilermakers present spoke in opposition, but they did not vote, and the resolution was passed unani- mously. During the following week Casey telephoned McCormick and stated that he had heard that picketing of the construc- tion gate would resume on February 20. McCormick in- formed Casey that the membership had voted unanimously to man the job should Steelworkers pickets reappear. Also during the week of February 13 17 the Local contacted 60 members on jobs throughout the State of West Virginia, advising them of the situation and "lining them up" to come to the Amos site should the Steelworkers pickets reap- pear and, as expected. the employees on the job honor the picket line.'" Neither McCormick, May, Jimmy McCor- mick, nor any other officer of the Local attempted to inform any of the Amos Boilermakers of the February I I vote until after they were discharged for refusing to cross the Steel- workers picket line which was reestablished on February 20, as discussed infra. The 36 dischargees who testified in this matter fall into four categories: they attended the February I I meeting and therefore knew of the resolution and unanimous vote, they admitted hearing about the vote at some time before the picketing resumed on February 20, they claimed to not re- 0 In making this finding I discredit McCormick, who testified that no attempt was made to secure replacements until February 20 because until that date he thought the Amos members would cross the picket line. It is uncontradicted that Hale had told Amos site members on February 10 that the replacements were already secured. Also there is no indication that the Amos Boilermakers ever expressed anything but resistance to the Local's desire that they not engage in a sympathy strike. Finally, crediting McCor- mick on this point would require belief that on the single evening of Febru- ary 20 the Local was able to contact 60 employees currently employed else- where throughout the State and get them to agree to quit their jobs and report en masse at 7:30 a.m. on February 21, as the) did. May was the only person who was making calls for the Local on February 20; he was calling the majonty of the 37 Amos Boilermakers, as discussed infra. call hearing about the vote, or they simply denied hearing about the vote. The five who attended the meeting were Frank Chapman, Kenny Runyan, James Midkiff, William F. Boggess. and Virgil Childress. Thomas Asbury, Gary Smith, and Kermit ('C. Wolf admitted hearing of the vote. Thirteen employees claimed to be unable to remember whether they heard of the February 11 vote meeting during the week of February 13 17. It is undisputed that there is in this geographical area an almost fanatical obeisance on the part of union members to the proposition that picket lines are not to be crossed. As McCormick put it, they are a "sacred cow," especially to the members of this Local. On February 10 they had been asked by Hale to cross the line if it was reestablished. If during the following week the Amos Boilermakers had heard that Hale's request had been ratified by membership vote, they would certainly have re- membered it. Accordingly, I find any assertion that the em- ployees on the John Amos job could not recall whether the February 11 vote was mentioned on the job during the week of February 13 17 to be unworthy of belief. Because of the claim of inability to remember or other evasiveness in their answers, I discredit the following employees and find that they heard of the February I I vote at sometime during the following week: Morton Halterman, Wilbur Rhodes, Fred Blackburn, Ray Bush, Jack McDavid, Van Kitchen, Charles McDavid, Henry Thomas Rainey (the most evasive of them all), Donald L. Bickley, Shirl Nibert. Billy Bosher, and Gary McClure. The following employees made cate- gorical denials which I credit. Although it is seemingly un- likely that any of the employees who worked in the week following February I I would not have heard of the vote, some employees worked in comparative isolation in the massive structure of the precipitator, and with some there was simply nothing to talk about or listen to-they were not going to cross the picket line and did not want to hear, and did not hear. of any suggestion from any quarter that they should do so. These employees whom I credit and find that they did not hear of the February II vote during the following week are: Philip Sampson (who was absent for all the week of February 13 except for Friday, February 17. on which date he heard nothing of the vote), John H. Sauer, Larry Thomas, Kyle Justice, Garlen Burton, Danny Duane Riffee, Thomas Earl Devaney, Paul Bayes, Larry Eugene Mitchell, and Steve L. Dew." The following employees were not asked if they had heard of the February II vote, and there is therefore no evidence of any sort upon which it can be concluded that they had actual knowledge of the vote: Howard Young, Estill Messer, Ernest Wayne McDa- vid, Gladys Barnhill, William Fulknier, and Shelburn Smith. Kenneth Rice was not called to testify by either party; accordingly, there is no basis for concluding that he had actual knowledge of the February I I vote. On Monday, February 20, Steelworkers pickets appeared at the construction gate, and no employee in any craft crossed the line established. Representatives of the various i In my opinion, it was unnecessary to reach these credibility resolutions for purposes of reaching the ultimate decision herein, see "Analysis Conclu- sions." infra. These determinations are made so the Board will have them if it accepts the argument o Respondent Local that constractive, a frtiori actual. knowledge of the February II resolution renders unprotected any participation in the sympathy strike. 724 UNION BOILER COMPANY crafts in the Charleston area trades council proceeded to the nearby Teamsters hall as was previously arranged. The representatives of the other crafts indicated that their mem- bers would not cross the line established, but McCormick stated that the Boilermakers would "man the job." After the meeting he instructed dispatcher May to contact all members who were then employed on the Amos site and tell them that they should meet early the next morning at the Route 17 Restaurant, and he would lead them across the line. According to McCormick, he further instructed May, then for the first time, to contact employees on jobs throughout West Virginia and tell them to meet at the res- taurant also, just in case the Amos Boilermakers persisted in their refusal to cross the picket line. (As discussed supra, I have found that this was not the first contact that the Local made with the replaced employees: they had previ- ously been warned to be ready for such a call. Also, there was no question in McCormick's mind that the Amos Boil- ermakers would not cross the picket line: to find otherwise would require a conclusion that McCormick was assuming the risk of having over 100 employees at the gate the next morning: the 60 who would have had to quit their employ- ment with other employers plus the 45 Amos Boilermak- ers.) May did call almost all of the 37 dischargees named herein. He told them to meet at the restaurant for the pur- pose of forming a group, led by McCormick, to cross the picket line. Some of the Amos Boilermakers said they would be at the restaurant, but none said he would cross the picket line. May did not mention the February II meet- ing to any of the employees and did not tell them that they would be subject to discharge if they failed to cross the line. During the afternoon of February 20 there was another meeting of the trades council, this time attended by Casey. Again McCormick stated that the Boilermakers would cross the line, this time citing his assurances to Casey. On Tuesday, February 21, 60 journeyman and appren- tice Boilermakers who had not worked at the site before and 8 who were then currently employed there gathered at the restaurant and then followed McCormick to the jobsite in numerous vehicles. The party was met at the gate by the Employer's job superintendent, Gilbert Rogers. McCor- mick presented the new employees as Boilermakers who were ready to work, and Rogers immediately began signing the employees up and issuing them safety equipment re- quired on the job. As admitted by McCormick: Well, I went into Gilbert's office, that trailer there, and told Gilbert that I wanted those people that didn't show up terminated so that if the picket line was down say two or three days later they wouldn't come down there and run the people off that did come in and man the job because they left jobs up north in the state. Rogers replied that he doubted his authority to discharge employees in such circumstances, so he called Casey. Mc- Cormick got on the telephone and repeated his demand to Casey. Casey replied that he had no contractual basis for terminating the employees, but if McCormick was taking the responsibility for the discharges, they would be effectu- ated. Thereafter Rogers began preparation of discharge no- tices, which stated as a reason therefor: "Terminated bv request of Boilermaker B.A.-Replaced by other men." As the 37 notices were being prepared, calls from the dischargees began coming in to Rogers' office. Several of the employees said they were sick: onl\ one, Van Kitchen, really was. Rogers. in one form or another, suggested to some of' them that they report off sick. Some claimed illness with Rogers' urging, some without, and some refused to engage in such a ruse. Several employees called in that morning and sickness was not discussed: Rogers simply told them that they had been terminated at the request of the business representative. A few of them asked for confirma- tion of this from McCormick. and he took the telephone and gave it to them. Rogers testified that he knew that all the former Amos employees were honoring the Steelwork- ers picket line, except Kitchen, whom he knew to have been sick. During the afternoon of February 21 Walser came to the Local's office. He was using the telephone in McCormick's office when he noticed the Local's copies of the termination slips on McCormick's desk. He summoned McCormick for an explanation, and McCormick related what had hap- pened that morning. Walser immediately called Casey to determine if the employees' copies had yet been mailed from the Employer's office. Casey said he did not know and asked why Walser was asking. Walser replied that he thought McCormick was skating on "thin ice" in the matter and that he wanted "those [notices] rescinded and immedi- ately before they were sent out." Casey said he would check. Casey called back in 20 minutes and reported that the notices had not been mailed. Walser told him, "I do not want those termination slips sent out.... lam rescinding the action of the Business Manager." Casey replied that he would then "pursue the excess absenteeism route."' Walser replied, "You do what you think you've got to do, but as far as any action by the request of the business manager, that must be rescinded."' On Wednesday, February 22, the Steelworkers pickets again appeared at the construction gate. The 60 replace- ments were again led by McCormick across the picket line. The 37 Boilermakers named in the complaint were dis- charged, including all employees who had attempted the ruse of calling in sick, as well as Van Kitchen, who was actually sick, as Rogers knew. Discharge notices were pre- pared for each employee, stating as a reason: "Dis- charged-excess absenteeism - replaced by new employ- ees." The slips were prepared early in the morning of February 22. but not mailed out until sometime in the after- noon. Such a notice was prepared for employee J. K. Jarrel. who had refused to cross the picket line on Monday and Tuesday and had not reported to work as scheduled Wednesday morning. Jarrel did report about I p.m. on Feb- ruary 22 and was promptly reinstated. All of Respondent Employer's witnesses testified that ex- cessive absenteeism was the only reason that the employees were terminated. When asked why no employees had been terminated during previous periods of strikes (including the 12 See fn. 6. 1' Both Walser and Casey testified as to the content of these calls I quote here Walser's account, which I credit. Casey was vague at several points and used only the conclusional terms that there was an agreement between Wal- ser and him that the employees would be terminated for excess absenteeism 725 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January 23 25 strike, when none of the employees reported for work or report in), Casey testified that on the prior occa- sions the Employer was not facing such an emergency, had not had assurances from the Union, and did not have re- placements for the employees discharged. When asked what would have happened if the 37 discharged Boilermakers had come back to work on or before February 22, Casey testified that they would have been reinstated, as was Jarrel. When asked what would have happened to the replace- ments, Casey testified that they would have been retained probably until the end of the week. When asked why the employees of other crafts were not terminated, Casey again cited the assurances of the Local, the lack of replacements for employees of other crafts, and the fact that the other crafts were "support" for the Boilermakers in any event. On Thursday, February 23, at some point during the al- ternoon, the Steelworkers picketing ceased. During the af- ternoon McCormick, Hale, Jimmy McCormick, and Ron Bush met with about 20 of the dischargees. When members of the group asked McCormick why he had not helped them, or at least given them a telephone call to warn them of the unprecedented consequences of their actions, McCor- mick replied, "Why should I call you when I had you fired?" McCormick further announced at this meeting that he had reconsidered a previous decision to "bench" the 37 members for a period of 90 days and would only bench them for a period of 15 days. Benching is a penalty of not being referred to any job from the Local's out-of-work list. It is provided for by the "Joint Referral Rules," which is an exclusive hiring hall agreement between the Employer and the Local. The penalty is imposed for specified acts of mis- conduct. In three separate subparagraphs the referral rules require mandatory penalties of 90 days' benching for in- volvement in any unauthorized strike, failure to return to work when instructed by agents of the Local or the Interna- tional. or insistence on recognizing illegal or unauthorized picket lines. The rules require benching for 15 days when an employee is discharged for just cause.' McCormick testified that he benched the 37 employees for the 15-day period because they had been discharged for excessive absentee- ism. It was stipulated that the underlying strike between the Steelworkers and Appalachian terminated on February 26. " The jointly negotiated referral rules provide, inter alia. Section 7.2. Any registrant who has been discharged for just and sufficient cause shall not be referred from the out-of-work list to any job for a period of fifteen (15) calendar days following said discharge. Sec- tion 7.3 Registrants shall be suspended from the out-of-work lists and therefore not referred for employment for a period of ninety (90) calen- dar days for any of the following reasons: 4. Involvement in any unauthorized strinke, work stoppage, slow- down, or any other activity having the effect of curtailing the work or otherwise disrupting the job. 5. Failure to return to work when involved in a violation of the agree- ment, as instructed by either a Local Lodge or International officer of the Union. 6. Insistence on recognizing illegal or unauthorized picket lines. Analysis and Conclusions 1. Respondent Employer's motion to defer to arbitration Relying upon cases which recite general principles re- garding the desirability of arbitration in the usual em- ployer-versus-union situation, Respondent Employer moves to defer this proceeding to arbitration. While there is a grievance and binding arbitration provision in the contract between the parties, the Board no longer defers to arbitra- tion cases involving discharges alleged to be in violation of Section 8(a)(3) and (I) of the Act. General American Trans- portalion Corporation, 228 NLRB 808 (1977). Moreover, the Board has never required employees to seek remedy for discharge through "arbitral processes authored, adminis- tered and invoked entirely by parties hostile to their inter- ests," as in the case herein. Kansas Meat Packers, a Division of Aristo Foods, Inc., 198 NLRB 543 (1972). The motion is denied. 2. Protected nature of the strike and liability for the discharges Respondent Employer argues that sympathy strikes are unprotected as a matter of law, Board and court precedent notwithstanding. It further argues that assuming that em- ployees may in certain circumstances have a right to engage in sympathy strikes, those circumstances are not extant here because (I) the contract between the International and Re- spondent Employer waives the right to engage in any type of work stoppage, including sympathy strikes, and (2) even if the contract does not forbid sympathy strikes, Respon- dent Local waived the right of the individual employees to engage in such activities by the February 11 membership resolution and McCormick's assurances to Casey thereafter. Respondent Local does not join in Respondent Employer's first waiver argument, but strongly urges the second. Re- spondent International takes no position on either waiver argument. When the 37 discharges chose to refuse to cross the picket line established at the construction gate, they aligned themselves with the employees represented by the Steel- workers in their labor dispute with their employer, Appala- chian. This activity is what is commonly known as a sym- pathy strike, and, contrary to the protestations of Respondent Employer, it is an activity generally protected by the Act. Gary-Hobart Water Corporation, 210 NLRB 742, 744 (1974), enfd. 511 F.2d 284 (7th Cir. 1975) cert. denied 423 U.S. 925 (1975). The sympathy strike is unpro- tected only where the right to engage in such activity is waived by the representative union. The required waiver will not be readily inferred; it must be "clear and unmistak- able." See the numerous cases cited at fn. 9 of Garv-Hobart Water, supra. Respondent Employer's contention of con- tractual waiver rests on its literal reading of the no-strike clause, which provides that "there shall be . . . no work stoppage by the Union." The Employer argues that this is a broad prohibition which includes all forms of work stop- pages, including sympathy strikes. However, the Board and the courts will not "readily infer no-strike obligations as being any broader than the arbitration clauses for which they were bartered." International Union of Operating Engi- 726 UNION BOILER COMPANY neers, Local Union No. 18, AFL- CIO (Davis-McKee, Inc.), 238 NLRB 652, 654 (1978), discussing Buffalo Forge Co. v. United Steelworkers of America, AFL-CIO, 428 U.S. 397 (1976). The dispute of the employees with whom the dis- chargees were in sympathy involved bargaining of the Steelworkers and Appalachian and alleged unfair labor practices of that employer. As in the two cases just cited, this underlying dispute over which the dischargees struck is not susceptible to resolution by resort to the grievance and arbitration procedure of the contract between Respondent Employer and Respondent Unions. Therefore, the sympa- thy strike herein was not in conflict with the national labor policy which favors contractual arbitration for resolution of disputes between employees and their employers over their wages, hours, or other terms and conditions of employment susceptible to embodiment in labor contracts. Additionally, it is to be noted that the contractual prohibition against work stoppages relied upon by Respondent Employer refers only to those "by the Union." Such a limited no-strike clause does not waive the right of employees, independent of their union, to engage in sympathy strikes. Kellogg Com- pany, 189 NLRB 948 (1971). To say the least, the sympathy strike herein was conducted in opposition to the wishes of the Respondent Unions and in no sense was a strike autho- rized, condoned, or otherwise ratified "by the Union." Respondent Employer further urges that despite the ab- sence of an express prohibition against sympathy strikes, admissions by the International made prior to the events of this case demonstrate that a prohibition against sympathy strikes was intended. In support of this argument, it relies on the conclusional and uncorroborated (and incredible) testimony of Magaw that at various unspecified times sub- sequent to the 1972 execution of the contract, unspecified agents of Respondent International expressed to him a be- lief that sympathy strikes were prohibited by the no-strike clause quoted above. In addition to ignoring basic contract law, this contention fails on at least two accounts. First, on February 9 employer representatives pressed for acknowl- edgment that such a prohibition existed by virtue of the no- strike clause. Representatives of the Local and the Interna- tional, including Walser, refused to concur with the Em- ployer's interpretation." Had Walser then been acting in conflict with the understanding of his superiors in the Inter- national, presumably Magaw and Casey would have pointed that fact out to him as well as to the International itself. Instead, Respondent Employer permitted Hale to ap- peal to the employees on working time to forego their right to engage in a sympathy strike. Second, it is undisputed that the Employer never before attempted to discipline em- ployees for engaging in sympathy strikes. (Specific note is made of the January and February sympathy strikes over which no discipline was taken.) Had Respondent Employer thought it had a right to be insulated from such strikes, surely it would have mentioned it to the Unions or the employees. Accordingly, I find that the sympathy strike was not waived by the terms of the no-strike clause of the contract i If this theory contained the slightest basis in fact or law, the Interna- tional, which fully participated in this proceeding, would seemingly have joined Respondent Employer in advancing it. It did not. between Respondent Employer and Respondent Interna- tional. An alternative argument to the waiver by contract is the contention advanced by the Employer and the Local that the Local waived the dischargees' right to engage in a strike in concert with the Steelworkers. The insurmountable diffi- culty with treating the February 11 resolution as a waiver of the employees' statutory right to engage in a sympathy strike is that none of the parties did so. On February 21, the second day of the strike, Casey dis- claimed justification for discharge of the striking employees. When McCormick demanded the discharges, he refused un- til that business manager agreed that "at the request of the Business Manager" could be placed on the first set of termi- nation notices. The Employer invoked the device of "excess absenteeism" to justify the discharges, but only after wait- ing until the third day of the strike, a positive indication that it recognized that no valid waiver had been made. See Kellogg Companyv, supra. The Local also invoked another reason for demanding the discharges. McCormick did not claim that the employees were in violation of a valid resolu- tion of the membership or were refusing to obey a valid order to cross a picket line (see the referral rules quoted above). According to his own testimony, he demanded the discharges only for the purported protection of the replace- ments who had left their jobs elsewhere. Thereafter, he im- posed the penalty mandated for discharges for just cause, not the penalty specified for refusing to obey valid orders to cross picket lines. The record does not disclose the basis for the Employer's lack of confidence in the February 11 resolutions as a waiver, but the Local had more than enough reasons to doubt its effectiveness: (I) On February 10 the Amos Boil- ermakers were told by Hale that they would not have intra- union charges brought against them if they again refused to cross the Steelworkers picket line. This was the last those employees heard from any officer of the Local before the picketing resumed on February 20. Believing they would not suffer intraunion charges, there was no logical basis for suspecting they would suffer the greater penalties of dis- charge and benching. (2) The employees were not told be- forehand that the February I I meeting would directly af- fect their tenure of employment in an unprecedented fashion. even though it is undisputed that less than one- twentieth of the membership usually attend the monthly meetings, and there was no attempt to publish timely the result of this one.' It is also for this reason that I reject the Local's argument that all of the dischargees were charged with constructive knowledge of the February I resolution and vote. (3) Even though during the following week some of the Amos Boilermakers heard that the resolution had been passed, none was told that he would be discharged and benched for failure to comply with it. The ensuing 8 days passed without any official of the Local bothering to inform them of the resolution or its potential (unlawful) effect on them. Replacement is a risk which any economic " Hale did not mention the meeting on Febhruary 10. and May did not inform steward Ray Bush to "pass the word," as he was allegedly nstructed to do by McCormick. As late as the evening of February 20. when Ma) was calling the Amos Boilermakers and telling them to report, he did not men- lion the February II resolution. 727 DECISIONS OF NATIONAL LABOR RELATIONS BOARD striker assumes; discharge is not. Therefore, to those who actually heard of it, the lawful import of the resolution was that they may be permanently replaced, but not discharged. For this reason I reject any contention of the Local that actual, as well as constructive, knowledge of the resolution vitiates the statutory right of the dischargees who heard of it. For these reasons the Local, as well as Respondent Em- ployer, did not treat the February I I resolution as a waiver; nor shall I. Accordingly, I find and conclude that there was no waiver of the dischargees' statutory right to engage in a strike in sympathy with the Steelworkers, either by contract or conduct. Absent the existence of any effective waiver of the em- ployees' right to engage in a sympathy strike, discharges for engaging in such activity violate Section 8(a)(1) and (3) of the Act. See Gary-Hobart Water Corporation, supra; New- berry Energy Corporation, Industrial Division, 227 NLRB 436 (1976); and Kellogg Company, supra, where the em- ployer also advanced the rubric "excessive absenteeism" in an attempt to equate lawful strike activity with misconduct. Finally, Respondent Employer contends that the em- ployees were discharged only because they were replaced, citing the penalty provisions of its contract with Appala- chian and Redwing Carriers, Inc. and Roclana Carriers, Inc., 137 NLRB 1545 (1962). It is sufficient to observe that nei- ther Redwing nor its predecessors nor its progeny counte- nance mass discharge of strikers to obviate the peril of liq- uidated damages. Torrington Construction Company, Inc., 235 NLRB 1540 (1978). Nor does Redwing apply to cases in which only temporary replacements are hired.' Nor does Redwing license discharges of employees engaged in a total work stoppage, as was the case herein, as opposed to partial work stoppages, as was the case in Redwing. See Newberry Energy Corporation, supra. Accordingly, I find that Respondent Employer violated Section 8(a)(1) and (3) of the Act by discharging the 37 employees named in the complaint on February 22, 1978.' Specifically, I find that the discharges violated Section 8(a)(3), as well as Section 8(a)(1), since the action was in- tended to discourage activity on behalf of the Steelworkers Union. While none of the employees involved herein were potential Steelworkers members, discrimination against em- ployees who exercise their right to strike in sympathy with that labor organization would necessarily discourage em- ployees who were. Additionally, the discharge were precipi- tated in an effort to encourage membership in Respondent Local, as discussed below, further mandating a conclusion that Section 8 (aX3) was independently violated by Respon- dent Employer's conduct. I further find that Respondent Local, but not Respondent International, caused this discrimination. There was no suggestion that the 37 strikers be dis- ,7 As noted above, the Employer's witnesses insisted that each dischargee could have saved his job if he had reported on February 22, the day after all replacements were hired (as did employee Jarrel), and the replacements would have been allowed to remain only to the end of the workweek, Febru- ary 24. I" Because of his illness, Kitchen cannot be said to have been on strike. However, he was discriminated against as if he had been and is therefore entitled to the benefits of the remedy found appropriate herein. charged until McCormick made it. While Walser attempted to rescind the action of McCormick, he was not successful. An ineffective repudiation does not exculpate Respondent Local. The die was cast; the only thing changed by Walser's telephone calls with Casey was the recitation on the termi- nation notice forms. Additionally, it is noteworthy that af- ter the discharges, McCormick continued to take credit for the action. At minimum, McCormick had a duty to attempt to secure reinstatement of the discharged employees. In- stead of formulating plans to secure reinstatement upon being notified of their discharge, McCormick announced a penalty of benching for 15 days to insure that the employ- ees suffered economically. McCormick had no legitimate reason for causing the dis- charges. The Amos Boilermakers were economic strikers and could lawfully have displaced any temporary replace- ments; their discharge could not lawfully convert the re- placements from the status of temporary to permanent. But regardless of the reason he assigned when testifying, the real reason for causing the discharges was the dischargees' refusal to accede to the Local's February 10 request con- veyed by Hale that they cross the Steelworkers picket line. As Casey credibly testified, McCormick made the request to discharge the employees "because they had violated a decision by the Local Union vote and they felt there should be some discipline, and that's the reason they made the request-one of the reasons they made the request for us to terminate them." Even without this direct evidence, no other conclusion can explain McCormick's "setup" of these employees by failing to notify them of the importance of the February II meeting and thereafter failing to inform them of the resolution made at it.19 In short, McCormick caused the discharge of the employees because they had failed to comply with his concept of membership obliga- tions. The exercise of such power necessarily encourages fealty to and membership in the Local and therefore vio- lates Section 8(b)(l)(A) and (2) of the Act (International Union of Operating Engineers, Local 18, AFL-CIO (William F. Murphy), 204 NLRB 681 (1973)), and I so find and con- clude. General Counsel's case against Respondent International consists essentially in an assertion that Walser's unsuccess- ful repudiation constitutes a joint causation. While Walser did nothing to help the dischargees, his telling Casey to "do what he thought he had to" does not rise to a tacit imprima- tur of McCormick's action, as General Counsel seems to contend. Accordingly, I shall recommend that the com- plaint as to the International be dismissed. THE REMEDY Having found that Respondent Employer has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act by discharging the following named em- ployees, and having found that Respondent Local did at- tempt to cause, and did cause, such discrimination, I find that Respondent Employer and Respondent Local are 19 McCormick offered no reason, legitimate or otherwise, for failing to advise the Amos Boilermakers of the consequences of the February II reso- lution. 728 UNION BOILER COMPANY jointly and severally liable to make the named employees whole for any loss of earnings they suffered by reason of the discrimination against them, with interest, in the manner prescribed in F. W. Woolworth Compan y. 90 NLRB 289 (1950), and Florida Steel Corporation. 231 NLRB 651 (1977)2 ° Since the benching procedure is the product of a jointly negotiated referral procedure, I specifically find that the Employer is jointly and severally liable for losses of pay the listed employees incurred as a result of imposition of the 15-day penalty. The backpay period commences as of Feb- ruary 24, 1978, the day upon which the underlying dispute was concluded. Gary-Hobart Water Corporation, supra; Kel- logg Company, supra. These employees are: Tommy E. Asbury Gladys Barnhill Paul L. Bayes Donald L. Bickley Fred N. Blackburn William E. Boggess Billy G. Bosher Garlen R. Burton Ray A. Bush Franklin Chapman Virgil C. Childress Thomas Earl Devaney Steve L. Dew William L. Fulknier Morton Halterman Kyle W. Justice Van Kitchen Gary W. McClure Charles C. McDavid Ernest W. McDavid Jack McDavid Estill Lee Messer James W. Midkiff Larry E. Mitchell Shirl Nibert Henry Thomas Rainey Wilbur L. Rhodes Kenneth Wayne Rice Danny D. Riffee Kenneth L. Runyan Philip G. Sampson John H. Sauer Gary K. Smith Shelburn E. Smith Larry L. Thomas Kermit C. Wolf Howard Young CONCLUSIONS OF LAW 1. Union Boiler Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. "See, generally, Isis Plumbing & Heatin Co., 138 NLRB 716 1962). 2. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths. Forgers & Helpers, AFL CIO. and International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers & Helpers, Local No. 667, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By discharging the employees listed above in the sec- tion entitled "The Remedy" for engaging in protected con- certed activity,. Respondent Union Boiler ('ompanm has in- terfered with, restrained. and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act and has discriminated in regard to hire, tenure, and other conditions of employment in order to discourage member- ship in the United Steelworkers of America and encourage membership in Respondent International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, Local No. 667. AFL-CIO. in violation of Section 8(a)( I) and (3) of the Act. 4. By causing Respondent Union Boiler Company to dis- criminate against the employees listed above in the section entitled "The Remedy" in violation of Section 8(a)(3) of the Act, as found above, Respondent International Brother- hood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, Local No. 667, AFLCIO,. has engaged in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 5. By restraining and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, Respondent International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, Local No. 667, AFL CIO, has engaged in unfair labor practices within the meaning of Section 8(b)( )(A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. The record establishes no unfair labor practices by Respondent International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths. Forgers & Helpers. AFL- CIO. [Recommended Order omitted from publication.] 729