United Assn. of Plumbers, Local 633

National Labor Relations Board - Board Decisions

Sep 11, 1969

178 N.L.R.B. 398 (N.L.R.B. 1969)

398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada , Local 633, AFL-CIO
and Albert B. Harned , and Joseph E. Tabor, and
Plumbing Contractors of Owensboro , Kentucky,
affiliated with the Owensboro Division of the
Associated Building Contractors of Evansville,
Indiana and Ragnar Benson , Inc., Parties of
Interest . Cases 25-CB-831-1 and 25-CB-831-2
September 11, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On April 7, 1969, Trial Examiner John F. Funke
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the
General Counsel filed limited exceptions to the Trial
Examiner's Decision and a supporting brief as well
as a brief in reply to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in these cases, and hereby adopts
the Trial Examiner's findings, conclusions, and
recommendations except insofar as they are
inconsistent herewith.
The issue is whether Respondent, by its admitted
refusal to refer Joseph Tabor and Albert Harned to
available jobs, has violated Section 8(b)(2) and
(1)(a) of the Act. Respondent contends that they
were not referred because they lacked the necessary
qualifications; the General Counsel maintains that
Respondent's refusal was premised on the fact that
they were not union members.
Pursuant to a collective-bargaining agreement.
Respondent Local 633 maintains a hiring hall
arrangement for plumbing and pipefitting employees
with various employers. The Plumbing Contractors
of Owensboro, Ky., an association representing
various building contractors for collective-bargaining
purposes. is a signatory to the agreement. Ragnar
Benson, Inc., a general contractor in the
construction industry, is not a signatory but has
agreed to be bound by the hiring hall provisions.
Pursuant to the agreement, the Union provides
"competent and qualified applicants" for positions
which the employers want filled. If, however, the
Union fails to do so within 48 hours of the request,
the Employer may fill the job itself. The contract
also provides that the Union shall refer applicants
on a nondiscriminatory basis and that the Employer
shall make the final decision on whether to hire.
Various employers testified that they hired all
plumbers and pipefitters through this hiring hall,
with the exception of one man who was hired after
the Union had failed to provide an applicant within
the requisite 48 hours.
The United Association's Constitution provides
that an applicant may loin the Union either as a
"journeyman" or an "apprentice." That document
requires that an applicant for membership as a
journeyman have a minimum of 5 years' working
experience in the industry and that he pass an
examination of skill conducted by the Local. An
applicant may also join as an apprentice and, after
working in the apprenticeship program for 5 years,
he becomes a journeyman. No skill or experience is
required to become an apprentice; the applicant
need only he of "sound moral character." willing to
undergo unspecified "classroom training," and
willing to work in the trade at least 5 years before
becoming a journeyman. Local 633, however, does
not allow applicants over 25 years of age to enter
into its apprenticeship program.
Joseph Tabor and Albert Harned have never been
members of the United Association or any of its
locals. In a previous case involving Tabor, Harped
and Local 633, the Board found that the contract
described above constituted an exclusive hiring hall
and that specific practices of Respondent thereunder
were discriminatory.' In that case, when no union
members were available. Tabor and Harned were
sent out to jobs in September and October 1967,
respectively. The Trial Examiner found that, in
October 1967, business manager Ottis Heath had
them laid off so that union members who had since
become unemployed could take their places on the
job. The Board adopted the Trial Examiner's finding
that "the Respondent maintained a practice of
giving union members preference over nonunion
employees" and found a violation of Section 8(b)(2)
of the Act. While that finding is not, of course,
diapositive of the case at bar. it does establish the
existence of a pattern of discrimination in the recent
past.
Tabor and Harned submitted applications for
membership in Local 633 in the spring of 1967 but,
after favorable votes at two meetings, they were
rejected at a third because they lived outside of the
geographical jurisdiction of the Local. In January
1968, they spoke to newly installed Business Agent
Charles Staves about reapplying, but he advised
'United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada , Local 633,
AFL-CIO, 173 NLRB No 205
178 NLRB No 61
UNITED ASSN. OF PLUMBERS, LOCAL 633 399
them that it would be futile because they would only
be rejected again. Staves testified that he offered to
help them to place applications with Local 522, in
whose jurisdiction they lived, but they refused. He
claimed that their 1967 applications had been lost
by that time; there is a conflict of testimony as to
whether he offered them other application forms for
membership in Local 633.
In April 1968 Tabor and Harned went to the
Union hall and asked Staves to refer them to jobs.
He did not do so. They repeated this request on
numerous visits which they made through October
1968, but they were never referred.
Staves testified that they were not referred
because the hiring hall agreement, which provides
that the Union send out "competent and qualified
applicants," requires that it send out only men with
journeyman status. He testified that so long as he
could obtain journeymen to fill the jobs, he would
not refer others. Staves admitted at the hearing that
there was a shortage of pipefitters in his jurisdiction
in 1968, but he said that he met this shortage by
sending out more than 100 "travel card men," i.e.,
journeyman members of other United Association
Locals who acquire journeyman status in Local 633
by coming into its jurisdiction to fill a job.
Staves based his knowledge of the Charging
Parties' qualifications upon their TVA job
applications, which had been rejected, and some
degree of his personal familiarity with them. He
testified that the applications which they had filed
for membership in 1967 were lost by the time he
had taken office, but he knew that they had not
been allowed to take the Union's test in 1967
because their membership applications had been
rejected, and in 1968 because they did not have
membership applications on file. He admitted that
he knew that they had performed satisfactorily on
jobs to which the Local had referred them in the
past, but he made no further investigation of their
competence. At the same time, he admitted that he
did not know most of the travel card men
personally, but knew only that they had taken and
passed the tests administered by other Locals.
The record belies Respondent's contention that
Tabor and Harned were denied referral because the
hiring hall provisions of the contract required that
only journeymen be referred. We are satisfied that
neither the Employers nor Staves construed the
Union's obligation to send out "competent and
qualified applicants" as requiring that it refer only
journeymen. Ragnar Benson's job superintendent
testified that he did not know whether or not men
sent out by the hiring hall were journeymen;
representatives of Hagerman Heating Co. and
Owensboro Plumbing and Heating Co. testified that
during the period in question the Union sent out,
and they hired, one and two apprentices,
respectively. That Staves did not construe the
contract as requiring that only journeymen be
referred is also clear: during this period he sent out
at least four apprentices who had applied for
referral later than had Tabor and Harped. Despite
the fact that there is no evidence that these four
were more qualified than Tabor and Harned, their
names, and not those of the Charging Parties,
appeared on Staves' list.
In our opinion, the record in this case establishes
that Respondent has continued to operate its hiring
hall in a discriminatory manner in violation of
Section 8(b)(2) and (1)(a) of the Act. Local 633
refers only journeymen because, according to
Staves, only they are competent to perform the
available jobs. In order for Tabor and Harned to be
considered competent, and so to be referred, they
would have to take the journeyman's test
administered by the Local. However, Staves testified
that they were not permitted to take the test because
their membership applications had been rejected. In
short, by virtue of their nonmembership in the
Union. they were unable to demonstrate the
competence which the Union felt was necessary in
order for it to refer them. By this means, they were
excluded from employment, while union members
who applied later, and were even asked to enter the
jurisdiction from other areas to fill the shortage of
plumbers and pipefitters in Local 633's jurisdiction,
were quickly placed.
Respondent violated the Act by establishing this
system of proving competence and then refusing to
allow Tabor and Harned to demonstrate their skills
by taking a test. As applied by Respondent, the
requirement that a job applicant pass the
journeyman's test entails. in essence, a requirement
that he belong to the Union This criterion would
bar the most qualified plumber from referral not
because he was unskilled, but because he had not
been permitted to- take the test that serves as the
sole means of proving competence. Clearly, the
criterion for referral is not ability to do the work, it
is union membership. Denial of referral based on
that criterion is a violation of Section 8(b)(2). Since
the prior case. supra, the method of discrimination
had become more subtle, but the result is the same.
ORDER
Pursuant to Section 10(c) of' the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, the United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada. Local 633, AFL-CIO, its
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's
Recommended Order, except as hereinafter
modified:
1. Delete Section 2(c) of the Recommended
Order.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Insert, as Section 2(c) and (d) of the Order, the
following:
(c) Preserve and, upon request, make available to
the Board or its agents. for examination and
copying. all records pertaining to employment
through its hiring hall and all other records relevant
and necessary to the computation of the monetary
loss, if any, sustained by Tabor and Harried by
reason of Respondent's discrimination against them.
(d) Maintain a book or semipermanent type of
record to reflect accurately the operation of the
referral system from the hiring hall, and for a
period of 1 year. disclose to the Regional Director
for Region 25 or his agents the manner of operation
of the hiring hall.
3. Renumber Section 2(d) and (e) of the
Recommended Order as Section 2(e) and (f),
respectively.
4. In paragraph 4 of the recommended notice,
substitute the phrase "non-union members" for the
phrase "union members."
5. Add as the last indented paragraph of the
notice:
WE WILL maintain a book or semipermanent
type of record to reflect accurately the operation
of the referral system from the hiring hall. and for
a period of 1 year. disclose to the Regional
Director for Region 25 or his agents the manner
of operation of the hiring hall.
TRIAL EXAMINER'S DECISION
S'[ATEMENT or THE CASF
JOHN F. FLNKE, Trial Examiner: Upon charges filed in
Cases 25-CB-831-1 and 25-CB-831-2 on September 23,
1968, by Albert B. Harped and Joseph E. Tabor, against
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States
and Canada, Local 633, AFL-CIO, herein Local 633, the
General Counsel in November 29. 1968, issued an order
consolidating the cases and a complaint alleging
Respondent violated Section 8(b)(2) and (()(a) of the Act
The answer of Respondent denied the commission of
any unfair labor practices.
This proceeding, with all parties represented, was heard
by me at Owensboro. Kentucky. on February 4 and 5,
1969 At the conclusion of the hearing the parties were
given leave to file briefs and briefs were received on
March 10.
Upon the entire record in this case and from my
observation of the witnesses while testifying. I make the
following-
including the Respondent , and to enter into collective
bargaining agreements with said labor organizations where
agreement is reached between the parties. and to service
said agreements entered into with these labor
organizations.
Ford McCormick Plumbing & Heating Co., Inc.,;
Hagerman Plumbing & Heating Co_ Owensboro
Plumbing & Heating Co„ and Charles Millican Plumbing
& Heating Co ., herein called Ford. Hagerman,
Owensboro, and Millican, respectively. are now, and have
been at all times material herein . plumbing and heating
contractors and members of the Association and have
authorized the Association to bargain on their behalf with
labor organizations . including Respondent , and are
signatories to the current collective bargaining agreement
between Respondent and the Association.
Owensboro is a Kentucky corporation with principal
office and place of business in Owensboro, Kentucky.
where it is engaged as a plumbing and heating contractor.
In the course and conduct of its business operations
during the past twelve months, a representative period,
Owensboro purchased and caused to be delivered to
Owensboro, Kentucky, materials, goods, and supplies
valued in excess of $50.000. which were shipped and
transported directly to Owensboro's place of business
from locations outside the State of Kentucky
Other plumbing and heating contractors, not affiliated
with the Association, herein called non-Affiliated
contractors, sign the contract negotiated by the
Association with Respondent, and are signatories to the
current collective bargaining agreement by and between
Respondent and the Association.
Ragnar Benson, Inc., herein called Ragnar. is a
Pennsylvania corporation with principal office and place
of business at Pittsburgh, Pennsylvania, and is engaged in
the construction industry as a general contractor. During
the past 12 months, a representative period. Ragnar, in
the course and conduct of its business operations.
performed services outside the State of Pennsylvania
valued in excess of $50,000.00, and during the same period
purchased and shipped to its construction sites in States of
the United States goods and materials valued in excess of
$50,000 directly from points located outside the State
wherein said construction sites are located.
The Association. Ford. Hagerman. Owensboro,
Millican, Ragnar and non-Affiliated Contractors are now,
and have been at all times material herein, each
individually and all collectively, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
ii. 7HE LABOR ORGANIZATION INVOLVED
Local 633 is a labor organization within the meaning of
the Act
iii THE UNFAIR LABOR PRACTICES
FINDINGS AND CONCLUSIONS
1. THE COMPANIES INVOLVED
Plumbing Contractors of Owensboro, Kentucky,
affiliated with the Owensboro Division of the Associated
Building Contractors of Evansville, Inc., herein called
Association, is now, and has been at all times material
herein, an organization with the function and purpose,
among others, of representing its member employers in
collective bargaining with various labor organizations
A. The Facts
On or about January 1, 1966, Local 633 and the
Association, Ford, Hagerman, Owensboro, Millican and
nonaffiliated contractors executed and have since
maintained in effect a collective-bargaining agreement (G.
C. Exh 3). This agreement, article IV, provides, inter
alia-
The employer or the individual contracting firm agrees
to notify the Union when additional or replacement
UNITED ASSN. OF PLUMBERS, LOCAL 633 401
employees are needed The Union agrees to furnish
applicants upon nondiscriminatory bases to perform the
necessary work when so notified within 48 hours after
receiving the request from the employer The decision
with regard to hire and tenure of all employees shall he
made by the Lmployer. In consideration of the
foregoing Agreement by the Employer, the Unions
agree to furnish competent and qualified applicants for
reference when requested, as provided in the above
paragraph, upon a nondiscriminatory basis. The parties
heretofore agree to post a notice in a form agreeable to
them covering this Article at the places of employment
and union halls wherein the above employment practices
are to be exercised, as required by Federal Law.
Ragner Benson. Inc., although not a signatory to the
agreement. agreed to he bound by the hiring provisions of
the contract. These provisions were found by the Board to
constitute an exclusive hiring hall in United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industri' of the United States and Canada, Local
633, AFL-CIO, 173 NLRB No 205 ' In that decision the
Board also found Respondent's practices under the hiring
provisions discriminatory. While I find the conclusion as
to the hiring arrangement binding upon me, 1 do not find
the Board's conclusions as to discriminatory practices
binding as to its practices in the instant case
Discriminatory practices may cease at any time and, in
any event, they occurred more than 6 months prior to the
filing of the charges herein= In its order the Board
directed Respondent to
I Cease and desist from:
(b) Maintaining, enforcing or otherwise giving effect
to an exclusive hiring arrangement or practice with
Chicago, Koenig, Ford or any other employer over
whom the Board will assert jurisdiction pursuant to
which union members received preference in referrals or
tenure of employment over nonmembers
It also directed the Respondent to make whole the
charging parties. including the two charging parties herein,
for any loss of earnings by reason of the discrimination
practiced against them.
Respondent's qualifications as to membership according
to its Constitution and By-Laws read:
MEMBERSHIP
Application for Membership in Building and
Construction Trades and Combination Local Unions
SEC. 158 Every applicant for membership as a
journeyman in a Building and Construction Trades
Local Union or a Combination Local Union (Building
and Construction Frades Branch) must be a skilled
craftsman and his application must contain information
as to his experience and/or training. These
qualifications must include:
1. That he has had a minimum of at least five (5)
years actual, practical working experience in the
plumbing and pipe fitting industry
2 That he is of good moral character
The Board's Decision and Order are presently on appeal to the U S
Court of Appeals, Sixth Circuit, so the Order has yet to be enforced
Regardless of the decision of the court the Trial Examiner is bound by the
Boards findings unless thy, Board expressly defers to the Court
'The findings may, however, be used as background evidence Winter
Garden Citrus Products Corporation, 116 NLRB 738, 740 Ct E V
Prentice Machine Work%, Inc, 120 NLRB 1691, 1692, In 2
3. That he passes a satisfactory examination as to his
skill and ability as a Building and Construction Trades
journeyman, conducted by the Examining Committee of
the Building and Construction Trades Local Union or
the Building and Construction Trades Branch of a
Combination Local Union.
As to permits the Constitution provided:
Permits
SEC 189. No permits shall be given or issued to
anyone (by any Local Union or representative thereof)
who is not a member of the United Association or who
has not been accepted by the Local Union and is paying
an application fee for admittance to the United
Association Upon failure to comply with this section
Local Unions will be subject to discipline according to
the Constitution by the General Executive Board
Both Harped and Tabor had applied for membership in
Local 633 but, according to Staves, had been rejected for
membership by vote of the members because they resided
in Breckenridge County, a county not within the job
jurisdiction of Local 633. Staves testified that he offered
to assist them in applying for membership in Local 522,
the Louisville local which had jurisdiction in Breckinridge
Count),, but the offer was rejected. It is apparent that
neither Tabor nor Harped, since neither was accepted by
the Local Union nor paying an application fee for
admittance to the United Association, qualified for a
permit under the Constitution
On January, 1968, Tabor and Harried, together with an
individual named Joseph Keller, filed charges against
Local 633 resulting in the Board's decision, supra The
General Counsel alleges that as the result of the filing of
these charges Tabor and Harried have been denied referral
by Local 633 in violation of Section 8(b)(I)(a) and (2) of
the Act.
A few days after the hearing in the prior Local 633
case, (the hearing took place on April 10 and 11, 1968)
Tabor testified that he went to the union hall and saw
Staves and asked him if he had any work and Staves told
him he had no work "this morning or won't have any
morning after you all took the action you have against the
Union." The next day or so he and Harned went to the
hall together and saw Staves. asked him for work and
were told "I would he a fool to work you after what you
all done." The next week Tabor and Harned returned and
again saw Staves According to Tabor, Staves had two
papers with a list of names on them, one yellow and one
white. As I understand Tabor's testimony the yellow
paper contained the names of union members and the
white paper the names of six permit men who had been
laid off at Ragner Benson. In any event Tabor asked him
if he and Harped could go on the waiting list and were
told they could not. Until October Tabor and Harped
went hack to the hall about once a week but were never
referred to any job. He did testify that on one occasion
Staves told him that he would not refer any permit men to
work because they got him into trouble.
Tabor's testimony is substantially corroborated by
Harped as to efforts made to secure referral
Staves testified that since he had assumed the office of
business agent he had not referred any permit rnen for
work as steamfitters or pipelitters. He had referred
certified welders who were not members of Local 633 to
jobs but neither Tabor nor Flamed were certified welders.
Staves denied that he ever told Taboi or Harried that he
would not refer them for employment because they had
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed charges against Local 633. Staves' justification for
refusal to refer permit men is that they were not qualified
as journeymen and that so long as journeymen were
available no permit men could be referred.
B Conclusions
I think the threshold question presented is whether
Local 633, through its agent Staves, refused to refer
Tabor and Harped because they were not members of
Local 633 or because they were not qualified journeymen
This issue must, 1 believe, be resolved against the Local.
In the prior Local 633 case, the Board adopted the
Trial Examiner's findings that Local 633 had caused
employers to discriminate against permit men by
terminating their employment because they were not
members of Local 633. The Trial Examiner stated.
Respondent's contention that the October 20 layoffs
were motivated by economic reasons on the part of
Koenig in that four employees were replaced by three,
two of whom possessed specialized skills is also
untenable since it is clear from Milam's testimony that
their layoff would not have occurred but for
Respondent's insistence that they be laid off, and it is
also clear that the capabilities of the laid off employees
had nothing to do with their layoff. Therefore,
Respondent's reliance on Section 8(f) of the Act is
misplaced since the facts of this case clearly show that
work competency was not reason for any of the layoffs
but rather lack of membership in Respondent was the
reason The record clearly shows that the controlling
factor of the layoffs and the revocation of referral at all
three employment sites was the lack of membership in
the Respondent of the men involved
Viewed against this back=ground of discrimination as
found by the Board, I cannot escape the conclusion that
the conduct of' Local 633 in the instant case represented a
continuing pattern of precisely the same kind of
discrimination. Here, the discrimination was incipient.
Local 633 simply refused referral to Tabor and Harned
Since the Board has found that their competency as
workmen was not a factor in the prior revocation of their
referral rights I am not going to find them less qualified
after their ensuing experience with Ragner Benson. Nor
do I find any other intervening factors to distinguish the
facts of the prior case from this If Local 633 operated, as
has been found, an exclusive hiring hall it was bound to
refer without discrimination between members and
nonmembers and it could not, by fiat, establish
journeymen status resulting from membership as a test of
superior competency '
In short the case so closely parellels the facts in the
prior case that I would, it appears to me, be overruling
the Board's decision were I to decide to the contrary. That
is not within my province.
I find that Local 633 by continued refusal to refer
Tabor and Harned for employment as steamfitters or
pipefitters by reason of their nonmembership in Local 633
'In reaching this conclusion I have given consideration to the fact that
journeymen were required to pass Local 633's own test to establish their
competency and eligibility for membership Neither Tabor nor Harned
took this test because their applications for membership had never been
accepted I haws also given consideration to the fact that both Tabor and
Harried s applications for employment with T V A were rejected the
letter of rejection (Resp Exh 5) does not show any specific ground for
rejection nor the nature of the qualifications required Accordingly I do not
give it nor Staves' estimate of their qualifications based upon their
applications with T V A (Resp Exhs 3 and 4) controlling weight
violated Section 8(b) (2) and (1)(a) of the Act.'
THE RFFMEDY
Having found Local 633 has engaged in and is engaging
in certain unfair labor practices it shall be recommended
that it cease and desist from the same and take certain
affirmative action designed to effectuate the policies of the
Act.
It having been found that Local 633 has unlawfully
refused to refer Joseph E. Tabor and Albert B. Harned
for employment because they were not members of Local
633, it shall be recommended that Local 633 refer said
Tabor and Harned for employment as steamtitters or
pipefitters for employment in the jurisdiction of Local 633
on a nondiscriminatory basis together with members of
Local 633
It is also recommended that Local 633 make Tabor and
Harried whole for any loss of earnings or other monetary
loss they may have suffered by reason of the
discrimination practiced against them Said loss of
earnings shall be computed in the manner set forth in
F. W Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
On the basis of the foregoing findings of fact and
conclusions and upon the entire record in this case, 1
make the following
Cotsci USIONS OF LAW
1. By refusing to refer Joseph E Tabor and Albert B.
Harned for employment to employers with whom it had a
hiring arrangement or practice, thereby causing or
attempting to cause said employers to encourage
membership in Local 633, Local 633 has violated Section
8(b)(2) and (I) of the Act
2. By maintaining an exclusive hiring hall and operating
said hall on a discriminatory basis, Local 633 has caused
and attempted to cause employers to discriminate against
nonmembers of Local 633 in regard to their hire and
tenure of employment in violation of Section 8(b)(2) and
(1) of the Act.
3. By refusing to place Joseph E. Tabor and Albert B
Harned on its waiting or out-of-work list Local 633
violated Section 8(b)(2) and (1) of the Act
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
It is hereby recommended that United Association of-
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of United States and Canada, Local 633,
AFL-CIO, its officers, agents, successors, and assigns,
shall,
1. Cease and desist from.
'Having reached this conclusion I find it unnecessary to decide whether
the charging parties were also discriminated against because they filed
charges against Local 633. This would require a resolution of credibility
between Staves, on the one hand, and Tabor and Harned on the other, and
pose a most difficult question, a question which could only be resolved by
guesswork Cf Blue Flash Express. inc. 109 NLRB 591, where the Trial
Examiner confronted with a similar dilemma decided the General Counsel
has not sustained his burden of proof on the issue
'International Union of Brewery, Flour, Cereal, Soft Drink and
Distillery Workers of America. AFL-CIO, et al. 166 NLRB No. 97.
UNITED ASSN. OF PLUMBERS , LOCAL 633 403
(a) Refusing to refer Joseph E Tabor and Albert E
Harried for employment to employers in the construction
industry within its territorial jurisdiction, refusing to place
the names of Joseph E. Tabor and Albert Harned on its
out-of-work list on a nondiscriminatory basis.
(b) Maintaining, enforcing or otherwise giving effect to
an exclusive hiring arrangement or practice with any
employer over whom the Board would assert jurisdiction
pursuant to which union members received preference in
hiring or referral over nonmembers.
(c) In any other manner restraining or coercing
employees or applicants for employment with any
employer over whom the Board would assert jurisdiction
in the exercise of the rights guaranteed by Section 7,
except to the extent that such rights might be affected by
an agreement requiring membership in a labor
organization as authorized by Section 8(f) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make Tabor and Harried whole for any loss of
earning or other monetary loss they may have suffered by
reason of the discrimination practiced against them in the
manner set forth in that part of this Decision entitled
"The Remedy "
(b) Place. upon request. the names of Joseph E. Tabor
and Albert B Harried upon an out-of-work or referral list
without discrimination as to union or nonunion employees
and refer them to employment with employers in the
construction industry over whom the Board would assert
jurisdiction without discrimination.
(c) Preserve and upon request, recognize and bargain
collectively and in good faith with Local 633 as the
exclusive collective-bargaining agent of its employees in
the unit found appropriate herein.
(d) Post in conspicuous places in Local 633's business
offices, meeting halls and places where notices to its
members are customarily posted. copies of the attached
notice marked "Appendix."' Copies of said notice, on
forms to be provided by the Regional Director for Region
25, after being duly signed by an authorized representative
of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered,
defaced, or covered by other material.
(e) Notify the Regional Director for Region 25, in
writing. within 20 days from receipt of this Decision, what
steps it has taken to comply herewith '
`In the event that this Recommended Order is adopted by the Board, the
words "a Decision 'and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the, notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 25, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE -to ALL MEMBERS OF UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENIiCl'S,OFTHE PLUMBINGAND PIPL
FITTING INDUSTRY OF rHE UNITED STATE S AND CANADA,
LOCAL 633. AFL-CIO
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended we hereby notify you that,
WE WiLL Nor refuse to refer Joseph E Tabor or
Albert B Harned or any other employee for
employment to any employer in the construction
industry because he is not a member of Local 633.
WF WILL refer Joseph E Tabor and Albert B. Harned
for employment in the construction industry on the
same basis as we refer union members for employment.
WE WILL, upon request, place the names ofJoseph E.
Tabor and Albert B Harncd upon any out-of-work or
referrals list maintained by us and we will refer them
for employment in the usual order of reference
Wr WILL NOT maintain, enforce, or otherwise give
effect to any understanding arrangement or practice
pursuant to which members of' Local 633 receive
preference in referral over union members.
WE WILL make Joseph E. Tabor and Albert B.
Harried whole for any loss of pay they may have
suffered because we have refused to refer them to Jobs.
UNITED AssocI .A'IION OF
JOURNEYMEN AND
APPRENTICES OF THE
PLUMBING AND PIPE
FITTING INDUSTRY OF THE
UNITED STATES AND
CANADA, LocAl 633,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana
46204, Telephone 317-633-8921.